STATE OF OHIO v. CHE LOVE
No. 102058
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 16, 2015
[Cite as State v. Love, 2015-Ohio-1461.]
BEFORE: Celebrezze, A.J., Kilbane, J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-12-569712-A
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Peter B. Galyardt
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
{¶1} Plaintiff-appellant, the state of Ohio, appeals the trial court‘s grant of defendant-appellee, Che Love‘s, motions to vacate his escape conviction аnd judicial-sanction sentence. After a careful review of the relevant case law and the record, we affirm the trial court‘s ruling.
{¶2} On July 24, 2006, Che Love pleaded guilty to one count of voluntary manslaughter under
“POST RELEASE CONTROL IS PART OF THIS PRISON SENTENCE FOR 5 YEARS FOR THE ABOVE FELONY(S) UNDER
R.C. 2967.28 .”
{¶3} Love violated the terms and conditions of his postrelease control on January 31, 2013, and was subsequently charged with one сount of escape. On March 26, 2014, Love pleaded guilty to an amended charge of attempted escape under
{¶4} On June 3, 2014, Love filed motions to vacate his attеmpted escape conviction and judicial-sanction sentence. Love argued that both his conviction and the judicial-sanction sentence were void because they were based on an improperly imposed postrelease control sentence in his underlying case. The state agreed that Love‘s position was in accord with the current status of the law in this district, and opted to preserve its
{¶5} In its sole assignment of error, the state contends that the trial court erred by granting Love‘s motions to vacate his attempted escaрe conviction and associated sanctions. Within this assignment, the state argues that Love‘s conviction and sentence should stand because the language contained in his sentencing entry referencing the postrelease control statute is sufficient to notify Love of the consеquences of violating postrelease control. The state urges us, as it did in State v. Burroughs, 8th Dist. Cuyahoga No. 101123, 2014-Ohio-4688, to abandon our precedent and adopt the law of othеr districts. Specifically, the state directs our attention to the cases of State v. Darks, 10th Dist. Franklin No. 12AP-578, 2013-Ohio-176 (citing the postrelease control statute within the sentencing еntry supplied sufficient notice), State v. Clark, 2d Dist. No. 2012 CA 16, 2013-Ohio-299 (indicating that the phrase “consequences” in conjunction with a reference to the postreleasе control statute provided sufficient notice); and State v. Ball, 5th Dist. No. 13-CA-17, 2013-Ohio-3443 (referencing the applicable postconviction control statutes in a sentencing entry provides an offender with sufficient notice of postrelease control sanctions). However, as we made clear in Burroughs, we decline to adopt the law of our sister districts.
{¶6} The Ohiо Supreme Court requires trial courts to give offenders notice of postrelease control both at the sentencing hearing and by incorрorating it into the corresponding sentencing entry. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085,
{¶7} In this district, where a trial court advises the defendant of postrelease control at the sentencing hearing, but fails to include the consequences of violating postrelease control within the sentencing entry, any attempt to impose postrelease control is void. Burroughs; State v. Lawson, 8th Dist. Cuyahoga No. 100626, 2014-Ohio-3498; State v. Pyne, 8th Dist. Cuyahoga No. 100580, 2014-Ohio-3037; State v. Elliott, 8th Dist. Cuyahoga No. 100404, 2014-Ohio-2062; State v. Mills, 8th Dist. Cuyahoga No. 100417, 2014-Ohio-2188; State v. Middleton, 8th Dist. Cuyahoga No. 99979, 2013-Ohio-5591; State v. Viccaro, 8th Dist. Cuyahoga No. 99816, 2013-Ohio-3437. This court has held that mere reference to the postrelease control statute in the sentencing entry does not provide the offender with adequate notice of the consequences of violating postrelease control. See Burroughs; Elliott; Mills. Furthermore, once the prison term for the underlying offеnse carrying postrelease control has been completed, the court is without recourse to correct the sentencing error. Middleton at ¶ 10.
{¶8} In Elliott, the defendant‘s sentencing entry stated: “postrelease control is part of this prison sentence for 5 years for the above felony(s) under
{¶9} In Burroughs, the offender‘s sentencing entry contained the following provision: “(Agreed and mandatory) Post release control is part of this prison sentence for 5 years for the abоve felony(s) under
{¶10} We find that the instant case falls squarely in line with our рrecedent, and hold that the trial court did not err by granting Love‘s motions to vacate his attempted escape conviction and sanctions. Love‘s sentencing entry, much like the entries in Burroughs and Elliott, merely referenced the postrelease control statute. As we have reaffirmed many timеs, mere reference to the postrelease control statute in the sentencing entry does not adequately notify the offender about the consequences of violating postrelease control. Because postrelease control sanctions were not рroperly included in Love‘s sentencing entry, any attempt to impose postrelease control is void. Moreover, this court is without recоurse to correct the sentencing error because Love already completed his prison term for the underlying charge.
{¶11} Finally, we note that the Burroughs and Elliott courts had an opportunity to verify that the defendants were orally notified about postrelease control sanctions because transcripts from the sentencing hearings were included in the record on appeal. No
{¶12} Judgment affirmed.
It is ordered that appellee recover from аppellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
ANITA LASTER MAYS, J., CONCUR