State v. McGuireState v. McGuire
For Plaintiff-Appellant
R. KYLE WITT, PROSECUTING ATTORNEY, DARCY T. COOK, ASSISTANT PROSECUTOR, 239 West Main Street, Suite 101, Lancaster, Ohio 43130
For Defendant-Appellee
ALLEN VENDER, ASSISTANT PUBLIC DEFENDER, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215
Wise, John, P. J.
{¶1} Appellant State of Ohio appeals the decision of the Court of Common Pleas, Fairfield County, which vacated post-release control sanctions against Appellee Shawn L. McGuire. The relevant procedural facts leading to this appeal are as follows.
{¶2} On December 21, 2000, the Fairfield County Grand Jury indicted Appellee McGuire on one count of murder (
{¶3} On June 19, 2001, pursuant to a plea agreement, appellee pled guilty (as to Count 1) to an amended count of involuntary manslaughter,
{¶4} The trial court thereupon sentenced appellee to nine years in prison on Count 1, three years in prison for the firearm specification, and four years in prison on Count 4. The court ordered the terms to run consecutively. However, the court’s sentencing entry did not impose or mention post-release control (“PRC“).
{¶5} In January 2005, appellee attempted to pursue a delayed appeal to this Court. However, we denied his motion for a delayed appeal via a judgment entry issued on February 11, 2005. See Docket Entry 65.
{¶6} On August 9, 2005, appellee filed a pro se post-conviction petition to “vacate or set aside judgment of sentence,” therein citing Blakely v. Washington, 542 U.S. 296,
{¶7} Appellee (then proceeding as the appellant) thereupon filed a pro se appeal of the aforesaid ruling to this Court. On March 22, 2006, we affirmed the trial court’s decision. See State v. McGuire, 5th Dist. Fairfield No. 05-CA-89, 2006-Ohio-1466.
{¶8} On June 5, 2006, appellee, again proceeding pro se, filed a combined “petition to reconsider” and “petition to vacate,” citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.1
{¶9} The trial court denied same via a judgment entry on June 15, 2006.
{¶10} On July 9, 2008, the trial court’s assignment commissioner issued a notice setting the case for a re-sentencing hearing on August 28, 2008. Appellee, with the assistance of counsel, filed a memorandum in opposition to resentencing August 27, 2008, noting inter alia that the 2001 sentence did not include a PRC provision, and arguing that res judicata should apply against the State.
{¶11} The resentencing hearing was then re-scheduled for October 27, 2008. In the meantime, appellee’s counsel had withdrawn, but appellee appeared at the hearing with court-appointed counsel.
{¶12} The trial court issued a judgment entry on October 30, 2008, stating as follows in pertinent part:
The Court further notified the Defendant that post-release control is mandatory in this case up to a maximum of 5 years, as well as the consequences for violating conditions of post-release control imposed by the Parole Board. The Court further notified the Defendant of all the items contained in
Ohio Revised code 2929.19(B)(3)(c) , (d), (e), and (f). The Court further notified the Defendant that if a period of supervision by the Parole Board is imposed following the Defendant‘s release from prison and if the Defendant violates that supervision, or conditions of post-release control, that the Parole Board may impose a prison term as part of the sentence of up to one-half of the stated prison term originally imposed upon the Defendant. The Defendant is ordered to serve as part of his sentence any term of post-release control imposed by the Parole Board and any prison term for violation of that post-release control.
{¶13} Resentencing Entry at 2, emphasis added.
{¶14} On December 6, 2012, appellee filed a pro se “motion for clarification and/or for reconsideration,” asking the court to review his fines and costs. The trial court overruled said motion on January 9, 2013.
{¶15} On July 20, 2016, while appellee was still in prison, a hearing was held by ODRC to determine appellee‘s post-release control. The Adult Parole Authority (“APA“) directed that appellee’s mandatory PRC would begin on December 7, 2016, that it would be 1825 days (five years) in duration, and that he was not eligible for a reduction. Notice of post-release control was also sent to the statutory victim on October 13, 2016.
{¶17} On January 29, 2018, appellee filed a motion in the trial court to vacate his PRC, claiming that he was not properly put on notice because the aforementioned sentencing entry of October 30, 2008 used the wording “mandatory *** up to a maximum of 5 years ***.”
{¶18} On February 23, 2018, the State filed a memorandum contra.
{¶19} On the same day, the trial court issued a judgment entry granting appellee‘s motion to vacate his PRC, finding it had not been properly imposed and “was thus void.” Judgment Entry, February 23, 2018, at 1.2
{¶20} On March 23, 2018, the State of Ohio filed a notice of appeal and a request for leave to appeal.3 We granted leave on April 12, 2018. The State herein raises the following three Assignments of Error:
{¶21} “I. THE TRIAL COURT ERRED WHEN IT VACATED APPELLEE‘S POSTRELEASE CONTROL BECAUSE THE ENTRY PROVIDED PROPER NOTICE BY REFERENCING THE STATUTE.
{¶22} “II. THE TRIAL COURT ERRED WHEN IT VACATED THE POSTRELEASE CONTROL PORTION OF APPELLEE‘S SENTENCE BECAUSE THIS ENTRY
{¶23} “III. THE TRIAL COURT ERRED WHEN IT VACATED THE POSTRELEASE CONTROL PORTION OF APPELLEE‘S SENTENCE BECAUSE HE RECEIVED SUFFICIENT NOTICE, AND THE FACT THAT APPELLEE WAITED UNTIL AFTER HE WAS RELEASED FROM PRISON TO CHALLENGE HIS NEARLY 10-YEAR OLD RESENTENCING ENTRY INDICATES BAD FAITH AND HE SHOULD NOT RECEIVE A BENEFIT BY DELAYING HIS CHALLENGE UNTIL AFTER HE WAS RELEASED FROM PRISON.”
I.
{¶24} In its First Assignment of Error, Appellant State of Ohio contends the trial court erred in vacating Appellee McGuire’s post-release control sanction, where the 2008 sentencing entry had referenced the pertinent statute. We disagree.
{¶25} A trial court is required to give notice of post-release control both at the sentencing hearing and by incorporating it into the sentencing entry. State v. Provens, 5th Dist. Stark No. 2011CA00089, 2011-Ohio-5197, ¶ 13, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the syllabus. In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Ohio Supreme Court held in pertinent part that “[a] sentence that does not include the statutorily mandated term of post-release control is void *** and may be reviewed at any time, on direct appeal or by collateral attack.” Id., at paragraph one of the syllabus.
{¶26}
{¶27} This Court has consistently held that a trial court’s use of the language “up to” five years of PRC does not properly impose a mandatory term under
{¶28} Nonetheless, the State contends that under the Ohio Supreme Court’s decision in State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, the notification in the case sub judice, along with the reference to portions of
{¶30} However, in Grimes, the sentencing entry at issue included the statement that the trial court had “further notified the Defendant that ‘Post Release Control’ is mandatory in this case for three (03) years * * *.” See Grimes at ¶ 2 (bold type and underlining omitted). In addition, it was undisputed in that case that the trial court had “properly advised Grimes at the sentencing hearing of his postrelease-control obligations and the consequences of violating a condition of postrelease control.” Id. Thus, the type of “up to” language at issue in the case sub judice was not a factor in Grimes.
{¶31} We also note the Ohio Supreme Court stated the following caveat regarding Grimes: “Our holding is limited to those cases in which the trial court makes the proper advisements to the offender at the sentencing hearing. We reach no conclusion as to the requirements for sentencing entries in cases in which notice at the sentencing hearing was deficient.” Grimes at ¶ 20 (emphasis added). The appellate record in the case sub judice does not provide us with a transcript of the October 27, 2008 resentencing of appellee. “It is an appellant‘s duty to ensure that the record contains all that is necessary for the reviewing court to determine the appeal.” Glemaud v. MetroHealth Systems, 8th Dist. Cuyahoga No. 106148, 2018-Ohio-4024, f.n. 1. Therefore, even if Grimes were
{¶32} Accordingly, we find no error by the trial court in vacating appellee’s PRC as presently asserted by the State. The First Assignment of Error is therefore overruled.
II.
{¶33} In its Second Assignment of Error, the State of Ohio contends the trial court erred when it vacated the post-release control portion of appellee‘s sentence, arguing the 2008 entry included enough information to put the appellee on notice of PRC, so that his 2018 motion to vacate PRC was barred by res judicata. We disagree.
{¶34} As indicated supra, we have stated that a trial court’s notification to a defendant that post-release control is mandatory “up to a maximum of five (5) years” constitutes a failure to properly notify such defendant that his post-release control was mandatory for five years under
{¶35} The State nonetheless directs us to the Ohio Supreme Court’s decision in Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, urging that the issue therein “was very similar to the issue” in the case sub judice. Brief of Appellant State of Ohio at 9.
{¶36} In Watkins, the petitioners, twelve persons then in prison for violating the terms of their PRC, claimed they were entitled to a writ of habeas corpus because “they [had] failed to receive adequate notice of postrelease control and their sentencing entries
{¶37} However, ”Watkins and its progeny were writ cases that were decided on the ground that the petitioners had an adequate remedy at law.” State v. Smith, 1st Dist. Hamilton No. C-120163, 2012-Ohio-5965, ¶ 17. The subsequent development of case law on PRC notification issues by the Ohio Supreme Court has “put to rest any question concerning the applicability of Watkins and its progeny to non-writ cases.” See Smith at ¶ 20. We therefore presently find no basis to deviate from our precedent in Patterson and Green, supra.
{¶38} Certainly, we have previously rejected the proposition that the window of opportunity provided by the Simpkins/Fischer/Billiter line of holdings “* * * was intended to continue ad infinitum via repetitive post-conviction challenges to [a defendant’s] sentence.” State v. Black, 5th Dist. Richland No. 16 CA 4, 2016-Ohio-5612, ¶ 15. Indeed, as indicated in our recitation of the procedural history of this case, appellee did unsuccessfully challenge his original 2001 sentence in 2005 under United States Supreme Court’s decisions of Blakely and Booker. He also raised a challenge in 2006, citing the Ohio Supreme Court’s Foster decision. Finally, he challenged his fines and costs via a motion to “reconsider” in 2012. However, the “up to” language at issue in this matter resulted from what appears to be a sua sponte resentencing in 2008 for purposes
{¶39} Appellant‘s Second Assignment of Error is therefore overruled.
III.
{¶40} In its Third Assignment of Error, the State of Ohio contends the trial court erred when it vacated the post-release control portion of appellee‘s sentence, maintaining that he has improperly benefitted from delaying his challenge until after he was released from prison. We disagree.
{¶41} As an initial matter, we reiterate that appellee was resentenced in 2008.
{¶42}
{¶43} In addition,
{¶44} Thus, “[s]ince there is a statutory remedy for sentences imposed after July 11, 2006, any improper postrelease control portions of these sentences are not void.” State v. Zechar, 7th Dist. Mahoning No. 17 MA 0111, 2018-Ohio-3731, ¶ 9 (additional citations omitted). But we must also recognize that Am.Sub.H.B. No. 137 amended
{¶45} The gist of the State’s argument in the case sub judice is that appellee, in foregoing a PRC-based challenge to his 2008 resentencing for nearly ten years (and after his release from prison for the sentence in the present case), was “motivated by self-serving bad faith to avoid postrelease control.” Brief of Appellant State of Ohio at 11.
{¶46} “Bad faith” has been defined as a “dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud.” Zieber v. Heffelfinger, 5th Dist. Richland No. 08CA0042, 2009-Ohio-1227, ¶ 49, quoting Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App.3d 448, 454, 602 N.E.2d 363, 367 (additional citations and internal quotations omitted).
{¶47} Notwithstanding that appellee spent more than a year on PRC after his December 2016 prison release before filing his motion to vacate, the State’s position would force us to speculate dehors the record as to the basis of appellee’s delay, which might conceivably include a lack of resources and of sophistication in this area of sentencing law. In any event, “[a]ppellate review is limited to considering errors revealed in the record.” Village of Somerset v. Shaner, 5th Dist. Perry No. CA-349, 1986 WL 5513. Ultimately, even if the State could herein factually demonstrate some sort of bad faith gamesmanship by appellee, the State provides inadequate legal support for the theory that this would justify further enforcement of a statutorily incorrect PRC sanction, which, although not necessarily void, can no longer be remedied by the trial court in accordance with
{¶49} For the reasons stated in the foregoing, the decision of the Court of Common Pleas, Fairfield County, is hereby affirmed.
By: Wise, John, P. J.
Hoffman, J., and
Wise, Earle, J., concur.
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