State v. PearsonState v. Pearson
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O P I N I O N
Rendered on the 21st day of January, 2011.
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R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
TYLER D. STARLINE, Atty. Reg. No. 0078552, 260 North Detroit Street, Xenia, Ohio 45385
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Eric C. Pearson appeals from a judgment of the Montgomery County Court of Common Pleas, which resentenced him on a 2005 conviction so as to
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{¶ 2} In 2005, Pearson was convicted by a jury of attempted rape, kidnapping, gross sexual imposition, and felonious assault. He was sentenced to an aggregate term of five years in prison, was advised that he would serve “up to five years” of post-release control, and was classified as a sexually-oriented offender. Pearson appealed from his conviction, and we affirmed the trial court‘s judgment. State v. Pearson, Montgomery App. No. 21203, 2006-Ohio-5585.
{¶ 3} In March 2010, as Pearson neared the end of his prison sentence, the trial court ordered him to appear for a “re-sentencing” hearing. The trial court subsequently imposed a five-year mandatory term of post-release control, correcting its prior order that Pearson serve “up to five years” of post-release control. In its Amended Termination Entry, the court also reclassified Pearson as a Tier III sex offender.1, 2
{¶ 4} Pearson appeals from the trial court‘s Amended Termination Entry, raising one assignment of error.
{¶ 5} Pearson‘s assignment of error states:
{¶ 6} “THE TRIAL COURT PREJUDICIALLY ERRED BY PROCEEDING WITHOUT JURISDICTION TO NOTIFY APPELLANT PEARSON THAT HE HAD BEEN ‘RE-CLASSIFIED’ AS A TIER III SEX OFFENDER UNDER THE PROVISIONS OF THE OHIO ‘ADAM WALSH ACT.‘”
{¶ 7} Pearson contends that the trial court lacked jurisdiction to conduct a new sentencing hearing sua sponte and to amend a “final and already-appealed judgment.” At oral argument, Pearson‘s attorney stated that Pearson objected only to his reclassification as a Tier III sex offender, and not to the imposition of the mandatory term of post-release control.
{¶ 8} The Supreme Court of Ohio has held that, “in cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have the postrelease control imposed on the defendant unless the defendant has completed his sentence.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶6. The Supreme Court reasoned that a trial court‘s failure to impose a sentence required by law results in a void sentence, rather than a voidable one, because “no court has the authority to substitute a different sentence for that which is required by law. *** Because no judge has the authority to disregard the law, a sentence that clearly does so is void.” Id. at ¶20, citing Colegrove v. Burns (1964), 175 Ohio St. 437, 438. The Supreme Court recognized, as Pearson does, that a trial court‘s jurisdiction over a criminal
{¶ 9} In 2007, the Supreme Court had held that, where a sentence was void because the trial court improperly imposed post-release control, the trial court was required to afford the defendant a “full de novo sentencing hearing as if the original sentence had never been imposed.”3 State v. Winston, 182 Ohio App.3d 306, 2009-Ohio-2171, ¶12, citing State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250. Accordingly, the trial court did not lack jurisdiction to conduct a new sentencing hearing. It conducted such a sentencing hearing on March 18, 2010. At that time, believing that it was required to resentence Pearson de novo, the trial court reclassified him as a Tier III sex offender under the Adam Walsh Act. Pearson claims that the new sentencing hearing necessitated by the trial court‘s failure to impose the proper term of post-release control should not have subjected him to the heightened reporting requirements contained in the Adam Walsh Act, which was enacted after his original sentence was imposed.
{¶ 10} We addressed the issue of reclassification in State v. Gibson, Champaign App. No. 2009 CA 47, 2010-Ohio-3447. In Gibson, the defendant was sentenced for rape in 2001, prior to the enactment of the Adam Walsh Act, but he challenged the validity of his sentence to post-release control after the Act was in effect. We held that, although a defendant is informed of his sex offender
{¶ 11} Our conclusion that Pearson‘s sex offender classification should not have been reconsidered at the 2010 sentencing hearing is also supported by the Supreme Court‘s recent decision in State v. Fischer, ___ Ohio St.3d ___, 2010-Ohio-6238, which narrowed the scope of resentencing required to correct an improperly-imposed term of post-release control. In Fischer, the Supreme Court concluded that the required resentencing when a term of post-release control was not properly imposed “does not permit reexamination of all perceived errors at trial or in other proceedings prior to sentencing.” Id. at ¶25. “[W]hen a judge fails to impose a statutorily mandated postrelease control as part of a defendant‘s sentence, that part of the sentence is void and must be set aside. Neither the Constitution nor common sense commands anything more.” (Emphasis sic.) Id. at ¶26. In other words, the
{¶ 12} Pearson‘s assignment of error is sustained.
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{¶ 13} The judgment of the trial court will be affirmed with respect to the imposition of the mandatory term of post-release control. The judgment will be reversed insofar as it reclassified Pearson under the Adam Walsh Act, and his prior classification as a sexually-oriented offender will remain in effect.
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GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
R. Lynn Nothstine
Tyler D. Starline
Hon. Steven K. Dankof