State v. Powell, 10-07-12 (3-10-2008)State v. Powell, 10-07-12 (3-10-2008)
OPINION
{¶ 1} Defendant-Appellant, Brian Powell, appeals the judgment of the Mercer County Court of Common Pleas resentencing him to notify him of post-release control. On appeal, Appellant asserts that the trial court could not impose post-release control at a later date; that, when post-release control is not imposed during the original sentencing, a defendant is not subject to post-release control; that, if post-release control may be imposed at a later date, the trial court must conduct a new sentencing hearing; that the State waived the issue of post-release control by failing to appeal it; and, that R.C.
{¶ 2} In November 2003, Powell was charged by way of a bill of information with one count of burglary in violation of R.C.
{¶ 3} In June 2007, the State moved for a correction to the judgment of conviction concerning post-release control.
{¶ 4} In July 2007, the trial court held a hearing pursuant to R.C.
{¶ 5} It is from this judgment that Powell appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
IF A TRIAL COURT DOES NOT ADVISE A DEFENDANT AT SENTENCING THAT POST RELEASE CONTROL IS OR MAY BE IMPOSED, IT MAY NOT DO SO AT A LATER DATE.
Assignment of Error No. II
WHEN A TRIAL COURT DOES NOT IMPOSE POST RELEASE CONTROL AT SENTENCING, THE APPROPRIATE ACTION IS TO RULE THAT THE DEFENDANT IS NOT SUBJECT TO POST RELEASE CONTROL.
Assignment of Error No. III
IF A TRIAL COURT IS AUTHORIZED TO IMPOSE POST RELEASE CONTROL AT A LATER TIME WHEN IT FAILED TO DO SO AT THE ORIGINAL SENTENCING, THE PROPER PROCEDURE IS A NEW, COMPLETE SENTENCING HEARING.
Assignment of Error No. IV
IF NO DIRECT APPEAL OF THE ORIGINAL SENTENCING OF APPELLANT WAS TAKEN BY THE STATE, IT MAY NOT NOW ASK THE COURT TO IMPOSE POST RELEASE CONTROL.
Assignment of Error No. V
ORC
2929.191 IS UNCONSTITUTIONAL FOR VIOLATION OF THE SINGLE SUBJECT RULE 11 (Sic) OF THE OHIO CONSTITUTION AND IN VIOLATION OF THE DUE PROCESS AND DOUBLE JEOPARDY CLAUSES OF THE UNITED STATES AND OHIO CONSTITUTIONS.
{¶ 6} Due to the nature of Powell‘s assignments of error, we elect to address his assignments of error out of order and his first and second assignments of error together.
Assignments of Error Nos. I II
{¶ 7} In his first assignment of error, Powell asserts that, if a trial court fails to notify a defendant about post-release control at the time of the original sentencing, it may not do so at a later date. In his second assignment of error, Powell asserts that, where a trial court fails to notify a defendant of post-release
{¶ 8} Generally, “once a sentence has been executed, the trial court loses jurisdiction to amend or modify the sentence.” State v. Carr, 3d Dist. Nos. 14-05-48 to 14-05-50, 2006-Ohio-3073, ¶ 3, citing State v. Garretson (2000), 140 Ohio App.3d 554; see, also, State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, ¶ 18. However, trial courts do retain jurisdiction over their own final judgments in criminal cases under the following exceptions: (1) to correct a void sentence, see Cruzado, 111 Ohio St.3d at ¶ 19, and Garretson, 140 Ohio App.3d at 559, citing State v. Beasley (1984), 14 Ohio St.3d 74, 75, and (2) to correct clerical errors in judgment. Cruzado, 111 Ohio St.3d at ¶ 19; Garretson, 140 Ohio App.3d at 559;
{¶ 9} R.C.
{¶ 10} Further, the Court has held that a trial court‘s failure to properly notify an offender about post-release control is contrary to law and constitutes a void sentence and, therefore, falls under the first exception noted above. Jordan, 104 Ohio St.3d at ¶ 25; Cruzado, 111 Ohio St.3d at ¶ 20. Consequently, “where a sentence is void because it does not contain a statutorily mandated term, the proper remedy is * * * to resentence the defendant.” Jordan, 104 Ohio St.3d at ¶ 23. However, a trial court‘s authority to resentence an offender to give the required notice of post-release control is limited to situations where the offender‘s sentence has not yet expired. Cruzado, 111 Ohio St.3d at ¶ 28; Hernandez, 108 Ohio St.3d at ¶¶ 31-32.
{¶ 11} Moreover, such resentencing does not violate finality or double jeopardy restraints because jeopardy does not attach to a void sentence. Jordan, 104 Ohio St.3d at ¶ 25, citing State v. Beasley (1984), 14 Ohio St.3d 74, 75 (“trial court‘s correction of a statutorily incorrect sentence did not violate appellant‘s right to be free from double jeopardy“). Thus, “`an invalid sentence for which there is no statutory authority is * * * a circumstance under which there can be no expectation of finality’ to trigger the protections of the Double Jeopardy Clause.” State v. Ramey, 10th Dist. No. 06AP-245, 2006-Ohio-6429, at ¶ 16, quoting State v. McColloch (1991), 78 Ohio App.3d 42, 46.
{¶ 12} In response to the Supreme Court of Ohio‘s holdings above, the General Assembly enacted R.C.
(A)(1) If, prior to the effective date of this section, a court imposed a sentence including a prison term of a type [requiring mandatory post-release control] and failed to notify the offender pursuant to that division that the offender will be supervised under [R.C.
2967.28 ] after the offender leaves prison or toinclude a statement of that effect in the judgment of conviction entered on the journal or in the sentence pursuant to [R.C. 2929.14(F)(1) ], at any time before the offender is released from imprisonment under that term and at a hearing conducted in accordance with division (C) of this section, the court may prepare and issue a correction to the judgment of conviction that includes in the judgment of conviction the statement that the offender will be supervised under [R.C.2967.28 ] after the offender leaves prison.2* * *
(2) If a court prepares and issues a correction to a judgment of conviction as described in division (A)(1) of this section before the offender is released from imprisonment under the prison term the court imposed prior to the effective date of this section, the court shall place upon the journal of the court an entry nunc pro tunc3 to record the correction to the judgment of conviction and shall provide a copy of the entry to the offender or, if the offender is not physically present at the hearing, shall send a copy of the entry to the department of rehabilitation and correction for delivery to the offender or, if the offender is not physically present at the hearing, shall send a copy of the entry to the department of rehabilitation and correction for delivery to the offender.4 * * * The court‘s placement upon the journal of the entry nunc pro tunc before the offender is released from imprisonment under the term shall be considered, and shall have the same effect, as if the court at the time of original sentencing had included the statement in the sentence and the judgment of
conviction entered on the journal and had notified the offender that the offender will be so supervised regarding a sentence [requiring mandatory post-release control] or that the offender may be so supervised regarding a sentence [requiring discretionary post-release control]. * * * * * *
(C) On and after the effective date of this section, a court that wishes to prepare and issue a correction to a judgment of conviction of a type described in division (A)(1) or (B)(1) of this section shall not issue the correction until after the court has conducted a hearing in accordance with this division. Before a court holds a hearing pursuant to this division, the court shall provide notice of the date, time, place, and purpose of the hearing to the offender who is the subject of the hearing * * *. At the hearing, the offender and the prosecuting attorney may make a statement as to whether the court should issue a correction to the judgment of conviction.
Thus, under R.C.
{¶ 13} Here, Powell was convicted of one count of burglary, a felony of the third degree, and one count of forgery, a felony of the fifth degree, and sentenced to a prison term for each conviction. The trial court found that Powell did not cause or expect to cause physical harm to any person or property in committing the burglary offense. Accordingly, the trial court was required to notify Powell of discretionary post-release control for a period of up to three years for each offense.
R.C.
{¶ 14} Alternatively, Powell argues that resentencing him after State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, would violate his due process rights and that he may withdraw his guilty plea if he so chooses. Foster addressed constitutional issues concerning felony sentencing and held that portions of Ohio‘s felony sentencing framework requiring judicial findings before imposition of more than the minimum, maximum, and consecutive sentences were unconstitutional and void. 109 Ohio St.3d at ¶ 100. However, this Court has held on numerous occasions that applying Foster on a remand for resentencing does not violate due process. See State v. McGhee, 3d Dist. No. 17-06-05, 2006-Ohio-5162, ¶¶ 14-20,
{¶ 15} Accordingly, we overrule Powell‘s first and second assignments of error.
Assignment of Error No. IV
{¶ 16} In his fourth assignment of error, Powell asserts that the trial court may not impose post-release control at a later date unless the State directly appeals the original sentence. Specifically, Powell contends that the State waived the issue by failing to raise it on direct appeal pursuant to Foster, supra. We disagree.
{¶ 17} We note at the outset that Foster is inapplicable to Powell‘s argument because it only briefly addressed the issue of waiver and rejected the State‘s argument that Foster had waived an issue. See 109 Ohio St.3d at ¶¶ 30-33. Presumably, Powell meant to cite the Supreme Court of Ohio‘s recent decision in State v. Payne, wherein the Court explained that, in certain situations, a sentence
{¶ 18} In the case sub judice, it is clear that a trial court‘s failure to notify a defendant about post-release control at the time of the original sentencing as statutorily mandated renders the sentence void. See Jordan, 104 Ohio St.3d at ¶ 25 and its progeny. Thus, the State‘s failure to appeal an illegal or void sentence does not negate the trial court‘s duty to impose sentences according to law or to resentence a defendant to correct a void sentence. Ramey, 2006-Ohio-6429 at ¶ 12, citing State v. Thomas (1996), 111 Ohio App.3d 510, 512, appeal not allowed, 77 Ohio St.3d 1469; see, also, State v. Creager, 12th Dist. No. 2007-01-007, 2007-Ohio-5188, at ¶ 12; State v. Phillips, 3d Dist. No. 8-06-14, 2007-Ohio-686, at ¶ 28. Additionally, R.C.
{¶ 19} Accordingly, we overrule Powell‘s fourth assignment of error.
Assignment of Error No. III
{¶ 20} In his third assignment of error, Powell asserts that, if the trial court is authorized to impose post-release control at a later date when it failed to do so at the original sentencing, the proper procedure is a new, complete sentencing hearing. We agree.
{¶ 21} As noted above, R.C.
{¶ 22} Here, the trial court conducted a resentencing hearing pursuant to R.C.
{¶ 23} Accordingly, we sustain Powell‘s third assignment of error, vacate the July 2007 corrective entry, and remand to the trial court with instructions to conduct a de novo resentencing hearing before Powell‘s prison term expires in order to impose a new sentence for his offense and to notify him of the
Assignment of Error No. V
{¶ 24} In his fifth assignment of error, Powell asserts that R.C.
{¶ 25} Statutes are presumed to be constitutional. State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, at ¶ 7. Thus, a court may not declare a statute to be unconstitutional unless it appears beyond a reasonable doubt that “the legislation and constitutional provisions are clearly incompatible.” Id., citing State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, paragraph one of the syllabus.
{¶ 26} The one-subject rule is set forth in
{¶ 27} However, to avoid interference with the legislative process, a court‘s role in enforcing the one-subject rule is limited. Id. at ¶ 27. Thus, “`[t]he mere fact that a bill embraces more than one topic is not fatal, as long as a common purpose or relationship exists between the topics.‘” State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 496, 1999-Ohio-123, quoting Hoover v. Franklin Cty Bd. of Commrs. (1985), 19 Ohio St.3d 1, 6. Accordingly, only “a manifestly gross and fraudulent violation of the one-subject provision * * * will cause an enactment to be invalidated.” In re Nowak, 104 Ohio St.3d 466, 2004-Ohio-6777, at ¶ 54. To determine whether a manifestly gross and fraudulent violation has occurred, courts need not look beyond the unnatural combinations themselves. Instead, “`an analysis of any particular enactment is dependent upon the particular language and subject matter of the proposal,’ rather than upon extrinsic evidence of logrolling, and thus `an act which contains such unrelated
{¶ 28} Here, Powell first argues that R.C.
{¶ 29} Next, Powell argues that R.C.
{¶ 30} Accordingly, we overrule Powell‘s fifth assignment of error.
{¶ 31} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued in his first, second, fourth, and fifth assignments of error, but having found error prejudicial to the appellant herein, in the particulars assigned and argued in his third assignment of error, we affirm in part, reverse in part, and remand the judgment to the trial court for further proceedings consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part, and Cause Remanded.
SHAW, P.J. and PRESTON, J., concur.