STATE OF OHIO v. KEVIN PULLEN
CASE NO. 11 MA 10
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
March 30, 2012
[Cite as State v. Pullen, 2012-Ohio-1498.]
Hоn. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Cheryl L. Waite
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 10CR981. JUDGMENT: Vacated and Remanded.
For Plaintiff-Appellee: Attorney Paul Gains, Prosecuting Attorney, Attorney Ralph Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Attornеy Rhys Cartwright-Jones, 42 North Phelps Street, Youngstown, Ohio 44503-1130
{1} This is an appeal from the sentence entered in the Mahoning County Common Pleas Court after defendant-appellant Kevin Pullen pled guilty to felony theft. When imposing post-release control, the trial court failed to notify appellant in the judgment entry that if he violatеd the conditions of post-release control, he could be sentenced to up to one-half of his original sentence. The state concedes this error. The remaining issue revolves around the remedy this court can provide.
{2} Because appellant has been released from his term of imprisonment, we cannot remand for application of the corrected sentencing procedures contained in
STATEMENT OF THE CASE
{3} In August of 2010, appellant sold twelve books to Campus Book and Supply. After he left, the bookstore noticed that the books belonged to the Youngstown Public Library. Appellant had used his library card to check out two of the books. Appellant was indicted for theft and receiving stolen property, felonies of the fifth degree as the books were worth more than $500.
{4} Appellant pled guilty to the theft charge. The state dismissed the receiving stolen property count and agreed to recommend community control. At the plea hearing, the court advised appellant, as required by
{5} At the sentencing hearing, the court asked appellant if he remembered being informed at the plea hearing that if he violated the conditions of his post-release control, he could be sent back to prison for up to one-half of the total time that he receives in the original sentence. (Sent. Tr. 5-6). After defense counsel made sentencing statements, the court sentenced appellant to ten months in prison and imposed restitution in the amount of $1,165.40 to be paid within one year of his
{6} The December 20, 2010 sentencing entry advised that appellant was subject to three years of post-release control and stated that he “has been given notice under
ASSIGNMENT OF ERROR
{7} Appellant‘s sole assignment of error provides:
{8} “THE TRIAL COURT ERRED IN FAILING AT SENTENCING TO NOTIFY MR. PULLEN THAT HE WAS SUBJECT TO SERVICE OF UP TO HALF HIS ORIGINAL SENTENCE IN THE EVENT OF A POST-RELEASE VIOLATION AND FAILED TO INCORPORATE THE SAME NOTIFICATION INTO ITS JUDGMENT ENTRY.”
{9}
{10} Here, the court failed to provide the proper notice in the sentencing entry that the parole board may impose a prison term of up to one-half of his original term. The state filed a confession of judgment rather than a brief and concedes this error.
{11} The remaining issue is the remedy that this court can provide. Appellant asks that we vacate post-release control and remand to see if the trial court wishes to correct the post-release control portion of his sentence under
{13} The sentence-correcting statute provides that where the trial court fails to notify the offender regarding the possibility of the parole board imposing a prison term for a violation of post-release control, the sentencing court can hold a hearing prior to the offender‘s release and issue a corrected judgment entry that includes the previously omitted statement that the parole board can impose a prison term of up to one-half of the original sentence for a violation of post-release control.
{14} However, appellant‘s ten-month prison sentence is complete, and he has been released from his term of imprisonment. Thus, this statutory procedure cannot be utilized by the trial court on remand. See
{15} Nor is the Davis remedy mentioned by the state available. See Davis, 7th Dist. No. 10MA160 (modifying sentence and remanding only for court to enter corrected judgment), utilizing dicta in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. Davis involved sentencing that occurred prior to July 11, 2006 as did the cited Fischer case, and thus, the statutory hearing requirement did not apply. Our case involves sentencing that occurred after July 11, 2006. Moreover, the Davis defendant was still imprisoned at the time of the remand for a corrected entry, whereas appellant is no longer imprisoned.
{16} Using both the case law approach and the statutory approach, the Supreme Court has eliminated the obligation to serve post-release control where the offеnder is released prior to the imposition of post-release control. See, e.g., State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 70 (“once an
{17} Pursuant to
{18} Statutorily then, as long as the parole board notifies the defendant of the potential consequences of violating his post-release control terms prior to his release, the notice is considered to have been provided. See
{19} However, there are problems with this approach to the case. For instancе, the Eighth District attempted to utilize this portion of
{20} “Under the terms of amended
{21} The Ohio Supreme Court originally denied leave to appeal the Eighth District‘s holding. Then, on a motion to reconsider, the Supreme Court reversed the above-quoted portion of the Walls decision on the authority of Singleton and remanded the case to the trial court for further proceedings consistent with Singleton. State v. Walls, 125 Ohio St.3d 1201, 2010-Ohio-1806, 926 N.E.2d 647, ¶ 2.
{22} In Singleton, the main issue was whether
{23} “For criminal sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall apply the procedures set forth in
{24} We recognize that the Walls defendant was still in prison. Nevertheless, the Supreme Court remanded for аpplication of the statute by the trial court rather than allowing the parole board to conduct the notification later as the appellate court held, suggesting that the parole board notification cannot exist if the court never performed its statutory duty to properly notify the offender оf the required information regarding post-release control. Thus, the Court refused to allow the Eighth District to rely on the parole board notification statutes.
{25} Although the Supreme Court in Walls did not explain its reasoning, its decision may be derived from the law that “in the absence of a proper sentencing entry imposing postrelease contrоl, the parole board‘s imposition of postrelease control
{26} Notably, the Court has given no effect to some of the relevant statutory language before us when it stated in Bloomer.
{27} “the legislature has now amended
{28} As such, the Court disallowed any possible attempt by the legislature to validate a post-release control sentence that was faulty in the absence of court action to correct such sentence. And, the Supreme Court equates а failure to actually impose post-release control with the failure to warn that a violation of post-release control can result in another prison sentence of up to one-half of the original sentence. See Bloomer, 122 Ohio St.3d 200 at ¶¶ 2-3. See also Singleton, 124 Ohio St.3d 173 at ¶ 4 (although a pre-2006 case, the Court addressed together the fact that the trial court‘s sentencing entry only mentioned a possibility of a five year term, which was actually mandatory, and that it failed to notify the defendant that violation of post-release control could result in additional time of up to one-half of his prison sentence).
{29} Here, the trial court‘s ability to apply the sеntence-correction statute has passed. See
{30} We conclude from all of this thаt: the trial court‘s failure to issue the proper notice regarding future post-release control violations invalidated the imposition of post-release control; the parole board cannot impose prison if the court never ordered it; and, this aspect of sentencing cannot be remеdied because appellant has been released from his prison term. This is consistent with the Supreme Court‘s reversal of the Eighth District‘s Walls holding and the Ninth District‘s position in Leasure. See State v. Leasure, 9th Dist. No. 25682, 2011-Ohio-3666, ¶¶ 9-11 (vacating post-release control where entry failed to state parole board could order imprisonment for violations where defendant had been released from рrison, without discussing the parole board notification option).
{31} For the foregoing reasons, we vacate post-release control in this case and remand with instructions for the trial court to note this on its record and to note that appellant is not subject to resentencing. See Bloomer, 122 Ohio St.3d 200 at ¶ 73 (“the trial court is instructed to note on the record that because [the defendant] has completed his prison sentence, he will not be subject to resentencing pursuant to law.“).
Donofrio, J., concurs.
Waite, P.J., concurs.