State v. Reznickchek, L-07-1426 (5-16-2008)State v. Reznickchek, L-07-1426 (5-16-2008)
{¶ 1} This is a consolidated appeal of a December 13, 2007 judgment of the Lucas County Court of Common Pleas denying appellant John J. Reznickcheck‘s “Motion to Vacate a Void Sentence pursuant to State v. Bezak.” The motion concerns sentencing in two criminal cases brought against appellant in the Lucas County Court of Common Pleas, case numbers CR96-6868 and CR96-7032.
{¶ 2} In case CR-96-6868, the criminal charges arose out of incidents that occurred on June 14 and 21, 1996. The case was tried to a jury in February 1997. Appellant was found guilty of aggravated burglary, a violation of
{¶ 3} Appellant pursued an appeal of his convictions. In an Opinion and Judgment Entry filed on December 18, 1998, this court reversed the aggravated burglary conviction and modified it to a conviction for burglary (
{¶ 4} On remand, the trial court resentenced appellant in a judgment entry filed on August 11, 1997, to one year for the burglary offense and one and one-half to five years on the theft-objects offense.
{¶ 5} In case number CR96-7032, the criminal charges arose out of incidents that occurred between August 23 and September 4, 1996. In the case, appellant pled no contest to a felonious assault charge (
{¶ 6} Appellant appealed. In State v. Reznickcheck, 6th Dist. Nos. L-04-1029 and L004-1030, 2004-Ohio-4801, we affirmed. We also recognized in the case that the charges under case CR96-6868 were pre-S.B. 2 and the charges under case CR96-7032 were post-S.B. 2 charges. Id. at ¶ 2, fn. 1.
{¶ 7} On October 12, 2007, appellant filed a “Motion to Vacate a Void Sentence pursuant to State v. Bezak” in both criminal cases. In the motion, Reznickcheck requested the trial court to vacate sentences in both cases and resentence pursuant to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250. Appellant has claimed that the trial court failed to state specifically the term and conditions of postrelease control, rendering his sentences in both cases void. The trial court overruled the motion in a judgment entry filed on December 13, 2007. This appeal followed.
{¶ 8} Appellant asserts one assignment of error on appeal:
{¶ 9} “First Assignment of Error
{¶ 10} “Trial Court committed an error of law in refusing to resentence appellant in accordance to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, cited as 868 N.E.2d 961.”
{¶ 11} State v. Bezak, concerned the effect of a trial court‘s failure to comply with the requirements of
{¶ 12} “{ ¶ 16} We hold that when a trial court fails to notify an offender that he may be subject to postrelease control at a sentencing hearing, as required by former
{¶ 13} In State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, the Ohio Supreme Court reaffirmed its analysis in Bezak that, where a trial court fails to inform a defendant at sentencing of postrelease control, the sentence imposed is void. Id., ¶¶ 19-22. The court also recognized in Simpkins, however, that a trial court retains jurisdiction to correct such an error:
{¶ 14} “A trial court‘s jurisdiction over a criminal case is limited after it renders judgment, but it retains jurisdiction to correct a void sentence and is authorized to do so. Cruzado, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, at ¶ 19; Jordan,
{¶ 15} In Simpkins, the court recognized that res judicata has been held to bar collateral attacks of voidable sentences on grounds that could have been raised on direct appeal. The court, nevertheless, refused to extend the doctrine to bar collateral attacks on void sentences. Id at ¶ 30. “[‘W]here no statutory authority exists to support a judgment, res judicata does not act to bar a trial court from correcting the error.‘” Simpkins, ¶ 30, quoting, State v. Ramey, 10th Dist. No. 06AP-245, 2006-Ohio-6429, ¶ 12 with approval.
{¶ 16} In Simpkins, the state sought resentencing of the defendant due to errors with respect to postrelease control in sentencing. The court rejected an argument that the state‘s request was untimely and barred under res judicata, due to the state‘s failure to raise the existence of the errors by a direct appeal from the judgment imposing sentence. Id., ¶¶ 28-30.
{¶ 17} Here the claim is that appellant‘s sentences are also void for failure to comply with statutorily mandated sentencing procedures with respect to postrelease control. Under Simpkins, we consider appellant‘s contentions even though they were not raised in his prior appeals.
{¶ 18} The postrelease control notice requirements were incorporated into Ohio law with the enactment of S.B. 2 effective July 1, 1996. E.g. State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, ¶¶ 10-11; Woods v. Telb, 89 Ohio St.3d 504, 507-509, 2000-Ohio-171.
{¶ 19} The events upon which the criminal charges in CR96-6868 were based occurred on June 14 and 21, 1996, prior to the effective date of S.B. 2. Accordingly, the provisions of S.B. 2 and the decision in State v. Bezak do not apply to the sentences for burglary and theft-objects in CR96-6868. Appellant‘s assignment of error is not well-taken to the extent it relates to sentencing in CR96-6868.
{¶ 20} Case number CR96-7032 concerned events that occurred between August 23 and September 4, 1996 — after the effective date of S.B. 2. Accordingly, the requirements of S.B. 2, of State v. Bezak, and, specifically, of
{¶ 21} In Woods v. Telb, the Ohio Supreme Court held that a trial court can comply with the postrelease control notice requirements by advising the defendant of postrelease control at the time of either the plea hearing or at sentencing. Woods v. Telb, paragraph two of the syllabus. In fact, it may be more appropriate to notify a defendant of postrelease control at the plea hearing. State v. Torres, 6th Dist. No. L-03-1203, 2005-Ohio-3365, ¶¶ 10-12.
{¶ 22} In CR96-7032, the trial court specifically addressed postrelease control with appellant at the plea hearing of June 3, 1997 with respect to the felonious assault and robbery offenses. In the plea colloquy, the court discussed with appellant whether he
{¶ 23} “The Court: You also understand that if you are sentenced to prison for the second degree felony charges, which involve threatening to inflict or inflict physical harm, that there will be a mandatory three years of post-release control?
{¶ 24} “The Defendant: Yes, sir.
{¶ 25} “The Court: And do you understand if you violate the conditions of supervision while you are under post-release control, the parole board could return you to prison for up to nine months for each violation for a total of 50 percent of the originally stated term?
{¶ 26} “The Defendant: Yes, sir.
{¶ 27} “The Court: Do you understand that if the violation is a new felony, you could receive a new prison term which would either be one year or the time remaining on your post release control, whichever is greater, plus a prison term for the new crime? Do you understand that?
{¶ 28} “The Defendant: Yes, sir.”
{¶ 29} We conclude that the trial court met the notice requirements of
{¶ 30} Accordingly under State v. Bezak, appellant‘s sentence for abduction is void due to the failure to meet statutory notice requirements for postrelease control at sentencing. The remedy for a void sentence due to failure to meet postrelease control notice requirements is to resentence the appellant and to provide the required notice of postrelease control at resentencing. State v. Bezak, ¶ 16; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, paragraph 2 of the syllabus.
{¶ 31}
{¶ 32} We find appellant‘s assignment of error is well-taken in part and not well-taken in part. Upon consideration, whereof, the judgment of the Lucas County Court of Common Pleas is affirmed with respect to its denial of the motion to vacate the sentences in CR96-6868 and the sentences for felonious assault and robbery in CR96-7032. The judgment is reversed with respect to the trial court‘s denial of the motion to vacate the sentence on the abduction count in CR96-7032. Cause CR96-7032 is ordered remanded for resentencing on the abduction count. Appellee is ordered to pay the costs of this appeal pursuant to App.R.24. Judgment for the clerk‘s expense
JUDGMENT AFFIRMED, IN PART, AND REVERSED, IN PART.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
JUDGE
Mark L. Pietrykowski, P.J., Arlene Singer, J., Thomas J. Osowik, J., Concur.