State v. RobertsonState v. Robertson
Dated: September 28, 2009
DICKINSON, Judge.
INTRODUCTION
{¶1} As part of a plea agreement, Leonard E. Robertson pleaded guilty to 54 counts of sexual battery, one count of gross sexual imposition, and two counts of attempted gross sexual imposition. Mr. Robertson was convicted of those charges and has appealed, arguing that his guilty pleas were not knowingly, intelligently, and voluntarily made because the trial court failed to advise him, at his change of plea hearing, that he would be subject to a mandatory term of five years of post-release control. Mr. Robertson, however, has not moved the trial court to withdraw his plea. Because the trial court made a mistake regarding post-release control in its sentencing entry, the sentencing entry is void. This Court, therefore, exercises its inherent power to vacate the void judgment and remands for a new sentencing hearing.
{¶2} Mr. Robertson’s sexual battery convictions are felony sex offenses of the third degree. His other three convictions are felony sex offenses of lesser degrees. The trial court sentenced him to a total of fifteen years in the custody of the Ohio Department of Rehabilitation and Correction and ordered him to serve “up to” five years of post-release control.
{¶3} Under
{¶4} In its sentencing entry of March 31, 2008, the trial court wrote that “post release control is mandatory in this case up to a maximum of 5 years.” Although the trial court correctly wrote that Mr. Robertson was subject to “mandatory” post-release control, it incorrectly described that post-release control as lasting “up to a maximum of 5 years,” thereby implying that it could last for less than 5 years. Under
{¶6} Mr. Robertson was convicted of third-degree felony sex offenses within the coverage of
{¶7} In State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, the Ohio Supreme Court held that, “[i]n 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 . . . .” Id. at syllabus. The Supreme Court reasoned that “no court has the authority to substitute a different sentence for that which is required by law.” Id. at ¶20. It concluded that “a sentence that does not conform to statutory mandates requiring the imposition of postrelease control is a nullity and void [and] must be vacated.” Id. at ¶22.
{¶8} In State v. Bedford, 9th Dist. No. 24431, 2009-Ohio-3972, at ¶11, this Court held that, if “[a] journal entry is void because it included a mistake regarding post-release control . . . there is no final, appealable order.” Accordingly, this Court does not have jurisdiction to consider the merits of Mr. Robertson’s appeal. Id. at ¶14. It does have limited inherent
CONCLUSION
{¶9} The trial court’s journal entry included a mistake regarding post-release control. It, therefore, is void. This Court exercises its inherent power to vacate the journal entry and remands this matter to the trial court for a new sentencing hearing.
Judgment vacated, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to appellee.
CLAIR E. DICKINSON
FOR THE COURT
WHITMORE, J.
CONCUR
APPEARANCES:
JOSEPH F. SALZGEBER, attorney at law, for appellant.
DEAN HOLMAN, prosecuting attorney, and RUSSEL A. HOPKINS, assistant prosecuting attorney, for appellee.