2003 Ohio 6300 | Ohio Ct. App. | 2003
Lead Opinion
{¶ 2} On November 14, 2002, the Washington County Grand Jury indicted Sparks on two counts of breaking and entering, violations of R.C.
{¶ 3} At the sentencing hearing, the trial court stated in relevant part: "Okay. Sir, you are ordered specifically by this Court to have three years of post-release control upon your release from prison. The rules and regulations will be established by the Parole Authority and they will be the ones that I've journalized also here in this Court, that this Court has journalized for people under community control, probation, post-release control. And you will be supervised by the Parole Authority for three years."
{¶ 4} However, the sentencing entry states, in relevant part: "The Court notifies the Defendant that following his incarceration, a post-release control period of three (3) years will be imposed by the Parol [sic] Board. The Court explained the consequences for violating conditions of post-release control imposed by the Parole Board under Ohio Revised Code section
{¶ 5} Sparks timely appealed raising the following assignment of error: "The trial court violated Kenneth Spark's right to due process, and the separation of powers doctrine when it usurped the authority of the Ohio Adult Parole Authority and sentenced him to a period of post-release control.
{¶ 7} However, pursuant to R.C.
{¶ 8} In his sole assignment of error, Sparks argues that the trial court usurped the authority of the Parole Board by sentencing him to three years post-release control. He supports this assignment of error with the trial court's oral statement at his April 16, 2003 sentencing hearing, wherein the court stated, "Okay. Sir, you are ordered specifically by this Court to have three years of post-release control upon your release from prison." However, the State claims that Sparks reliance upon this verbal statement is misplaced, in that the sentencing entry specifies that: "The Court notifies the Defendant that following his incarceration, a post-release control period of three (3) years will be imposed by the Parol [sic] Board. The Court explained the consequences for violating conditions of post-release control imposed by the Parole Board under Ohio Revised Code section
{¶ 9} The trial court misspoke at the sentencing hearing, stating that it was ordering Sparks serve three years of post-release control, rather than stating that he might be subject to a maximum of three years post-release control, as determined by the Parole Board. However, the courts of Ohio have long held that a court of record speaks only through its journal entries rather than by oral pronouncement. Wilkin v. Wilkin
(1996),
{¶ 10} In State v. Warbington (1998),
{¶ 11} In State v. Ellis, Washington App. No. 02CA48, 2003-Ohio-2243, at ¶ 15, we held that a criminal defendant's objection to the imposition of a maximum sentence after a community control violation was not yet ripe because the defendant had not yet violated community control or been given the maximum sentence. We reasoned that "[f]or a cause to be justiciable, there must exist a real controversy presenting issues which are ripe for judicial resolution and which will have a direct and immediate impact on the parties." Id. at ¶ 13, quoting State v. Stambaugh (1987),
{¶ 12} Further, we noted that a claim is generally not ripe if it rests upon "future events that may not occur as anticipated, or may not occur at all." Id. at ¶ 14, quoting Texas v. United States (1998),
{¶ 13} Here, we reiterate that the Parole Board has absolute discretion over the imposition of post-release control. While the trial court has expressed its opinion that three years post-release control would be appropriate for Sparks, the only recommendation that the Parole Board must statutorily consider with regard to post-release control is the recommendation made by the office of victims' services. R.C.
JUDGMENT AFFIRMED.
Abele, J., Concurs in Judgment and Opinion.
Harsha, J., Dissents with Dissenting Opinion.
Dissenting Opinion
{¶ 14} I agree that the trial court has no authority to impose post-release control and that such a decision is left to the parole board. However, that is not what the trial court said at the sentencing hearing, nor is it what its sentencing entry indicates. That entry says, "The Court notifies the Defendant that . . . a post-release control period . . . will be imposed by the Parol [sic] Board." While one might argue that the parole board's statutory authority is "self-executing," i.e. they may choose to ignore the court's improper mandate, I believe we should remand the matter to the trial court for imposition of a sentence that complies with the law.
