State v. SpenceState v. Spence
Rendered on July 26, 2011
Ron O‘Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.
Vernon Spence, pro se.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, P.J.
{¶1} Defendant-appellant, Vernon Spence, appeals from a judgment of the Franklin County Court of Common Pleas denying his motion for a de novo sentencing hearing and his motion to dismiss. Because the trial court (1) erred in failing to properly impose post-release control on defendant‘s convictions for first-degree felonies, but (2) did not err in denying defendant‘s motion to dismiss, we affirm in part and reverse in part.
{¶2} On September 27, 2004, the Franklin County Grand Jury indicted defendant on six counts of aggravated murder in violation of
{¶3} At a July 26, 2005 sentencing hearing, the trial court merged Counts One and Two, Counts Three and Four, and Counts Five and Six, all charging defendant with aggravated murder. The trial court accepted the jury‘s recommendation and sentenced defendant to three consecutive sentences of life in prison without parole for each of the three aggravated murder charges. The trial court further sentenced defendant to ten years each for his aggravated burglary, aggravated robbery, and kidnapping convictions, plus three years for the specifications, all to be served consecutively. The trial court did not mention post-release control at the sentencing hearing; nor did the trial court include post-release control in its July 28, 2005 judgment entry journalizing defendant‘s convictions and sentence. Defendant appealed, and this court affirmed his convictions. State v. Spence, 10th Dist. No. 05AP-891, 2006-Ohio-6257.
II. Assignments of Error
{¶5} Defendant timely appeals, assigning the following errors:
FIRST ASSIGNMENT OF ERROR
WHERE A SENTENCE IS VOID AS A MATTER OF LAW BECAUSE IT DOES NOT CONTAIN A STATUTORILY MANDATED PROPERLY IMPOSED TERM OF POST RELEASE CONTROL, A TRIAL COURT ABUSES IT‘S DISCRETION WHEN DENYING A DEFENDANT‘S GOOD FAITH MOTION FOR RESENTENCING PURSUANT TO THE PROVISIONS OF STATE V BEZAK, 114 Ohio St 3d 96, and STATE V SINGLETON, 920 N.E. 2d 958.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED IT‘S DISCRETION WHEN IT DENIED THE APPELLANT‘S MOTION TO DISMISS FOR FAILURE TO PROSECUTE DUE TO AN UNREASONABLE DELAY IN IMPOSING A VALID SENTENCE AND FINAL APPEALABLE ORDER.
(Sic passim.)
{¶6} Defendant‘s first assignment of error asserts the trial court erred in denying his motion for de novo sentencing. Defendant argues the trial court‘s failure to include a period of post-release control in his sentence renders the sentence void.
{¶7} The line of cases upon which defendant relies began when a trial court imposed a sentence less than the statutory minimum, causing the Supreme Court to hold “[a]ny attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.” State v. Beasley (1984), 14 Ohio St.3d 74, 75. Twenty years later, the Supreme Court shifted its focus to the consequences of a trial court‘s failure to notify a defendant of post-release control. The court held that if a trial court failed to notify an offender about post-release control pursuant to
{¶8} Following Jordan, the Supreme Court in State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, held that where an offender was not properly informed about the imposition of post-release control at the sentencing hearing, the “sentence for that offense is void. The offender is entitled to a new sentencing hearing for that particular offense.” Id. at syllabus. See also State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶6, cert. denied, 129 S.Ct. 463 (stating that “in 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, and the state is entitled to a new sentencing hearing to have postrelease control imposed on the defendant unless the
{¶9} Recently, the Supreme Court decided State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, where it reaffirmed that if a sentence “does not include the statutorily mandated term of postrelease control,” it “is void.” Id. at paragraph one of the syllabus. The court added that such a void sentence “is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.” Id. The court clarified that although res judicata does not preclude review of a void sentence, “res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence.” Id. at paragraph three of the syllabus. At the same time, the court modified Bezak, holding “[t]he new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control.” Id. at paragraph two of the syllabus. Thus, when a “judge fails to impose statutorily mandated postrelease control as part of a defendant‘s sentence, that part of the sentence is void and must be set aside” while the rest of the sentence remains in force. Id. at ¶26. (Emphasis sic.)
{¶10} Defendant does not dispute that “an individual sentenced for aggravated murder * * * is not subject to postrelease control, because that crime is an unclassified felony to which the postrelease-control statute does not apply.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶36, citing
{¶11} From a practical standpoint, defendant will never be released from prison in light of the sentence imposed for his capital convictions. Nonetheless, nothing in the plain language of
{¶12} The inmate in Carnail was convicted of rape and sentenced to an indefinite sentence of life in prison with parole eligibility after ten years. The present case is arguably distinguishable because defendant will never be eligible for release on parole. Carnail, however, determined that “[b]ecause
{¶13} Carnail determined the legislature is the body to determine whether sound public policy supports alleviating the trial court of the duty to notify an offender of post-release control where the offender is serving an indefinite sentence in addition to a definite sentence. Id. at ¶30 (noting that “insofar as general policy considerations might support subjecting a defendant only to the parole provisions of R.C. Chapter 2971 without the additional application of the postrelease-control provisions of
{¶14} Although defendant never will be released from prison, we cannot ignore the broad language of
{¶15} Defendant‘s first assignment of error is sustained to the extent indicated.
IV. Second Assignment of Error – Motion to Dismiss
{¶16} Defendant‘s second assignment of error asserts the trial court erred in denying his motion to dismiss for failure to prosecute. Defendant argues the trial court‘s failure to include post-release control in his sentencing entry rendered his sentence void and resulted in an unreasonable delay in imposing a valid sentence and issuing a final appealable order.
{¶17} Defendant‘s argument erroneously presumes that the entire judgment against him was void as a result of the trial court‘s failure to impose post-release control. As the Supreme Court explained in Fischer, a trial court‘s failure to properly apply post-release control sanctions does not render a judgment “nonfinal and unappealable.” Fischer at ¶38-39. Defendant‘s remedy is a new sentencing hearing for the limited purpose of imposing post-release control, not dismissal of the case.
{¶18} Defendant‘s second assignment of error is overruled.
V. Disposition
{¶19} The trial court erred in failing to impose post-release control related to the jury‘s finding him guilty of aggravated burglary, aggravated robbery, and kidnapping. The trial court‘s error in not applying post-release control does not render defendant‘s
Judgment affirmed in part and reversed in part; cause remanded with instructions.
KLATT and CONNOR, JJ., concur.
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