State v. SulekState v. Sulek
Rendered on the 20th day of August, 2010.
Stephen K. Haller, Pros. Attorney; Elizabeth A. Ellis, Asst. Pros. Attorney, Atty. Reg. No. 0074332, 61 Greene Street, Xenia, Oh 45385 Attorneys for Plaintiff-Appellee
Keith Sulek, Inmate # 459-256, London Correctional Institution, P.O. Box 69, London, OH 43140 Defendant-Appellant, Pro Se
GRADY, J.:
{¶ 1} Defendant, Keith Sulek, appeals from a final order of thе court of common pleas that denied Sulek‘s motion to vacate his sentences.
{¶ 2} In 2003, Sulek was convicted on his pleas of no contest
{¶ 3} When it imposed Defendant‘s sentences the court stated: “The Court notifies you that post-release control is mandatory in this case up to a maximum of five years . . . .” (December 9, 2003 Transcript, p. 33). The court also advisеd Defendant of the potential consequences of a post-release control violation. We affirmed Defendant‘s convictions and sentence on direct appeal. State v. Sulek, Greene App. No. 2004-CA-2, 2005-Ohio-4514.
{¶ 4} On August 24, 2009, Defendant filed a motion, pro se, asking the court to vacate his sentences. (Dkt. 100). Defendant argued that his sentences are void, per State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, and related authorities, due to several defects in the trial court‘s pronouncement regarding the post-release control to which Defendant would be subject. The trial court, relying on our holding in State v. Harrington, Greene App. No. 06-CA-29, 2007-Ohio-1335, denied the relief Defendant requested. (Dkt. 103, 104). Defendant filed a notice of appeal.
{¶ 5} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT OVERRULED AND DENIED APPELLANT‘S MOTION. AS IN A MULTI-COUNT CONVICTIONS AND SENTENCING, THE SENTENCE MUST CONTAIN A PROVISION FOR POST-RELEASE CONTROL FOR EACH CONVICTION AND SENTENCE WHEN POST-RELEASE CONTROL IS A MANDATORY REQUIREMENT, AND THE APPELLANT MUST BE NOTIFIED OF POST-RELEASE CONTROL FOR EACH SENTENCE AT SENTENCING. WHEN POST-RELEASE CONTROL IS NOT PROVIDED AND APPELLANT IS NOT NOTIFIED, THE SENTENCE IS VOID PURSUANT TO
SECOND ASSIGNMENT OF ERROR
{¶ 6} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT OVERRULED AND DENIED APPELLANT‘S MOTION. WHEN IT FAILED TO PROPERLY IMPOSE POST-RELEASE CONTROL ON THE APPELLANT. AS IT FAILED TO INFORM THE APPELLANT OF THE ‘EXACT’ PERIOD OF TIME THAT HE WOULD BE ON POST-RELEASE CONTROL FOR HIS MANDATORY POST-RELEASE CONTROL AT SENTENCING PURSUANT TO
THIRD ASSIGNMENT OF ERROR
{¶ 7} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT OVERRULED AND DENIED APPELLANT‘S MOTION. WHEN THE TRIAL COURT FAILED TO COMPLY WITH OHIO CRIMINAL 32(C), AS THE JUDGMENT ENTRY OF SENTENCING IS VOID. AS THE TRIAL COURT FAILED TO NOTIFY THE APPELLANT OF A SPECIFICATE(SIC) SENTENCE THAT POST-RELEASE CONTROL WAS IMPOSED ON. THIS VIOLATING APPELLANTS (SIC) DUE PROCESS AND EQUAL PROTECTION RIGHTS PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND OHIO STATE‘S CONSTITUTION CORRESPONDING PROVISIONS.”
{¶ 8} Each sentence to a prison term for a felony offense of the first or second degree “shall include a requirement that the offender be subject to a term of post-release control imposed by the parole board after the offender‘s release from imprisonment.”
{¶ 9} Any prison sentence for a felony of the third, fourth, or fifth degree that is not a sex offense and in which physical
{¶ 10} The post-release control requirements with respect to imprisonment for first and second degree felony offenses are mandatory. Those requirements are discretionary with respect to third, fourth, and fifth degree felony offenses. State v. Vu, Medina App. Nos. 07CA0094-M, 95-M, 96-M, 107-M, 108-M, 2009-Ohio-2945. However, the same notification requirement applies to any felony offense for which a term of imprisonment is imposed.
{¶ 11}
{¶ 12} A motion to withdraw a plea of guilty or no contest made by a defendant whose sentence is void must be considered as a presentence motion under Crim.R. 32.1. State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577. For criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose post-release control, trial courts shall conduct a de novo sentencing hearing. State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434.
{¶ 13} In State v. Harrington, on which the trial court relied when it denied Defendant‘s motion to vacate his sentence, the defendant was convicted of a first-degree felony offense.
{¶ 14} The defendant in Harrington argued on appeal that his sentence was void because a full five-year period is mandated by
{¶ 15} The two Aggravated Vehicular Assault offenses for which Defendant Sulek was sentenced to terms of imprisonment are second-degree fеlonies, to which a mandatory period of post-release control of three years applies.
{¶ 16} In State v. Thaler, Montgomery App. No. 21129, 2006-Ohiо-4017, ¶11, we held that the trial court erred when it notified the defendant that he would be subject to a post-release control period of five years, when the proper period for the offense concerned was but three years. The court committed thе same error in the present case, and the error is likewise prejudicial. The error renders Defendant‘s three sentences void, Jordan, and entitles him to a de novo sentencing hearing. Singleton.
{¶ 17} Defendant‘s second and third assignments of error are sustained, for the foregoing reasons.
{¶ 19} In Reznickcheck, the trial court imposed prison sentences for each of three offenses: two second-degree felonies, for which a three-year term of post-release control is mandatory, and one third-degree felony, abduction, for which a discretionary term of up to three years is available.
{¶ 20} In Bezak, the defendant was sentenced to one term of imprisonment for a single offense, obstructing justice,
{¶ 21} “When a defendant is convicted of or pleads guilty to one or more offense and postrelease control is not properly included in a sentence for a particular offense, the sentenсe for that offense is void. The offender is entitled to a new sentencing hearing for that particular offense.”
{¶ 22} We do not construe Bezak to require a separate and specific notification of the post-release control requirement applicable to eаch one of multiple felony offenses for which a term of imprisonment is imposed. Rather, when the post-release control requirement pronounced by the court fails to give the defendant the notice required by
{¶ 23} Only one term of post-release control is actually served, even though a defendant was sentenced to multiple prison terms. Therefore, when multiple terms of imprisonment are imposed a notification should specify the maximum term of post-release control to which the defendant will be subjected as a result. When identical post-release сontrol requirements apply to multiple prison terms, the same notification may apply to each of the offenses concerned. When different post-release control terms apply to multiple prison terms, a single notification of the maximum stаted term may also serve to satisfy the notification requirement applicable to any lesser terms, so long as the notification given does not exclude any lesser terms of post-release control the other offenses involve. If it does, the notificаtion is improper and inadequate with respect to the lesser terms. Reznickchek.
{¶ 24} The problem in Reznickcheck was not that the three-year terms of mandatory post-release control the court imposed for the two second-degree felonies did not encompass the discretionary term of up to three years available for the single third-degree felony. The problem was that the notification was, by its terms, expressly limited to the two second-degree felonies; expressio unius, expression of one thing suggests the exclusion of others.
{¶ 25} The trial court was not required to separately and expressly notify Defendant of the terms of post-release control applicable to each of the three offenses for which prison terms were imposed. The first assignment of error is overruled.
{¶ 26} Having sustained the second and third аssignments of error for the court‘s erroneous notification of a greater-than-available term of post-release control, we will reverse and vacate the sentences the court imposed and remand the case for resentencing.
BROGAN, J., concurs.
FROELICH, J., dissenting in part, concurring in judgment.
{¶ 27} While сoncurring that the sentences should be vacated and the Appellant should be re-sentenced, I disagree with the majority‘s statement that “when different post-release control terms apply to multiple prison terms, a single notification of the maximum stated term may also serve to satisfy the notification
{¶ 28} I believe I understand the common sense of the statement - how is a defendant prejudiced if he is told he will be on PRC for three years for all his charges, but not told that he may be on PRC for up to three years simultaneously for some of the other charges? Even if the sentence for which the law requires three years PRC were vacated or the APA reduced the length of that period of PRC, he should still have been aware that he was required to serve any lesser terms.
{¶ 29} However practical such a resolution is, this does not appear to be the requiremеnts of the Code as interpreted by the Supreme Court.
{¶ 30} The law surrounding PRC notification and what is a “void” or “voidable” sentence cries out for clarification. In the meantime, Bezak instructs us that a judgment is void if PRC is not properly included in the sentence for a particular offеnse. On remand, both as a matter of law and thoroughness in ensuring the Appellant is sentenced completely for each offense for which he has been convicted, the court should inform the Appellant of the separate PRC requirements for each particular offense to which they apply.
Elizabeth A. Ellis, Esq. Keith Sulek Hon. Stephen Wolaver