2007 Ohio 2187 | Ohio Ct. App. | 2007
{¶ 2} On May 4, 2000, Turner was indicted on one count of aggravated murder with a firearm specification. In September 2000, Turner pled guilty to the stipulated lesser offense of attempted involuntary manslaughter, a second-degree felony, with a firearm specification. Turner and his counsel signed an entry of guilty plea form, dated September 7, 2000, in which Turner acknowledged that he was subject to a mandatory three-year term of post-release control ("PRC") and his understanding of the consequences of violating PRC. The trial court held a plea hearing, followed immediately by a sentencing hearing, on September 11, 2000. The trial court sentenced Turner to two years of imprisonment on his conviction for attempted involuntary manslaughter and three consecutive years of imprisonment on the firearm specification, for a total of five years. Turner assured the trial court that he understood its verbal explanation that he would be subject to PRC upon his release from prison and of the consequences of violating PRC. Despite its discussion of PRC on the record, the trial court's sentencing entry, filed September 12, 2000, contains no reference to PRC. Neither Turner nor the State appealed Turner's sentence.
{¶ 3} On March 3, 2006, the State filed a motion for corrected judgment entry and/or resentencing, requesting the trial court to journalize Turner's mandatory three-year period of PRC. The State filed its motion in response to the Ohio Supreme Court's decision inHernandez v. Kelly,
{¶ 4} At a hearing on the State's motion, held April 20, 2006, Turner argued that, although he remained in prison on a consecutive one-year sentence arising out of a Fairfield County case, he completed the journalized sentence in this case by April 2005, 11 months before the State moved for resentencing. Consequently, he argued that the trial court lacked authority to impose PRC on his completed sentence. The State responded that, even though Turner had completed his five-year sentence, he had not been released from prison. Therefore, the State argued that the trial court retained authority to impose PRC. At the conclusion of the hearing, the trial court denied the State's motion. The court found that Turner had completed his five-year sentence from this case before beginning his one-year sentence from Fairfield County and that it could not now resentence Turner to include PRC in his completed sentence. On April 21, 2006, the trial court journalized its denial of the State's motion.
{¶ 5} On appeal, the State advances the following assignment of error:
THE TRIAL COURT ERRED IN REFUSING TO CORRECT [TURNER'S] ILLEGALLY LENIENT SENTENCE.
{¶ 6} In support of its assignment of error, the State argues that Turner's journalized sentence was void and, therefore, subject to correction; that the omission of PRC was the result of a clerical error; that Hernandez provides no support for the trial court's denial of the State's motion; and that neither double jeopardy nor res judicata bars resentencing. *4
{¶ 7} R.C.
{¶ 8} A court's duty to notify offenders about PRC is the same as any other statutorily mandated term of a sentence. Id. at ¶ 26. Given the trial court's statutory duty to notify offenders of PRC, any sentence imposed without such notification is contrary to law and void, whether the trial court's failure to notify the offender of PRC occurs at the sentencing hearing, in the judgment entry of sentence or both. Id. at ¶ 23; State v. Jackson, Franklin App. No. 06AP-631,
{¶ 9} In Hernandez, the Ohio Supreme Court considered the ramifications of a trial court's failure to notify an offender of PRC and to incorporate such notice into its judgment entry. There, the Supreme Court granted a writ of habeas corpus and ordered the immediate release of an inmate who was incarcerated after the OAPA's imposition of a PRC sanction of imprisonment where the inmate's original sentencing entry did not impose a term of PRC. Although the Supreme Court noted that the trial court erred by failing to comply with its clear duty to advise Hernandez of statutorily mandated PRC, it held that, "`unless a trial court includes [PRC] in its sentence, the [OAPA] is without authority to impose it.'" Hernandez at ¶ 20, quoting Jordan at ¶ 19. The Supreme Court also rejected an argument that the appropriate remedy for the trial court's failure to notify Hernandez of PRC was resentencing:"Jordan notwithstanding, an after-the-fact notification of Hernandez, who has served his seven-year sentence, would circumvent the objective behind R.C.
{¶ 10} While Hernandez made clear that the OAPA may not impose and enforce PRC where the trial court failed to notify the offender of PRC at sentencing and/or in its judgment entry, Hernandez did not clearly answer whether, and under what circumstances, a trial court may correct its failure to notify an offender of PRC. In its post-Hernandez motions to correct sentence and/or to resentence, the State has argued *7 that sentences issued without statutorily mandated notice of PRC are void and subject to correction via resentencing.
{¶ 11} In State v. Ramey, Franklin App. No. 06AP-245,
{¶ 12} Although, under Ramey, a trial court has authority to resentence an offender to impose PRC while the offender is serving his journalized prison term, a trial court's authority to correct a void sentence by resentencing the offender is not unlimited, *8
and there are circumstances that prevent resentencing. See State v.Draper, Franklin App. No. 06AP-600,
{¶ 13} In two recent cases, the Ohio Supreme Court has clarified the impact of Hernandez on situations where an offender's prison sentence expires without the trial court first resentencing the offender to impose PRC. First, in Adkins v. Wilson,
{¶ 14} In Cruzado, an offender serving his journalized sentence sought a writ of prohibition vacating the trial court's entry resentencing him to a mandatory period of PRC. The Supreme Court denied the writ after concluding that the trial court did not lack jurisdiction to correct Cruzado's sentence. In so concluding, the Supreme Court distinguishedHernandez, explaining that, unlike Cruzado, Hernandez's journalized sentence had expired. The court stated that, in Hernandez, "[w]e reasoned that the trial *9 court's noncompliance with the truth-in-sentencing provisions could not be cured by resentencing after the journalized prison term had expired[.]" (Emphasis sic.) Id. at ¶ 23. In contrast, theCruzado trial court possessed authority to correct Cruzado's invalid sentence to include mandatory PRC "[b]ecause Cruzado's sentence had not yet been completed when he was resentenced[.]" Id. at ¶ 28.
{¶ 15} This court has also had the opportunity to consider whether a trial court retains authority to resentence an offender to a mandatory period of PRC after the expiration of the offender's journalized prison sentence. In State v. Duchon (Sept. 28, 2006), Franklin App. No. 06AP-574 (Memorandum Decision), and State v. Johnson (Nov. 14, 2006), Franklin App. No. 06AP-588 (Memorandum Decision), we denied motions for leave to appeal the trial court's refusal to impose mandatory PRC terms after the offenders completed their journalized prison terms and were released. More recently, in Grim, we reversed a trial court's resentencing, concluding that the court lacked authority to impose erroneously omitted PRC after the appellant completed his journalized sentence and was released from prison. We stated: "The language in[Adkins, Watkins, and Cruzado], along with that in Hernandez, leads us to conclude that once an offender has been released after serving the prison term stated in the original sentencing entry, a trial court no longer possesses jurisdiction to resentence the offender in order to impose an erroneously omitted period of mandatory PRC." Id. at ¶ 18. Likewise, in Draper at ¶ 9, we considered expiration of the offender's prison term as determinative of the trial court's jurisdiction to resentence; "[i]f an offender's sentence has expired, a trial court does not have the jurisdiction to correct an erroneous sentence and impose the proper period of post-release control." In Draper, the trial court retained *10 jurisdiction "because [the offender's] prison term had not yet expired at the time of resentencing." Id. at ¶ 10.
{¶ 16} The distinction we have recognized between a trial court's authority to resentence an offender prior to the expiration of the offender's journalized sentence and a trial court's lack of authority to do so after the expiration of the journalized sentence is in accord with the decisions of other Ohio appellate districts. See State v.Ayers, Erie App. No. E-05-079,
{¶ 17} Here, pursuant to Cruzado, the trial court could have corrected its void sentence by resentencing Turner while Turner was serving his five-year prison term. However, the State did not move the trial court to resentence Turner until after the five-year sentence journalized in this case expired. Nevertheless, the State contends that the trial court's authority to resentence Turner did not lapse because Turner remained in prison after his five-year sentence expired.
{¶ 18} Turner's journalized sentence from this case expired in April 2005, at which time he began serving his consecutive one-year sentence from Fairfield County. Turner was serving his Fairfield County sentence when the State moved the trial court for resentencing. We recognize that some cases addressing a trial court's authority to resentence an offender to impose an erroneously omitted PRC term speak in terms of *11 an offender's release from prison, while others speak in terms of the expiration of the offender's sentence. We also recognize that, in some cases including this one, expiration of a journalized sentence and release from prison do not coincide. However, review of the Ohio Supreme Court cases addressed above convinces us that the expiration of the offender's journalized prison sentence, rather than the offender's ultimate release from prison, is determinative of the trial court's authority to resentence. In Cruzado, the Supreme Court concluded that the trial court did not lack jurisdiction to correct its sentence "before [the] journalized sentence had expired." (Emphasis omitted.) Id. at ¶ 32. Also in Cruzado, the Supreme Court explained its reasoning inHernandez that the trial court could not cure its failure to include PRC in Hernandez's sentence "after the journalized prison term had expired[.]" (Emphasis sic.) Id. at ¶ 23. Additionally, inWatkins at ¶ 48, the Supreme Court explained its holding inAdkins that the trial court lacked jurisdiction to add PRC to a sentence "after [the] original sentence had expired." Given the Supreme Court's consistent reliance on the expiration of an offender's sentence, we conclude, as we succinctly stated in Draper at ¶ 9, that, "[i]f an offender's sentence has expired, a trial court does not have the jurisdiction to correct an erroneous sentence and impose the proper period of [PRC]."
{¶ 19} Here, the trial court's authority to resentence Turner expired with the five-year prison term journalized by the trial court. Because Turner completed his journalized sentence from Franklin County before the State moved for resentencing, the trial court lacked jurisdiction to resentence Turner. Accordingly, the trial court did not err in denying the State's motion for corrected sentence and/or resentencing. *12
{¶ 20} For the foregoing reasons, we overrule the State's assignment of error, and we affirm the judgment of the Franklin County Court of Common Pleas denying the State's motion for corrected sentence and/or resentencing.
Judgment affirmed.
BRYANT and McGRATH, JJ., concur.