State v. WilliamsState v. Williams
Rendered on September 27, 2011
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellant.
Eric J. Allen, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶1} Plaintiff-appellant, State of Ohio (“the state“), appeals from a judgment of the Franklin County Court of Common Pleas granting defendant-appellee, Vincent D. Williams’ (“defendant“), motion to vacate void sentence and consequent order to immediately release defendant from prison. For the reasons that follow, we reverse.
{¶2} On May 31, 2001, defendant pled guilty to one count of burglary, a second-degree felony, in case No. 00CR-4322, and to one count of attempted burglary, a
{¶3} Prior to entering the plea of guilty in case No. 00CR-4322, defendant signed a written “Entry of Guilty Plea” form acknowledging that he would be sentenced to a “Three year[s]-Mandatory” period of post-release control. (Exhibit to state‘s Memorandum Contra Defendant‘s Motion to Vacate Void Sentence.) Defendant also signed a written “Notice (Prison Imposed)” form informing him that he “will * * * have a period of post-release control for 3 years following [his] release from prison.” (Exhibit to state‘s Memorandum Contra.) At the plea and sentencing hearing, the trial court asked defendant if his attorney had gone over the forms with him and if it was his signature on the forms. The defendant replied “yes” to both questions. (Tr. 6.) Also at the hearing, the trial court orally informed defendant that he “may” have a period of post-release control. However, upon being reminded by the defense attorney, the trial court corrected itself and told defendant that “It is mandatory. You will have a period of post-release control of up to three years.” (Emphasis added.) (Defendant‘s Motion to Vacate Void Sentence, Exhibit C, at 14.) The sentencing entry, filed June 1, 2001, stated “[a]fter imposition of sentence, the Court notified the Defendant, orally and in writing, of the applicable periods of post-release control pursuant to
{¶4} Approximately three and one-half years later, after having completed his three-year prison term in case Nos. 00CR-4322 and 00CR-5842, yet while still subject to his post-release control, defendant was convicted of attempted burglary, a third-degree felony, and possession of criminal tools, a fifth-degree felony, in case No. 03CR-6358. On February 28, 2004, he was sentenced to a five-year prison term in case No. 03CR-6358 for the attempted burglary and a 12-month prison term for the possession of criminal tools, to run concurrently. The trial court also imposed an additional judicial sanction of 873 days for the violation of post-release control. The 873 days were to run consecutive to the five-year prison term. The sentencing entry, filed March 1, 2004, states “[t]he Court hereby imposes an additional 873 days consecutive for the post-release control violation.” (Mar. 1, 2004 Judgment Entry.)
{¶5} Thereafter, defendant filed a direct appeal to this court in State v. Williams, 10th Dist. No. 04AP-279, 2004-Ohio-6254 (“Williams I“). In his fourth assignment of error, defendant argued that the trial court erred when it imposed the balance of post-release control because, when he was convicted in the prior case, he was not informed that post-release control was part of the sentence. We noted that the record of case No. 00CR-4322 was not part of the record in the appeal of case No. 03CR-6358 and, therefore, overruled the assignment of error. On October 12, 2007, defendant filed a motion to vacate void sentence, arguing that the 873 additional days in prison were a nullity because the trial court in the previous case did not properly notify him of his post-release control sanction. The trial court denied the motion, and defendant appealed the decision.
{¶6} Finally, on March 5, 2010, defendant filed a motion to vacate void sentence in case No. 03CR-6358. At this time, defendant had already completed his sentence for his convictions in case No. 03CR-6358 but was still in prison serving the additional 873 days imposed for his violation of post-release control in case No. 00CR-4322. He attached the sentencing entry and transcript from case Nos. 00CR-4322 and 00CR-5842. The trial court granted the motion on September 1, 2010, and ordered defendant‘s immediate release from his post-release control sanction.
{¶7} The state now appeals the trial court‘s September 1, 2010 decision and order of immediate release and assigns the following errors:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY RULING THAT THE IMPOSITION OF PRC IN 00CR-4322 AND 00CR-5842, RENDERED THE SENTENCES IN THOSE CASES “VOID.”
SECOND ASSIGNMENT OF ERROR
EVEN IF THE SENTENCES IN 00CR-4322 AND 00CR-5842 WERE “VOID,” THE TRIAL COURT ERRED BY VACATING THE SENTENCE IMPOSED IN 03CR-6358.
THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT LACKED AUTHORITY TO GRANT DEFENDANT‘S “MOTION TO VACATE” AS THE “MOTION” WAS AN UNTIMELY AND SUCCESSIVE PETITION FOR POSTCONVICTION RELIEF.
FOURTH ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY GRANTING THE PETITION OR “MOTION” AS DEFENDANT‘S ARGUMENT WAS BARRED BY THE DOCTRINE OF RES JUDICATA.
FIFTH ASSIGNMENT OF ERROR
THE TRIAL COURT MISAPPLIED THE “LAW OF THE CASE” SET FORTH BY THIS COURT IN WILLIAMS I AND WILLIAMS II.
SIXTH ASSIGNMENT OF ERROR
THE TRIAL COURT LACKED AUTHORITY TO “VACATE” DEFENDANT‘S SENTENCE WITHOUT REGAINING JURISDICTION FROM THIS COURT AFTER WILLIAMS I OR WILLIAMS II.
{¶8} In its first assignment of error, the state argues that the sentence in case No. 00CR-4322 was not void and, therefore, it was error to vacate the additional 873 additional prison days in case No. 03CR-6358 and error to order defendant‘s immediate release. Consistent with our analysis in State v. Mays, 10th Dist. No. 10AP-113, 2010-Ohio-4609, State v. Chandler, 10th Dist. No. 10AP-369, 2010-Ohio-6534, and State v. Addison, 10th Dist. No. 10AP-554, 2011-Ohio-2113, we agree.
{¶9} In Mays, Chandler and Addison, this court analyzed the facts and circumstances of each case and found that post-release control pursuant to
(c) Notify the offender that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the first degree or second degree * * * [.]
(d) Notify the offender that the offender may be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the third, fourth, or fifth degree that is not subject to division (B)(3)(c) of this section. * * *
(e) Notify the offender that, if a period of supervision is imposed following the offender‘s release from prison, as described in division (B)(3)(c) or (d) of this section, and if the offender violates that supervision * * *, the parole board may impose a prison term, as part of the sentence, of up to one-half of the stated prison term originally imposed upon the offender. * * *
(Emphasis added.)
{¶10} The Supreme Court of Ohio in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, stated that ”
{¶11} As relevant to this case,
{¶12} The trial court here relied on State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, in determining that defendant‘s original sentence in case No. 00CR-4322 was void. The court noted that defendant Barnes, whose sentence was reversed in the Bloomer case, was never notified of the term of post-release control. The court concluded that, at the sentencing hearing in case No. 00CR-4322, defendant was not properly notified of his term of post-release control, even though he was notified that post-release control was mandatory. Therefore, pursuant to its view of Bloomer, the trial court ruled in the instant case that the sentence was void and that defendant was entitled to immediate release from his post-release control sanction.
{¶13} The court noted that, at the original sentencing hearing in case No. 00CR-4322, the trial court informed defendant regarding post-release control:
It is mandatory. You will have a period of post-release control up to three years. While you are on post-release control, if you violate any conditions that the parole board imposed, several things could happen. The board could increase the length of the conditions, could increase the severity, and the most severe thing they can do is impose prison time up to one-half of the original sentence, one-half being a year-and-a-half. Of course, if the violation was a felony, you could be separately prosecuted for that.
(Emphasis added.) (Sept. 1, 2010 Decision and Entry.) The court went on to note that in the original sentencing entry of June 1, 2001, the court stated ” ‘After the imposition of sentence, the Court notified the Defendant, orally and in writing, of the applicable periods
{¶14} We agree with the trial court that Bloomer requires trial courts to inform a defendant at hearing of the term or length of post-release control. In Bloomer, the Supreme Court of Ohio stated: “Thus, the court failed to satisfy the most basic requirement of
{¶15} Numerous court decisions have addressed the use of “up to” language in sentencing when a defendant was actually subject to a mandatory term of post-release control. In Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, the Supreme Court of Ohio considered the case of a prisoner who sought a writ of habeas corpus to compel his release from prison and post-release control imposed by the Adult Parole Authority (“APA“). The issue presented to the court was whether the APA had authority to impose post-release control when the trial court did not impose it in its sentence. In its discussion of the facts and procedural history, the Supreme Court noted that, prior to filing the habeas corpus petition, the prisoner was convicted and sentenced (“first sentence“), successfully appealed the judgment of conviction and specifications and, on remand, entered a plea agreement and was resentenced (“second sentence“). The prisoner‘s habeas corpus petition challenged the second sentence. With regard to the first
{¶16} Shortly thereafter, in Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, the Supreme Court of Ohio considered a similar challenge to the APA‘s authority to impose post-release control. In Watkins, several prisoners sought a writ of habeas corpus to compel their release from prison for violating the terms of post-release control. Two of the prisoners, Streeter and Maddox, complained that, when they were sentenced on felonies of the third degree, the sentencing entry read “that post-release control is (mandatory/optional) in this case up to a maximum of (3/5) years,” and “that defendant is subject to post-release control which is (mandatory/optional) for up to (three/five) years,” (emphasis added) id. ¶9, 11. Petitioners claimed that they were entitled to the writ because they failed to receive adequate notice of post-release control, and their sentencing entries failed to incorporate adequate notice of post-release control into their sentences. Id. at ¶27. The Supreme Court declined to grant the writ, noting that, while these entries erroneously refer to discretionary instead of mandatory post-release control, they “are sufficient to afford notice to a reasonable person that the courts were
{¶17} More recently, the Supreme Court of Ohio considered a challenge to post-release control based on a defendant‘s contention that the trial court failed to properly notify him of post-release control at the hearing and failed to properly incorporate post-release control into its resentencing entry. In State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, the defendant challenged notification of post-release control (1) at the resentencing hearing, (2) in the resentencing entry, and (3) in the nunc pro tunc entry filed almost six months after the resentencing entry. The nunc pro tunc entry stated ” ‘[a]s to Count(s) Two, Three, Four and Five: The Court has notified the defendant that post-release control is Mandatory in this case up to a maximum of 5 years, as well as the consequences for violating conditions of post-release control imposed by the Parole Board, under Revised Code Section 2967.28.’ ” (Emphasis added.) Id. at ¶68. Count Two was for aggravated robbery, and Count Three was for aggravated burglary, both felonies of the first degree. Count Four was for grand theft of a motor vehicle, a fourth-degree felony, and Count Five was for burglary, a third-degree felony. Id. at ¶2. The Supreme Court found numerous errors with the imposition of post-release control at the hearing, in the resentencing entry, and in the nunc pro tunc entry, including an error which defendant did not raise. Id. at ¶77-78. However, the Supreme Court did not comment on
{¶18} This court has also considered “up to” language in the context of imposing post-release control. In State v. Franks, 10th Dist. No. 04AP-362, 2005-Ohio-462, the defendant alleged that the trial court abused its discretion in not allowing defendant to withdraw her guilty pleas to two counts of felonious assault, both second-degree felonies. Defendant argued that her pleas were not knowing, as required by
{¶20} In addition to evaluating the unique facts and circumstances of each case involving an alleged error in the imposition of post-release control, we look to similar cases that have previously come before the court. Here, we find that Mays, Chandler, and Addison are particularly relevant to our review.
{¶21} In Mays, a defendant appealed a trial court‘s entry of a nunc pro tunc entry clarifying the imposition of post-release control. We noted that the original sentencing entry included a statement that the court had notified the defendant “orally and in writing,
{¶22} Similarly, in Chandler, this court considered an appeal seeking reversal of the imposition of a five-year period of post-release control and finding that the defendant was a Tier III sex offender. The defendant in Chandler had been resentenced after his initial sentencing hearing in order to clarify the post-release control portion of his sentence. After reviewing the record, we found that the defendant signed a guilty plea form indicating that he was subject to a mandatory five-year term of post-release control and that, at the plea hearing, the trial court verbally indicated that the defendant was subject to a mandatory five-year term of post-release control. Chandler at ¶3, 6. Further, the defendant signed a form captioned “NOTICE (Prison Imposed)” that indicated that he was subject to a mandatory five-year term of post-release control. Id. at ¶4-5. At the sentencing hearing, the trial court once again verbally indicated that the defendant was subject to a mandatory five-year term of post-release control. Id. at ¶7. However, the trial court‘s sentencing entry did not expressly recite the term or mandatory nature of the post-release control, simply stating that the trial court “notified the Defendant, orally and in writing, of the applicable periods of post-release control.” Id. at ¶8. Relying on Mays, we
{¶23} Recently, in Addison, we once again considered issues arising from the imposition of post-release control following an initial sentencing hearing and a resentencing to clarify the post-release control period. In that case, the record indicated that, at the initial sentencing hearing, the trial court verbally advised the defendant that he would be on post-release control for five years; the court‘s sentencing entry indicated that the defendant had been notified of the applicable period of post-release control but did not recite that period. Id. at ¶3-4. The record also indicated that the defendant signed a form captioned “NOTICE (Prison Imposed)” referring to a five-year post-release control period; the form contained language indicating that the defendant “will” or “may” be subject to such a period, but neither “will” nor “may” was selected. Id. at ¶4. Although there was no plea agreement in Addison, we concluded that the case had “overwhelming similarities” to Mays. Id. at ¶18. We found that the trial court properly informed the defendant of his post-release control obligations at the original sentencing hearing and that his sentence was not void. Id. at 21.
{¶24} In the case before us, the transcript reveals that, immediately prior to orally informing defendant that he would have a period of post-release control “up to” three years, the trial court refers to the “NOTICE (Prison Imposed)” form which defendant and
{¶25} Also, as in Mays and Chandler, at the hearing at which defendant entered his plea and was sentenced, defendant tendered to the court an Entry of Guilty Plea form, which he signed, his attorney signed and the judge signed. The form reads: “I understand that the following period(s) of post-release control is/are applicable. An “X” was marked in the box next to the words “Three Year-Mandatory.” This form also informs defendant of the possible consequences of a violation of post-release control.
{¶26} Finally, we note that, as in Mays, Chandler and Addison, the original sentence entry reads: “After the imposition of sentence, the Court notified the Defendant, orally and in writing, of the applicable periods of post-release control pursuant to
{¶27} With all these factors in mind, we conclude, considering the facts and circumstances presented here, that post-release control was properly imposed at the original sentencing hearing and in the original sentencing entry. Therefore, imposition of the 873 days remaining on post-release control as an additional judicial sentence in case No. 03CR-6358 was appropriate. The trial court erred in granting defendant‘s motion to
{¶28} Our resolution of the first assignment of error renders the remaining assignments of error moot.
{¶29} For the foregoing reasons, the state‘s first assignment of error is sustained, and the state‘s remaining five assignments of error are moot. The judgment of the Franklin County Court of Common Pleas is reversed, and this matter is remanded to that court for further proceedings in accordance with law and consistent with this decision.
Judgment reversed; cause remanded.
BRYANT, P.J., concurs.
CONNOR, J., dissents.
CONNOR, J. dissenting.
{¶30} Although my reasoning is different from that of the trial court, I agree with the trial court‘s ultimate decision to vacate the defendant‘s sentence and to order his immediate release from his post-release control sanction. Because the majority does not, I respectfully dissent.
{¶31} The majority‘s decision focuses upon the imposition of post-release control in the context of whether or not the defendant was properly notified of the specific length of the term of his post-release control and of whether that term was mandatory or discretionary. The majority cites to numerous cases in which we have recently upheld the imposition of post-release control in these contexts based upon the use of a guilty plea form and a “prison imposed” notice in conjunction with “partial” notification provided orally at a sentencing hearing and/or in a written sentencing entry. However, I believe the
{¶32} It is not disputed that at the time of his plea hearing, on May 31, 2001, the defendant and his attorney signed an “Entry of Guilty Plea” form which jointly recommended a three-year prison term for the second-degree burglary count and notified the defendant that he would receive three years of mandatory post-release control. At the sentencing hearing, the defendant and his attorney also signed a “Notice (Prison Imposed)” form on May 31, 2001, which stated as follows:
After you are released from prison, you will have a period of post-release control for 3 years following your release from prison. If you violate post-release control sanctions imposed upon you, any one or more of the following may result:
(1) The Parole Board may impose a more restrictive post-release control sanction upon you; and
(2) The Parole Board may increase the duration of the post-release control subject to a specified maximum; and
(3) The more restrictive sanction that the Parole Board may impose may consist of a prison term, provided that the prison term cannot exceed nine months and the maximum cumulative prison term as imposed for all violations during the period of post-release control cannot exceed one-half of the stated prison term originally imposed upon you; and
(4) If the violation of the sanction is a felony, you may be prosecuted for the felony and, in addition to any sentence it imposes on you for the new felony, the Court may impose a prison term, subject to a specified maximum, for the violation.
(Emphasis added.)
{¶34} The notification given in the original sentencing entry in case Nos. 00CR-4322 and 00CR-5842 stated “[a]fter imposition of sentence, the Court notified the Defendant, orally and in writing, of the applicable periods of post-release control pursuant to
{¶35} I believe it is significant to note that the defendant was not advised by the court, either in its sentencing entry or verbally at his sentencing hearing, that “the court may impose a prison term subject to a specified maximum.”
{¶36} The defendant and his attorney did, however, sign an entry of guilty plea which stated in very small print: “I understand that I may be prosecuted, convicted, and sentenced to an additional prison term for a violation that is a felony. I also understand that such a felony violation may result in a consecutive prison term of twelve months or the maximum period of unserved post-release control, which is ever greater.”
{¶37} This notification, however, is not at all consistent with the language contained in the court‘s sentencing entry or with the court‘s verbal notification of possible
{¶38} I believe proper notification regarding the court‘s ability to impose an additional prison term, subject to a specified maximum, for a felony violation committed while on post-release control is critical here. In this case, the defendant served his original three-year sentence and was placed on post-release control. While on post-release control, the defendant committed a felony violation, attempted burglary, and as a result he was sentenced in this case, case No. 03CR-6358. The sentencing judge in 03CR-6358 imposed the balance of the time the defendant had left on post-release control on the old case, case No. 00CR-4322. The trial court stated: “As you‘re well aware, the statute gives me authority to impose an additional 873 days on his post-release control.” (Tr. 181.) Counsel for the defendant, however, objected as follows:
One is, I do not know whether the sentencing judge formally apprised on the record Mr. Williams of the ramifications of getting a new felony while on post-release control. I did attempt to retain the transcript of that sentencing hearing. I was unsuccessful in doing that because apparently the individual who took that down, the stenographer, is no longer employed with the county.
Secondly, Your Honor, I have a copy of the sentencing entry signed by Judge Johnson. It does not reference that this matter was addressed in any kind of colloquy or any sort of discussion with Mr. Williams.
(Tr. 182.)
{¶40} Thus, even the trial judge who added 873 days, or the balance of the defendant‘s three years post-release control on the first case, case No. 00CR-4322, incorrectly advised the defendant about the consequences of violating post-release control, including the consequences that could be imposed if that violation involved the commission of a new felony.
{¶41} While I agree with the majority that the defendant was sufficiently notified at the sentencing hearing and during his exchange with the trial court that he would serve three years mandatory post-release control upon his release from the institution, I do not believe that the court adequately notified the defendant of certain significant consequences of post-release control, specifically that a sentencing court in a separate, subsequent case could impose the balance of time remaining on his post-release control term as an additional sentence, consecutive to any sentence imposed for a new violation.
{¶42} In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, the Supreme Court of Ohio stated that “[w]hen an offender violates community control conditions and
{¶43} Further, in Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, the Supreme Court of Ohio held that defendants are to be informed of the exact consequences of a conviction, and the objective of Ohio‘s sentencing laws is to ensure all interested parties “know precisely the nature and duration of the restrictions that have been imposed by the trial court on the defendant‘s personal liberty.” Id. at ¶31. ” ‘Post-release control constitutes a portion of the maximum penalty involved in an offense for which a prison term will be imposed.’ ” State v. Kerrin, 8th Dist. No. 85153, 2005-Ohio-4117, ¶12, quoting State v. Griffin, 8th Dist. No. 83724, 2004-Ohio-4344, ¶13. Proper notification to defendants of penalties that they will face if they violate post-release control is essential.
{¶44} Because defendant was not provided proper notification of the consequences he could face if he violated post-release control, and because defendant has already served his sentence in case No. 00CR-4322, as well as his five-year sentence in case No. 03CR-6358, and thus he cannot be subjected to another sentencing to correct the trial court‘s flawed imposition of the 873 days for violations of post-release control sanctions (see State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250,
{¶45} Therefore, for the hereinbefore stated reasons, I would affirm the decision of the trial court.