# State v. Bailey, 2007 Ca 121 (10-10-2008)

> Ohio Court of Appeals · October 10, 2008 · 2008 Ohio 5357

URL: https://www.frixlaw.com/law-library/cases/3772200

## Case

- **Full name:** State of Ohio v. Michael E. Bailey
- **Court:** Ohio Court of Appeals
- **Decided:** October 10, 2008
- **Citations:** 2008 Ohio 5357
- **Precedential status:** Published
- **Opinion:** Concurrence
- **Judges:** DONOVAN, J.
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3772200

## Opinion text

{¶ 31} I agree with Judge Donovan's analysis, but write separately to point out that the issue involved is not resolved exclusively by reference to the relevant statutory texts.
{¶ 32} In order to impose a sentence upon a guilty plea or conviction for a criminal offense, due process requires the court to orally pronounce the sentence in open court, with the defendant present. Crim. R. 32. A journalized judgment of conviction and sentence is insufficient for that purpose, because that judgment is merely a document memorializing the sentence the court imposed by its pronouncement.
{¶ 33} Applying the oral pronouncement requirement to a post-release control element of a sentence the court imposes, R.C. 2929.19 (B)(3)(e) states that the court must "[n]otify the offender" of the maximum prison term that may result from the defendant's violation of post-release control sanctions the parole board later imposes when the defendant is released from prison. However, the pronouncement the court makes is not merely a form of notice or advice, as that section suggests. Rather, it constitutes imposition of a sentence and its automatic suspension, continuation of the suspension being conditioned on adverse findings the parole board may later make. Though the parole board's findings operate to administratively terminate the suspension, the parole board cannot "impose" the sentence, which is purely a judicial function.
{¶ 34} The General Assembly cannot statutorily authorize the parole board to "impose" a prison term. Imposition of a prison sentence is an exercise of the judicial power, and any attempt to *Page 13
do that through a legislative act or a delegation of legislative authority is prohibited by Section 32 , Article II of the Ohio Constitution. Therefore, any prison term a defendant must later serve for violation of post-release control sanctions arising from his prior conviction for a criminal offense must be one that was previously pronounced by the court, at least with respect to the maximum length of the additional term that results. *Page 1

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3772200. Public record. Not legal advice.