State v. Holcomb

Dickinson, Presiding Judge,

concurring.

{¶ 23} I reluctantly join in the per curiam opinion. The trial court had personal jurisdiction over Holcomb when it sentenced him and had subject-matter jurisdiction over the proceeding. It made a mistake in imposing sentence. That mistake made his sentence voidable, that is, subject to being reversed on direct appeal. It did not make his sentence void ab initio. State v. Perry (1967), 10 Ohio St.2d 175,178-179 , 39 O.O.2d 189 , 226 N.E.2d 104 .

{¶ 24} In State v. Simpkins, 117 Ohio St.3d 420 , 2008-Ohio-1197 , 884 N.E.2d 568 , the trial court had personal jurisdiction over the defendant and subject-matter jurisdiction over the proceeding. Despite that, the Supreme Court held that because its sentencing entry contained a mistake, the sentence was void ab initio. The moving party in Simpkins was the state. Because of that, I thought the ruling could be restricted to cases in which the state was the moving party. I realize that distinction didn’t make a lot of sense, but my belief was that just because the Supreme Court holds that the sun rises in the west on Sundays, we should not extend that ruling to other days of the week. Accordingly, in State v. Price, 9th Dist. No. 07CA0025, 2008-Ohio-1774 , 2008 WL 1700341 , we, in effect, treated a sentence that did not include postrelease control as voidable rather than void.

{¶ 25} More recently, the Ohio Supreme Court decided State v. Boswell, 121 Ohio St.3d 575 , 2009-Ohio-1577 , 906 N.E.2d 422 , a case in which it vacated a sentence as void when nobody had even asked it to. Again, the trial court that sentenced Boswell had personal jurisdiction over him and subject-matter jurisdiction over the case. I take this as a holding that the sun rises in the west on *587 Mondays and infer from it that the Ohio Supreme Court believes it does so all week.

{¶ 26} Abraham Lincoln said, “[U]pon the subjects of which I have treated, I have spoken as I thought. I may be wrong in regard to any or all of them; but holding it a sound maxim, that it is better to be only sometimes right, than at all times wrong, so soon as I discover my opinions to be erroneous, I shall be ready to renounce them.” Letter from Abraham Lincoln to the People of Sangamo County (Mar. 9, 1832), in Abraham Lincoln, Speeches and Writings 1832-1858 (The Library of America 1989) 4-5. While acknowledging that I was wrong about the broadness of Simpkins, I urge the Ohio Supreme Court to look again at its holding in that case to determine whether we can’t get the earth again spinning in the right direction.

Carr, Judge,

concurring.

{¶ 27} For the following reasons, I respectfully concur in judgment only.

{¶ 28} Courts around the state, including this court, have struggled with how to apply the Ohio Supreme Court’s numerous decisions about postrelease control. The judges of this court have recognized that there are different approaches that could be taken to decide these issues. This court has taken different approaches in similar cases.

{¶ 29} In In re J.J., 111 Ohio St.3d 205 , 2006-Ohio-5484 , 855 N.E.2d 851, ¶ 20 , the Supreme Court issued a “directive that appellate courts should resolve conflicts within their respective appellate districts.” In light of the Supreme Court’s mandate, the judges of this court considered various approaches to resolving these cases. The result is that this court will follow the broad approach outlined in the per curiam opinion.

{¶ 30} There was not complete agreement with this outcome. A minority of the judges of this court would apply the Supreme Court’s holdings on the narrow bases on which they were decided, an approach this court has followed in other circumstances. See, e.g., State v. Hultz, 9th Dist. No. 06CA0032, 2007-Ohio-2040 , 2007 WL 1238611 , ¶ 12 (“The narrow holding in [State v.] Miller [ 2007-Ohio-1353 , 2007 WL 879666 ] does not apply in the instant case * * *”); State v. Brintzenhofe (May 12, 1999), 9th Dist. No. 18924, 1999 WL 292195 , at *4. Consistent with a narrow approach, the Supreme Court’s postrelease-control decisions could be applied to cases with the same procedural and factual history. The holding in Simpkins, for example, could be applied solely to cases in which the state has sought a new sentencing hearing because the trial court failed to impose postrelease control, as stated in the syllabus. This court has already distinguished Simpkins based on the facts of the case. See, e.g., State v. Spears, 9th Dist. No. 07CA0036-M, 2008-Ohio-4045 , 2008 WL 3271048 , ¶ 15 (“The facts in *588 Simpkins distinguish it from Mr. Spears’s situation”). Bezak and Jordan could be applied in the same manner. Finally, the Supreme Court could revisit these questions to address the confusion that currently surrounds these cases. See Simpkins (Lanzinger, J., dissenting); State v. Fischer, 181 Ohio App.3d 758 , 2009-Ohio-1491 , 910 N.E.2d 1083, ¶ 15 (Dickinson, J., concurring).

{¶ 31} Reasonable jurists disagree about how to interpret and apply the Supreme Court’s postrelease-control cases. The Supreme Court has not been unanimous in its decisions on these difficult and complicated questions. See, e.g., State v. Bloomer, 122 Ohio St.3d 200 , 2009-Ohio-2462 , 909 N.E.2d 1254 ; Boswell; Simpkins. The justices continue to raise these questions, including, for example, the oral argument heard June 3, 2009, in State v. Singleton, Supreme Court Case No. 2008-1255 (oral argument available at http://www.ohiochannel.org/media_ archives/supreme_court/media.cfm?file-id=120614&).

{¶ 32} I would not resolve this case in the same manner as the lead opinion. But a majority of the judges of this court have agreed to follow this approach. I believe consistency of decisions will benefit the parties, attorneys, and trial courts in this district. Accordingly, I concur in this court’s judgment.