explaining that "once an offender has completed the prison term imposed in his original sentence, he cannot be subjected to another sentencing entry to correct the trial court's flawed imposition of postrelease control"
How later courts described this case
- explaining that "once an offender has completed the prison term imposed in his original sentence, he cannot be subjected to another sentencing entry to correct the trial court's flawed imposition of postrelease control"
- recognizing that courts should decide constitutional issues only when necessary
- concluding that the trial court is required to notify the defendant of the mandatory nature of postrelease control as well as the length of that term
- mentioning separation of powers issues where the parole board imposes items not properly imposed by the court
Written by the judges who cited it.
The opinion
Lanzinger, J.,
concurring in part and dissenting in part.
*218 Roger D. Nagel, Fulton County Prosecuting Attorney, and Paul H. Kennedy, Assistant Prosecuting Attorney, for appellee in case No. 2007-0693.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for appellee in case No. 2007-1415.
{¶ 74} I have maintained my position, most recently stated in State v. Boswell, 121 Ohio St.3d 575 , 2009-Ohio-1577 , 906 N.E.2d 422 , that errors made during a plea hearing or at sentencing should be corrected on direct appeal. Boswell at ¶ 17 . Failure to notify a defendant of postrelease control or to include it within a sentencing entry should render a sentence voidable, meaning subject to correction. Before enactment of Sub.H.B. No. 137 (“H.B. 137”), effective July 11, 2006, a trial court had no special statutory power to correct a sentence that contained a postrelease control error. Now, however, R.C. 2929.191 allows a trial court to correct a sentencing error related to the imposition of mandatory postrelease control, provided that the correction is made after the offender is given a hearing and while the offender is still serving a prison term.
{¶ 75} I agree that H.B. 137 does not violate Section 15(D), Article II of the Ohio Constitution and that it has not been demonstrated beyond a reasonable doubt that R.C. 2929.191 violates the separation-of-powers doctrine. With respect to Bloomer, who was sentenced before the statute’s effective date, I dissent from the judgment and would hold that Bloomer’s original sentence must stand because the state did not appeal the sentence containing the postrelease control error. With respect to Mosmeyer, I concur in the judgment because the trial court correctly followed the statutory procedure to impose postrelease control at his August 23, 2006 resentencing. With respect to Barnes, although I do not agree with the majority’s reasoning, I also concur in the judgment, because Barnes has already served his prison term.
(¶ 76} The facts of Barnes’s case illustrate one of the difficulties that arise when the majority determines a sentence of this type to be void, meaning imposed by a court without jurisdiction. It is impossible for me to see how Barnes could be released if indeed the sentence already served were void and a nullity — a full resentencing first would be required to impose a valid penalty. Apparently what the majority holds is that a sentence is void only until it is served completely, when it then has full effect. This does not seem to be logical.
{¶ 77} I respectfully concur in the judgments as to Mosmeyer and Barnes and dissent with respect to the judgment in Bloomer.
Lundberg Stratton, J., concurs in the foregoing opinion.
*219 Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J. Holder, Assistant Prosecuting Attorney, for appellee in case No. 2007-1439.
Timothy Young, State Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellant in case No. 2007-0693.
Derek W. Gustafson, for appellant in case No. 2007-1415.
Paul Mancino Jr., for appellant in case No. 2007-1439.