Ohio modification to re-sentencing

Last Thursday the Ohio Supreme Court, modifing its 2007 holding in State v. Bezak, ruled that when a trial court that sentenced a criminal offender prior to July 11, 2006 failed to properly include a statutorily required term of post-release control:

• The sentence is void, is not precluded by the principle of res judicata from review by an appellate court, and may be reviewed at any time, on direct appeal or by collateral attack.


• The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control.


• Although res judicata does not bar appellate review of a void sentence, it still applies to preclude review of other aspects of the merits of the offender’s conviction, including the determination of guilt and lawful elements of the sentence pronounced by the trial court.


• Any appeal from a resentencing hearing at which a mandatory term of postrelease control is imposed is limited in scope to issues arising at the resentencing hearing.

[ See State v. Fischer, slip opinion 2010-Ohio-6238 ]

The Court's summary noted, historically, that "ORC § 2929.191, which took effect on July 11, 2006, authorizes the state's trial courts to remedy a failure to properly impose a mandatory term of post-release control by holding a hearing limited to the correction of that error and then making a "nunc pro tunc" (now for then) entry in the court's journal without conducting a full resentencing hearing. However, in a 2009 decision, State v. Singleton, the Supreme Court of Ohio ruled that trial courts may apply the correction procedure set forth in R.C. 2929.191 only to cases in which an offender was sentenced on or after the effective date of the 2006 legislation.]

In last Thursday's case, Justice Maureen O’Connor wrote that there was "an important part of the analysis of void sentences that we have not focused on in prior cases involving post-release control, including Bezak. … Thus, we reaffirm the portion of the syllabus in Bezak that states 'when a defendant is convicted of or pleads guilty to one or more offenses and post-release control is not properly included in a sentence for a particular offense, the sentence for that offense is void'-- but with the added proviso that only the offending part of the sentence is subject to review and correction. However we now modify the second sentence in the Bezak syllabus as ill-considered. That sentence states that the offender is entitled to a new sentencing hearing for the offense for which post-release control was not imposed properly. … It does not recognize a principle that we overlooked in Bezak: when an appellate court concludes that a sentence imposed by a trial court is in part void, only the portion that is void may be vacated or otherwise amended. Therefore we hold that the new sentencing hearing to which an offender is entitled under Bezak is limited to proper imposition of post-release control."

"Correcting the defect without remanding for resentencing can provide an equitable, economical, and efficient remedy for a void sentence," the Court said. "Here, we adopt that remedy in one narrow area: in cases in which a trial judge does not impose post-release control in accordance with statutorily mandated terms. In such a case, the sentence is void. Principles of res judicata, including the doctrine of the law of the case, do not preclude appellate review. The sentence may be reviewed at any time, on direct appeal or by collateral attack…The fact that the sentence was illegal does not deprive the appellate court of jurisdiction to consider and correct the error. In fact, R.C. 2953.08(G)(2)(b) expressly authorizes a reviewing court to modify or vacate any sentence that is 'contrary to law.' Clearly, no such authority could exist if an unlawful sentence rendered a judgment nonfinal and unappealable…."