Ohio Post-release Control Corrections

The Ohio Supreme Court once again visited criminal sentencing themes last Tuesday, clarifying requirement procedures for re-sentencing offenders when post-release controls were not properly addressed by the trial court. The case, State v. Singleton, held "in order to correct criminal sentences that do not properly impose a term of post-release control, the state's trial courts: 1) must conduct de novo sentencing hearings for offenders who were sentenced before July 11, 2006; and 2) must follow statutory resentencing procedures set forth in R.C. 2929.191 for offenders whose sentences were imposed on or after July 11, 2006, the effective date of the statute." (Court's Summary)

Last September, the Supreme Court in State v. Bankhead occasioned the release of a Hamilton County man from post-release control "on the authority of State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254.Appellant is discharged from post-release control because he has completed serving his prison sentence and, pursuant to State v. Bezak, 114 Ohio St.3d 94,2007-Ohio-3250, 868 N.E.2d 961, is no longer subject to resentencing."

State v. Bloomer, back in June, was actually three cases consolidated before the Court, in which it reviewed the "consequences of the trial court's failure to either notify an offender about post-release control at the time of sentencing or incorporate post-release control into its sentencing entry. The issues presented also concerned the application of ORC § 2929.191, which provides a mechanism for correcting a judgment entry if a trial court fails to notify the offender of post-release control or to impose it." Seven cases, beginning with State v. Beasley back in 1984, were looked at in this determination. The Court there held that "[a]ny attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void, (But) because jeopardy does not attach to a void sentence, the court's subsequent correction of the void sentence did not violate double jeopardy" State v. Bezak, in 2007, held that an an offender would be entitled to a new sentencing hearing for the trial court to correct a sentence that omitted notice of post-release control, but, in this case's particulars, because Bezak had already completed his term of imprisonment, the court could not conduct resentencing." That holding was reaffirmed in March 2008 with State v. Simpkins.

The Bloomer court held "In conformity with the development of this jurisprudence, the General Assembly enacted H.B. 137, effective July 11, 2006, which amended R.C. 2967.28, 2929.14, and 2929.19 and enacted R.C.2929.191 to provide a mechanism for correcting sentences in which the trial court failed either to notify the offender of post-release control or to incorporate it into the sentencing entry." ( HB 137 analysis )

The present Court, last Tuesday, said "in order to correct criminal sentences that do not properly impose a term of post-release control, the state's trial courts: 1) must conduct de novo sentencing hearings for offenders who were sentenced before July 11, 2006; and 2) must follow statutory resentencing procedures set forth in R.C. 2929.191 for offenders whose sentences were imposed on or after July 11, 2006, the effective date of the statute."

Justice Terrence O’Donnell, writing for the majority, noted that, "because no statutory mechanism to correct a sentence that failed to properly impose post-release control existed prior to July 2006, the law applicable to sentences imposed prior to that date is case law, including several decisions of the Supreme Court of Ohio.

"R.C. 2929.191 purports to authorize application of the remedial procedure set forth therein to add post-release control to sentences imposed before its effective date,” he wrote. “We recognize the General Assembly’s authority to alter our case law’s characterization of a sentence lacking post-release control as a nullity and to provide a mechanism to correct the procedural defect by adding post-release control at any time before the defendant is released from prison. However, for sentences imposed prior to the effective date of the statute, there is no existing judgment for a sentencing court to correct. H.B. 137 cannot retrospectively alter the character of sentencing entries issued prior to its effective date that were nullities at their inception, in order to render them valid judgments subject to correction. Therefore, for criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose post-release control, the de novo sentencing procedure detailed in decisions of the Supreme Court of Ohio should be followed to properly sentence an offender. “On the other hand, prospective application of the statutory resentencing procedure in R.C. 2929.191 to correct sentences imposed on or after the effective date of that statute is consistent with the legislature’s stated intent “to protect the residents of this state from the consequences that might result if the state is forced to release without supervision offenders who have been convicted of serious offenses and imprisoned, solely because the offenders were not provided notice of the fact that the law always requires their supervision upon release from prison."

In describing the Court’s split its summary revealed Justice O’Donnell’s opinion was joined in its entirety by Justice Robert C. Cupp. Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor concurred in judgment and in the portion of the lead opinion syllabus holding that R.C. 2929.191 cannot be applied retrospectively, but dissented from the lead opinion’s syllabus and discussion addressing the prospective application of R.C. 2929.191. Justices Evelyn Lundberg Stratton and Judith Ann Lanzinger concurred in the syllabus holding that R.C. 2929.191 may be applied prospectively, but dissented from the portion of the syllabus and lead opinion holding that the statute may not be applied retroactively.