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State v. Grimes

Supreme Court of Ohio

May 24, 2017

The State of Ohio, Appellant,
v.
Grimes, Appellee.

          Submitted February 9, 2017

         Appeal from the Court of Appeals for Muskingum County, No. CT2015-0026, 2015-Ohio-3497.

          D. Michael Haddox, Muskingum County Prosecuting Attorney, and Gerald V. Anderson II, Assistant Prosecuting Attorney, for appellant.

          Timothy Young, Ohio Public Defender, and Stephen P. Hardwick and Andrew D. Hartman, Assistant Public Defenders, for appellee.

          Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and M. Ryan Harmanis, Deputy Solicitor, urging reversal for amicus curiae Ohio Attorney General.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, urging reversal for amicus curiae Cuyahoga County Prosecutor's Office.

          Ronald O'Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert, Assistant Prosecuting Attorney, urging reversal for amicus curiae Franklin County Prosecuting Attorney.

          O'Connor, C.J.

         {¶ 1} In this appeal, we consider what information a trial court must include in a sentencing entry to validly impose a postrelease-control sanction on an offender when the court orally provides all the required advisements to the offender at the sentencing hearing. We hold that to validly impose postrelease control when the court orally provides all the required advisements at the sentencing hearing, the sentencing entry must contain the following information: (1) whether postrelease control is discretionary or mandatory, (2) the duration of the postrelease-control period, and (3) a statement to the effect that the Adult Parole Authority ("APA") will administer the postrelease control pursuant to R.C. 2967.28 and that any violation by the offender of the conditions of postrelease control will subject the offender to the consequences set forth in that statute. Because the sentencing entry in this case included all the required information, we reverse the judgment of the Fifth District Court of Appeals, reinstate the judgment of the Muskingum County Court of Common Pleas, and remand the cause to the trial court for further proceedings consistent with this opinion.

         RELEVANT BACKGROUND

         {¶ 2} The Muskingum County Court of Common Pleas first imposed postrelease control on appellee-defendant, Bradley E. Grimes, in August 2011 as part of his sentence for convictions for robbery and vandalism. It is undisputed that the trial court properly advised Grimes at the sentencing hearing of his postrelease-control obligations and the consequences of violating a condition of postrelease control. The sentencing entry included the following statement:

The Court further notified the Defendant that 'Post Release Control' is mandatory in this case for three (03) years as well as the consequences for violating conditions of post release control imposed by Parole Board under Revised Code § 2967.28. The Defendant is ordered to serve as part of this sentence any term for violation of that post release control.

(Bold and underline sic.) Grimes served his prison term in that case, was released from prison on December 30, 2012, and began serving the three-year period of postrelease control under supervision of the APA.

         {¶ 3} On September 4, 2013, while Grimes was still under postrelease control, the Muskingum County Grand Jury indicted him on two counts of unlawful sexual conduct with a minor, both fourth-degree felonies. Grimes pled guilty to the first count, and the state dismissed the second.

         {¶ 4} On January 7, 2014, the trial court sentenced Grimes to a one-year prison term, classified him as a Tier II sex offender, and imposed a judicial-sanction sentence pursuant to R.C. 2929.141 in which the court converted the remainder of the postrelease-control term imposed for his 2011 convictions into prison time and ordered that sentence to be served consecutively to his one-year prison sentence for the 2013 unlawful-sexual-conduct conviction.

         {¶ 5} On April 16, 2015, having completed his prison term for unlawful sexual conduct with a minor, Grimes moved the trial court to vacate his judicial-sanction sentence and order his immediate release from prison. He argued that the court did not validly impose postrelease control when it sentenced him for his 2011 convictions. The trial court denied Grimes's motion without opinion.

         {¶ 6} Grimes appealed to the Fifth District Court of Appeals, which reversed the trial court's judgment. The Fifth District held that the trial court's August 2011 sentencing entry "is silent as to the consequences of violating postrelease control" and that therefore, the court "failed to inform [Grimes] if he violated his supervision or a condition of post-release control, the parole board could impose a maximum prison term of up to one-half of the prison term originally imposed." 2015-Ohio-3497, ¶ 12.

         {¶ 7} We accepted the state's discretionary appeal to address the following proposition of law:

To impose valid post release control, the language in the sentencing entry may incorporate the advisements given during the sentencing hearing by referencing the post release control sections of the Ohio Revised Code and do not need to repeat what was said during the sentencing hearing.

See 145 Ohio St.3d 1407, 2016-Ohio-899, 46 N.E.3d 702.

         ANALYSIS

         {¶ 8} It is settled that "a trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing" and that "any sentence imposed without such notification is contrary to law." State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23. Concomitantly, because a court is generally said to speak only through its journal, id at ¶ 6, the trial court is "required to incorporate that notice into its journal entry imposing sentence, " id. at ¶ 17. In this case, the state asks us to identify what information the sentencing entry must contain to validly impose postrelease control.

         {¶ 9} We begin by reciting the statutory requirements for notice at the sentencing hearing. The court at a sentencing hearing must notify the offender that he or she "will" or "may" "be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for" a felony. R.C. 2929.19(B)(2)(c) and (d). The offender "will" be supervised if the offender has been convicted of a felony subject to mandatory postrelease control. R.C. 2929.19(B)(2)(c) and 2967.28(B). The offender "may" be supervised if the offender has been convicted of a less serious felony for which the APA has discretion to impose postrelease control. R.C. 2929.19(B)(2)(d) and 2967.28(C). The postrelease-control law also designates the term of supervision for each degree of felony. R.C. 2967.28(B) and (C). Additionally, the court, at the sentencing hearing, must notify the offender that if he or she "violates that supervision * * *, the parole board may impose a prison term, as part of the sentence, of up to one-half of the stated prison term originally imposed upon the offender." R.C. 2929.19(B)(2)(e).

         {¶ 10} We have interpreted these statutory provisions on a number of occasions when examining claims that a trial court's imposition of postrelease control was invalid. In a long line of cases, including those summarized in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 12-20 (lead opinion), we explained in more detail how a trial court can fail to validly impose postrelease control.

         {¶ 11} We held that a trial court imposing post-release control "is duty-bound to notify [the] offender at the sentencing hearing about postrelease control and to incorporate postrelease control into its sentencing entry." Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 22. After Singleton, we made clear that "statutorily compliant notification" includes "notifying the defendant of the details of the postrelease control and the consequences of violating postrelease control, " State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18, including whether postrelease control is discretionary or mandatory, Jordan at ¶ 22-23, and the term of supervision, State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 12. Although we have held that in order to validly impose postrelease control the notice given at the sentencing hearing must be incorporated into the sentencing entry, Jordan at ¶ 17, we have not decided whether-and if so, how-notice of the consequences of violating a condition of postrelease control must also be incorporated into the sentencing entry.

         {¶ 12} Grimes argues, and the court of appeals agreed, that the judicial-sanction portion of his 2014 sentence was void because the trial court had failed to validly impose postrelease control for his 2011 robbery and vandalism convictions. According to the appellate court, the 2011 sentencing entry did not properly incorporate the notification that violation of postrelease control may result in an APA-imposed prison term of up to one-half of the defendant's sentence. 2015-Ohio-3497 at ¶ 12. The state counters that the entry's reference to R.C. 2967.28 was sufficient to incorporate the advisements orally made to Grimes at the sentencing hearing and that duplicating or repeating those advisements in the entry was unnecessary.

         {¶ 13} We agree with the state[1] that in order to validly impose postrelease control, the trial court must incorporate into its sentencing entry the notifications it provides to the offender relating to postrelease control at the sentencing hearing but that it need not repeat those notifications verbatim in the entry. We conclude that to validly impose postrelease control, a minimally compliant entry must provide the APA the information it needs to execute the postrelease-control portion of the sentence. This conclusion reconciles the statutory requirements for imposition of postrelease control with our analyses in our postrelease-control decisions preceding this one.

         {¶ 14} We are guided by our decision in Qualls, in which we considered a sentencing entry that did not mention postrelease control even though the trial court properly notified the offender about postrelease control at the sentencing hearing. 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718. We recognized in that case that "our main focus in interpreting the sentencing statutes regarding postrelease control has always been on the notification itself and not on the sentencing entry." Id. at ¶ 19. Indeed, we have deemed the "preeminent purpose" of R.C. 2967.28 to be that "offenders subject to postrelease control know at sentencing that their liberty could continue to be restrained after serving their initial sentences." (Emphasis added.) Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, ¶ 52. In this case, as in Qualls, Grimes does not dispute that he was notified at the sentencing hearing that he would be subject to postrelease control, see Qualls at ¶ 6-7, so we conclude that the court accomplished the primary purpose of notice.

         {¶ 15} A sentencing entry's silence on postrelease control, however, is impermissible because it is the sentencing entry that "empowers the executive branch of government to exercise its discretion, " Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 22, citing Woods v. Telb, 890 Ohio St.3d 504, 512-513, 733 N.E.2d 1103 (2000) (plurality opinion). In Qualls, we held that the trial court could correct the deficient entry by issuing a nunc pro tunc entry and that the offender was not entitled to a new sentencing hearing. Qualls at ¶ 30. We observed that correction through issuance of a nunc pro tunc entry is appropriate "as long as the correction is accomplished prior to the defendant's completion of his prison term." Id. at ¶ 24.

         {¶ 16} This case is different from Qualls because the sentencing entry here provided adequate notice as to postrelease control. Contrary to Grimes's representation of the sentencing entry as making "a passing reference to postrelease control, " it clearly states that Grimes was subject to mandatory postrelease control for three years, informs the APA that the trial court notified Grimes that he would be subject to "the consequences for violating conditions of post release control imposed by Parole Board under Revised Code ยง 2967.28, " and ordered him to "serve as part of this sentence any term for violation of that post release control." Among numerous other instructions and consequences, R.C. 2967.28 states that "the maximum cumulative prison term for all violations ...


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