Submitted February 9, 2017
from the Court of Appeals for Muskingum County, No.
Michael Haddox, Muskingum County Prosecuting Attorney, and
Gerald V. Anderson II, Assistant Prosecuting Attorney, for
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick
and Andrew D. Hartman, Assistant Public Defenders, for
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
O'Brien, Franklin County Prosecuting Attorney, and Seth
L. Gilbert, Assistant Prosecuting Attorney, urging reversal
for amicus curiae Franklin County Prosecuting Attorney.
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.
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
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.
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
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 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
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 § 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 ...