Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public
Defender By: Cullen Sweeney Deputy Public Defender.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Frank Romeo Zeleznikar Assistant
Prosecuting Attorney The Justice Center.
BEFORE: Keough, A.J., E.A. Gallagher, J., and Boyle, J.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE.
This appeal is before the court on the accelerated docket
pursuant to App.R. 11.1 and Loc. App.R. 11.1.
Defendant-appellant, Robert Kuhn, appeals the trial
court's decision denying his motion to terminate
postrelease control. For the reasons that follow, we reverse
and vacate the improperly imposed term of postrelease
In 2003 and after pleading guilty to sexual battery and
kidnapping, Kuhn was sentenced to nine years in prison. The
sentencing journal entry stated that "post release
control is part of this prison sentence for the maximum
period allowed for the above felony(s) under R.C.
In 2012, Kuhn was released from prison after serving his
entire prison sentence and placed on postrelease control. In
December 2016 and while serving a prison sentence for
violating postrelease control, Kuhn filed a motion to
terminate postrelease control, contending that the term was
improperly imposed because the sentencing journal entry
failed to state the length of the postrelease control term,
including whether it was discretionary or mandatory, and the
consequences of violating postrelease control. Additionally,
because he served his prison sentence, Kuhn argues that the
trial court could not correct this error; leaving the court
with no option but to terminate postrelease control. The
trial court summarily denied his motion.
Kuhn appeals, raising as his sole assignment of error that
the trial court erred in failing vacate or terminate his term
of postrelease control that was improperly imposed.
Specifically, Kuhn argues that his postrelease control is
void because the trial court failed to advise him in the
sentencing entry the length of postrelease control and the
consequences for violating postrelease control. He further
contends that because he has completed his prison sentence,
the trial court can no longer resentence him to remedy this
error. We agree.
In State v. Grimes, Slip Opinion No. 2017-Ohio-2927,
the Ohio Supreme Court recently considered 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. The court held:
[t]o 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.
Id. at ¶ 1. The court concluded, "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." Id. at ¶ 13.
In this case, Kuhn failed to file a sentencing hearing
transcript, therefore we must presume that Kuhn was properly
advised at the sentencing hearing regarding postrelease
control. However, and consistent with Grimes, even
if the trial court orally provided the proper advisements,
the sentencing entry must contain those advisements.
Grimes at ...