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State v. Kuhn

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 8, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ROBERT KUHN DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-03-433543-ZA

          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.

         {¶1} This appeal is before the court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1.

         {¶2} 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 control.

         {¶3} 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. 2967.28."

         {¶4} 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.

         {¶5} 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.[1]

         {¶6} 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.

         {¶7} 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 ...


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