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State v. Tolbert

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-07-498281-A, CR-07-498417-A, and CR-07-501690-B

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor BY: Brett Hammond Katherine Mullin Assistant County Prosecutors Justice Center

          ATTORNEYS FOR APPELLEE Timothy Young Ohio Public Defender BY: Allen Vender Andrew David Hartman Assistant State Public Defenders.

          BEFORE: Boyle, J., E.T. Gallagher, P.J., and Laster Mays, J.


          MARY J. BOYLE, J.

         {¶1} This court granted plaintiff-appellant state of Ohio leave to appeal this case after the trial court vacated defendant-appellee Reginald Tolbert's postrelease control. The state raises two assignments of error for our review:

1. The trial court erred when it granted defendant's motion to vacate postrelease control. To impose valid postrelease control, the language in the sentencing entry may incorporate the advisements given during the sentencing hearing by referencing the postrelease control sections of the Ohio Revised Code and do not need to repeat what was said during the sentencing hearing.
2. The requirement that a trial court must journalize the specific requirements of postrelease control is based upon legal precedent that should not be retroactively applied in this case.

         {¶2} In this appeal, the state acknowledges that under current precedent in the Eighth District, the postrelease-control notification was invalid because the trial court did not include the "specific consequences of violating postrelease control in the sentencing journal entry." The state contends, however, that this precedent was decided in error and should be overruled.

         {¶3} Finding no merit to the state's appeal, we affirm the judgment of the trial court.

         I. Procedural History

         {¶4} In late 2007, Tolbert was sentenced to six years in prison for three separate cases: Cuyahoga C.P. No CR-07-498281-A, Cuyahoga C.P. No. CR-07-498417-A, and Cuyahoga C.P. No. CR-07-501690-B. In each of these cases, the trial court stated the following in the sentencing entries regarding postrelease control:

Postrelease control is part of this prison sentence for 3 years for the above felony(s) under R.C. 2967.28.

         {¶5} Tolbert was released from prison in these cases on May 13, 2013. At that time, he was placed on three years of postrelease control.

         {¶6} On December 13, 2013, Tolbert was convicted of receiving stolen property in Cuyahoga C.P. No. CR-13-577719-A. He was sentenced to six months in prison and advised that upon his release, he may be placed on postrelease control for up to three years.

         {¶7} Tolbert was released from prison in CR-13-577719-A on May 15, 2014. Upon his release, the Adult Parole Authority ("APA") chose not to place him on postrelease control for this case. Instead, the APA placed Tolbert on postrelease control for the time remaining in his 2007 cases, which was 2.44 years. When Tolbert filed his motion to vacate postrelease control, he was "serving a prison sanction for violating" the terms of his 2007 postrelease control.

         {¶8} When Tolbert filed his motion to vacate postrelease control, the state and Tolbert filed a joint statement of justiciability with the trial court along with Tolbert's motion to vacate because Tolbert had previously filed a motion to vacate postrelease control that the state opposed, believing that Tolbert was on postrelease control from his 2013 case. When the state learned that Tolbert was actually on postrelease control from his 2007 cases, it conceded that the issue was not moot and joined with Tolbert to file the statement of justiciability. The state further acknowledged to the trial court "that current binding precedent in the Eighth District Court of Appeals supports Tolbert's arguments." But the state opposed Tolbert's motion "for purposes of further appellate review."

         {¶9} After the trial court granted Tolbert's motion to vacate his postrelease control, the state moved this court for leave to appeal, asserting that the appeal "presents this court with a question of public and general interest." The state further explained that "this exact proposition of law" was currently under review by the Ohio Supreme Court in State v. Grimes, Supreme Court Case No. 2016-0215, and that "Grimes will be dispositive of the substantive issue in the instant case." Because the state believed that Grimes would be dispositive of the issues in this appeal, it requested this court "to accept jurisdiction in this case until the Supreme Court of Ohio render[ed] its decision in Grimes." This court granted the state leave to appeal and held the case until the Ohio Supreme Court issued its decision in Grimes, which it did so on May 24, 2017. See State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927.

         {¶10} Because the state and Tolbert filed their briefs with this court before the Supreme Court decided Grimes, this court sua sponte issued an order asking Tolbert "to determine whether the recently announced decision [in Grimes] is applicable to this appeal and further determine whether the appellee concedes assignment of error one." If Tolbert conceded the error, we ordered him to file a notice of conceded error by a date certain.

         {¶11} Tolbert complied with our order and filed a supplemental memorandum, informing this court that Grimes was applicable but that he was not conceding assignment of error one. Tolbert explained that Grimes was applicable because it established what information a trial court must include in a sentencing entry to validly impose postrelease control when the court orally provided all of the required advisements at the sentencing hearing. But Tolbert maintained that even under Grimes, the trial court's advisement in his 2007 cases was invalid for two reasons: (1) it was not clear whether his ...

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