Court of Appeals of Ohio, Eighth District, Cuyahoga
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
BEFORE: Boyle, J., E.T. Gallagher, P.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
J. BOYLE, J.
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
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
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.
Finding no merit to the state's appeal, we affirm the
judgment of the trial court.
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 is part of this prison sentence for 3
years for the above felony(s) under R.C. 2967.28.
Tolbert was released from prison in these cases on May 13,
2013. At that time, he was placed on three years of
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
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
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."
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,
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.
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 ...