I had another post planned for today, but I decided to bump it to follow up on the post from yesterday, about the new section of the Code which allows judges to go back and resentence defendants whom they failed to inform of post-release controls.  One of my faithful readers (their number is legion) posted a comment asking if there were any time limits for that.  (The law just took effect on July 11, and apparently hasn’t made Anderson’s on-line yet.)  The short answer is no; it can be done at any time.  The longer answer, though, is that the legislature may have screwed up post-release controls.

Here’s how.  I went back and checked the new section, 29291.191, to answer the question about time limits.  While doing that, I noticed something odd:  the statute consistently referred to sentences handed down “prior to” its effective date.  Why wouldn’t they provide a procedure to correct a sentence handed down afterwards?

Maybe because they didn’t have to.  Sure enough, I went back and checked 2929.19, the statute which spells out procedures at the sentencing hearing, and that’s been amended, too.  This is the way it plays out now:

• If the defendant is sentenced to a term where PRC is mandatory — and felony sex offenses have been added to that list, along with 1st and 2nd degree felonies, and 3rd felonies where harm was caused or threatened — the court’s failure to notify the defendant of PRC, in either the hearing or the JE, doesn’t negate the ability of the Adult Parole Authority to impose it.  That latter provision only applies to sentences handed down from here on out, but the new 2929.191 allows the court to clean up a sentence handed down before which didn’t do that.
• If the defendant is sentenced to a term where PRC is discretionary, there’s no change; presumably, the court must still notify the defendant of that in both the hearing and the JE.  The new 2919.191 supposedly allows the court to correct that, but there’s a problem, as we’ll see in a minute.
• In either case, the judge must notify the defendant that if he screws up on PRC, the APA can send him back to prison for up to one-half the original term.  If he forgets to tell the defendant that, though, the APA can still do it, as long as they notify him that they can before the expiration of his original sentence.

I think there’s a good argument to be made that the legislature stepped in it big-time here.  They apparently proceeded in the belief that the power of the APA to impose PRC is statutory; that is, because the sentencing statute required the judge to notify the defendant of PRC, if the judge didn’t, the APA didn’t have the power to impose it.

But as Hernandez v. Kelly points out, there’s a constitutional problem — separation of powers — in having the APA essentially impose criminal punishments.  The Court recognized that in the first case dealing with the issue, Wood v. Telb, and resolved the problem by holding that it was really the courts which were imposing PRC.

So now what?  The legislature assumes that the amendments get it around the Hernandez problem — PRC being voided because the judge forgot to put it in the sentencing entry or say it at the hearing.  In fact, it may have made the problem worse, because it’s probably more likely that judges won’t do it now; they’ll assume that they don’t have to worry about it because of the amendments.  (And if you can figure out the reason that the legislature made a distinction between mandatory and discretionary PRC — stating that the failure of the judge to tell the defendant about the former doesn’t negate it, but apparently still requiring him to do both with the latter — you’re a better man than I.)  What’s more, if the Supreme Court does eventually decide that, based on Woods and its progeny, the new amendments are unconstitutional, the new section 2929.191 doesn’t provide a method to go back and correct those sentencing errors, because it only applies to sentences handed down before its effective date.

Helluva way to run a railroad.

Mr. McGraw, the aforementioned commenter, makes some good points:  if the judge screws up at the sentencing and doesn’t inform your client about PRC, tell him (the client, not the judge) about that before he trudges off to LCI (again, the client, not the judge).  If you get an escape case, make sure you check the transcript of the sentencing hearing, as well as the sentencing.  And if you’re handling an appeal, don’t raise the PRC issue:  the only thing that’s going to happen there is a remand for proper sentencing, which doesn’t do your client any good.