Post-release controls... again
Sometimes it seems as though not a week goes by without some case coming out on the arcane technicalities of imposing post-release controls in Ohio. Well, this week didn't go by without one, either: the Supreme Court ventured back into those troubled waters yesterday in State v. Bezak.
As the legions of faithful readers of this blog know by now, in order for post-release controls to be validly imposed, the trial court must do so, both orally at the time of sentencing, and in its journal entry of sentencing. Failure to do either invalidates the imposition of controls.
According to the five members of the majority in Bezak, it does more than that. Bezak had been sentenced to six months in prison for a 5th degree drug felony, and the trial judge's statement regarding post-release controls had been something less than a model of clarity:
You'll be out in the not too distant future, at that point you won't have a -- probably will not be on post-release control given that it's a six-month sentence, but I can't guarantee that.
On appeal, the 8th District bounced the case back, holding that the case "must be remanded for resentencing so that appellant may be advised that he is subject to post-release control." And this is where things got funky. Bezak filed a motion to reconsider, asking that the language after "resentencing" be stricken, arguing that he was entitled to a whole new sentencing hearing. The 8th District disagreed, holding that the only thing required at the resentencing was that Bezak be properly advised about post-release controls.
And the Ohio Supreme Court disagreed with that and found that Bezak's argument was the correct one: because the law requires the judge to properly advise the defendant about post-release controls, and the judge hadn't done that, the law had not been complied with, and accordingly Bezak's sentence was void. That meant he was entitled to more than just a hearing where the judge would intone the magic language about PRC and send him on his way. He was entitled to a whole new sentencing hearing.
I've expressed concerns before about the Court's cavalier use of the word "void" in regard to sentencing issues. As the Court explained,
The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment.
Justice Lanzinger, one of the two dissenters (O'Donnell was the other), found herself "extremely troubled by the majority's application of the term 'void' to Bezak's case." For good reason, on at least two counts.
First, there's a lingering question about Foster remands: can a judge give the defendant more time on a remand? That's an open question, and the one decision I've seen on that, discussed here, didn't do a very good job of analyzing the constitutional issues involved in imposing a stiffer sentence upon a defendant who successfully appeals. Declaring that the first hearing was void, and in essence pretending that it never happened, isn't helpful to that analysis. Say a defendant pleads to rape, and gets a six-year sentence. He appeals, his conviction is reversed because the judge didn't tell him about PRC, and the case is remanded. This time the judge maxes him out with a ten-year sentence. It's questionable if that result could survive the "vindictiveness" analysis of the cases I mentioned in the earlier post (and here's another link to it, in case you were too lazy to click on it the first time). But the argument might be that a vindictiveness analysis depends upon comparing the second sentence with the first, and here there is no "first" sentence, because it was a nullity. Thus, the judge is free to do anything he wants the second time around.
While that view of "void" would certainly be harmful to defendants, there's another way in which it could be beneficial. What if Bezac had never appealed his sentence? We all know that, in Ohio, a conviction doesn't actually take effect until sentencing. If the sentencing was void, rather than merely voidable, does that mean that the defendant was never actually convicted of the crime?
That has special significance for Bezak: since he'd already served his sentence by the time the appeals were done, he wasn't subject to resentencing. Does that mean he wasn't convicted? If void means what the Supreme Court says it does, then a good argument can be made that he wasn't.