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Thoughts on a void sentence

Short note today.  I'm taking the day off, since I'm getting a new desk for my office at home.  The long-anticipated wait for the AT&T man is scheduled for today, too, to find out why I've been without phone and internet service there for the past week.

So just a couple of followups.  First, there was another decision from the 8th District last week, State v. Day, that you might want to be aware of, especially if you're a judge.  On a criminal plea, not only do you have to advise the defendant that he has the right to present witnesses in his defense, but you also have to advise him that if they're unwilling to appear, they can be compelled to do so by subpoena.  This isn't actually a new result -- the first ruling like this was about a year ago -- but since compulsory process is a "substantial right," strict compliance with Rule 11 in this regard is required.  Not doing it will get the case automatically bounced.

Second, here's something to munch on.  A month ago, I discussed the Supreme Court's decision in State v. Bezak, in which the Court held that a failure of the trial judge to properly impose post-release controls at the time of the sentencing made the sentence invalid, and required resentencing. 

What was interesting about the decision is its holding that if the judge failed to say the right words about PRC, the sentence wasn't merely voidable, it was void -- a nullity, as though it hadn't happened.  (In fact, the opinion says "the trial court must resentence the offender as if there had been no original sentence."  My emphasis.)

In Bezac's case, that wasn't possible, because he'd already served his time.  But, as I mentioned last month, in Ohio a conviction doesn't become effective until sentence is imposed.  Does this mean that Bezac wasn't ever convicted of a crime?  I brought that up in a conversation with a couple of the boys over at the appellate division of the Prosecutor's office, and they're concerned about the validity of that argument.

And rightly so.  Let's say you have a client charged with having a weapon under disability, based upon a 1998 drug conviction.  You check the journal entry, and find that it says nothing about post-release controls.  (Or it does, but you check the sentencing transcript and it's not mentioned there.  Remember, a trial judge has to do both.)  Under Bezac, that means the sentence was a nullity, but since your client served his time, he can't be resentenced, either.  Since Bezac says the sentence was void, you've got an argument that the judgment of conviction is void, and if the conviction's void, you no longer have a weapon under disability charge.

Something to mull over.  See you on Monday.

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