Post-release controls and 2929.191
There is probably no area of criminal law right now that makes less sense or is more confusing than sentencing. I wrote last week about the Ohio Supreme Court's determination that sentences imposed without adequately apprising the defendant of post-release controls are not merely voidable, but void -- a complete nullity. That in turn was prompted by the Supreme Court's decision a month ago in State v. Bezak, which held that a defendant who'd served his term of imprisonment couldn't be brought back before the trial court so that it could properly impose post-release controls.
But what about before the sentence is completed? RC 2929.191, which went into effect in July of last year, allows a judge to bring the defendant back to properly impose PRC. That has its own perils, as the 1st District noted last week in State v. Bond last week, in which it dealt with a defendant who'd been sentenced in 1999 to eight years in prison. The trial court hadn't properly imposed PRC in 1999, so it used the new statute to bring the defendant back, and imposed PRC at that point.
The problem? As the 1st District noted, the defendant has to be brought back for a new sentencing hearing: the judge must re-sentence the defendant completely, not just add the PRC language. The judge hadn't done a complete re-sentencing in this case, so the 1st District concluded that PRC had never been imposed, and since in the interim the defendant had completed its prison sentence, it couldn't be ever be imposed, as Bezak holds.
But as I pointed out last week, this creates all sorts of problems down the road: can a prosecution for having a weapon under disability be based upon a "void" drug conviction? That thought was raised in Judge Painter's concurrence in Bond:
So now we have perhaps hundreds of inmates serving void sentences. What might happen next?
Well, here's a thought: It could get worse. When the legislature passed 2929.191, it also amended the basic PRC statute, 2967.28, to provide that PRC is automatic: a judge no longer has to specify its imposition at the time of sentencing. As I explained last year when the bill was passed, though, there's a good chance that this is unconstitutional.
Why? Because PRC involves the executive branch -- the parole board -- imposing a punishment, a function normally reserved to the judicial branch. The Supreme Court has recognized that this creates a separation-of-powers problem. To get around it, it followed the fiction that it was really the courts which were imposing the punishment PRC provides -- or, more accurately, empowering the parole board to impose those punishments -- by specifying PRC in their sentences. The amended version of 2967.28 doesn't even recognize the separation of powers problem.
In another five years, you could wind up with a whole bunch more people who have had PRC unconstitutionally imposed, by virtue of the new 2967.28, and whose sentences are therefore void, and who cannot be resentenced.
Justice Lantzinger was one of the three dissenters in Bezak, and noted that she was "extremely troubled by the majority's application of the term 'void' to Bezak's case." I think her troubles are just beginning.