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Void and voidable: Round and round we go

In 1998, Curtis Simpkins pled guilty to two counts of rape, and was sentenced to eight years in prison.  One problem:  the trial court forgot to inform him at sentencing, or to include in the journal entry, that he would be subject to post-release controls.  The prosecutor's office ultimately caught the error, and filed a motion for resentencing.  And so Curtis Simpkins was brought back before the trial court and properly resentenced, so that upon his release from prison, he would have to begin serving five years of post-release control.

His release from prison, it should be noted, was five days later.

Simpkins claimed that this violated his rights, but the 8th District wasn't buying and affirmed his sentence.  Yesterday, the Supreme Court heard oral argument on the case, and from the looks of it, Simpkins should figure on staying on a first-name basis with his parole officer.

Simpkins' argument ran into a simple problem:  the Court has consistently held that a sentence which doesn't properly impose PRC is void.  Simpkins' lawyers argued valiantly that Simpkins had an "expectation of finality" in his sentence, and that the state had waived the issue by not appealing the original sentence, but both ran into the fact that a void sentence means it didn't happen, which means that there's no problem -- or time limit -- on doing it over again to get it right.  And since waiver doesn't apply to a void sentence, no appeal is necessary from one, either.

But the prosecution's position on this issue is going to come back to haunt them.  As I mentioned back here, some members of the Court have begun to realize that there's a problem in declaring that these sentences are void:  since a conviction in Ohio isn't effective until sentence, a void sentence means no conviction.  That's not necessarily a problem if the defendant is still in prison; the Court will probably rule in Simpkins that he can simply be resentenced.  But, as the Court held a few months back in State v. Bezac, discussed here, that option isn't available if he's already served his time.  Then, arguably, you've got a guy who's never been validly sentenced, and thus hasn't been validly convicted.  If that conviction has to serve as a predicate offense -- say, for a weapons under disability charge -- the prosecution has a real problem.

There's case law from back in the 1980's holding that the only time a sentence is void is if the trial court lacked subject matter jurisdiction (a municipal court, say, sentencing a defendant in a felony case); in all other cases, it's simply voidable.  Adopting (or rather re-adopting) this view, and holding that a sentencing without proper PRC notice is simply voidable, would get around the problem of a defendant who wasn't properly sentenced having no conviction once he gets out of prison.  But if it's voidable, then the state runs into the problem of waiving the argument by not raising it on appeal. 

In fact, that's what happened to defense counsel just a couple of months ago, in State v. Payne, discussed here, in which the Court held that defendants who didn't raise the Blakely issue in pre-Foster sentencings waived that argument.  Of course, in Foster the Court held that Blakely made the Ohio sentencing statutes unconstitutional, and that any sentence imposed under an unconstitutional statute was void.  But if the sentence was void, you couldn't waive it.  Whoops, did we say "void"?  We meant voidable, says the Court in Payne, with the interesting result that, for the moment at least, under Ohio law a sentence imposed in violation of the United States Constitution is merely voidable, while a sentence imposed in violation of the state statutes on PRC is void, and a complete nullity.

The Supreme Court will have yet another chance to clarify this; the other day, it accepted jurisdiction in State v. Mosmeyer, a 1st District decision on the constitutionality of RC 2919.191, which allows a court to correct a sentencing error on PRC.  That's a whole 'nuther mess, because in addition to the void/voidable issue, you've also got questions on the statute's constitutionality.  I won't even get into that any more today, but if you've got a case where your client has been resentenced under that statute, you'll want to raise the issue of constitutionality.  The Mosmeyer case can be found at the Supreme Court website under Case No. 2007-1415, and it would be a very good idea to use the propositions of law found in the defendants Memorandum in Support of Jurisdiction in your appeal. 

Ain't this fun?


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