Comments on: Another go-around on PRC

By: Russ Bensing

Russ Bensing — Wed, 17 Jun 2009 17:53:43 +0000

I think there’s ways of avoiding the void/voidable problem, but I agree that it’s taken on a life of its own, and there are all kinds of problems with it, one being that there’s lots of Ohio law which says that a conviction doesn’t take effect until the sentence is imposed. So what happens if you’ve been given a void sentence? Was Bezak ever convicted of a crime? As Lanzinger points out in her concurrence in Bloomer, the apparent result is that a sentence is void until the defendant is finished serving it. It’s going to be interesting watching the court to extricate itself from this.

By: Matthew Meyer

Matthew Meyer — Wed, 17 Jun 2009 17:34:04 +0000

I’m not sure I agree that the void / voidable distinction matters for double jeopardy analysis. Cases in this line say that the expectation of finality doesn’t attach to a flawed sentence until release from confinement (Hernandez). Whether the amended sentence results from a void or voidable sentencing entry may be distinction without a difference. I also recall briefing the void/voidable issue to rebut Simpkins’ attempt to use res judicata as a means to block resentencing. This issue now seems to have taken on a life of it’s own.

By: Russ Bensing

Russ Bensing — Wed, 17 Jun 2009 17:15:18 +0000

But Simpkins didn’t simplify specify a procedure, it explained why that procedure was necessary. 2929.191′s provision that you can simply bring back a defendant and tack on PRC runs into some double jeopardy problems: to an extent, it’s the same as the judge bringing the defendant back and saying, “I’ve decided to give you an additional three years in prison.” The court got around that in Simpkins by holding that the sentence was void — it never happened — thus eliminating the double jeopardy problems. As your colleague found out in the oral argument in Singleton, if you make the sentence voidable — i.e., correctable — you bring double jeopardy back in the picture.

By: Matthew Meyer

Matthew Meyer — Wed, 17 Jun 2009 16:07:56 +0000

Russ, I took the position in Simpkins that the court should simply apply the law as it existed at the time. Now that the General Assembly has changed sentencing procedure, why should OSC precedent be relevant? After all, the court is neither a policy or law-making institution. Isn’t the Simpkins line of cases abrogated by statute?

By: Karin Hazel

Karin Hazel — Wed, 17 Jun 2009 12:52:06 +0000

I enjoyed your blog this morning. I wish the 10th District felt the way you do about the sentence being void when PRC is not properly imposed. I wish the 10th would feel the way the Supreme Ct does on it too, more importantly. Nonetheless, they keep handing out decisions showing the opposite and actually think they are in the right, when all the case law points the other direction on this subject.