Another go-around on PRC
A considerable portion of the Ohio Supreme Court's time over the past few years has been devoted to cleaning up what happens when trial judge's don't properly impose post-release controls. The legislature got into the act, too, passing statutes which purported to remedy the problem. Last week in State v. Bloomer, the court took a look at those statutes, but avoided answering the biggest question: whether the statutes are valid at all.
The two major statutory amendments took effect July 11, 2006. RC 2929.191 covered the situation where a court, prior to that time, had sentenced a defendant without properly imposing PRC; the court can simply conduct a new hearing and impose it. The legislature sought to avoid the problem in the future by amending RC 2967.28 to provide that after that date, the failure of a court to properly impose PRC didn't affect the Parole Authority's power to implement it.
Both statutes raise conflicts with prior Supreme Court decisions. Despite growing misgivings, the court has consistently held that sentences where PRC is improperly imposed are void, not merely voidable. There are reasons for that, which we'll get into, but the effect of it is that if the prior sentencing is void, it's not sufficient to just bring the defendant back and impose PRC; you've got to do a whole new sentencing hearing. RC 2929.191 doesn't provide for that. Even more problematic is RC 2967.28's elimination of the requirement that the judge impose it at all. When PRC was first attacked on separation of powers grounds -- the executive branch was imposing punishment -- the court got around it with the fiction that it was really the judiciary imposing punishment, because the trial judge, by imposing PRC at the sentencing, was really granting the parole authority the power to implement it.
So what happened in Bloomer? Actually, the case presented a triad of defendants, each in different places in the procedural chronology. Bloomer had originally been sentenced in 2002, then brought back for resentencing in April, 2006, because of the PRC problem. His main argument was that double jeopardy precluded the State from adding PRC to his sentence. Here's where the "void/voidable" distinction comes in: since a defendant has "no reasonable legitimate expectation of finality in a void sentence," there's no double jeopardy concern. There never was a first sentence, so there can't be a second one. Bloomer also raised arguments about 2929.191, but since he was resentenced before the statute went into effect, he didn't have standing to raise that argument.
The second defendant, Mosmeyer, did: originally sentenced in 1999, he was brought back for resentencing in August of 2006. He raised the same double jeopardy argument as Bloomer, and it met the same fate. His argument about 2929.191 was more convoluted. He first contended that it violated the separation of powers doctrine, because it regulated court procedure. The State argued that the statute was merely a codification of the procedure that the Supreme Court had adopted in State v. Simpkins. That would've been a cute trick, said the court, considering that the statute was passed in 2006 and we didn't decide Simpkins until 2008. But Mosmeyer's argument went nowhere, either, since he "has failed to identify any existing rule of criminal procedure that conflicts with R.C. 2929.191." Mosmeyer's final argument concerned the one-subject rule, and I'll spare you a discussion of the six pages that the court devotes to that contention (remember, our motto here at the Briefcase: We read the cases so you don't have to); suffice it to say that the court wiggles off the hook on that one by deciding that "postrelease control and the sealing of juvenile delinquency records share a common relationship."
The last defendant was Barnes, and he squarely presented the issue of whether RC 2929.191 could stand in light of the court's decisions holding that a whole new sentencing hearing was necessary: at his resentencing in August of 2006 from his convictions seven years earlier, the court had merely tacked on PRC, through a nunc pro tunc entry. The court dodged this bullet, though, too. Turns out that the judge had screwed up the resentencing: it hadn't specified that the period of PRC was five years, and in the journal entry it had said that Barnes "may be supervised," when in fact PRC was mandatory. And since "Barnes is entitled to relief on other grounds, it is not necessary for us to reach these constitutional issues." What's more, Barnes was released from prison in 2007, and since the court's held that PRC can't be imposed after the defendant has served his sentence, that's the end of that for him.
What about 2967.28? Mosmeyer had raised that issue, but the court hadn't accepted that proposition of law for review. (Probably because Mosmeyer didn't have standing to raise it.) So the upshot is that the Supreme Court had a chance to deal with the constitutionality of two key statutes on an issue which has bedeviled judges for the past five years, and wound up addressing neither.
But not for long. Just two weeks ago, the court heard oral argument in State v. Singleton, in which the 8th District vacated a sentence because the journal entry indicated PRC was discretionary, rather than mandatory. The appellate court remanded the case for a new sentencing hearing, but the State appealed, arguing that the proper remedy was simply a hearing under 2929.191 and limited to the imposition of post-release controls. Either in that case or another the Supreme Court's going to have to decide the validity of both statutes, and it looks like the only way it's going to be able to uphold them is to overrule all the cases holding that improper imposition of PRC renders the sentence void. From the looks of the oral argument in Singleton, I'd say the State has an uphill battle.