Another look at Bezak?
Beginning in State v. Jordan and capped by State v. Bezak, the Ohio Supreme Court has held that the failure of the trial court to properly impose post-release controls resulted in a void sentence. The logical implications of that ruling dominated the arguments before the Ohio supreme Court several weeks ago in State v. Fischer, and the continued viability of Bezak is an open question.
Back in 2002, Londen Fischer was convicted of aggravated robbery and an assortment of other offenses. He appealed, and the convictions were affirmed in 2003. Five years later, everybody realized that his PRC had been messed up, so he was brought back and resentenced. He appealed from that. But he didn't just appeal the resentencing. In his first appeal, he had argued manifest weight and sufficiency of the evidence; he argued those again, but also raised an additional issue regarding the admissibility of certain testimony. The 9th District threw it out on res judicata grounds, which made perfect sense: normally, prior rulings become the "law of the case," and the court's not going to revisit any issues which were or could have been raised in an earlier appeal.
But Bezak created a different normality. Fischer's attorney began the oral argument by crisply summarizing the case on his behalf:
- Sentences that lack valid post-release controls are void; they are legal nullities
- Because there is no sentence, there is no conviction
- If there is no conviction, there is no final appealable order
- If there is no final appealable order, the court of appeals lacks subject matter jurisdiction
- If the court of appeals doesn't have subject matter jurisdiction, any decision it makes is void as well, and the first appeal is a nullity with no binding effect
But while the argument was logically precise, it posed the real problem: is this the way things should be done? Justice Lanzinger, who'd presciently dissented in Bezak because of her concern at how a "void" sentence would "undermine principles of res judicata," noted the result in Fischer's case was that "for eight years [since Fischer's trial] there has been no sentence, and now the defendant wants to appeal for the first time."
The Chief Justice and Justice O'Donnell, both of whom had been in the majority in Bezak, tried to downplay the problem. To Moyer the issue was simply requiring the judge to follow the rules in imposing PRC, and if he didn't, it was a void act. O'Donnell questioned what the fuss was about; wasn't the solution simply to send the case back to the court of appeals to rule on an issue, a course that the court has taken any number of times?
But the State's argument obviously resonated with some of the justices, even O'Donnell, who seemed to later shift somewhat. That argument is the logical extension of Fischer's: anyone who was sentenced without proper imposition of PRC is now entitled to a new appeal. For example, let's say that Fischer wanted to raise an issue regarding hearsay testimony at his trial. The US Supreme Court's 2004 decision in Crawford v. Washington revolutionized the law on the effect of the Confrontation Clause on hearsay. But when Fischer was tried, the constitutional ramifications of hearsay were judged under the more lenient standard in Ohio v. Roberts, which basically held that hearsay passed muster as long as it had "sufficient indicia of reliability." Someone who was sentenced in 2002, was properly given PRC, and had exhausted his appeals prior to Crawford would have been out of luck. But because Fischer's PRC was screwed up, he isn't. An argument could be that that doesn't make a whole lot of sense. And what happens if Fischer wins his argument, and gets a new trial, but in the intervening eight or ten years the evidence against him is destroyed or witnesses die or disappear?
The State's argument that such sentences should be merely voidable, on the other hand, poses some additional problems: That means if no appeal is taken within 30 days of the sentence, everything's final, which means that if the judge didn't properly impose PRC, well, then the defendant isn't going to be on PRC when he gets out.
If I had to guess, I'd say that Bezak is in trouble. It was a 4-3 decision, with Lanzinger, Lundbergh Stratton, and O'Connor dissenting; I saw little in the oral argument which makes me think any of them have changed their minds. Moyer would have been a sure vote for reaffirmance of Bezak, but he's not there, nor is his power to influence the rest of the majority to stay in line. Cupp and O'Donnell are generally regarded as reliable votes for the State's position in criminal cases, and they could have viewed Bezak at the time they ruled on it as a way of avoiding the situation where defendants get a pass on PRC because the judge didn't do it right; giving the defendant a second chance at an appeal might be sufficient to get them to re-evaluate their position.
If nobody does change their mind, it may be up to the new Chief Justice Eric Brown, who takes office on May 3, to cast the deciding vote. He could order re-argument in the case, but my money is on Bezak getting overruled without him.