Oh, for the good old days, when hardly a week would go by without some bizarre decision on post-release control. Like one remanding a death sentence because the judge had failed to impose PRC on one of the minor felony counts. Or one holding that a judge's saying that the period of PRC was "up to three years" wasn't sufficient when it was a mandatory three-year term. Or one finding that the judge's failure to tell a defendant that if he violated PRC, he could be sent back to the institution for up to one-half of his original sentence, was a fatal defect, and required remand for resentencing. Those aren't made-up; they actually happened.
Back when SB 2, the 1996 rewrite of the criminal sentencing statutes, was adopted, there was serious concern about the legitimacy of post-release control. There'd never been any problem in the Adult Parole Authority's violating you for parole and sending you back to prison; it had been the trial court which had imposed the sentence (5 to 25 years, say), and if you got out after 12 and committed a new offense, well, there was no constitutional hurdle in sending you back for the additional 13. Sure, it had to comply with due process requirements -- you had to have a parole violation hearing -- but it was simply ordering into execution a sentence which had already been imposed.
Not so with PRC. Truth in sentencing, baby: when the guy in the robe said "eight years," eight years is what you did. So how do you wind up with more than that? How does an executive branch of government impose prison time, which is the exclusive function of the judicial branch?
What the Supreme Court did is to create fiction: it's really the judicial branch imposing the sentence, it's just bestowing upon the executive branch the decision-making authority on whether it's to be imposed, just like with parole. Of course, that means the judge actually has to do that: he has to say at the sentencing, and in the journal entry, that the APA is granted the authority to monitor the defendant under PRC for a set period of time, and to ship him back to Casa Kasich if he screws up.
Ah, but another problem soon emerged. A lot of judges didn't impose PRC properly, or in many cases at all, either because they figured it was going to get struck down or because of unfamiliarity with the requirements. Normally, a sentencing error only makes the entry voidable, which means that if nobody appeals it, after 30 days any mistake can't be addressed. But that creates a serious problem. Remember, the judge has to grant the APA authority to impose PRC, and if she doesn't do that, there's no PRC. If a PRC error makes a journal entry only voidable, then once 30 days is up the defendant knows there's no way PRC can be imposed on him.
The Supreme Court weaseled out of that problem by deciding that the error in imposing PRC made the entry void, which meant that as long as the State caught it in time, it could be corrected. Thus you had the spectacle of defendants, in the last days of an 8-year sentence, being hauled into court to have PRC properly imposed. There was a downside to this; if the sentence was void, that means it was a nullity, and the judge could resentence the defendant to a lesser term (or, theoretically, to a greater one, although this rarely happened.) Still, it was better than having ex-felons roaming around without any post-sentence supervision.
But the void chickens eventually came home to roost, with the logical extension of the argument: if the initial entry was void, any appeal from it was similarly void, because an appellate court has no jurisdiction over a void entry. And if the appeal was void, it had no res judicata effect. And thus we come to London Fischer. He lost his appeal from his conviction of aggravated robbery and 14-year sentence back in 2003, but successfully obtained a resentencing four years later because of an error in PRC. After that, he showed up at the doorstep of the 9th District, claiming he was entitled to consideration of the same issues he'd raised in his appeal four years earlier. The 9th District shot it down, and so did the Supreme Court in State v. Fischer. That required working its way out of the logical conundrum its earlier decisions had created, and it did so by deciding that the earlier sentencing entry was only partially void -- specifically, that portion dealing with PRC.
Last week, those chickens came home to roost in the form of Donald Billiter. Back in 1998, he'd pled guilty to various crimes, and sentenced to three years in prison. The sentencing entry provided for PRC of "up to a maximum of three (3) years." BZZZZT!! It should have been five years, and no "up to." Billiter was put under APA supervision when he got out, but stopped showing up for meetings with his parole officer, so he was charged with escape. He pled guilty to that, was given probation, but -- quelle surprise -- violated that, so in 2004 the judge shipped him for six years.
So here he is now, contending that his plea of guilty to escape was void, because he couldn't "escape" from PRC if it was improperly imposed. That's part of the fiction: if the trial court has to grant APA the authority to impose PRC but doesn't do it in the initial sentence, once the defendant has served his prison sentence the trial court no longer has jurisdiction, so PRC can't be imposed at that point. And if PRC was improperly imposed, then Billeter wasn't supposed to be on PRC, he couldn't escape from it, and his plea to doing so was a nullity.
By a 4-3 vote this week, in State v. Billeter, the Supreme Court bought that. It pretty much had to. Fischer had held that res judicata governed any appeal from a resentencing done to correct PRC, except in one respect: the correction of PRC. After all that was the part of the sentence that was "void," which means you can appeal from it. Thus,
Although the Adult Parole Authority actually did place Billiter under supervision, and Billiter did violate the terms of that postrelease control, Billiter's escape conviction was based on an invalid sentence. Accordingly, the trial court was without jurisdiction to convict him on the escape charge.
There are problems with that holding, as the dissenters gleefully note. Lanzinger pursues her chosen role of reminding the court just how ridiculous the whole void/voidable distinction is, a task she's pursued relentlessly and unsuccessfully for the past five years. O'Donnell, with Lundberg Stratton concurring, notes that here there wasn't a question of whether PRC was imposed, but rather a technical defect in its imposition; why should that effect the escape charge.
So what's the bottom line? If your client's charged with escape, look up the journal entry and sentencing transcript for the underlying offense. PRC has to be properly imposed in both. If it's not, print out a copy of Billeter and hand it to the prosecutor and the judge. Or just grab the "Get ouf of Jail free" card from a monopoly set, and give that to them. Same difference.