"Clarifying" post-release controls
Back in 2012, Maurice Freeman filed a motion "to correct a void sentence," claiming that the judge hadn't properly advised him of post-release controls on the one-year sentence it gave him for a weapons under disability conviction. The judge denied it, Freeman appealed, and the court agreed with Freeman, sending it back for a new sentencing hearing so that PRC could be correctly imposed. At the sentencing hearing, the judge asked whether PRC was discretionary or mandatory. "Mandatory," said the prosecutor. BZZZT. Wrong answer. The case went up on appeal, got reversed again, and Freeman had another sentencing hearing.
Oh, did I mention that Freeman was also serving a 23-to-life sentence for the aggravated murder conviction he'd gotten along with the weapons under disability charge?
That's one of the most absurd examples of how post-release control works, but it may be one of the last after the Supreme Court's decision yesterday in State v. Grimes.
Here's a quick and dirty history of PRC. That was included as part of the sentencing reforms in 1996, replacing parole. The Supreme Court decided that this posed a separation of powers problem. With parole, if the judge handed down a 10-to-25 year sentence, and the defendant was released but subsequently committed another offense, there was no problem with the parole board returning him to prison for up to 25 years; that was part of the original sentence.
With the 1996 "truth-in-sentencing" reforms, though, the judge handed down a flat sentence. If the Adult Parole Authority subsequently supervised the defendant and wanted to send him back for committing some violation, that wasn't part of the original sentence; the executive branch, instead of the judiciary, was imposing punishment. The Supreme Court got around this problem by holding that judges would impose the punishment, by incorporating the imposition of post-release controls into the sentence.
In the ensuing years, two problems emerged. First, what did the judge have to say and do to validly impose post-release controls at sentencing? Second, what happened if the judge didn't?
The answer to the first question varied from district to district. The 8th District took a hard line: the judge had to tell the defendant at the sentencing hearing the term of PRC (three years or five years) and whether it was mandatory or discretionary, and tell him that if he violated PRC he could be sent back to prison for up to one-half the original sentence. And the court had to include those three things in the journal entry as well.
The Supreme Court answered the second question: If the judge didn't validly impose post-control, that portion of the sentence was void. If the judge had failed to make the necessary advisements at the sentencing hearing, a new hearing had to be held, limited solely to the proper imposition of PRC. If the failure was in the journal entry, a nunc pro tunc entry would suffice. But if the defendant had already served his prison term, PRC couldn't be imposed at all.
Enter Grimes. At Grimes' sentencing for robbery and vandalism, the judge told Grimes that he'd be doing a mandatory three years of PRC, and of the consequences of a violation. The journal entry contained the first two. But it didn't spell out the consequences; it said only that the defendant had been notified of
the consequences for violating conditions of post-release control imposed by the Parole Board under RC §2967.28. The Defendant is ordered to serve as part of this sentence any term for violation of that post release control.
The Fifth District held that wasn't sufficient, but the Supreme Court said it was. On the surface, it appears to be an easy call. Grimes simply stands for the proposition that the judge need not spell out in the journal entry the consequences of violation; it can simply refer to the statute which empowers the APA to impose those consequences. Things do get a bit murkier; toward the end of O'Connor's majority opinion, we have this:
Grimes would not have been prejudiced if the trial court had failed to advise him in its entry that the APA had authority to impose a prison term as a consequence of violating PRC.
I'm not sure what that means, or why, in the context of this particular journal entry, that statement is even necessary.
The more interesting aspect of Grimes is the DeWine's opinion concurring only in judgment. He notes that RC §2929.19(B) requires only that the judge inform the defendant at the sentencing hearing only whether PRC is mandatory or discretionary, and the consequences of violation; no statute imposes the duty to incorporate those notifications in the journal entry.
DeWine also sees no basis for the separation of powers argument. The statute is what empowers the APA to impose punishment, and the legislature can do that; given that the statute determines whether PRC is mandatory or discretionary, and the length of it, the judge's function in "imposing" it is purely ministerial.
But DeWine's major fire is directed at the court's jurisprudence on what constitutes a "void" sentence. Echoing the arguments long made by Justice Lanzinger, DeWine contends that a "void" sentence is limited to one which is made by a court without subject matter jurisdiction. A sentence that is "imposed irregularly or erroneously" is simply voidable: if you don't timely appeal from it, you're out of luck.
There's a lot to be said for that argument. The void/voidable distinction has led to the court deciding that a sentence is void if the court doesn't impose a mandatory fine, or doesn't impose a mandatory driver's license suspension. That's resulted in motions filed years after sentencing, appeals, and re-sentencing hearings limited to proper imposition of the fine or suspension. And since a video teleconference of the re-sentencing hearing requires the consent of the defendant, in many cases, as in Freeman's, the defendant has to be brought back from the institution for the hearing.
French agrees with DeWine's opinion on the void/voidable problem, and the majority doesn't reject it; it simply refuses to consider it because it was raised by the Attorney General as amicus, and not by the parties. Expect that the issue is going back to the Supreme Court at some point.
But that raises another problem. DeWine's opinion assumes that Grimes would have to be the one to appeal the issue. As long as the law continues to provide that PRC can't be imposed once the defendant has served his prison time, though, the defendant has no interest in making sure that it is imposed properly in the first instance. The State does, and under the view of DeWine and French, if the State doesn't appeal, there's no way to remedy that.