2 + 3 + 2 = 4... or 5... whatever
According to Lexis, last year there were 362 Ohio decisions in which the phrase "post-release controls" appeared. There are cases dealing with exactly what a judge has to say about it on a plea, at sentencing, what happens if the judge doesn't say that, and how it can be rectified. Back in 2006, the legislature even got into the act, passing several statutes dealing with the subject. In one of its final cases for 2009, the Ohio Supreme Court took a look at one of them. The result served mainly to remind one of the three-way gunfight which served as the climax for The Good, The Bad, and The Ugly.
One of the first problems that arose with post-release controls was its constitutionality. Under the indeterminate sentencing of the pre-1996 law, the judge gave a defendant 5 to 25 years, and he'd get out after 10, with the remaining 15 hanging over his head; if he violated parole, the parole authority could send him back to prison. The 1996 reforms changed to determinate sentencing: if the judge gave a defendant 10 years, he'd serve every day of it. After that, if he screwed up, the parole authority could send him back to prison.
And that's a problem. Under the pre-1996 law, a defendant was simply serving out the remainder of the sentence that the judge had given him. Under the post-1996 law, though, it was the parole authority which was "sentencing" him to additional prison time, and sentencing is supposed be the exclusive province of the judiciary. To get around this separation of powers problem, the Supreme Court, in a series of cases, created the fiction that it was actually the courts, by imposing post-release controls, which were giving the parole authority the power to send people back to prison for violations.
That meant that the judge had to actually impose post-release controls, and that led to another series of cases about what happened if he didn't. The judge had to advise the defendant of PRC at sentencing, and include it in the judgment entry; if he failed to do both, the sentence was void, and a resentencing was required.
In 2006, the legislature amended several statutes and passed a new one, RC 2929.191, to address the situation. The latter was the focus of the Supreme Court's decision two weeks ago in State v. Singleton.
The section at issue was part of three amendments to the PRC statutes: the other two basically provided that the APA can still impose PRC, even if the trial judge didn't mention it. Those, of course, dealt with sentences that would be handed down after the amendments went into effect; RC 2929.191 was supposed to deal with sentences that were handed before that. The statute provided that the court had to conduct a hearing, which was limited to the determination of "whether the court should issue a correction to the judgment of conviction," i.e., add PRC. The court concludes that the statute can't apply retroactively -- trial courts instead have to "conduct a de novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio." (That's a significant distinction; the prior cases hold that at those de novo hearings, the trial court can impose a different sentence altogether.) The statute does, however, apply prospectively, to any sentences issued after its effective date.
And here's where things get funky. Only two justices, O'Donnell and Cupp, agreed with both of those propositions. Pfeifer, Moyer, and O'Connor agreed with the first proposition, but held that the statute could not be applied prospectively. Lanzinger and Lundberg Stratton agree that the statute can be applied prospectively, but also would hold that it applies retroactively. The net result is that you have five votes for the statute not applying retroactively and four votes for it applying prospectively.
How did we come to this? The sticking point is the "void/voidable" distinction that's been a problem since the court's decision in State v. Simpkins. Simpkins was sentenced to eight years in prison for rape, and the state didn't realize until seven years later that the judge hadn't imposed PRC. Simpkins was brought back for a new sentencing, but complained on appeal that imposition of PRC violated res judicata: he'd already been sentenced once. Buying into Simpkins' argument would've meant that PRC could never be imposed if it wasn't done at the original sentencing, and to avoid that, the court held that there hadn't actually been an original sentencing hearing: a void sentence means it never happened.
Lanzinger was the sole dissenter in Simpkins, arguing that the sentence should be treated as voidable. It's an argument she's made consistently in these cases, but the only other justice she's been able to swing has been Lundberg Stratton. Hence, the two dissent in Singleton, having no trouble finding the statute to apply prospectively, but arguing that the court should discard its "void" theory and hold that the statute applies retroactively, too.
Not going to happen, according to the other five justices. In fact, O'Donnell and Cupp conclude, that's the reason the statute can't be applied retroactively: while 2929.191 purports to "correct the procedural defect" of a trial court's not having imposed PRC, by allowing the judge to correct the sentencing entry, there's no sentencing entry to correct, since, according to the court's prior case law, the sentencing entry is void. There's no problem in applying the statute prospectively, though; the earlier case law was an attempt to address the problem of a trial court failing to impose PRC, and now that the legislature has stepped into the breach, everybody can follow that. The other three justices jump ship on this, though, Pfeifer making the quite reasonable points that (a) the issue of the prospective application is not before the court; Singleton was sentenced before the effective date, and (b) the statute by its very terms applies only to sentences imposed before its effective date. The amendments to the other statutes were intended to deal with the problem prospectively. And, of course, those statutes, and their potential constitutional problems on separation of powers grounds, are never addressed.
So what's the story? It's relatively simple: for a sentence handed down before July 11, 2006, where PRC wasn't properly imposed, the trial court has to conduct a new sentencing hearing. For sentences handed down after that date where PRC wasn't properly imposed, the court has to conduct a hearing, but the only question is whether PRC is to be imposed.
At least, it's simple for now. How we got there, and how long we're going to stay, is another matter entirely.
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