Narrowing Bezak
This was London Fischer's argument: When he was sentenced back in 2002 to 14 years in prison for various and sundry crimes, the judge hadn't properly advised him of post-release controls. The Ohio Supreme Court had ruled in a number of cases, most recently State v. Bezak, that if a judge failed to properly impose post-release controls at the time of sentencing, the sentence was void. If Fischer's sentence was void, that meant there wasn't a final order to appeal from. If there wasn't a final appealable order, the appeal Fischer took from his initial conviction was void, too; a court of appeals only has jurisdiction over final orders. What all this meant was that when Fischer had his brand new sentencing hearing in 2008 so that the court could properly impose PRC, Fischer's appeal from that was his first actual appeal. The previous appeal was a nullity, and so res judicata didn't bar consideration of the same issues he'd raised the first time around.
Two weeks ago, in State v. Fischer, the court termed the argument "creative." It wasn't, really; it was simply a logical extension of the court's rulings on the subject. Of course, if they bought the argument, that would pose a host of problems: basically, anyone who'd had PRC improperly imposed at their sentencing was not only entitled to a new sentencing, but to a brand new appeal from their original conviction as well. After the oral argument, I'd predicted that the court wasn't going to buy this, and would overrule Bezak. I was more than half right; the court didn't flatly overrule Bezak, but there's not much left of it.
The opinion in Fletcher begins much as did the opinion last week in State v. Johnson, which overruled State v. Rance. (Discussed here yesterday.) As with all good court opinions, this one is neatly segmented, complete with Roman numerals and bold-faced headings like "Relevant Background," "Analysis," and "How the Hell Did We Get Into this Mess?" The stroll down Memory Lane begins with the acknowledgment that designating a sentence as "void" has usually referred to a lack of jurisdiction by the court -- a municipal court imposing a sentence for a felony, for example. The judgment is merely voidable, however, if the court has jurisdiction, but the judgment is invalid or erroneous -- a court ordering restitution without a hearing over objection of the defendant, for example. A "narrow" exception to the rule had developed, though: a sentence that wasn't in accordance with statutorily mandated terms was void.
The basis for that narrow exception was the 1984 case of State v. Beasley. A closer reading of that decision -- all seven paragraphs of it -- reveal it to be a rather slender reed upon which to base such a sweeping doctrinal change. In Beasley, the trial court had fined the defendant $500 for two felonious assaults, when the statute required a minimum two-year prison sentence. The case quickly devolved into a procedural quagmire, with appeals and writs of mandamus, but the upshot was that Beasley was resentenced to the two years, and appealed arguing that this violated her rights against double jeopardy. The court could have shot down that argument in a number of ways, but decided instead to hold that jeopardy didn't attach because "any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void," without any citation to case law or explanation of why it had chosen that particular approach. And this is what served as the basis for the court's subsequent decisions on PRC.
The Fletcher opinion then delves into the "illegal sentence" doctrine used by other state courts, claiming that it's similar to the voidness doctrine. It isn't, but no matter: the court borrows from those cases to hold that where the trial judge has mucked up PRC, the sentence is only partially void. The part that's void, is, of course, the PRC, so the defendant is entitled to a new sentencing hearing, "but with the added proviso that only the offending portion of the sentence is subject to review and correction." In short, Bezak is modified to eliminate the requirement of a de novo resentencing hearing; the hearing "is limited to proper imposition of postrelease control." What's more, no longer will we have the spectacle of appellate courts rejecting sixteen assignments of error and affirming defendant's sentence of life without parole for child rape, but remanding the case because the trial court forgot to impose post-release controls on the possession of criminal tools conviction; an appellate court can now modify the sentence to impose the proper term of PRC.
With that out of the way, the court gets to Fischer's argument, and that's where things get particularly muddled. The court begins by noting that the law of the case doctrine, which other courts have used in the case of illegal sentences, precludes a defendant from relitigating issues which were or could have been raised in a first appeal. But, the court says, it hasn't applied that doctrine to void sentences, and isn't going to do so now. The opinion then engages in some sleight of hand. As part of his argument that there was no final judgment, Fischer's brief had mentioned in passing State v. Baker, which set forth the requirements for what constitutes a final judgment. The Fletcher opinion elevates Baker for the sole purpose of chopping it down: "Nothing in Baker discusses void or voidable sentences... thus, Baker does not avail Fischer." Well, yeah, but that wasn't really the point.
Justice Lanzinger was one of the first to warn about the perils of treating PRC-deficient sentences as void, and she's the sole dissenter in Fischer. It's a somewhat unusual dissent: she doesn't even discuss Fischer's argument, and gives no indication whatsoever of how she'd rule on it. Instead, she launches one more forlorn broadside into the whole void-voidable line of cases, arguing that an error in imposition on PRC should be treated like any other sentencing error: a voidable judgment, correctable on appeal.
That's a sensible approach, but there's one problem with it from the prosecutorial point of view: if the judge fails to properly impose PRC, that error has to be corrected or appealed within thirty days after sentencing; if it's not, then PRC can't be imposed when the defendant gets out of prison. That was really the entire purpose of the void/voidable distinction on PRC: treating such errors as resulting in a void sentence meant it could be corrected any time before the defendant had finished serving his sentence.
I'm not sure whether Lanzinger's right that continuing the "void" theory poses future problems: it may be that the modifications made to that theory by Fischer successfully contains them. But my observation has been that an ill-conceived theory will sooner or later come back to bite a court. As I mentioned the other day, much of the court's work over the past fortnight has been directed at extricating itself from the problems it had created in earlier cases, such as Colon, Rance, and Bezak. Fischer is the only one of that trilogy where the court did not make a clean break. As I said at the outset of this post, there's not much left of Bezak, but there may just be enough to cause more problems down the road.
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