The rise and fall of void sentencing
The concept of void sentencing will be laid to rest on Tuesday, September 8, with the submission of the briefs in State v. Bates. Void sentencing grew and thrived into middle adolescence, but at the tender age of 16 was placed on life support after the Ohio Supreme Court's decision in State v. Harper. Two months later, the Court pulled the plug in State v. Hudson.
Few mourners are expected. While the whole "void sentence" doctrine did inure to the benefit of some defendants, it created a legal and logical monstrosity, especially in the area of post-release control, that served little purpose. But Harper and Hudson raise some serious questions, and arguably provide the wrong answer.
The Backstory. The passage of SB 2's "truth in sentencing" reforms in 1996 also introduced the concept of post-release control, a replacement for parole. Where before, the court would impose an indeterminate sentence of, say 8 to 25 years, and leave it to the parole board to determine exactly how much time the defendant served, under SB 2 the defendant would be sentenced to a fixed term of years, with the Adult Parole Authority placing the defendant on PRC after that, and having the ability to impose an additional prison term if the defendant violated the terms of PRC.
Can you say "separation of powers"? Yes, that was the problem: only the judiciary branch can impose punishment. To get around that problem, the Supreme Court held that the court was "granting" the executive branch the power to impose additional punishment.
But that, of course, depended upon the trial court bestowing that power. What if the trial court didn't impose post-release controls? And that was not uncommon, given trial court's unfamiliarity with the new law, and counties like Cuyahoga not having prosecutors present at sentencing to police what was gonig on, and to appeal if the judge failed to follow the law.
And so the concept of a "void sentence" was born: if PRC wasn't properly imposed, that rendered the sentence "void," which meant it could be corrected at any time.
Void sentencing run amok. Then things went all to hell. The court held that PRC couldn't be imposed once the defendant had completed his prison sentence, and so we had the spectacle of defendants being dragged back into court just days before their sentence was to expire so that the judge could say the magic words. And what were the magic words? We had a bunch of decisions spelling exactly what the judge needed to say. Another problem cropped up: if the sentence was void, that means there was no valid appealable order, and any court of appeals opinion from that was a nullity, so the defendant could relitigate the same issues from his "new" sentence. The court cured that by holding that only the PRC portion of the sentence was void. But the concept grew like ivy: failure to impose a mandatory fine, or a mandatory drivers license suspension, rendered that portion of the sentence void as well.
In Harper and Hudson, the court finally threw up its collective hands and decided to go back to the good old days of yore, when men were men and a sentence wasn't void unless the trial court lacked subject matter jurisdiction or personal jurisdiction over the defendant. Harper and Hudson, who both complained correctly that PRC hadn't been imposed properly because the judge hadn't advised them of the consequences of violating PRC, as the court had announced it must do just two years ago in State v. Grimes, were told that it didn't matter: the sentences were merely voidable, and since they hadn't appealed, they were out of luck.
Wait ... what? That doesn't make any sense. Why would the defendant have to appeal the improper imposition of post-release controls? One of the fundamental principles of appellate law is that the party aggrieved by the trial court's ruling is the one who has to appeal. Although in both Harper and Hudson the court "cautions prosecuting attorneys, defense counsel, and pro se defendants throughout this state that they are now on notice that any claim that the trial court has failed to properly impose postrelease control in the sentence must be brought on appeal from the judgment of conviction or the sentence will be subject to res judicata," the reference to prosecuting attorneys is an empty one. If the judge doesn't impose post-release controls properly, or at all, why should they get worked up since it will be imposed anyway if the defendant doesn't appeal? And don't those cases ignore what prompted all this in the first place, the separation of powers problem?
What about Bates? The court accepted jurisdiction of Bates on a simple proposition: that the failure to include PRC must be corrected on direct appeal. Under Harper and Hudson, so far, so good. But Bates' proposition continues: "failure to do so precludes supervision on PRC at the end of the prison sentence." The facts are the same as in the other two cases. (The Memorandum in Support of Jurisdiction was filed before either of the other two came down.)
We'll see what happens. The court cleaned up one mess, but it left another.
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