State v. Lynch , 2012 Ohio 2975 ( 2012 )

[Cite as State v. Lynch, 2012-Ohio-2975.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 11CA010031
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CEDRIC LYNCH COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 02CR061052
DECISION AND JOURNAL ENTRY
Dated: June 29, 2012
MOORE, Judge.
{¶1} Appellant, Cedric Lynch, appeals the judgment of the Lorain County Court of
Common Pleas. This Court affirms.
I.
{¶2} In 2002, the Lorain County Grand Jury indicted Lynch on several charges. After
a bench trial, the trial court found Lynch guilty of three offenses, including a first degree felony.
The trial court sentenced Lynch to a total of seven years of incarceration, and this Court affirmed
his convictions. State v. Lynch, 9th Dist. No. 04CA008531, 2005-Ohio-2401. In 2008, Lynch
filed a motion for resentencing, arguing that the trial court failed to properly impose postrelease
control. After a resentencing hearing, the trial court issued an amended sentencing entry, setting
forth that post release control was mandatory in this case “up to” a maximum of 5 years. Lynch
timely appealed from the resentencing entry, and Lynch’s appellate counsel filed an Anders
brief, identifying no nonfrivolous, appealable issues. This Court agreed and affirmed the trial
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court’s judgment. State v. Lynch, 9th Dist. No. 08CA009434, 2009-Ohio-1824. The trial court
subsequently issued two amended entries which “contained typographical errors,” and then
“issued an amended judgment entry of conviction and sentencing on February 12, 2009.” Id. at
¶ 4.
{¶3} On January 18, 2011, Lynch completed his prison sentence, and, later that year,
he filed a motion to terminate postrelease control supervision, arguing that postrelease control
was never properly imposed. The trial court denied the motion.
{¶4} Lynch timely filed a notice of appeal from the trial court’s order denying his
motion and presents one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT REFUSED TO VACATE [ ]
LYNCH’S POSTRELEASE CONTROL SUPERVISION.
{¶5} In his sole assignment of error, Lynch argues that the trial court erred by failing to
vacate that portion of his sentence imposing postrelease control. We disagree.
{¶6} R.C. 2967.28 governs the imposition of postrelease control. Under R.C. 2967.28,
“[e]ach sentence to a prison term for a felony of the first degree * * * shall include a requirement
that the offender be subject to a period of post-release control imposed by the parole board after
the offender's release from imprisonment.” The mandatory term of postrelease control for a first
degree felony is five years. R.C. 2967.28(B)(1).
{¶7} In its 2002 sentencing entry, the trial court failed to set forth the mandatory nature
and the length of the postrelease control. In its resentencing entry, the trial court imposed
postrelease control, but mistakenly included some discretionary language concerning the term of
his postrelease control by stating that postrelease control was “mandatory up to 5 years.” This
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language remains in the most current nunc pro tunc resentencing entry. Therefore, Lynch
contends that, because the trial court utilized the words “up to” in the sentencing entry, the trial
court ordered a discretionary period of postrelease control, contrary to statute. Based upon this
fact, Lynch argues that the portion of his sentence imposing postrelease control is void, and,
because he has served his prison term, he cannot now be resentenced. Accordingly, Lynch
contends that the trial court erred in denying his motion to terminate postrelease control.
{¶8} Pursuant to R.C. 2967.28, the trial court, when imposing postrelease control, must
notify the offender of (1) the mandatory or discretionary nature of postrelease control, (2) the
length of time the offender will be subject to postrelease control, and (3) consequences for
violating the terms of postrelease control. State v. Bloomer, 122 Ohio St. 3d 200, 2009-Ohio-
2462, ¶ 69. Here, at the 2008 resentencing hearing, the trial court notified Lynch as follows,
“[Y]ou need to be aware that you will be supervised after you leave prison, which is referred to
as post-release control, for five years. This is mandatory.” The trial court further notified Lynch
that, if he were to commit a felony during his period of postrelease control, he “may be sent to
prison for the remaining post-release control period or 12 months, whichever is greater.” Lynch
does not contend that the court’s oral notification as to postrelease control was incorrect; instead,
he focuses his argument on the trial court’s incorrect use of the words “up to” in his resentencing
entry. Based upon the court’s use of this language, Lynch argues that postrelease control cannot
be imposed because he cannot be subject to another resentencing to correct the error since he has
completed his prison term. In support of this argument, Lynch relies heavily upon the Ohio
Supreme Court’s decision in Bloomer.
{¶9} In Bloomer, the trial court incorrectly notified the defendant Barnes of postrelease
control at his resentencing hearing by failing to notify Barnes of the length of postrelease control.
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Id. at ¶ 69. The trial court then issued a sentencing entry, which also failed to set forth the length
of postrelease control and incorrectly set forth that Barnes “may be” rather than “shall be”
supervised under postrelease control after his release from prison. (Emphasis sic.) Id. at ¶ 62.
The Ohio Supreme Court determined that the trial court had not properly imposed postrelease
control due to its failure to set forth the length of postrelease control at the resentencing hearing
or within the resentencing entry and due to its incorrect inclusion of discretionary language in the
resentencing entry. Id. at ¶ 69. The Court further determined that, because Barnes had
completed his prison sentence, he could not be resentenced to correct these errors, and he could
not be subject to postrelease control. Id. at ¶ 70-72.
{¶10} However, unlike the defendant Barnes in Bloomer, Lynch does not dispute that
the notification given at his resentencing hearing pertaining to postrelease control was proper.
Rather, he has attacked only the language used in the sentencing entry.
{¶11} In Qualls, the Ohio Supreme Court addressed an issue pertaining to postrelease
control notification where the notification was properly given at the sentencing hearing, but the
sentencing entry improperly set forth the postrelease control term or failed to reference
postrelease control. State v. Qualls, Slip Op. No. 2012-Ohio-1111. In Qualls at ¶ 18-19, the
Court set forth,
[I]n order to comply with separation-of-powers concerns and to fulfill the
requirements of the postrelease-control-sentencing statutes, especially R.C.
2929.19(B) and 2967.28, a trial court must provide statutorily compliant
notification to a defendant regarding postrelease control at the time of sentencing,
including notifying the defendant of the details of the postrelease control and the
consequences of violating postrelease control. Woods v. Telb, 89 Ohio St. 3d 504
(2000), paragraphs one and two of the syllabus; State v. Jordan, 104 Ohio St. 3d
21, 2004-Ohio-6085, paragraph one of the syllabus; Bloomer at ¶ 2.
We have also stated that a trial court must incorporate into the sentencing entry
the postrelease-control notice to reflect the notification that was given at the
sentencing hearing. E.g., Jordan at paragraph one of the syllabus, see current
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R.C. 2929.14(D). But our main focus in interpreting the sentencing statutes
regarding postrelease control has always been on the notification itself and not on
the sentencing entry. See id. at ¶ 23 (recognizing that the “statutory duty”
imposed is “to provide notice of postrelease control at the sentencing hearing”);
State ex rel. Cruzado v. Zaleski, 111 Ohio St. 3d 353, 2006-Ohio-5795, ¶ 26
(stressing the importance of notification); Watkins v. Collins, 111 Ohio St. 3d 425,
2006-Ohio-5082, ¶ 52 (stating that the “preeminent purpose” of the statutes is
“that offenders subject to postrelease control know at sentencing that their liberty
could continue to be restrained after serving their initial sentences”).
{¶12} Here, as in Qualls, the trial court verbally notified Lynch of the correct terms of
applicable postrelease control prior to his release from prison. However, in Qualls, the trial court
noted that the defendant’s sentencing entry was required to be corrected prior to his release from
prison. In the present case, Lynch has been released from prison. The issue of whether
postrelease control that was improperly imposed in a sentencing entry could be imposed after an
offender’s release from prison was not directly implicated in Qualls. However, on review from
the Fourth District’s decision affirming the trial court’s denial of Qualls’ motion for
resentencing, the Supreme Court discussed this issue, distinguishing between sentencing entries
that made no reference to postrelease control, and those that incorrectly set forth the terms of
postrelease control:
A Sentencing Entry that Contains No Reference to Postrelease Control Must
Be Timely Corrected
For purposes of addressing the certified issue, we recognize two important
principles that our postrelease-control precedents have emphasized. One principle
is that unless a sentencing entry that did not include notification of the imposition
of postrelease control is corrected before the defendant completed the prison term
for the offense for which postrelease control was to be imposed, postrelease
control cannot be imposed. Hernandez v. Kelly, 108 Ohio St. 3d 395, 2006-Ohio-
126, ¶ 28–30; compare Watkins at ¶ 48–51 (when a sentencing entry made some
reference to postrelease control, any deficiencies in the entry could have been
raised on appeal, and postrelease control can be imposed upon the defendant's
release from prison).
Qualls at ¶ 16.
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{¶13} Here, Lynch’s resentencing entry included notification of postrelease control. It
mistakenly identified postrelease control as discretionary, similar to the entries at issue in
Watkins. In Watkins, 2006-Ohio-5082, prisoners who suffered postrelease control sanctions
sought writs of habeas corpus, arguing that the underlying postrelease control notifications
misrepresented the mandatory nature of their postrelease control. Id. at ¶ 43. The Court
distinguished the sentencing entries at issue in Watkins, from those at issue in Hernandez and
Adkins. The Court noted that the sentencing entries in Hernandez and Adkins contained no
reference to postrelease control. Watkins at ¶ 48. Therefore, the Court explained that “the trial
court lacked jurisdiction to issue a nunc pro tunc entry adding postrelease control to the sentence
after Adkin’s original sentence had expired.” Watkins at ¶ 48. However, because entries
pertaining to the prisoners in Watkins “contained sufficient language to authorize the Adult
Parole Authority to exercise postrelease control over the petitioners,” any argument as to the
imposition of postrelease control could have been raised on appeal, and thus habeas corpus was
not available. Id. at ¶ 51, 53.
{¶14} Although Watkins is procedurally distinct from the present case, the citation in
Qualls suggests that its result is applicable in cases that do not involve petitions for habeas
corpus. See id., and Qualls at ¶ 16. See also State v. Garrett, 9th Dist. No. 24377, 2009-Ohio-
2559, ¶ 15-16 (applying Watkins in the context of a substantial compliance analysis where the
trial court denied appellant’s post-conviction motion to withdraw guilty plea). Here, just as in
Watkins, Lynch’s sentencing entry imposed postrelease control and mistakenly set forth some
discretionary language. Therefore, because Lynch’s entry “contained sufficient language to
authorize the Adult Parole Authority to exercise postrelease control” over him, the trial court did
not err in denying Lynch’s motion to terminate postrelease control on the basis that the
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sentencing entry mistakenly included discretionary language, where the oral notification at the
sentencing hearing properly advised Lynch of the terms of postrelease control. See Watkins at ¶
53.
{¶15} Accordingly, Lynch’s sole assignment of error is overruled and the judgment of
the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, P.J.
DICKINSON, J.
CONCUR.
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APPEARANCES:
E. KELLY MIHOCIK, Assistant State Public Defender, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting
Attorney, for Appellee.