State v. Pullen , 2012 Ohio 1498 ( 2012 )

[Cite as State v. Pullen, 2012-Ohio-1498.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 11 MA 10
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
KEVIN PULLEN, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 10CR981.
JUDGMENT: Vacated and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Attorney Rhys Cartwright-Jones
42 North Phelps Street
Youngstown, Ohio 44503-1130
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 30, 2012
VUKOVICH, J.
{¶1} This is an appeal from the sentence entered in the Mahoning County
Common Pleas Court after defendant-appellant Kevin Pullen pled guilty to felony theft.
When imposing post-release control, the trial court failed to notify appellant in the
judgment entry that if he violated the conditions of post-release control, he could be
sentenced to up to one-half of his original sentence. The state concedes this error.
The remaining issue revolves around the remedy this court can provide.
{¶2} Because appellant has been released from his term of imprisonment, we
cannot remand for application of the corrected sentencing procedures contained in
R.C. 2929.191. The failure to notify appellant properly was, in effect, the failure to
properly impose post-release control, which cannot now be remedied since he has
been released. Consequently, appellant’s post-release control is vacated and this
case is remanded for the trial court to note on its record that appellant cannot be
resentenced and thus is not subject to post-release control.
STATEMENT OF THE CASE
{¶3} In August of 2010, appellant sold twelve books to Campus Book and
Supply. After he left, the bookstore noticed that the books belonged to the Youngstown
Public Library. Appellant had used his library card to check out two of the books.
Appellant was indicted for theft and receiving stolen property, felonies of the fifth
degree as the books were worth more than $500.
{¶4} Appellant pled guilty to the theft charge. The state dismissed the
receiving stolen property count and agreed to recommend community control. At the
plea hearing, the court advised appellant, as required by R.C. 2929.19(B)(3)(e), that if
he violated the conditions of his post-release control, he can be sent back to prison for
up to one-half of the total time imposed in his case. (Plea Tr. 7). The court ordered a
presentence investigation.
{¶5} At the sentencing hearing, the court asked appellant if he remembered
being informed at the plea hearing that if he violated the conditions of his post-release
control, he could be sent back to prison for up to one-half of the total time that he
receives in the original sentence. (Sent. Tr. 5-6). After defense counsel made
sentencing statements, the court sentenced appellant to ten months in prison and
imposed restitution in the amount of $1,165.40 to be paid within one year of his
release. The court then stated that what it previously explained about post-release
control would apply. (Sent. 11-12).
{¶6} The December 20, 2010 sentencing entry advised that appellant was
subject to three years of post-release control and stated that he “has been given notice
under R.C. 2929.19(B)(3) * * *.” Appellant filed timely notice of appeal. Original
appellate counsel filed a no merit brief, stating that he reviewed the record and could
find no meritorious issues and submitting no proposed assignments of error, and a
request to withdraw. This court appointed new appellate counsel who filed a brief
containing one assignment of error.
ASSIGNMENT OF ERROR
{¶7} Appellant’s sole assignment of error provides:
{¶8} “THE TRIAL COURT ERRED IN FAILING AT SENTENCING TO
NOTIFY MR. PULLEN THAT HE WAS SUBJECT TO SERVICE OF UP TO HALF HIS
ORIGINAL SENTENCE IN THE EVENT OF A POST-RELEASE VIOLATION AND
FAILED TO INCORPORATE THE SAME NOTIFICATION INTO ITS JUDGMENT
ENTRY.”
{¶9} R.C. 2929.19(B)(3)(e) provides that the court at sentencing must notify
the offender that if a period of supervision is imposed upon his release and if the
offender violates that supervision, the parole board may impose a prison term of up to
one-half of the stated prison term originally imposed on the offender. This notice must
be repeated in the sentencing entry. State v. Singleton, 124 Ohio St.3d 173, 2009-
Ohio-6434, 920 N.E.2d 958, ¶ 11, 22. And, a mere reference to a statute is insufficient
notice. See, e.g., State v. Jones, 7th Dist. No. 06MA17, 2009–Ohio–794, ¶ 12.
{¶10} Here, the court failed to provide the proper notice in the sentencing entry
that the parole board may impose a prison term of up to one-half of his original term.
The state filed a confession of judgment rather than a brief and concedes this error.
{¶11} The remaining issue is the remedy that this court can provide. Appellant
asks that we vacate post-release control and remand to see if the trial court wishes to
correct the post-release control portion of his sentence under R.C. 2929.191. The
state asks that we modify the post-release control portion of the sentence by notifying
appellant that he is subject to future prison terms for violations of post-release control
and issue a limited remand to the trial court for a corrected judgment entry as we did in
State v. Davis, 7th Dist. No. 10MA160, 2011-Ohio-6025.
{¶12} We begin by pointing out that the legislature has provided a procedure
for correcting faulty post-release control notifications that is applicable to cases where
the sentencing occurred after July 11, 2006. Singleton, 124 Ohio St.3d 173, ¶ 23, 27,
32, 35 (holding that R.C. 2929.191 cannot be applied retroactively as intended but that
it would be applied prospectively to sentences entered on or after July 11, 2006).
Thus, for sentences entered prior to July 11, 2006, the Supreme Court’s procedure
developed through case law applies, but for sentences entered on or after July 11,
2006, such as the sentence here, the statutory procedure applies. See id.{¶13} The sentence-correcting statute provides that where the trial court fails to
notify the offender regarding the possibility of the parole board imposing a prison term
for a violation of post-release control, the sentencing court can hold a hearing prior to
the offender’s release and issue a corrected judgment entry that includes the
previously omitted statement that the parole board can impose a prison term of up to
one-half of the original sentence for a violation of post-release control. R.C.
2929.191(B)(1)-(2). See also R.C. 2929.191(C) (referencing orders under (B)(1) as a
type of order covered).
{¶14} However, appellant’s ten-month prison sentence is complete, and he has
been released from his term of imprisonment. Thus, this statutory procedure cannot
be utilized by the trial court on remand. See R.C. 2929.191(B)(1) (“at any time before
the offender is released”) (B)(2) (“before the offender is released from imprisonment
under the term”), (C) (“of a type described in division (A)(1) or (B)(1)”).
{¶15} Nor is the Davis remedy mentioned by the state available. See Davis,
7th Dist. No. 10MA160 (modifying sentence and remanding only for court to enter
corrected judgment), utilizing dicta in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, 942 N.E.2d 332. Davis involved sentencing that occurred prior to July 11, 2006
as did the cited Fischer case, and thus, the statutory hearing requirement did not
apply. Our case involves sentencing that occurred after July 11, 2006. Moreover, the
Davis defendant was still imprisoned at the time of the remand for a corrected entry,
whereas appellant is no longer imprisoned.
{¶16} Using both the case law approach and the statutory approach, the
Supreme Court has eliminated the obligation to serve post-release control where the
offender is released prior to the imposition of post-release control. See, e.g., State v.
Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 70 (“once an
offender has completed the prison term imposed in his original sentence, he cannot be
subjected to another sentencing to correct the trial court’s flawed imposition of
postrelease control.”); State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d
961, ¶ 18 (where defendant already served prison term, he cannot be subject to
resentencing in order to correct the trial court’s failure to impose post-release control).
This leaves the question of whether there is a “flawed imposition of postrelease
control” if the court fails to provide the statutorily mandated notice of what can happen
for a violation and what the effect of R.C. 2929.19(B)(3)(e) is on this issue.
{¶17} Pursuant to R.C. 2929.19(B)(3)(e), if a court imposes a prison term on or
after July 11, 2006, the failure to notify the offender about the prison term that the
parole board may impose for a future violation or the failure to place that notice in the
sentencing entry does not negate, limit, or otherwise affect the authority of the parole
board to so impose a prison term for a violation if the parole board notifies the offender
of these consequences prior to his release as per R.C. 2967.28(D)(1). The latter
statutory section provides that prior to the release of a prisoner for whom it will impose
post-release control, the parole board shall notify the prisoner that, if the prisoner
violates any condition of post-release control, the parole board may impose a prison
term of up to one-half of the stated prison term originally imposed upon the prisoner.
R.C. 2967.28(D)(1). Thus, R.C. 2929.19(B)(3)(e) does provide an alternative to the
court notifying the offender that violations of post-release control can result in more
prison time. Cf. Bloomer, 122 Ohio St.3d 290 at ¶ 72.
{¶18} Statutorily then, as long as the parole board notifies the defendant of the
potential consequences of violating his post-release control terms prior to his release,
the notice is considered to have been provided. See R.C. 2929.19(B)(3)(e) (parole
board notification of effect of violation). See also R.C. 2929.191 (B)(1)-(2) and (C)
(containing discretionary language regarding the trial court issuing a corrected entry if
it wishes). We have no information regarding whether the parole board so informed
appellant and that particular issue would hence not be ripe for our review as it is not in
the record of the direct appeal.
{¶19} However, there are problems with this approach to the case. For
instance, the Eighth District attempted to utilize this portion of R.C. 2929.19(B)(3)(e) to
hold that the trial court’s 2008 failure to notify a defendant of the consequences of a
post-release control violation did not itself invalidate post-release control since the
parole board can provide the notice prior to release. State v. Walls, 8th Dist. No.
92280, 2009-Ohio-4985, ¶ 8-10. Specifically, the appellate court held:
{¶20} “Under the terms of amended R.C. 2929.19(B)(3)(e), we cannot agree
that the sentence is void if the court fails to notify the offender at the sentencing
hearing about the consequences of violating postrelease control. So long as the
parole board notifies the offender before he is released from prison that it can impose
a prison term for a violation of postrelease control, the legislature has determined that
the board has the authority to impose a prison term for a violation. Plainly, therefore,
the lack of notice of the consequences of a postrelease control violation does not
affect the validity of the sentence.” Id. at ¶ 10.
{¶21} The Ohio Supreme Court originally denied leave to appeal the Eighth
District’s holding. Then, on a motion to reconsider, the Supreme Court reversed the
above-quoted portion of the Walls decision on the authority of Singleton and remanded
the case to the trial court for further proceedings consistent with Singleton. State v.
Walls, 125 Ohio St.3d 1201, 2010-Ohio-1806, 926 N.E.2d 647, ¶ 2.
{¶22} In Singleton, the main issue was whether R.C. 2929.191 could be
applied retroactively. Although Walls did not involve retroactivity issues since the
sentencing took place in 2008, the Supreme Court still remanded for application of
Singleton. The content in Singleton relevant to Walls is the statement:
{¶23} “For criminal sentences imposed on and after July 11, 2006, in which a
trial court failed to properly impose postrelease control, trial courts shall apply the
procedures set forth in R.C. 2929.191.” Singleton, 124 Ohio St.3d 173 at ¶ 2 of
syllabus.
{¶24} We recognize that the Walls defendant was still in prison. Nevertheless,
the Supreme Court remanded for application of the statute by the trial court rather than
allowing the parole board to conduct the notification later as the appellate court held,
suggesting that the parole board notification cannot exist if the court never performed
its statutory duty to properly notify the offender of the required information regarding
post-release control. Thus, the Court refused to allow the Eighth District to rely on the
parole board notification statutes.
{¶25} Although the Supreme Court in Walls did not explain its reasoning, its
decision may be derived from the law that “in the absence of a proper sentencing entry
imposing postrelease control, the parole board’s imposition of postrelease control
cannot be enforced.” Bloomer, 122 Ohio St.3d 200 at ¶ 71. See also Singleton, 124
Ohio St.3d 173 at ¶ 32, citing Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103(2000) (mentioning separation of powers issues where the parole board imposes items
not properly imposed by the court). Thus, the Court is concerned about separation of
powers issues where the parole board acts without mandate by the sentencing court.
{¶26} Notably, the Court has given no effect to some of the relevant statutory
language before us when it stated in Bloomer:
{¶27} “the legislature has now amended R.C. 2929.14(F)(1) to provide: ‘If a
court imposes a sentence including a prison term of a type described in this division on
or after July 11, 2006, the failure of a court to include a post-release control
requirement in the sentence pursuant to this division does not negate, limit, or
otherwise affect the mandatory period of post-release control that is required for the
offender under division (B) of section 2967.28 of the Revised Code.’ Nothing in that
division, however, provides that the executive branch may impose postrelease control
if the sentencing court has not ordered it, nor does its language conflict with our
precedent. However, a sentencing court must impose postrelease control before an
offender completes the stated term of imprisonment.” (Emphasis added to language
that is also contained in the statute being considered in this case.) Bloomer, 122 Ohio
St.3d 200 at ¶ 72.
{¶28} As such, the Court disallowed any possible attempt by the legislature to
validate a post-release control sentence that was faulty in the absence of court action
to correct such sentence. And, the Supreme Court equates a failure to actually
impose post-release control with the failure to warn that a violation of post-release
control can result in another prison sentence of up to one-half of the original sentence.
See Bloomer, 122 Ohio St.3d 200 at ¶ 2-3. See also Singleton, 124 Ohio St.3d 173 at
¶ 4 (although a pre-2006 case, the Court addressed together the fact that the trial
court’s sentencing entry only mentioned a possibility of a five year term, which was
actually mandatory, and that it failed to notify the defendant that violation of post-
release control could result in additional time of up to one-half of his prison sentence).
{¶29} Here, the trial court’s ability to apply the sentence-correction statute has
passed. See R.C. 2929.191(B)(1) (“at any time before the offender is released”) (B)(2)
(“before the offender is released from imprisonment under the term”), (C) (“of a type
described in division (A)(1) or (B)(1)”). As such, we cannot remand to the trial court for
application of R.C. 2929.191 and correction of the sentencing entry.
{¶30} We conclude from all of this that: the trial court’s failure to issue the
proper notice regarding future post-release control violations invalidated the imposition
of post-release control; the parole board cannot impose prison if the court never
ordered it; and, this aspect of sentencing cannot be remedied because appellant has
been released from his prison term. This is consistent with the Supreme Court’s
reversal of the Eighth District’s Walls holding and the Ninth District’s position in
Leasure. See State v Leasure, 9th Dist. No. 25682, 2011-Ohio-3666, ¶ 9-11 (vacating
post-release control where entry failed to state parole board could order imprisonment
for violations where defendant had been released from prison, without discussing the
parole board notification option).
{¶31} For the foregoing reasons, we vacate post-release control in this case
and remand with instructions for the trial court to note this on its record and to note
that appellant is not subject to resentencing. See Bloomer, 122 Ohio St.3d 200 at ¶ 73
(“the trial court is instructed to note on the record that because [the defendant] has
completed his prison sentence, he will not be subject to resentencing pursuant to
law.”).
Donofrio, J., concurs.
Waite, P.J., concurs.