State v. Clarke , 2012 Ohio 924 ( 2012 )

[Cite as State v. Clarke, 2012-Ohio-924.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97017
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROLAND CLARKE
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-434456
BEFORE: Jones, J., Stewart, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: March 8, 2012
ATTORNEYS FOR APPELLANT
Timothy Young
State Public Defender
BY: Craig M. Jaquith
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: James M. Price
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Roland Clarke, appeals the trial court’s June 9, 2011
judgment denying his motion to terminate postrelease supervision. We reverse.
I. Procedural History and Facts
{¶2} In 2003, Clarke was charged with several crimes. After negotiations
between the state and defense, Clarke agreed to plead guilty to drug trafficking, a first
degree felony, in exchange for the state’s dismissal of the remaining charges. In 2004, a
plea hearing was held. At the hearing, the trial court advised Clarke that there was the
“possibility of five years postrelease control.” After finding that Clarke was knowingly,
intelligently, and voluntarily waiving his rights, the trial court accepted his plea.
{¶3} The case immediately proceeded to sentencing. The trial court sentenced
Clarke to a seven-year term, which was the recommended sentence of the state and
defense. The court advised Clarke that there was a “possibility of five years postrelease
control, which may include supervision by the Adult Parole Authority.” The sentencing
entry provided, “postrelease control is part of this prison sentence for the maximum
period allowed for the above felony under R.C. 2967.28.”
{¶4} Clarke finished serving his sentence in December 2010. In April 2011, he
filed a motion to terminate postrelease supervision, contending that the sanction was
improperly imposed and termination was the required relief. The trial court denied the
motion, and in his sole assignment of error Clarke challenges that denial.
II. Law and Analysis
{¶5} Under R.C. 2967.28, it is mandatory that an offender sentenced to
imprisonment for a first degree felony, as Clarke was, be subject to a period of
postrelease control after the offender’s release from imprisonment. R.C. 2967.28(B).
The required period of postrelease control for a first degree felony is five years. R.C.
2967.28(B)(1). If a defendant is subject to postrelease control, the trial court must notify
him of postrelease control at the sentencing hearing, and must include the postrelease
control terms in the sentence, or the sentence is void. State v. Bezak, 114 Ohio St.3d 94,
2007-Ohio-3250, 868 N.E.2d 961, ¶ 11, 12.
{¶6} The state agrees that notification of postrelease control must be given to an
offender at his sentencing hearing. And according to the state, Clarke was properly
notified at his sentencing hearing. At sentencing, the trial court advised Clarke of the
“possibility of five years postrelease control.” (Emphasis added.) Thus, while there
was some advisement at sentencing about postrelease control, the question arises whether
advising Clarke of the “possibility” of postrelease control was sufficient. We do not
believe so.
{¶7} In State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254,
the Ohio Supreme Court stated that the “most basic requirement of R.C. 2929.191 and
[the Court’s] existing precedent” dictates that a sentencing court “notify the offender of
the mandatory nature of the term of postrelease control and the length of that mandatory
term and incorporate that notification into its entry.” Id. at ¶ 69. The advisement to
Clarke at sentencing that postrelease control was a “possibility” did not notify him that
postrelease control was mandatory. Moreover, Clarke was similarly advised at his plea
hearing of the “possibility” of postrelease control.
{¶8} What then of the sentencing entry, which provided that “postrelease control is
part of this prison sentence for the maximum period allowed for the above felony under
R.C. 2967.28?” First, there again was no advisement that postrelease control was
mandatory. Second, there was no advisement of the specific five-year period of
postrelease control. Thus, even if we were to find that the trial court’s prior advisements
to Clarke that postrelease control was for a five-year period were sufficient, he was still
never advised — at the plea hearing, at the sentencing hearing, or through the sentencing
entry — that postrelease control was mandatory. Bloomer makes clear that such an
advisement is required.
{¶9} In light of the above, postrelease control was not properly imposed on Clarke
and that portion of his sentence is vacated. Because Clarke has already served his prison
term, he cannot be resentenced (Bezak at ¶ 18, holding that because the defendant had
already served the prison term ordered by the trial court, he could not be subject to
resentencing in order to correct the trial court’s failure to impose postrelease control at his
original sentencing hearing).
{¶10} Finally, we address the state’s contention that, under the doctrine of law of
the case, this court’s decision in Clarke’s first appeal, State v. Clarke, 8th Dist. No.
85999, 2006-Ohio-281, 2006 WL 178302 (“Clarke I”), bars his contentions made in this
appeal.
{¶11} Under the doctrine, the “decision of a reviewing court in a case remains the
law of that case on the legal questions involved for all subsequent proceedings in the case
at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d
410 (1984). In his first appeal, Clarke challenged his plea and sentence. This court
held that Clarke could not challenge his sentence because he agreed to the seven-year
term. Clarke I at ¶ 16. This court also held that the record demonstrated that the trial
court complied with Crim.R. 11(C) in accepting Clarke’s plea. Id. at ¶ 17. The first
appeal did not address the specific issue of postrelease control.
{¶12} As stated by the Ohio Supreme Court in State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, the law-of-the-case doctrine is rooted in res judicata
and issue preclusion principles and the Court “expressly disfavor[s] applying res judicata
to sentences that do not conform to statutory postrelease-control mandates.” Id. at ¶ 35.
The Court similarly stated that it rejects the “application of issue preclusion to sentences
that do not comply with statutory mandates, as those sentences are illegal and subject to
collateral attack or direct appeal by any party.” Id.
{¶13} In light of the above, the law-of-the-case doctrine does not operate to bar
this appeal.
III. Conclusion
{¶14} Because postrelease control was not properly imposed on Clarke, that
portion of his sentence is vacated. Further, because Clarke has already served his prison
term, he cannot be resentenced. The trial court’s judgment denying Clarke’s motion to
terminate his postrelease control is, therefore, reversed. Upon remand, the trial court
shall order Clarke discharged from postrelease control.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR