Opinion
No. C-100285.
Date of Judgment Entry on Appeal: December 15, 2010.
Criminal Appeal from Hamilton County Court of Common Pleas, Trial No. B-0402803.
Judgment Appealed From Is: Sentence Vacated and Cause Remanded.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee.
John W. Long, pro se.
DECISION.
{¶ 1} Defendant-appellant John W. Long presents on appeal a single assignment of error challenging the Hamilton County Common Pleas Court's judgment overruling his "Motion to Vacate and Correct a Void Sentence." The challenge is well taken because Long's sentence contained an unauthorized term of postrelease control.
{¶ 2} In 2004, a jury found Long guilty of murder. The trial court sentenced him to a prison term of 15 years to life and stated in the judgment of conviction that, "as part of the sentence in this case, the defendant is subject to the postrelease control supervision of R.C. 2967.28."
{¶ 3} Long unsuccessfully appealed his conviction to this court and to the Ohio Supreme Court. In April of 2010, he filed with the common pleas court his "Motion to Vacate and Correct a Void Sentence." By his motion, Long sought resentencing on the ground that his sentence was void because the trial court, without authority to do so, had included in the sentence a requirement that he be subject to a period of postrelease control. The court overruled the motion, and this appeal followed.
See State v. Long (Oct. 26, 2005), 1st Dist. No. C-040643, discretionary appeal not accepted for review, 108 Ohio St.3d 1489, 2006-Ohio-962, 843 N.E.2d 794.
{¶ 4} R.C. 2967.28 provides that a prison sentence imposed for felonies that are classified by degrees must "include a requirement that the offender be subject to a period of post-release control." The statute, by its terms, does not apply to unclassified felonies like murder. Therefore, R.C. 2967.28 did not authorize the trial court to include in Long's murder sentence the requirement that he be subject, upon his release from prison, to postrelease control.
See R.C. 2967.28(B) and (C).
See State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 36; accord State v. Baker, 1st Dist. No. C-050791, 2006-Ohio-4902, ¶ 4-6.
{¶ 5} A sentencing court has no authority to impose a criminal penalty that is not prescribed by statute, and a sentence that does so is void. A trial court retains jurisdiction to correct a void sentence. And a void-sentence claim may properly be submitted in a direct appeal or in a motion to the trial court. But irrespective of the claim's procedural posture, a court must recognize and vacate a void sentence, and the defendant must be resentenced. Therefore, when a sentencing court has imposed postrelease control without the statutory authority to do so, and the matter has come to the attention of the trial court or a reviewing court, the sentence is void and must be vacated, and the defendant must be resentenced.
See State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 20 (citing Colegrove v. Burns [1964], 175 Ohio St. 437, 438, 195 N.E.2d 811).
See id.
See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, at ¶ 18-19.
See State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, ¶ 12; accord State v. Holcomb, 184 Ohio App.3d 577, 2009-Ohio-3187, 921 N.E.2d 1077, ¶ 17-20.
See Boswell, 121 Ohio St.3d at ¶ 12; Simpkins, 117 Ohio St.3d at ¶ 21 (citing State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 13, and Romito v. Maxwell [1967], 10 Ohio St.2d 266, 267, 227 N.E.2d 223); accord Holcomb, 184 Ohio App.3d at ¶ 19-20.
See State v. Austin, 8th Dist. No. 93028, 2009-Ohio-6108, ¶ 4, appeal not accepted for review, 124 Ohio St.3d 1541, 2010-Ohio-1557, 924 N.E.2d 844; State v. Wright, 9th Dist. No. 24610, 2009-Ohio-6081, ¶ 4-7; State v. Crockett, 7th Dist. No. 07-MA-233, 2009-Ohio-2894, ¶ 8-9, appeal not accepted for review, 124 Ohio St.3d 1446, 2010-Ohio-188, 920 N.E.2d 375; see, also, State v. Clardy, 1st Dist. No. C-060527, 2007-Ohio-4193, ¶ 10 (in a pre- Simpkins direct appeal, vacating the sentence and remanding to "modify the judgment accordingly"). Cf. State v. Eberle, 12th Dist. No. CA2009-10-065, 2010-Ohio-3563, ¶ 51 (on appeal from the overruling of a postsentence motion to withdraw a guilty plea, vacating that portion of the sentence imposing postrelease control); State v. Jordan, 8th Dist. No. 91413, 2009-Ohio-4037, ¶ 38 (on direct appeal, holding that " Bezak [was] not implicated [because] the sentence [was] not void" for lack of postrelease-control notification, but remanding to "correct" the sentencing entry because postrelease control was "erroneously included").
{¶ 6} Long's murder sentence was void because R.C. 2967.28 did not authorize the trial court to include in his sentence the requirement that he be subject to postrelease control. Therefore, the common pleas court erred when it declined, upon Long's motion, to vacate the sentence and to resentence him.
{¶ 7} Accordingly, we sustain the assignment of error, vacate the sentence, and remand this case for resentencing in accordance with the law and this decision.
Sentence vacated and cause remanded.
CUNNINGHAM, P. J., HENDON and MALLORY, JJ.