Summary
vacating prison term imposed for violating postrelease control because it was based on a void order of postrelease control
Summary of this case from State v. RinkOpinion
No. 16CA1024.
12-20-2016
STATE of Ohio, Plaintiff–Appellee, v. Shawn J. CUPP, Defendant–Appellant.
Timothy Young, Ohio Public Defender and Allen Vender, Assistant Ohio Public Defender, Columbus, OH, for appellant. David Kelley, Adams County Prosecutor and Kris D. Blanton, Assistant Adams County Prosecutor, West Union, OH, for appellee.
Timothy Young, Ohio Public Defender and Allen Vender, Assistant Ohio Public Defender, Columbus, OH, for appellant.
David Kelley, Adams County Prosecutor and Kris D. Blanton, Assistant Adams County Prosecutor, West Union, OH, for appellee.
HOOVER, J.
{¶ 1} Defendant-appellant Shawn Cupp ("Cupp") appeals from an Adams County Court of Common Pleas decision and entry denying his motion to vacate a sentence based upon a violation of post-release control. In Adams County Case No. 20130171CRI, Cupp was indicted on one count of having weapons while under disability with a firearm specification and one count of aggravated possession of drugs. At the time of the indictment, Cupp was on post-release control from a conviction in Ross County Case No. 04CR80. Pursuant to a plea agreement with the State of Ohio ("State"), Cupp pleaded guilty to just the one count of having weapons under disability with a firearm specification. The trial court sentenced Cupp to one year in prison for the offense of having weapons under disability, one year in prison for the firearm specification and 421 days for violating the conditions of his post-release control in Ross County Case No. 04CR80.
{¶ 2} On appeal, Cupp argues, as he did in his motion to vacate below, that his sentence of 421 days in prison should be reversed. Cupp argues that when the Ross County Court of Common Pleas originally imposed post-release control, it did not provide a proper notification in the final judgment entry that the parole board may impose a prison term of up to one-half of the originally-imposed prison term if he violated the conditions of post-release control. Cupp contends that this rendered his sentence of post-release control void. Therefore, Cupp argues that the trial court in Adams County Case No. 20130171CRI could not sentence him to the remaining time left on a void sentence of post-release control.
{¶ 3} Because we find that the post-release control portion of his sentence in Ross County Case No. 04CR80 is void, we sustain Cupp's sole assignment of error. The trial court in Adams County Case No. 20130171CRI could not sentence Cupp to 421 days in prison based upon the violation of a void term of post-release control. Consequently, we reverse the trial court's denial of Cupp's motion to vacate his sentence of 421 days in prison for violating his post-release control. Cupp's sentence of 421 days relating to the violation of post-release control is hereby vacated.
I. Facts and Procedural Posture
{¶ 4} In September 2004, in Ross County Case No. 04CR80, Cupp was convicted of aggravated burglary, a first degree felony, in violation of R.C. 2911.11. The Ross County Court of Common Pleas sentenced Cupp to three years in prison. The Ross County Court of Common Pleas ordered the sentence to be served consecutively to a sentence Cupp was already serving from Pickaway County. Because he was convicted of a first degree felony, Cupp was subject to a mandatory period of five years of post-release control. R.C. 2967.28(B)(1). Cupp has not provided this court with the transcripts from the sentencing hearing in Ross County Case No. 04CR80. Therefore, we will presume the regularity of the sentencing hearing. We are able to discern from the record that the final judgment entry in Ross County Case No. 04CR80 failed to state what the consequences would be if Cupp violated the terms of his post-release control. In July 2009, Cupp completed his prison sentence in Ross County Case No. 04CR80 and was released on post-release control.
{¶ 5} In December 2013, in Adams County Case No. 20130171CRI, the Adams County Grand Jury indicted Cupp on one count of having weapons while under disability, a third degree felony, in violation of R.C. 2923.12(A)(2) with a firearm specification in violation of R.C. 2941.141(A) and one count of aggravated possession of drugs, a fifth degree felony, in violation of R.C. 2925.11(A). The indictment alleged that Cupp was under disability because of his conviction in Ross County Case No. 04CR80.
{¶ 6} In March 2014, pursuant to a plea agreement with the State, Cupp pleaded guilty to the one count of having weapons while under disability with the firearm specification as charged in the indictment. In the plea agreement, the parties stipulated: (1) that the State would dismiss the charge of aggravated possession of drugs; and (2) that Cupp would serve one year in prison for the offense of having weapons under disability, one year in prison for the firearm specification, and one year in prison for violating his post-release control in Ross County Case No. 04CR80.
{¶ 7} In April 2014, the trial court accepted Cupp's guilty plea and found him guilty of the count of having weapons while under disability with a firearm specification. The trial court sentenced Cupp to one year in prison for the offense, one year in prison for the firearm specification, and 421 days in prison for the violation of post-release control in Ross County Case No. 04CR80. The trial court ordered each sentence to be served consecutively to one another for an aggregate sentence of three years and 56 days in prison.
{¶ 8} In October 2015, Cupp filed a motion to vacate his sentence of 421 days in prison for the violation of post-release control in Ross County Case No. 04CR80. In the motion, Cupp argued that the sentence of 421 days in prison should be vacated because the imposition of post-release control in Ross County Case No. 04CR80 was void. Cupp asserted that the trial court in Ross County Case No. 04CR80 failed to include the consequences for violating post-release control in the final judgment entry. The State filed a response to the motion. The State argued that Cupp entered a guilty plea knowing that he would receive a sentence for the post-release control violation; thus, he waived any argument about his sentence. Cupp then filed a motion in response.{¶ 9} The trial court overruled Cupp's motion to vacate his sentence of 421 days in prison. In its entry overruling the motion, the trial court stated:
This Court accordingly holds that Defendant's 421 day consecutive prison sentence in the instant case on the remaining 421 days of post release control from Ross County Case No. 04CR80, was jointly agreed-upon, and as such is not subject to review. The stipulated sentence following guilty plea [sic] in the instant case, will therefore not be altered or disturbed on the instant review.
{¶ 10} Cupp now presents this timely appeal of the trial court's decision to overrule his motion to vacate his sentence of 421 days in prison for violating his post-release control.
II. Assignment of Error
{¶ 11} Cupp presents one assignment of error for our review:
The trial court erred when it denied Mr. Cupp's motion to vacate his void judicial-sanction sentence.* * *
We have omitted Cupp's citations to the record and to case law.
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III. Law and Analysis
{¶ 12} In his sole assignment of error, Cupp claims that the trial court erred in denying his motion to vacate his sentence of 421 days for violating the conditions of his post-release control in Ross County Case No. 04CR80. Cupp contends that the final judgment entry in Ross County Case No. 04CR80 failed to state the consequences of violating post-release control. Cupp argues that the post-release control portion of his sentence in Ross County Case No. 04CR80 is therefore void. Accordingly, Cupp now asserts that he could not be sentenced to 421 days based on the violation of a void term of post-release control.
{¶ 13} The State argues that Cupp is not permitted by law to challenge the sentence because (1) the sentence was jointly recommended by the parties, and (2) the sentence was authorized by law. The State asserts that R.C. 2953.08(D)(1) provides that when a felony offender enters into a stipulated or jointly recommended sentence, the offender cannot challenge the sentence. The State also contends that Cupp has failed to show that his constitutional rights were infringed.
A. Void Sentences
{¶ 14} " ‘In general, a void judgment is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act. Unlike a void judgment, a voidable judgment is one rendered by a court that has both jurisdiction and authority to act, but the court's judgment is invalid, irregular, or erroneous.’ " (Internal citation omitted.) State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 6, quoting State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 12. Typically, "sentencing errors are not jurisdictional and do not render a judgment void." Id. at ¶ 7. However, "a sentence that is not in accordance with statutorily mandated terms is void." Id. at ¶ 8. A void sentence "is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack."Id. at paragraph one of the syllabus.
B. The Ross County Court Of Common Pleas Did Not Properly Impose Post–Release Control in Case No. 04CR80
{¶ 15} Under R.C. 2929.19(B)(2)(c) and (e), a trial court must notify certain felony offenders at the sentencing hearing that: 1.) the offender
is subject to statutorily mandated postrelease control; and 2.) the parole board may impose a prison term of up to one-half of the offender's originally-imposed prison term if the offender violates the post-release control conditions. Not only is a trial court required to notify the offender about postrelease control at the sentencing hearing, it is further required to incorporate that notice into its journal entry imposing sentence. However, the main focus of the postrelease control sentencing statutes is on the notification itself and not on the sentencing entry.
(Citations and quotations omitted.) State v. Adkins, 4th Dist. Lawrence No. 13CA17, 2014-Ohio-3389, 2014 WL 3824030, ¶ 36. "When a trial court fails to provide the required notification at either the sentencing hearing or in the sentencing entry, that part of the sentence is void and must be set aside." (Emphasis sic.) Id. at ¶ 37, citing Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 at ¶¶ 27–29. " ‘[I]n most cases, the prison sanction is not void and therefore "only the offending portion of the sentence is subject to review and correction." ’ " Id., quoting State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 7, quoting Fischer at ¶ 27.
{¶ 16} Cupp cites to State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, for his argument that because the post-release control portion of his original sentence is void, then the trial court could not sentence him to the time remaining on his post-release control. In Billiter, the Ohio Supreme Court ruled that "[w]hen a criminal defendant is improperly sentenced to postrelease control, res judicata does not bar the defendant from collaterally attacking his conviction for escape due to an earlier postrelease-control sentencing error." Id. at syllabus.
{¶ 17} The facts in Billiter were as follows. The defendant-appellant, Billiter, in 1998 pleaded guilty to aggravated burglary and domestic violence and received a sentence of "three years in prison followed by ‘up to a maximum of three (3) years' " of post-release control. Id. at ¶ 2. However, the correct term of post-release control was a mandatory period of five years. Billiter was released from prison in 2001 and was placed on post-release control. Id. at ¶ 3. While Billiter was under post-release control, he pleaded guilty to the offense of escape. Id. at ¶ 3. The court sentenced him to community control for his conviction of escape. Id. at ¶ 4. Billiter subsequently violated his community control sanctions. For that violation, the trial court sentenced him to six years of incarceration. Id.
{¶ 18} In 2010, Billiter moved to withdraw his plea to the escape charge. The Ohio Supreme Court, applying Fischer, held that res judicata did not bar Billiter from challenging the validity of the post-release control part of his original sentence and that the trial court did not have jurisdiction to convict him of escape. Billiter at ¶¶ 11–12. The Court explained:
The trial court's incorrect sentence for post-release control in 1998 was insufficient to confer authority upon the Adult Parole Authority to impose up to three years of post-release control on Billiter. * * * Although the Adult Parole Authority actually did place Billiter under supervision, see R.C. 2921.01(E), and Billiter did violate the terms of that post-release control in violation of R.C. 2921.34(A)(1), Billiter's escape conviction was based on an invalid sentence. Accordingly, the trial court was without jurisdiction to convict him on the escape charge.
Billiter's conviction and sentence for escape based on a post-release control error
do not fall outside the scope of Fischer. Therefore, Billiter is not barred by res judicata from arguing that his plea is void due to the trial court's incorrect imposition of post-release control.
Billiter at ¶¶ 12–13.
{¶ 19} It is clear that in Ross County Case No. 04CR80, the trial court failed to include, in the September 28, 2004 final judgment entry, the notice that the parole board may impose a prison term of up to one-half of the offender's originally-imposed prison term if the offender violates the post-release control conditions. Accordingly, the post-release control portion of that sentence is void. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 77 ; Fischer at paragraph one of the syllabus; see also State v. Douglas, 3d Dist. Shelby No. 17–16–11, 2016-Ohio-7350, 2016 WL 6069022, ¶ 19 (quotations omitted) ("Sentencing entries that fail to include the required notifications are void because they are contrary to law."); State v. Smith, 2016-Ohio-4688, 70 N.E.3d 135, ¶¶ 10–11.
{¶ 20} Because Cupp has finished serving his prison sentence in Ross County Case No. 04CR80, a nunc pro tunc entry cannot be used to remedy the defect in the sentencing entry. See State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 24 ("The original sentencing entry can be corrected to reflect what actually took place at the sentencing hearing, through a nunc pro tunc entry, as long as the correction is accomplished prior to the defendant's completion of his prison term. ") (Emphasis added.); see also Smith at ¶ 11.
{¶ 21} Accordingly, Cupp cannot be found to have violated a void term of post-release control. See State v. Burns, 4th Dist. Highland No. 11CA19, 2012-Ohio-1626, 2012 WL 1247206, ¶¶ 11–13 ; see also State v. Strowder, 8th Dist. Cuyahoga No. 103156, 2015-Ohio-5270, 2015 WL 9238881, ¶ 11 In Strowder , the court stated:
We state again that, in this district, where a trial court advises the defendant of postrelease control at the sentencing hearing but fails to include the consequences of violating postrelease control in the sentencing entry, any attempt to impose postrelease control is void. Love at ¶ 7. Because Strowder has already finished serving his sentence in CR–04–453994–A, he cannot be resentenced to postrelease control in that case and any postrelease control the trial court attempted to impose is void. Further, because Strowder's three-year judicial-sanction sentence was based on a void order of postrelease control, that sentence is hereby vacated.
Id. at ¶ 11.
{¶ 22} Also, in State v. Richard–Bey, 5th Dist. Muskingum Nos. CT2014–0012, CT2014–0013, 2014-Ohio-2923, 2014 WL 2980277, the trial court sentenced defendant-appellant, Richard–Bey, to eight years in prison in 2004. The trial court notified Richard–Bey of mandatory post-release control for up to five years. Id. at ¶ 1. Upon resentencing, the trial court sentenced Richard–Bey to an aggregate term of eight years in prison and notified him that he was subject to a mandatory post-release control for five years. (Emphasis added.) Id. at ¶ 2. The corresponding sentencing entry was silent, however, as to the consequences of violating post-release control.Id. at ¶ 17. As is the case here, the trial court in Richard–Bey failed to notify him in the entry that if he violated his supervision or a conditions of post-release control, the parole board could impose a maximum prison term of up to one-half of the prison term originally imposed. Id. In 2013, Richard–Bey pleaded guilty to a charge of having a weapon under a disability. Id. at ¶ 3. The trial court terminated Richard–Bey's post-release control and ordered him to serve the remaining time. Id. In 2014, Richard–Bey filed a motion to vacate the post-release violation because the imposition of post-release control was void. Id. at ¶ 4. The trial court denied his motion. Id.
{¶ 23} On appeal, the Fifth District Court of Appeals found that the trial court failed to properly impose post-release control because the entry did not state the consequences of violating post-release control. Id. at ¶ 17. Therefore, the court concluded, "[b]ecause the trial court did not properly impose post-release control in its September 7, 2010 entry, the trial court cannot terminate appellant's post-release control * * * and order the remaining time be imposed." Id. at ¶ 18. The court reversed Richard–Bey's sentence for the remaining time of post-release control. Id. at ¶ 21.
{¶ 24} Based on the forgoing, we agree with Cupp's assertion that he cannot be found to have violated a void imposition of post-release control. Because the final judgment entry in Ross County Case No. 04CR80 did not include the consequences of violating post-release control, the imposition of post-release control is void. Moreover, since Cupp has already finished serving his prison sentence in Ross County Case No. 04CR80, we cannot order the trial court to correct the defect with a nunc pro tunc judgment entry. Therefore, it is our conclusion that Cupp's sentence of 421 days in prison for violating a void term of post-release control must be vacated. See Burns, 2012-Ohio-1626, 2012 WL 1247206, ¶¶ 11–13.
C. Cupp Has Not Waived His Right to Challenge His Sentence for Violating a Void Term of Post–Release Control.
{¶ 25} Typically, when reviewing felony sentences we apply the standard of review set forth in R.C. 2953.08(G)(2). See State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, –59 N.E.3d 1231, ¶ 1. R.C. 2953.08(G)(2) specifies that an appellate court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the court clearly and convincingly finds that "the record does not support the sentencing court's findings" under the specified statutory provisions or "the sentence is otherwise contrary to law."
{¶ 26} The State asserts that Cupp is barred from challenging his 421–day sentence because pursuant to R.C. 2953.08(D)(1), the parties jointly recommended the sentence. R.C. 2953.08(D)(1) states, "A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge." "In other words, a sentence that is ‘contrary to law’ is appealable by a defendant; however, an agreed-upon sentence may not be if (1) both the defendant and the state agree to the sentence, (2) the trial court imposes the agreed sentence, and (3) the sentence is authorized by law. R.C. 2953.08(D)(1). If all three conditions are met, the defendant may not appeal the sentence." State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 16.
{¶ 27} In Underwood, the Court defined a sentence "authorized by law" to mean more than whether the sentence falls within the statutory range for the offense:
We do not agree with such a narrow interpretation of "authorized by law." Adopting this reasoning would mean that jointly recommended sentences imposed within the statutory range but missing mandatory provisions, such as postrelease control (R.C. 2929.19(B)(3)(c) ) or consecutive sentences
(R.C. 2929.14(D) and (E) ), would be unreviewable. Our recent cases illustrate that sentences that do not comport with mandatory provisions are subject to total resentencing. See, e.g., State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 11. Nor can agreement to such sentences insulate them from appellate review, for they are not authorized by law. We hold that a sentence is "authorized by law" and is not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing provisions. A trial court does not have the discretion to exercise its jurisdiction in a manner that ignores mandatory statutory provisions. See State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 27 ("Every judge has a duty to impose lawful sentences").
Id. at ¶¶ 20–21.
{¶ 28} As we have already stated, a trial court is required to notify the offender about post-release control at the sentencing hearing and to incorporate that notice into its journal entry imposing sentence. Adkins, 2014-Ohio-3389, 2014 WL 3824030 at ¶ 36. These are mandatory statutory provisions. As we have concluded above, Cupp's post-release control in Ross County Case No. 04CR80 is void. A void "sentence may be reviewed at any time, on direct appeal or by collateral attack." Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 at paragraph one of the syllabus. Accordingly, Cupp cannot waive his right to appeal his sentence on those grounds. See State v. Middleton, 8th Dist. Cuyahoga No. 99979, 2013-Ohio-5591, 2013 WL 6730881, ¶ 15.
IV. Conclusion
{¶ 29} We must sustain Cupp's sole assignment of error. Cupp's post-release control sanction in Ross County Case No. 04CR80 is void. Therefore, the Adams County Court of Common Pleas could not order that the remaining time of a void post-release control sanction be imposed as a sentence. We reverse the judgment of the trial court denying Cupp's motion to vacate his sentence of 421 days in prison. Accordingly, the portion of Cupp's sentence in Adams County Case No. 20130171CRI imposing 421 days in prison for the post-release control violation is vacated. The remainder of the sentence is left intact. This cause is remanded to the trial court with instructions to notify the appropriate authorities of the modified sentence. If it is determined that Cupp is incarcerated solely on the 421–day sentence, then he shall be discharged immediately.
JUDGMENT REVERSED AND CAUSE REMANDED.
HARSHA, J.: Concurs in Judgment and Opinion with Concurring Opinion.
McFARLAND, J.: Dissents.
HARSHA, J. concurring.
{¶ 30} The state argues that R.C. 2953.08(D)(1) precluded Cupp from challenging his 421–day sentence for violating post-release control. That statute provides that "[a] sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge." Under R.C. 2953.08(D)(1), "an agreed-upon sentence [is not appealable] if (1) both the defendant and the state agree to the sentence, (2) the trial court imposes the agreed sentence, and (3) the sentence is authorized by law." State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 16.
{¶ 31} In the parties' guilty plea they stipulated to "one (1) year of incarceration for [the violation of] post release control." The trial court instead sentenced Cupp to 421 days of incarceration for his violation of post-release control. After Cupp filed a motion to vacate the judicial-sanction sentence, the state filed a response in which it conceded that the trial court "followed the stipulation with the exception that the sentence of post release control was set at 421 days imposed instead of the one year, an additional 56 days of incarceration." The trial court denied Cupp's motion, finding that Cupp had initialed several specific words and paragraphs of the sentencing entry, including the 421–day sentence, which indicated his assent to the sentence and made it a jointly agreed-upon sentence.
{¶ 32} R.C. 2953.08(D)(1) precludes the review of sentences only when they have been jointly agreed to by the state and the defendant and the trial court imposes that agreed sentence. Notwithstanding any initials by the defendant or his representative on the court's sentencing entry, it appears that the 421–day sentence was not jointly agreed to by the state and the defendant; in fact, the state conceded this in its response to Cupp's motion to vacate. Nor does the parties' written plea agreement stipulate to the 421–day sentence. Thus, R.C. 2953.08(D)(1) does not bar review of Cupp's sentence for this additional reason.
{¶ 33} I note that we recently overruled State v. Adkins, 4th Dist. Lawrence No. 14CA29, 2015-Ohio-2830, 2015 WL 4231627, to the extent that it held that the failure of a trial court to include the notification of post-release control penalties in R.C. 2929.141(A)(1)–(2) at sentencing rendered the subsequent judicial-sanction sentence void. See State v. Mozingo, 4th Dist. Adams No. 16CA1025, 2016-Ohio-8292, 2016 WL 7496584, ¶ 29 ("we overrule our decisions in Pippen, Adkins, and Dixon insofar as they conflict with our holding here that R.C. 2929.141(A) does not require the trial court in the original sentencing context to notify a defendant that a court sentencing the defendant for a subsequent crime can impose additional sanctions for the violation of post-conviction relief"). Because this case instead involves a violation of R.C. 2929.19(B), I agree with the reversal and remand here.