From Casetext: Smarter Legal Research

State v. Jackson

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
Jun 8, 2017
2017 Ohio 4191 (Ohio Ct. App. 2017)

Opinion

No. 105228

06-08-2017

STATE OF OHIO PLAINTIFF-APPELLEE v. DEREK M. JACKSON DEFENDANT-APPELLANT

ATTORNEY FOR APPELLANT Russell S. Bensing 600 IMG Building 1360 East 9th Street Cleveland, Ohio 44114 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Oscar Albores Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113


JOURNAL ENTRY AND OPINION JUDGMENT: REVERSED AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-594577-B BEFORE: E.A. Gallagher, P.J., Kilbane, J., and McCormack, J.

ATTORNEY FOR APPELLANT

Russell S. Bensing
600 IMG Building
1360 East 9th Street
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Michael C. O'Malley
Cuyahoga County Prosecutor
BY: Oscar Albores
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 EILEEN A. GALLAGHER, P.J.:

{¶1} Defendant-appellant Derek Jackson appeals the sentence imposed by the Cuyahoga County Court of Common Pleas following his guilty plea to one count of sexual battery in violation of R.C. 2907.03(A)(1). For the reasons that follow, we vacate the portion of his sentence imposing postrelease control.

{¶2} On April 1, 2015, a Cuyahoga County Grand Jury indicted Jackson on one count of rape, one count of complicity to commit rape, one count of attempted rape and one count of kidnapping arising out of an incident that allegedly occurred on April 12, 1995. On September 20, 2016, the parties reached a plea agreement. Jackson pled guilty to an amended count of sexual battery in violation of R.C. 2907.03(A)(1), a third-degree felony. In exchange for his guilty plea, the remaining counts against him were nolled.

{¶3} On November 2, 2016, the trial sentenced Jackson to one and one-half years in prison and imposed five years of mandatory postrelease control. Jackson was also classified as a sexually oriented offender for a period of ten years under Megan's Law.

{¶4} Jackson appealed his sentence. In his sole assignment of error, Jackson argues that because the offense at issue occurred before July 1, 1996, i.e., prior to the effective date of S.B. 2, the postrelease control provisions of S.B. 2 did not apply to him and the trial court, therefore, committed plain error in imposing postrelease control. He further contends the imposition of postrelease control as part of his sentence "violates the ex post facto clause."

Postrelease control requirements were incorporated into Ohio law with the enactment of Am.Sub.S.B. No. 2. ("S.B. 2"), effective July 1, 1996. State v. Qunnie, 8th Dist. Cuyahoga No. 100317, 2014-Ohio-1435, ¶ 6. Prior to S.B. 2, postrelease control "'did not exist.'" Id., quoting State v. Gavin, 8th Dist. Cuyahoga No. 90017, 2008-Ohio-2042, ¶ 11. --------

{¶5} The state concedes that the imposition of postrelease control in this case constitutes plain error. Jackson's assignment of error is sustained. The portion of Jackson's sentence imposing five years of mandatory postrelease control is hereby vacated.

{¶6} Case remanded to the trial court to enter a nunc pro tunc entry vacating the postrelease control portion of the sentence.

It is ordered that appellant recover from appellee the 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 Cuyahoga County Court of Common Pleas 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. /s/_________
EILEEN A. GALLAGHER, PRESIDING JUDGE MARY EILEEN KILBANE, J., and
TIM McCORMACK, J., CONCUR


Summaries of

State v. Jackson

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
Jun 8, 2017
2017 Ohio 4191 (Ohio Ct. App. 2017)
Case details for

State v. Jackson

Case Details

Full title:STATE OF OHIO PLAINTIFF-APPELLEE v. DEREK M. JACKSON DEFENDANT-APPELLANT

Court:Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

Date published: Jun 8, 2017

Citations

2017 Ohio 4191 (Ohio Ct. App. 2017)