Court Modifies Earlier Ruling on Resentencing When Required Postrelease Control Not Properly Imposed

Resentencing Hearing Limited to Proper Imposition of Postrelease Control

State v. Fischer, Slip Opinion No. 2010-Ohio-6238.
Summit App. No. 24406, 181 Ohio App.3d 758, 2009-Ohio-1491. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Lanzinger, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-6238.pdf

(Dec. 23, 2010) In a decision that modifies its 2007 holding in State v. Bezak, the Supreme Court of Ohio ruled today that when a trial court that sentenced a criminal offender prior to July 11, 2006 failed to properly include a statutorily required term of postrelease control:

The sentence is void, is not precluded by the principle of res judicata from review by an appellate court, and may be reviewed at any time, on direct appeal or by collateral attack.
The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control.
Although res judicata does not bar appellate review of a void sentence, it still applies to preclude review of other aspects of the merits of the offender’s conviction, including the determination of guilt and lawful elements of the sentence pronounced by the trial court.
Any appeal from a resentencing hearing at which a mandatory term of postrelease control is imposed is limited in scope to issues arising at the resentencing hearing.
The Court’s 5-1 majority opinion, which affirmed a decision of the 9th District Court of Appeals, was authored by Justice Maureen O’Connor.

[NOTE: R.C. 2929.191, which took effect on July 11, 2006, authorizes the state’s trial courts to remedy a failure to properly impose a mandatory term of postrelease control by holding a hearing limited to the correction of that error and then making a “nunc pro tunc” (now for then) entry in the court’s journal without conducting a full resentencing hearing. However, in a 2009 decision, State v. Singleton, the Supreme Court of Ohio ruled that trial courts may apply the correction procedure set forth in R.C. 2929.191 only to cases in which an offender was sentenced on or after the effective date of the 2006 legislation.]

In this case, Londen K. Fischer of Summit County was sentenced in 2002 to an aggregate term of 14 years’ imprisonment for aggravated robbery, felonious assault, having a weapon while under disability and two counts of aggravated burglary, all with firearms specifications. Fischer appealed, and his convictions were affirmed by the 9th District Court of Appeals in 2003. After the Supreme Court of Ohio issued its Bezak decision in 2007, Fischer successfully moved for resentencing on the basis that the law required a term of postrelease control to be included in his sentence, but the trial court had not properly notified him of his postrelease control obligations at the time he was sentenced. The trial court subsequently notified Fischer of those obligations and reimposed the remainder of his original sentence.

Fischer appealed, asserting that because his original sentence was void under Bezak, his 2003 appeal was “not valid” and therefore his current appeal of his resentencing was his “first direct appeal,” in which he was entitled to raise any and all issues relating to his convictions, not merely the absence of a proper postrelease-control notification. The court of appeals rejected his claim. Fischer sought Supreme Court review of the 9th District’s ruling. The Court agreed to review a single proposition of law: whether a direct appeal from a resentencing ordered pursuant to Bezak is a first appeal as of right.

In today’s decision, Justice O’Connor reviewed a line of Ohio Supreme Court decisions, starting with State v. Bezak, in which the Court has addressed the failure of a trial court to include a mandatory term of postrelease control in a criminal sentence that was imposed prior to the enactment of R.C. 2929.191. She noted that the majority in Bezak held that: 1) when a court fails to properly include postrelease control in an offender’s sentence, the sentence is void; and 2) the proper procedure to correct that error was to vacate the defendant’s entire sentence for the offense requiring postrelease control, and remand the case to the trial court for a complete new sentencing hearing for that offense.

Revisiting the Bezak decision, Justice O’Connor wrote: “The failure to impose a statutorily mandated period of postrelease control is more than an administrative or clerical error. It is an act that lacks both statutory and constitutional authority. No court has the authority to impose a sentence that is contrary to law. … We reaffirm that vital principle today and reiterate that a judge must conform to the General Assembly’s mandate in imposing postrelease-control sanctions as part of a criminal sentence.”

In reviewing Bezak’s holding about the scope of a resentencing hearing, however, Justice O’Connor quoted from a Nevada case (Edwards v. State, 1996) and a federal court decision (Allen v.United States, 1985) that addressed the issue. She wrote: “‘A motion to correct an illegal sentence “presupposes a valid conviction and may not, therefore be used to challenge alleged errors in proceedings that occur prior to the imposition of sentence.’ … The scope of relief based on a rule, like Fed.R.Crim.P. 35, is likewise constrained to the narrow function of correcting only the illegal sentence. It does not permit reexamination of all perceived errors at trial or in other proceedings prior to sentencing. … We similarly hold that when a judge fails to impose statutorily mandated postrelease control as part of a defendant’s sentence, that part of the sentence is void and must be set aside. Neither the Constitution nor common sense commands anything more.”

“This principle is an important part of the analysis of void sentences that we have not focused on in prior cases involving postrelease control, including Bezak. … Thus, we reaffirm the portion of the syllabus in Bezak that states ‘when a defendant is convicted of or pleads guilty to one or more offenses and postrelease control is not properly included in a sentence for a particular offense, the sentence for that offense is void,’ but with the added proviso that only the offending part of the sentence is subject to review and correction. However we now modify the second sentence in the Bezak syllabus as ill-considered. That sentence states that the offender is entitled to a new sentencing hearing for the offense for which postrelease control was not imposed properly. … It does not recognize a principle that we overlooked in Bezak: when an appellate court concludes that a sentence imposed by a trial court is in part void, only the portion that is void may be vacated or otherwise amended. Therefore we hold that the new sentencing hearing to which an offender is entitled under Bezak is limited to proper imposition of postrelease control.”

Applying that analysis to the question of whether Fisher’s appeal of his resentencing hearing should have been treated as a “first” direct appeal at which all aspects of his trial were open to review, Justice O’Connor wrote: “Like the court of appeals, we answer that question in the negative. The court of appeals correctly ruled that Fischer, having already had the benefit of one direct appeal, could not raise any and all claims of error in a second, successive appeal.”

Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger entered a dissent stating her belief that, rather than affirming the portion of Bezak holding that postrelease-control errors render a defendant’s sentence “void,” it would be “more sensible” for the Court “to completely abandon Bezak and its progeny and instead hold that these (postrelease control) errors are correctable on direct appeal within the usual time for appellate review.”

Justice Lanzinger wrote: “Before the line of cases starting a mere three years ago with Bezak, this court repeatedly held that sentencing errors are nonjurisdictional and that these errors are properly corrected on appeal. … ”

“The real question here is: ‘What is the proper remedy when a judge makes a sentencing mistake?’ Our sentencing statutes recognize the possibility that a judge may err in sentencing by allowing parties 30 days to appeal sentences on grounds that they are contrary to law. Allowing for challenges to sentencing error on direct appeal gives the state and the defense ample opportunity to draw attention to any potential postrelease-control error, thus satisfying any constitutional concerns arising from an imperfect sentence. … ”

“The majority has elevated postrelease-control mistakes to the level of ‘super-error’ to allow untimely challenges to parts of the sentence that could very easily be brought on direct appeal and corrected as other sentencing errors are.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.

Contacts
Heaven DiMartino, 330.643.7459, for the Summit County prosecutor's office.

Claire R. Cahoon, 614.466.5394, for Londen Fischer.