Post-Release Control and Re-Sentencing

By Ohio Supreme Court Justice Paul Pfeifer

The real drama in any courtroom drama is the trial. But Parris Boswell avoided that drama when, in 2000, he pleaded guilty to aggravated burglary, aggravated robbery, felonious assault, assault, and having a weapon while under a disability – meaning he had a weapon when he was forbidden from having one because of a prior conviction.

Because aggravated burglary and aggravated robbery are first-degree felonies, the law requires five years of post-release control. Post-release control – as the name suggests – means that even after release from prison, a person will still be under certain restrictions for a time. But at the plea hearing, the trial court told Boswell that he “may be subject to post-release control.” The court did not tell him it would be required. The court also failed to explain post-release control to him. In the sentencing entry, Boswell was sentenced to 16 years in prison, but not to post-release control.

In 2004 and 2005, Boswell filed two motions for a delayed appeal, but both were denied. On June 8, 2005, more than five years after being sentenced, Boswell filed a motion to vacate his guilty plea, arguing that the trial court had failed to properly inform him during the plea hearing of the mandatory term of post-release control and the penalties associated with violating post-release control.

This time he had better results: the trial court granted his motion without opinion, and vacated his plea. After that, the state appealed the trial court’s decision, but it was upheld by the court of appeals.

The court of appeals concluded that the trial court had not substantially complied with state law and with the Criminal Rules (the rules that govern court proceedings in criminal trials) at the sentencing hearing because it did not advise Boswell of the maximum penalty for his crimes before he entered his guilty plea.

After the court of appeals issued its decision, Boswell’s case came before us – the Supreme Court of Ohio – for a final review.

In our analysis of this case we turned first to the Criminal Rules that were mentioned earlier. Criminal Rule 32.1 states: “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.” In keeping with that rule, our court, in a case from 1992, determined that a “pre-sentence motion to withdraw a guilty plea should be freely and liberally granted.”

But Boswell filed a motion to withdraw his plea more than five years after sentencing. So the question here is whether Boswell’s motion to withdraw his plea should be considered a pre-sentence motion, judged under the liberal standard of that 1992 case, or a post-sentence motion, requiring a showing of manifest injustice.

In writing the majority opinion for this case, Chief Justice Thomas J. Moyer said, “Our recent line of cases dealing with post-release control has consistently held that sentences that fail to impose a mandatory term of post-release control are void.”

As we stated in an earlier case, this stems from “the fundamental understanding that no court has the authority to substitute a different sentence for that which is required by law.” A sentence that does not comport with statutory requirements is contrary to law, and the trial judge is acting without authority in imposing it.

The requirement in Criminal Rule 32.1 for a defendant making a post-sentencing motion to withdraw a plea to demonstrate manifest injustice is designed “to discourage a defendant from pleading guilty to test the weight of potential reprisal, and later withdraw the plea if the sentence was unexpectedly severe.” But, as Chief Justice Moyer pointed out, “this logic does not fully apply where the reprisal itself was unlawful.”

There is no dispute, then, that Boswell’s sentence is void. It failed to include mandatory post-release control, which violated state law. As a result, we placed him in the same position that he would be in if he had never been sentenced in the first place, and we treated his motion to withdraw his guilty plea as a pre-sentence motion.

Such a motion should be “freely and liberally granted.” But that doesn’t mean that Boswell has an absolute right to withdraw his plea. As we determined in that 1992 case, the “trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.”

Once we determined the proper standard for evaluating Boswell’s motion to withdraw his plea, we then had to address the status of the void sentence. Neither party in this case actually challenged the imposed sentence – although both parties admitted that the sentence is void – so there was no motion for resentencing.

Nevertheless, we still concluded that we must vacate the sentence and send the case back for a re-sentencing hearing in the trial court. Based on our earlier rulings, as Chief Justice Moyer pointed out, “because the original sentence is actually considered a nullity, a court cannot ignore the sentence and instead must vacate it and order re-sentencing.”

In the end, we concluded – by a four-to-three vote – that, according to Criminal Rule 32.1, a defendant’s motion to withdraw a guilty plea following the imposition of a void sentence must be considered as a pre-sentence motion and be freely and liberally granted.

Boswell’s sentence was void because it failed to include post-release control as mandated by law. His motion to withdraw his guilty plea must accordingly be treated as a pre-sentence motion. And, because we vacated Boswell’s void sentence, we also ordered that if Boswell’s motion to withdraw his guilty plea is ultimately denied, he must be resentenced – this time, with the mandatory post-release control included.

EDITOR’S NOTE: The case referred to is: State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577. Case No. 2007-2373. Decided April 9, 2009. Majority opinion written by Chief Justice Thomas J. Moyer.