Judge Collier Denys Pirovolos Motion to Withdraw Plea

On Wednesday, March 31, 2010, Judge Christopher J. Collier denied the motion of Angelo Pirovolos to withdraw his plea of "no contest" to one count of Attempted Murder, a first degree felony, two counts of Felonious Assault, both of which were second degree felonies, and one count of Having a Weapon Under Disability, a third degree felony.

Mr. Pirovolos had entered his pleas at a hearing in front of Judge James Kimbler on September 16, 2008, and had been found guilty at that time. Judge Kimbler then ordered a presentence investigation report and sentenced him to 12 years in prison on November 14, 2008. Following the sentencing, Mr. Pirovolos filed an appeal.

The Court of Appeals reversed the sentence on the grounds that Judge Kimbler had not properly imposed a period of post-release control. When the case was remanded back to Judge Kimbler, Mr. Pirovolos filed a motion to withdraw his pleas to all the charges. At that point, Judge Kimbler transferred the case to Judge Collier. Judge Kimbler believed that since he had taken the plea, and since Mr. Pirovolos was challenging the way the change of plea hearing was conducted, that a different judge should hear the motion.

In overruling Mr. Pirovolos's motion to withdraw the pleas, Judge Collier held that Mr. Pirovolos's case falls under R.C. 2929.191. That statute draws a distinction between sentences that were imposed before and after July 11,2006. If a sentence was imposed prior to July 11,2006, and the judge didn't properly impose post-release control, then the case comes back to the trial court and that court conducts a new sentencing hearing. If, however, the sentence was imposed after July 11, 2006, and the trial court didn't properly impose post-release control, then the case comes back to the trial court, but that court only conducts a hearing to properly impose the post-release control period. Such a hearing is not a new sentencing hearing.

Under the Ohio Supreme Court decision of State v. Singleton, 2009-Ohio-6434, a motion to withdraw a plea filed before the court conducts a R.C. 2929.191 hearing is to be considered a post-sentence motion, not a pre-sentence motion. Post-sentence motions to withdraw a plea are to be granted only to correct a manifest injustice. In Mr. Pirovolos's case, Judge Collier did not find such an injustice, and therefore denied the motion to withdraw the plea.

Judge Collier has scheduled a hearing for April. 9, 2010, at 9 am. At that hearing, Judge Collier will properly impose the post-release control period.

Ohio Supreme Court Decision: Conviction for Escape Does Not Require State to Show Postrelease Control Was Orally Announced at Sentencing

State v. Jordan, Slip Opinion No. 2010-Ohio-281.
Marion App. No. 9-08-11, 2008-Ohio-4647. Certified question answered in the affirmative, and judgment of the court of appeals affirmed.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-281.pdf

(Feb. 4, 2010) The Supreme Court of Ohio today ruled that, to obtain a conviction for the crime of escape for violating the terms of a post-release control order, the state may prove that a defendant was subject to postrelease control without proving that during a sentencing hearing the trial court orally notified the defendant that he would be subject to postrelease control. The Court’s 5-2 decision was written by Chief Justice Thomas J. Moyer.

The case involved an appeal by Rusty Jordan of Marion of his conviction for escape under R.C. 2921.34(A)(1) for violating the terms of his postrelease control.

Jordan entered guilty pleas to several felony counts in 2006 and was sentenced to a term of imprisonment. In its written sentencing entry, the trial court included a three-year term of postrelease control. After his release from prison, Jordan complied with the terms of his postrelease control for several months, reporting regularly to a parole officer. Jordan eventually failed to report for scheduled meetings with a parole officer, and it was determined that he had abandoned his approved residence. Eventually, Jordan was located, arrested, and charged with escape under R.C. 2921.34. A jury found him guilty of that offense, and the court sentenced him to a prison term of three years.

Jordan appealed, arguing that in order to be guilty of escape the law required that he must be “under detention,” and claiming that he was not lawfully under detention at the time he changed residences without notification and failed to report to probation authorities. Jordan based that claim on the fact that prosecutors at his escape trial had not submitted evidence that, during his 2006 sentencing hearing, the trial judge had orally advised Jordan in open court that he would be subject to a term of post-release control. The 3rd District Court of Appeals affirmed Jordan’s conviction, but certified that its decision conflicted with a 2007 decision in which the 9th District Court of Appeals overturned an escape conviction on similar grounds. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

In today’s decision, Chief Justice Moyer wrote: “In Jordan’s view, the evidence of supervision was legally insufficient because the state did not prove that the sentencing court advised him of postrelease control as required by R.C. 2929.19 and, therefore, the state did not prove that the Department of Rehabilitation and Corrections was authorized to supervise him. We are not persuaded by Jordan’s argument. ... When the parties do not submit evidence to show whether the sentencing court performed each of its duties for imposition of postrelease control, the question is simply whether the state provided sufficient evidence to prove that the defendant was under detention.”

“The state provided ample evidence that Jordan was under the supervision of the Department of Rehabilitation and Correction. The relevant sentencing entry states that Jordan ‘may be subject to a period of three (3) years of postrelease control.’ Jordan was also advised of his postrelease control two weeks before his release from prison. Jordan signed a document detailing the conditions of his monitored time (one type of postrelease control) on the day after his release from prison. This document stated: ‘I understand if I am a releasee and abscond supervision, I may be prosecuted for the crime of escape, under section 2921.34 of the revised code.’ A few weeks later, when Jordan was arrested for an unrelated charge, his postrelease control was increased from monitored time to basic supervision. When he was placed on basic supervision, his parole officer met with him, explained the terms of basic supervision, and provided him with a document entitled ‘Conditions of Supervision.’ This document also included the statement, ‘I understand that if I am a releasee and abscond supervision, I may be prosecuted for the crime of escape, under section 2921.34 of the Revised Code.’”

Based on this evidence and Jordan’s documented compliance with the terms his postrelease control by contacting and meeting with his parole officer over a period of several months, the Chief Justice wrote: “(W)e hold that the state proved beyond a reasonable doubt that Jordan was subject to supervision by the Department of Rehabilitation and Correction. The evidence shows that Jordan was ‘under detention’ as ‘detention’ is defined in R.C. 2921.01(E), and therefore the state proved that element of R.C. 2921.34(A)(1).”

While affirming the ruling of the 3rd District in this case, the Chief Justice noted that today’s decision did not reach the issue of whether a defendant can be convicted of escape when the evidence affirmatively demonstrates that the sentencing court failed or declined to impose postrelease control at the time of sentencing.

Chief Justice Moyer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor,

Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, in which she pointed out that in a line of recent Supreme Court decisions “We have ruled that unless the defendant is advised of postrelease control both at the sentencing hearing and in the judgment entry, the Adult Parole Authority is without authority to impose it. ... (I)n this case ... the state has not provided evidence that the defendant was orally notified of postrelease control at the sentencing hearing. ... In failing to require the state to show proper oral notification to the defendant, the majority retreats from the idea that unless a defendant is notified of postrelease control at sentencing, the sentence is void. ... I would require the state to prove that a defendant was notified of postrelease control at sentencing to show that the defendant was under valid detention for purposes of escape. I respectfully dissent and would reverse the defendant’s conviction.”

Contacts
Denise Martin, 740.223.4290, for the Marion County prosecutor’s office.

Stephen P. Hardwick, 614.466.5394, for Rusty Jordan.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Ohio Supreme Court Clarifies Handling of Cases Reversed for Improper Post-Release Control Application

2008-1255. State v. Singleton, Slip Opinion No. 2009-Ohio-6434.
Cuyahoga App. No. 90042, 2008-Ohio-2351. Judgment affirmed.
O'Donnell and Cupp, JJ., concur.
Moyer, C.J., and Pfeifer and O'Connor, JJ., concur in the judgment, paragraph one of the syllabus, and the portion of the opinion addressing the retrospective application of R.C. 2929.191 but dissent as to paragraph two of the syllabus and the portion of the opinion addressing the prospective application of R.C. 2929.191.
Lundberg Stratton and Lanzinger, JJ., concur in paragraph two of the syllabus but dissent from the judgment and paragraph one of the syllabus and would instead reverse the judgment of the court of appeals and hold that R.C. 2929.191also applies retrospectively.

Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-6434.pdf

(Dec. 22, 2009) The Supreme Court of Ohio ruled today that in order to correct criminal sentences that do not properly impose a term of post-release control, the state’s trial courts: 1) must conduct de novo sentencing hearings for offenders who were sentenced before July 11, 2006; and 2) must follow statutory resentencing procedures set forth in R.C. 2929.191 for offenders whose sentences were imposed on or after July 11, 2006, the effective date of the statute. The Court’s lead opinion, written by Justice Terrence O’Donnell, affirmed a decision of the 8th District Court of Appeals.

In November 2000, the Cuyahoga County Court of Common Pleas accepted guilty pleas by Jason Singleton of Cleveland to charges of felonious assault and rape. On Dec. 21, 2000, the court sentenced Singleton to a term of imprisonment of 10 years for rape consecutive with a term of seven years for felonious assault, and notified Singleton of five years of post-release control. However, at his sentencing hearing, the court failed to notify Singleton that for a violation of post-release control, the parole board could impose a prison term of up to one-half of the stated prison term originally imposed on him. And in its written sentencing entry, the court referenced only the possibility of five years of post-release control, and did not specify that the parole board could impose an additional prison term of up to one-half of his prison sentence for a violation of post-release control.

Effective July 11, 2006, the General Assembly adopted H.B. 137, which included several amendments to the state’s criminal sentencing statutes and enacted a new section, R.C. 2929.191. The new provision permits trial courts that discover an offender’s original sentence was defective because it did not include a properly imposed term of post-release control to correct that error by giving notice to the offender, the prosecutor and the state corrections department and conducting a hearing at which the court makes a nunc pro tunc (“now for then”) entry in its journal properly imposing post-release control and notifying the offender of the maximum term of reincarceration to which he will be subject if he violates conditions of post-release control.

In October 2006, Singleton filed a motion in the trial court seeking to withdraw his guilty pleas and obtain a new trial. He argued that by failing to properly inform him about the mandatory term of post-release control to which he would be subject, and the consequences of violating post-release control, the trial judge had not met the statutory requirements for accepting a guilty plea. The trial court denied the motion to vacate, and Singleton appealed. The 8th District Court of Appeals affirmed the denial of the motion to vacate the guilty pleas, but vacated Singleton’s sentence as contrary to law because the judgment entry in his case improperly imposed a discretionary rather than a mandatory term of post-release control. Relying on Supreme Court decisions that required de novo resentencing (a complete new sentencing hearing) when an offender’s original sentence was found to be void, the 8th District remanded Singleton’s case to the trial court and ordered it to conduct a complete new sentencing hearing.

The Cuyahoga County prosecutor appealed the 8th District’s ruling to the Supreme Court. He argued that the General Assembly intended R.C. 2929.191 to apply retrospectively, so that trial courts could immediately begin utilizing the new statutory procedure in all resentencings conducted on or after July 11, 2006 – including the resentencing of offenders whose defective sentences were imposed before R.C. 2929.191 took effect.

In today’s majority decision, Justice O’Donnell noted that, because no statutory mechanism to correct a sentence that failed to properly impose post-release control existed prior to July 2006, the law applicable to sentences imposed prior to that date is case law, including several decisions of the Supreme Court of Ohio.
“In the absence of a statutory remedy,” wrote Justice O’Donnell, “we recognized that a sentence that failed to properly impose a statutorily mandated period of postrelease control was contrary to law when imposed. ... When a sentence is a nullity, it is as though it never occurred. ... Accordingly, we directed trial courts to conduct a de novo sentencing. R.C. 2929.191 purports to authorize application of the remedial procedure set forth therein to add postrelease control to sentences imposed before its effective date. We recognize the General Assembly’s authority to alter our caselaw’s characterization of a sentence lacking postrelease control as a nullity and to provide a mechanism to correct the procedural defect by adding postrelease control at any time before the defendant is released from prison. However, for sentences imposed prior to the effective date of the statute, there is no existing judgment for a sentencing court to correct. H.B. 137 cannot retrospectively alter the character of sentencing entries issued prior to its effective date that were nullities at their inception, in order to render them valid judgments subject to correction. Therefore, for criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease control, the de novo sentencing procedure detailed in decisions of the Supreme Court of Ohio should be followed to properly sentence an offender.”
On the other hand, Justice O’Donnell wrote, prospective application of the statutory resentencing procedure in R.C. 2929.191 to correct sentences imposed on or after the effective date of that statute is consistent with the legislature’s stated intent “to protect the residents of this state from the consequences that might result if the state is forced to release without supervision offenders who have been convicted of serious offenses and imprisoned, solely because the offenders were not provided notice of the fact that the law always requires their supervision upon release from prison.”

“Interpreting R.C. 2929.191(C) to apply the corrective mechanism provided in R.C. 2929.191 prospectively gives the statute effect and furthers the General Assembly’s stated intent in passing H.B. 137,” wrote Justice O’Donnell. “It also preserves the constitutionality of H.B. 137 against a separation of powers challenge by requiring the trial court to conduct a hearing to add postrelease control to the offender’s existing sentence. ... Thus, prospective application of the corrective procedure set forth in R.C. 2929.191 preserves both the judicial role of imposing punishment and the executive role of carrying out that punishment.”

Justice O’Donnell’s opinion was joined in its entirety by Justice Robert C. Cupp. Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor concurred in judgment and in the portion of the lead opinion syllabus holding that R.C. 2929.191 cannot be applied retrospectively, but dissented from the lead opinion’s syllabus and discussion addressing the prospective application of R.C. 2929.191.

Justices Evelyn Lundberg Stratton and Judith Ann Lanzinger concurred in the syllabus holding that R.C. 2929.191 may be applied prospectively, but dissented from the portion of the syllabus and lead opinion holding that the statute may not be applied retroactively.

Justice Pfeifer entered a separate opinion stating that because the appeal in this case involved only an offender whose sentence was imposed before R.C. 2929.191 was enacted, the lead opinion’s discussion of prospective application of the statute is contrary to the Court’s policy against issuing advisory opinions on issues not specifically before it: “The majority answers a question that is of no relevance to the instant case and places that answer in the syllabus,” Justice Pfeifer wrote. Justice Pfeifer also stated that “by its own terms, R.C. 2929.191 limits its application to sentences imposed prior to the statute’s effective date.”

In his analysis, the legislature intended R.C. 2929.191 to apply only retrospectively, as a procedural tool to facilitate the prompt resentencing of then-current inmates who might otherwise complete their prison terms before being resentenced, and thereby avoid post-release supervision and control to which they should be subject. Pfeifer wrote that the intent of H.B. 137 was to make basically irrelevant any postrelease-control sentencing errors made after the effective date of the statute. “For the General Assembly, the prospective application R.C. 2929.191 was never a consideration.” Chief Justice Moyer and Justice O’Connor concurred in Justice Pfeifer’s dissent.

Justice Lanzinger entered an opinion, joined by Justice Stratton, in which she 1) concurred with the holding in the second syllabus paragraph that R.C. 2929.191 applies prospectively to defective sentences imposed on or after July 11, 2006, 2) dissented from the portion of the syllabus and lead opinion holding that the statute may not be applied retrospectively to offenders who were sentenced before July 11, 2006; and 3) stated that she would reverse the judgment of the court of appeals and remand Singleton’s case to the trial court for resentencing using the simplified procedure set forth in R.C. 2929.191.

Justice Lanzinger noted her dissents from earlier decisions of the Court holding that sentences lacking a properly imposed term of post-release control are “void.” She wrote: “The majority continues to apply flawed precedent to sentences imposed before the effective date of R.C. 2929.191 in spite of the General Assembly’s intent. Section 5(B) of H.B. 137 plainly states that the new enactment, which abrogates those decisions and provides a method of correction for all sentences, is intended to ‘apply to all convicted offenders ... regardless of whether they were sentenced prior to, or are sentenced on or after, the effective date of this act.’ ... R.C. 2929.191 now provides an additional means by which sentences lacking mandatory postrelease control can be corrected – not by imposing a new sentence or by subjecting the convicted offender to additional discretionary punishment, but by fixing what amounts to a clerical error that omitted a mandatory portion of the sentence. ... I believe that the amendments to R.C. 2929.19 and the enactment of R.C. 2929.191 represent an attempt to return logic and order to this area of the law and that R.C. 2929.191 should be applied both retroactively and prospectively.”
Contacts

T. Allan Regas, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.
Stephen P. Hardwick, 614.466.5394, for Jason Singleton.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."