V^EC^^^V E ID JAN 2 $ CLERK OF COURT SUPREMECOUR7 OF OHIO. i^(iii l^ ll^^ u u I L, I L- v

Transcription

1 ^ N THE SUPREME COURT OF OHIO STATE OF OHIO, Appellee, Case No vs- MARVIN REED. ON APPEAL FROM THE SIXTH DISTRICT COURT OF APPEALS FOR ERIE COUNTY, OHIO C.A. CaseNo. E Appellant. MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT MARVIN REED Kevin J. Baxter Erie County Prosecuting Attorney County Office Building 247 Columbus Avenue Suite 319 Sandusky, Ohio Counsel for State of Ohio i^(iii l^ ll^^ u u I L, I L- v JM ^^ CL^^K 0^ COURT ^^^ C ^,^^RT OF OG^1O.^ V^EC^^^V E ID JAN 2 $ Marvin Reed, A Appellant pro se Mansfield Correctional Institution 1150 North Main Street Post Office Box 788 Mansfield, Ohio CLERK OF COURT SUPREMECOUR7 OF OHIO

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE CONSTITUTIONAL QUES IONE^L ii INTEREST AND INVOLVES A SUBSTANTIAL...1 STATEMENT OF CASE AND FACTS FIRST PROPOSITION OF LAW CONCLUSION CERTIFICATE OF SERVICE... APPENDIX: State of Ohio v. Marvin Reed, App. No. E , State v. Reed, 2012 Ohio 5983 PAGE

3 EXPLANATION OF W AND INVOLVES A SUBSTANTIA L GREAT GENERAL INTERESTT CONSTITUTIONAL QUESTION "DOES A CRIMINAL D EFENDANT AND/OR STATUTORY RIGHT TO BE PROPERLY INFORMED PRIOR TO OR AT THE TIME OF ^^ T FACESG UPONE RE^EASE FROM RELEASE CONTROL CONFINEMENT, WHETHER SUCH POST RELEASE CONTROL IS DISCRETIONARY OR MANDATORY, AND THE RESULTS FOR VIOLATING SUCH CONDITIONS. " In December 2010 the Ohio Supreme Court addressed the consistent and over bearing issue faced by several Ohio Courts regarding VOID sentences where the procedures for properly informing a criminal defendant at sentencing regarding the imposition of Post Release Control, the conditions of such imposition and what could potentially result for violating said conditions. Although the trial court in the instant matter informed Appellant of the number of years Post Release Control he would or could be subject to, the trial court first indicates that the Post Release Control is discretionary and later attempts to clean up its mistake in stating the Post Release Control is mandatory. Even still, the trial court failed to properly inform the Appellant what may or could occur if he were to violate such conditions as imposed and to clearly explain whether the Post Release Control is mandatory or discretionary. Appellant's understanding has been clearly clouded in that he does not understand whether he will be on three (3) or five (5) years Post Release Control, whether such Post Release Control is discretionary or mandatory and what he faces in the future if he violates such conditions. The Failure of the trial court to properly impose the correct of Post Release Control, to express clearly the mandatory or non-mandatory aspects and the conditions for violating such conditions has clearly been known to render such sentence VOID requiring a new De Novo Sentencing Hearing (see, State v. Fischer 128 Ohio St.3d Ohio N.E.2d 332.

4 STATEMENT OF CASE AND FACTS r._ -Innc roi7arf ^x,az ;n^l;cted in two multi-count indictments. O: 6. al ;re di of 1 andi a ma f in( ry 1$ 20U"1 ifie_e subi ect to b nfnrrned of at ric w 1 and 8. t ar ed trial co botn motions on 3une 14, 2011 Appellant appeals from trp iudgment

5 FIRST PROPOSITION OF LAW: THE TRIAL COURT EWRRED IN FAILING TO RESENTENCE APPELLANT On April 14, 2011, Appellant, Marvin Reed, through collateral attack, filed State of Ohio v. Thomas (1996), 111 Ohio App.3d 510, 512, 676 N.E.2d 903; see, also, Colegrove, supra a Motion for Re sentencing alleging that the trial court failed to properly inform him of Post Release Control pursuant to the sentencing provisions set forth by the Ohio Supreme Court and as further set forth in Ohio Revised Code , , and The trial court denied said motion as filed and a timely appeal to the Sixth District Court of Appeals followed who further affirmed the trial courts decision on December 14, The Ohio Supreme COURT HAS ON SEVERAL OCCASSIONS ADDRESSED ISSUES WHICH RELATED TO Post Release Control. For instance, in State v. Bezak, 114 Ohio St.3d 94, 868 N.E.2d 961, the court held: "Where a sentence is voia because it does not contain a statutof ily mandated term, the proper remedy is to resentence the defendant. " Additionally, in State of Ohio v. Simpkins, 117 Ohio St.3d 420, 884 N.E.2d 568, this court held that: "a sentence that is unauthorized by law, the sentence is unlawful. If an act is unlawful it not erroneous or voidable, but it is wholly unauthorized and void. " Further, in State of Ohio v. Beasley, 14 Ohio St.3d 74, 471 N.E.2d 774, this court held: u A. ^..cs.,,,.,.,..t h,, n nn-rirt tn ^Jt.^reQard statutorv requirements when imposing a 11YLy ucten1,pi uy sentence renders the attempted sentence a nullity or void. Statute requires that criminal defendants be sentenced a specific way. That they be informed of specific things. Criminal Rule 32(B) requires the trial court to inform a criminal defendant, at the time of sentencing, of his right to appeal, the time limits, the right to documents, counsel and the right to have these documents filed on his/her behalf. Criminal Rule 11 requires the trial court, prior to accepting a plea of guilty, to ask that criminal defendant several questions to ensure his competency and to assure that the plea is being entered intelligently,,voluntarily, without a threat or promise of something happening. The failure of the trial court to properly inform a criminal defendant in accordance with the mandates set forth in either statute or rule as outlined herein above, have on several occasions rendered that sentence void.

6 CONCLUSION In Conclusion, this court held that no court has the authority to impose a sentence that is contrary to laws (see, Colegrove v. Bums, 175 Ohio St. 437, 438, 195 N.E.2d 811). this court reaffirmed that vital principle in State of Ohio v. Fischer, supra, in holding that a judge must conform to the General Assembly's mandate in imposing Post Release Control sanctions as part of a criminal sentence. Appellant contends and has further illustrated herein above that as a matter of law, the trial court should have re sentenced him to properly inform him of the statutorily mandated term of Post Release Control. "The only sentence which a trial court may impose is that provided by statute. A court has no power to substitute a different sentence for that provided for by statute or one State of Ohio v. that is either greater or lesser that that provided for by law (see, Thomas (1996), 111 Ohio App.3d 510, 512, 676 N.E.2d 903; see, also, Colegrove, supra). For all of the foregoing reasons, this Court should SUSTAIN this Proposition of Law and Remand this Matter back to the trial court for a new sentencing hearing. Respectfully submitted, Marvin Reed, A Appellant pro se Mansfield Correctional Institution 1150 North Main Street Post Office Box 788 ddq(11_(17r9 1V1aI1.^11Gtu, vtuv -r-r^.^ ^ ----

7 CERTIFICATE OF SERVICE of the foregoing was served I, Marvin Reed, Appellant herein, do hereby certif that a copy 247 upon Kevin J. Baxter, Erie County Prosecuting Attorney located at County Office Building, re a this Columbus Avenue, Suite 319, Sandusky, Ohio by Regular U.S. Mail, postage P p day of January, Marvin Reed, A Appellant pro se Mansfield Correctional Institution 1150 North Main Street Post Office Box 788 Mansfield, Ohio

8 State of Ohio County of Richland 2013 that belief. ) ss: AFFIDAVIT OF MARVIN REED ) I, Marvin Reed, Appellant/Affiant herein, do hereby solemnly swear this _qd_ day of January, all statements made in the foregoing are true and correct to the best of my knowledge and Marvin Reed, A Appellant pro se Mansfield Correctional Institution 1150 North Main Street Post Office Box 788 Mansfield, Ohio ^1 Sworn to and before me this `_2,2- day of January, 2013 as his voluntary act and deed. John O. aba^ e Notary Public Seal: JOHN a. BABAJtDE NOTARY PtiBuc, gtate OF OHIO my commiss^n Expires laay

9 "', 3^ r ^i\ f' ^ s^. 1 ^ ^ a---a^-^^ ^y ` `^' } L '^r'.`: ^^ _U ^7 ' ^ 0 c t>, :a i:i L 1 l I 0 11 DEC 14 PM 3: 53 L J'v"ADr->, S. ',4;L`'0-N! LCLERK OF COURTS 1Qf? l 06;,,^ r, / J^ ^l'y ^ LC ^3 / l^,1ts ^y, ^ ^IzJ 6' IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY State of Ohio Appellee V. Marvin Reed Court of Appeals No. E Trial Court No CR-244 DECISION AND JUDGMENT Appellant Decided: EC ? Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee. Mollie B. Hojnicki, for appellant. HHANDWORK, J. { 1} This appeal is from the June 14, 2011 judgment of the Erie County Court of Common Pleas, which denied the motion of appellant, Marvin Reed, to find his original sentence void. Upon consideration of the assignments of error, we affirm the decision of the lower court. Appellant asserts the following assignments of error on appeal: 1. U^4/ZO8' 12117//Z T3Z^79 iz/iv/^a

10 FIRST ASSIGNMENT OF ERROR: The Trial Court Erred When it Denied Appellant's Motion for Sentencing. SECOND ASSIGNMENT OF ERROR: The Trial Court Erred When it Denied Appellant's Motion for Determination of Status of. Proceedings. { 2} In 2005, appellant was indicted in two multi-count indictments. On October 24, 2006, appellant pled guilty to and was convicted of several counts (felonies of the first, second, and third degree) and all other charges were dismissed. By a judgment joumalized on January 18, 2007, the court sentenced appellant to a total of 12 years of incarceration. Appellant was notified at the plea hearing, at the sentencing hearing, and in the sentencing judgment entry that he was subject to being supervised after leaving prison for a mandatory. period of five years and was also informed of the consequences of violating a postrelease control condition. This term of postrelease control was the longest period of postrelease control to which appellant was subject. We affirmed the trial court's judgment in State v. Reed, 6th Dist. No. No. E , 2008-Ohio { 3} Appellant filed a pro se motion for sentencing on April 14, 2011, and a motion for determination of status proceedings on Apri126, 2011, in the trial court. Appellant argued that because he had not been properly informed of postrelease control for each offense, the trial court lacked jurisdiction to sentence him and, therefore, there 2.

11 has been an unreasonable delay in sentencing. The trial court denied both motions on June 14, Appellant appeals from the judgment. { 4} In his first assignment of error, appellant argues the trial court erred when it denied his. motion for resentencing on the grounds that he had not been given proper notice of the postrelease control sanction applicable for each offense. { 5} In 2006, the trial coui-t was required to inform appellant at the sentencing hearing he would be subject to mandatory postrelease control supervision for a statutorily-imposed term after he left prison. R.C (B)(3)(c) and (d), effective, July 11, The term of postrelease control term is five years for the first degree felonies and three years for the second and third degree felonies. R.C (B)(1), (2) and (3), effective July 11, The court was also required to notify appellant of the consequences of violating postrelease control. R.C (B)(3)(e), effective July 11, { 6} These notifications are required to be included in the trial court's judgment of conviction and sentencing. R.C (F), effective July 11, 2006, and State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the syllabus, superseded by statute on other grounds as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, 22. The language the court used in the judgment was required to be sufficient enough that a reasonable person would understand that the court had authorized a postrelease control sanction as part of the sentence. Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78;

12 { 7} Appellant argues that because he was sentenced to multiple offenses of varying degrees, he should have been given notice of the applicable postrelease control sanction for each sentence he would receive. Appellant relies upon R.C (B)(1), (B)(2), and (C) to support his argument. While appellant cites to subsection (C), it is subsection (B)(3) that applies regarding his third-degree felony. R.C (B), effective July 11, 2006, provided that: (B) Each sentence to a prison term for a felony of the first degree, for a felony of the second degree, for a felony sex offense, or for a felony of the third degree that is not a felony sex offense and in the commission of which the offender caused or threatened to cause physical harm to a person shall include a requirement that the offender be subject to a period ofpostrelease control * * * (1) For a felony of the first degree or for a felony sex offense, five years; (2) For a felony of the second degree that is not a felony sex offense, three years; (3) For a felony of the third degree that is not a felony sex offense and in the commission of which the offender caused or threatened physical harm to a person, three years. (Emphasis added.) { 8} Because appellant was convicted of more than one felony, he would have been subject to several postrelease control sanctions pursuant to this statue. However, the 4.

13 General Assembly has provided that only one term of postrelease control can be imposed for multiple offense sentences pursuant to R.C (F)(4)(c). This statute, effective July 11, 2006, provided that: (c) If an offender is subject to more than one period of post-release control, the period of post-release control for all of the sentences shall be the period of post-release control that expires last, as determined by the parole board. Periods of post-release control shall be senied concurrently and shall not be imposed consecutively to each other. It was not until 2008 that this statute was amended to provide that either the "parole board or the court" could determine the period of postrelease control which would expire last. (Emphasis added.) R.C (F)(4)(c), effective April 7, Nonetheless, even before the amendment occurred, the trial court was required to iinpose postrelease control pursuant to R.C (B). Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, 13 citing Woods v. Telb, 89 Ohio St.3d 504, , 733 N.E.2d 1103 (2000), overruled on other grounds by Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864. Therefore, the trial court would have also been required to impose the longest postrelease control sanction possible pursuant to R.C (F)(4)(c) Several courts have held that for cases involving multiple offenses with identical postrelease control sanction terms, the trial court does not have to notify the defendant of each applicable postrelease control term because it can only impose one term and notice of one term serves as notice of each term. State v. Kidd, 2d Dist. No. 5.

14 2010 CA 109, 2011-Ohio-6323, 1 l; State v. Scott, 6th Dist. No. S , 2011-Ohio- 5527, 41-54; State v. Deskins, 9th Dist. No. loca009875, 2011-Ohio-2605, 22. These cases rely upon the holding in State v. Sulek, 2d Dist. No. 09CA75, 2010-Ohio- 3919, 24. In Sulek, supra, the second district voided Sulek's entire sentence for three offenses because the trial court erred by imposing a postrelease control sanction of "up to five years" instead of "three years." Although the Sulek court recognized the issue of separate notice of all applicable postrelease control terms was rendered moot, it specifically addressed the issue because of our holding in State v. Reznickchek, 6th Dist. Nos. L and L , 2008-Ohio-2384, 29. The Sulek court held that: Only one term of post-release control is actually served, even though a defendant was sentenced to multiple prison terms. Therefore, when multiple terms of imprisonment are imposed a notification should specify the maximum term of post-release control to which the defendant will be subjected as a result. When identical post-release control requirements apply to multiple prison terms, the same notification may apply to each of the offenses concerned. When different post-release control terms apply to multiple prison terms, a single notification of the maximum stated.term may also serve to satisfy the notification requirement applicable to any lesser terms ***. Sulek at 24. The Sulek court went on to distinguish the Reznickchek case on the ground that it involved a situation where the single notification was expressly limited to only two of the 6.

15 three offenses, even though all of the offenses carried identical three-year terms of postrelease control. Id. { 10} However, we have also held that the trial court must notify appellant as to each postrelease control term applicable for each offense. State v. Scott, 6th Dist. No. E , 2010-Ohio-297, 13, 20. In Scott, we held that the "failure to provide notice of possible or required postrelease control will support a reversal for resentencing," id. at 13, and tliat the trial court erred when it specifically notified the defendant of the mandatory three-year term pursuant to his burglary conviction, but failed to state that he could be subjected to two additional discretionary terms of postrelease control of up to three years in length for his convictions of disruption of public services and theft, zd. at 20. { 11} Therefore, we must readdress this issue. The Ohio Supreme Court has held that "[a] sentence is the sanction or combination of sanctions imposed for each separate, individual offense." State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, syllabus. This rule impacts the ability of the appellate court to modify, remand, or vacate the sentence for a single offense in a multiple-offense sentence. This rule is not, however, applicable to the notice of a postrelease control sanction because R.C (F)(4)(c) has been interpreted as providing that only one postrelease control sanction can be imposed in cases where multiple sentences are imposed. State v. Morris, 8th Dist. No , 2012-Ohio-2498, 16; and State v. Orr, 8th Dist. No , Ohio-6269,

16 12} Therefore, we now hold that even tllough R.C (B) requires notification of the postrelease control term to be imposed based upon the particular level of offense involved, that statute is limited in multiple offense cases by R.C (F)(4)(c), which mandates that only one postrelease control sanction (the longest term) can be imposed for all of the offenses. Therefore, the court only has the duty in multiple offense cases to notify the defendant of and impose.the longest term of postrelease control applicable under R.C (B). Furthermore, the trial court need not announce at the sentencing hearing nor include in the sentencing judgment the applicable postrelease control sanction for each individual offense irrespective of whether the terms of control are identical or different. We hereby overrule Scott, 6th Dist. No. E , 2010-Ohio-297. { 13} Appellant's first assignment of error is not well-taken. { 14} In appellant's second assignment of error he argues that he should be released from prison. This argument is premised on the success of his first assignment of error. Having found the first assignment of error not well-talcen, the second assignment of error is rendered moot. { 15} Having found that the trial court did not commit error prejudicial to appellant, the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the court costs of this appeal pursuant to App.R. 24. Judgment affirmed. 8.

17 State v. Reed C.A. No. E A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. also 6th Dist.Loc.App.R. 4. See Peter M. Handworlc J. Arlene Singer, P J Thomas J. Osowik J. CONCUR. ) k^)in, I Jn-W,^t,,I-X- JUDGE JUDGE G This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: 9