. I..i'ML OCT IZ CLERK OF GOURT SUPREME COURT OF OHIO STATE OF OHIO, Plaintiff-Appellee, SHAUGHN C. BOONE, Defendant-Appellant

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1 . I..i'ML IN THE SUPREME COURT OF OHIO 2012 STATE OF OHIO, Case No Plaintiff-Appellee, -vs- SHAUGHN C. BOONE, Defendant-Appellant On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals Case No. 1 lap-1054 MEMORANDUM OF PLAINTIFF-APPELLEE IN OPPOSITION TO JURISDICTION RON O'BRIEN Franklin County Prosecuting Attomey STEVEN L. TAYLOR (Counsel of Record) Chief Counsel, Appellate Division 373 South High Street, 13th Floor Columbus, Ohio Phone: Fax: COUNSEL FOR PLAINTIFF-APPELLEE Shaughn C. Boone # P.O. Box 57 Marion, Ohio Pro se 7 pleo OCT IZ CLERK OF GOURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS COURT SHOULD DECLINE JURISDICTION 1 STATEMENT OF THE CASE AND THE FACTS 2 ARGUMENT 3 Response to Propositions of Law: A defendant cannot complain about a lack of notification regarding post-release control at a plea hearing when he was found guilty by jury trial, not by plea. CERTIFICATE OF SERVICE 3 12

3 EXPLANATION OF WHY THIS COURT SHOULD DECLINE JURISDICTION Defendant presents no compelling reason for why this Court should expend its scarce judicial resources to review his case. This Court has ruled on several postrelease control issues over the past several years. Given that this area represents a "narrow, discrete line of cases" as stated in Fischer, the effort to rule on such cases has reached a point of severely diminishing returns. At best, expounding on this narrow area again would provide a very marginal benefit for the bench and bar but would require another substantial expenditure of this Court's time and resources. In addition, defendant is seeking to present propositions of law that are entirely inapposite to his case. The arguments under both propositions of law are premised on the notion that there was a lack of notification regarding PRC at a plea hearing. Defendant's second proposition of law itself expressly mentions a "plea colloquy." But, as the Tenth District's decision shows, defendant was convicted by jury trial, not by plea. Decision, at 2 ("At a jury trial ***' ;` I'hejury found defendant guilty on all charges and specification."). This is not a plea case, and defendant's arguments based on that flawed premise are fatally flawed. Defendant's claim that Fischer cannot be applied ex post facto is also inapposite. The Tenth District did not reach the question of whether a resentencing hearing would be limited to a narrow resentencing on PRC rather than a full de novo resentencing. Rather, the Tenth District concluded that PRC had been sufficiently imposed to begin with, and thus there is no need for any resentencing at all. A complaint about applying Fischer to his case is a non-sequitur here. 1

4 Nor does defendant challenge the Tenth District's ruling that PRC was sufficiently imposed. It seems that defendant has merely filed a memorandum supporting jurisdiction that was drafted to address the facts and circumstances of another case, not his case. Given all of these problems, the State respectfully requests that this Court decline jurisdiction in all respects. STATEMENT OF THE CASE AND THE FACTS Defendant Boone was indicted on four counts of felonious assault, all of which included firearm and "drive-by" specifications, and each of which named a different victim. The State's evidence at trial showed that the passenger of a Ford Explorer fired multiple shots at another vehicle, a Chevy Cavalier, which contained four occupants. One of the bullets injured D'Ondre Welch, a nineteen-month-old rear seat passenger of the Cavalier. The jury found defendant guilty on all charges and specifications. Some of the details of these events can be reviewed in the Tenth District opinion that affirmed these convictions. State v. Boone, 10th Dist. No. 98AP-352 (1998). The original judgment entry filed on February 27, 1998, and the amended judgment entry filed on March 23, 1998, provided for post-release control by indicating the following: "After the imposition of sentence, the Court notified the Defendant, orally and in writing, of * * * the applicable periods of post-release control pursuant to R.C (B)(3)(c), (d), and (e)." The court had also referenced PRC at the sentencing hearing, and defendant signed a "Notice (Prison Imposed)" form which advised second-degree felons like him that they face three years of PRC. 2

5 Almost 12 years later, defendant filed a motion for resentencing on March 19, 2010, arguing that the judgment entry was insufficient to impose the applicable threeyear period of PRC. The State opposed the motion, contending that the "applicable periods" language in the entry was sufficient. The court filed a decision and entry on August 3, 2010, denying the motion. Defendant did not appeal. On August 2, 2011, defendant filed a "motion for `sentencing,"' again raising the issue of compliance with PRC requirements and contending that the sentences were void. The State opposed the motion, again contending that the "applicable periods" language had been sufficient, and contending further that a full sentencing would not be required anyway. The court denied the motion in a decision and entry filed on November 9, The Tenth District affirmed. ARGUMENT Response to Propositions of Law: A defendant cannot complain about a lack of notification regarding post-release control at a plea hearing when he was found guilty by jury trial, not by plea. As stated supra, defendant's propositions of law are seeking to raise arguments as if he was convicted by plea. But defendant was not convicted by plea. He was found guilty by a jury in a trial. Moreover, as demonstrated by the Tenth District decision, the trial court sufficiently imposed PRC in this case so as to avoid being considered a "void" judgment.. 3

6 A. Defendant had already complained about PRC issues in his first motion, which was denied and was not appealed. Res judicata bars defendant from raising issues now that could have been raised in an appeal from the denial of the first motion. The trial court noted that it had already denied an earlier motion. B. The complaint about the "applicable periods" language was insufficient to create a "void sentence" problem. Unlike cases where a sentencing entry is truly void because it contains no reference at all to PRC - i.e. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568; State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263; Hernandez v. Kelly, 108 Ohio St.3d 395, Ohio-126, 844 N.E.2d a sentencing entry that references PRC but does not specify the precise length of the PRC term is not void. Indeed, even an entry that fails to mention the mandatory nature of PRC, or mistakenly refers to the PRC as discretionary, is not void. The leading case is Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, which held that a sentencing entry need not specifically state that a PRC term is mandatory in order to authorize the DRC to enforce a mandatory PRC term. In Watkins, several inmates - all of whom were incarcerated for violating their mandatory PRC terms - sought habeas relief, claiming that their sentencing entries mistakenly included language indicating that the PRC terms were discretionary. The sentencing entries at issue in Watkins either expressly stated that PRC was discretionary or were 4

7 ambiguous as to whether PRC was discretionary or mandatory. The inmates claimed that "by misrepresenting the mandatory nature of their postrelease control, the trial courts never properly imposed such control, and that they therefore could not be imprisoned for violating that control." Id. at 43. The Court denied the inmates' habeas petitions. After noting that "sentencing errors are not jurisdictional and are not cognizable in habeas corpus," id. at 40, quoting Majoros v. Collins, 64 Ohio St.3d 442, 443, 596 N.E.2d 1038 (1992), the Court noted that "the sentencing entries for the petitioners here specified that postrelease control was, at a minimum, discretionary and was part of their sentences," Watkins, at 50. Accordingly, "the sentencing entries are sufficient to afford notice to a reasonable person that the courts were authorizing postrelease control as part of each petitioner's sentence." Id. at 51. Moreover, "[a]ny challenge to the propriety of the sentencing court's imposition of postrelease control in the entries could have been raised on appeal" Id. "This conclusion is consistent with the preeminent purpose of R.C that offenders subject to postrelease control know at sentencing that their liberty could continue to be restrained after serving their initial sentences." Id. at 52. In other words, the imposition of PRC is not "void" even though it omits or mistakenly states whether the PRC is mandatory or discretionary. The same holds true for imprecision or mistake as to the number of years of the PRC term. Two of the sentencing entries at issue in Watkins said nothing at all regarding the length of the PRC term. Id. at 4-7 (describing entries for petitioners Ivy and Ramey). Two other entries in Watkins had boilerplate language requiring the trial 5

8 court to indicate either a three- or five-year term, but neither option was circled. Id. at 9-11 (describing entries for petitioners Streeter and Maddox). Although the Court did not directly confront the length issue, the Court's denial of habeas relief strongly suggests that not specifying the precise length of the PRC term does not render the sentence void. For example, in Patterson v. Ohio Adult Parole Auth., 120 Ohio St. 3d 311, 2008-Ohio-6147, 898 N.E.2d 950, the Court addressed an entry stating "up to" five years of PRC. The Court held that the "up to" language was sufficient to allow enforcement of the mandatory five-year PRC term. "We have never held that these claims can be raised by extraordinary writ when the sentencing entry includes postrelease control, however inartfully it might be phrased." Id. at 8. The Patterson Court quoted the Watkins Court for the view that "habeas corpus is not available to contest any error in the sentencing entries, and petitioners have or had an adequate remedy by way of appeal to challenge the imposition of postrelease control." Id. at 8 (quoting Watkins, 53). The Patterson Court distinguished cases like Hernandez, and State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. In Hernandez, the "sentencing entry did not include postrelease control." Patterson, at 8. In Bezak, the defendant had pursued his challenge to post-release control "in direct appeal from sentence imposing postrelease control." Id. Like the petitioners in Watkins and Patterson, if defendant wished to challenge the sufficiency of the sentencing entry, he could have done so in a direct appeal. 6

9 Watkins and Patterson thus refute the contention that the entry is "void" if it inartfully refers to the "applicable periods" of post-release control. Other cases have followed Watkins and recognized that the sentencing entries were sufficient to allow correction, if any, to occur on direct appeal As stated in State ex rel. Peterson v. Durkin, 129 Ohio St.3d 213, 2011-Ohio-2639, 951 N.E.2d 381, 1: The entry also included sufficient language that postrelease control was part of his sentence so as to give appellant sufficient notice to raise any claimed errors on appeal rather than by extraordinary writ. See State ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722, 4; Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, As further stated in State ex rel. Paige v. Corrigan, 129 Ohio St.3d 448, 2011-Ohio- 4057; 953 N.E.2d 329, 1: Paige "had an adequate remedy by way of direct appeal from his sentence to raise his claim that he did not receive proper notification about postrelease control at his sentencing hearing." Briseno v. Cook, 121 Ohio St.3d 38, 2009-Ohio-308, 901 N.E.2d 798, 1; Patterson v. Ohio Adult Parole Auth., 120 Ohio St.3d 311, Ohio-6147, 898 N.E.2d 950, 8. Paige also had an adequate remedy by appeal to raise his claims that his March 2004 sentencing entry contained incorrect terms of postrelease control. State ex rel. Tucker v. Forchione, 128 Ohio St.3d 298, 2010-Ohio-6291, 943 N.E.2d 1006, 1; State ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722, 4. As further stated in State ex rel. Castro v. Corrigan, 129 Ohio St.3d 342, 2011-Ohio- 4059, 952 N.E.2d 497, 1: And Castro's sentencing entry "sufficiently included language that postrelease control was part of his sentence so as to afford him sufficient notice to raise any claimed 7

10 error on appeal rather than by extraordinary writ." State ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722, 4. Castro's sentencing entry constituted a final, appealable order, and he had an adequate remedy by way of appeal to raise his claims. State ex rel. Tucker v. Forchione, 128 Ohio St.3d 298, 2010-Ohio-6291, 943 N.E.2d 1006, 1. As farther stated in State ex rel. Richardson v. Suster, 130 Ohio St.3d 82, 2011-Ohio- 4728, 955 N.E.2d 982, 2: { 2} Richardson's sentencing entry "`sufficiently included language that postrelease control was part of his sentence so as to afford him sufficient notice to raise any claimed errors on appeal rather than by extraordinary writ."' State ex rel. Tucker v. Forchione, 128 Ohio St.3d 298, 2010-Ohio-6291, 943 N.E.2d 1006, 1, quoting State ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722, 4. These cases are not distinguishable on the ground that they are "writ" cases. The habeas writ is limited to jurisdictional claims, and the repeated rejection of PRCbased habeas claims shows that inartful PRC language used by such trial courts was not "jurisdictional." Rather, claims that PRC was inartfully imposed should be raised, if at all, on direct appeal. C. Various Supreme Court cases are not dispositive on the "applicable periods" language. In State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, there had been no post-release control language in the judgment and the narrow issue was whether the motion to withdraw plea would be considered a pre-sentence motion or a post-sentence motion. 8

11 In Simpkins, the defendant was appealing from a resentencing, which had occurred because of a total absence of PRC language in the original entry. In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, the only issue was whether the resentencing should have been de novo or whether R.C would allow a narrow correction vis-a-vis post-release control. Because the prosecution was not disputing the lower court's "void" holding, see id. at 36, the court had no occasion to address the Watkins-Patterson issue. In Bezak, the defendant was appealing on direct appeal, and the "void sentence" complaint arose from a failure to provide adequate notification at sentencing, not a complaint about the sufficiency of the entry. None of these cases overrule Watkins or Patterson. None hold that "applicable periods" language renders the PRC term "void." The State would also note that nothing in State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, supports the notion that a sentencing entry is void if it does not specify the precise length of the PRC term. True, the Court in Bloomer, in addressing defendant Barnes' case, observed that the trial court's nunc pro tunc entry failed to include the length of the mandatory PRC term and erroneously stated that Barnes "may" be subject to PRC. Bloomer, at 69. This observation in Bloomer, however, must be read in context with the procedural posture of that case. Importantly, Barnes was pursuing a direct appeal from a resentencing, not a habeas petition. As the Court mentioned in Watkins, such technical issues are appropriately raised in a direct appeal. But identifying a sentencing "error" on direct appeal does not mean that such 9

12 "error" would render a sentence void so as to entitle an inmate to habeas relief At no point in Bloomer did the Court state that the trial court's failure to specify the mandatory nature of the PRC term or the length of the PRC term rendered Barnes' sentence "void." Thus, Bloomer does not stand for the proposition that a failure to specify the precise length of the PRC term renders a sentence void so as to justify habeas relief or a "void-sentence" based motion for resentencing. Bloomer did not overrule Watkins or Patterson. Indeed, neither of those cases is mentioned in Bloomer. This is not surprising, given the different procedural postures of the cases - Bloomer being a direct-appeal case. D. Because the "applicable periods" language does not present a "void sentence" issue, defendant's claim of error would at most fall within the general rule that most sentencing errors are not jurisdictional. State ex rel. Massie v. Rogers, 77 Ohio St.3d 449, 450, 674 N.E.2d 1383 (1997); Majoros v. Collins, 64 Ohio St.3d 442, 443, 596 N.E.2d 1038 (1992) ("[w]e have consistently held that sentencing errors are not jurisdictional * * *."); Johnson v. Sacks, 173 Ohio St. 452, 454, 184 N.E.2d 96 (1962) ("The imposition of an erroneous sentence does not deprive the trial court of jurisdiction."). Also, res judicata would apply to bar relief. "Under the doctrine of res judicata, a final judgment bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that the defendant raised or could have 10

13 raised at trial or on appeal. State v. Brown, 167 Ohio App.3d 239, 2006-Ohio-3266, 854 N.E.2d 583, 7, citing State v. Szefcyk, 77 Ohio St.3d 93, 96, 671 N.E.2d 233 (1996); see also, State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. As Watkins and Patterson recognize, a claimed irregularity of this sort could have been raised on direct appeal. It is barred by res judicata now. E. The trial court would have been precluded from resentencing after the Tenth District had affirmed the judgment of conviction in the direct appeal. State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633; State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). The Tenth District judgment on direct appeal was "final" unless overturned by the Ohio Supreme Court. Section 3(B)(3), Article IV, Ohio Constitution. And, absent a remand from the Tenth District, the trial court would not have regained jurisdiction. Special Prosecutors, 55 Ohio St.2d at 97. The trial court could not review the validity of the earlier affirmance. In all respects, defendant's propositions of law do not warrant review. Respectfully submitted, STEVEN L. TAYLOR Chief Counsel, Appellate Division Counsel for Plaintiff-Appellee 11

14 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was sent by regular U.S. Mail on this _q* day of, 2012, to Shaughn C. Boone, # , P.O. Box 57, Marion, Ohio STEVEN L. TAYLOR 12