State v. Lopez

[Cite as State v. Lopez, 2013-Ohio-4141.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-120436
C-120555
Plaintiff-Appellee, : TRIAL NO. B-0402530-B

vs. :

RONNIE LOPEZ, : O P I N I O N.

Defendant-Appellant. :

Criminal Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified and Cause Remanded in C-
120436;
Appeal Dismissed in C-120555

Date of Judgment Entry on Appeal: September 25, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christine Y. Jones, for Defendant-Appellant.

Please note: we have removed this case from the accelerated calendar.
 OHIO FIRST DISTRICT COURT OF APPEALS

FISCHER, Judge.

{¶1} Defendant-appellant Ronnie Lopez has taken these appeals from the

Hamilton County Common Pleas Court’s judgments overruling his “Motion to

Terminate Post Release [sic] Control.” We dismiss as superfluous the case numbered

C-120555. In the case numbered C-120436, we affirm the judgment as modified to

reflect the dismissal of the motion, because the court lacked jurisdiction under the

postconviction statutes to entertain the motion. But we remand this case with

instructions to set aside Lopez’s sentences to the extent that they are void for

inadequate postrelease-control notification and to note on the record that, because

he has been released from prison, his sentences may not now be corrected, nor may

he be supervised under, or sanctioned for a violation of, postrelease control.

{¶2} In 2005, Lopez was convicted upon no-contest pleas to drug

possession and drug trafficking and was sentenced to concurrent eight-year prison

terms. He unsuccessfully challenged his convictions in his direct appeal to this court,

see State v. Lopez, 166 Ohio App.3d 337, 2006-Ohio-2091, 850 N.E.2d 781 (1st

Dist.), appeal not allowed, 110 Ohio St.3d 1467, 2006-Ohio-4288, 852 N.E.2d 1215,

and, collaterally, in a postconviction petition filed with the common pleas court.

State v. Lopez, 1st Dist. Hamilton No. C-060608 (Aug. 17, 2006), appeal not

allowed, 112 Ohio St.3d 1408, 2006-Ohio-6447, 858 N.E.2d 819; State v. Lopez, 1st

Dist. Hamilton No. C-060807 (Oct. 18, 2006).

{¶3} In April 2012, Lopez filed with the common pleas court a motion

seeking “an order terminating post release [sic] control imposed upon [him] upon

his release from the Ohio Department of Rehabilitation and Correction on March 7,

2012.” He asserted that his sentences were void because he had not been adequately

2
 OHIO FIRST DISTRICT COURT OF APPEALS

notified concerning postrelease control, and that, as a consequence, following his

release from prison, his sentences were not subject to correction, and he was not

subject to postrelease-control supervision. The common pleas court overruled the

motion in its June 2012 “Opinion Denying Motion to Terminate Post-Release [sic]

Control * * *” and in its July 2012 “Entry Denying Motion to Terminate Post-Release

[sic] Control * * *.” These appeals followed.

{¶4} Appeal No. C-120555 is dismissed. We note preliminarily that

the common pleas court’s June 2012 “Opinion,” appealed in the case numbered C-

120436, and its July 2012 “Entry,” appealed in the case numbered C-120555, were

identical in substance and effect. Because the June 2012 “Opinion” was a final

appealable order, see R.C. 2505.02, the July 2012 “Entry,” along with the appeal

from that entry, was superfluous. We, therefore, dismiss the case numbered C-

120555.

{¶5} The motion was subject to dismissal under the

postconviction statutes. On appeal, Lopez advances a single assignment of

error challenging the overruling of his motion. We overrule the assignment of error

upon our determination that the motion was subject to dismissal under the

postconviction statutes.

{¶6} Lopez did not specify in his motion the statute or rule under which he

sought postconviction relief. R.C. 2953.21 et seq., governing the proceedings upon a

postconviction petition, provide “the exclusive remedy by which a person may bring a

collateral challenge to the validity of a conviction or sentence in a criminal case.”

R.C. 2953.21(J). Therefore, the motion was reviewable under the standards provided

3
 OHIO FIRST DISTRICT COURT OF APPEALS

by the postconviction statutes. See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-

545, 882 N.E.2d 431, ¶ 12.

{¶7} But Lopez filed his motion well after the expiration of the time

prescribed by R.C. 2953.21(A)(2). And R.C. 2953.23 closely circumscribes the

jurisdiction of a common pleas court to entertain a late postconviction claim: the

petitioner must show either that he was unavoidably prevented from discovering the

facts upon which his postconviction claim depends, or that his claim is predicated

upon a new or retrospectively applicable right recognized by the United States

Supreme Court since the time for filing a postconviction petition expired or since he

filed his last postconviction petition; and he must show “by clear and convincing

evidence that, but for constitutional error at trial, no reasonable factfinder would

have found [him] guilty of the offense of which [he] was convicted.”

{¶8} The record before us does not, as it could not, demonstrate that, but

for the claimed sentencing error, no reasonable factfinder would have found Lopez

guilty of the offenses of which he was convicted. Thus, because Lopez satisfied

neither the time restrictions of R.C. 2953.21(A)(2) nor the jurisdictional

requirements of R.C. 2953.23, the postconviction statutes did not confer upon the

common pleas court jurisdiction to entertain his motion. See R.C. 2953.23(A).

{¶9} The sentences are void in part, but not subject to

correction, for inadequate postrelease-control notification.

Nevertheless, a court has jurisdiction to review and correct a void judgment. See

State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d

263, ¶ 18-19. And Lopez’s sentences are void to the extent that he was not adequately

notified concerning postrelease control.

4
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} The postrelease-control statutes in effect in 2005, when Lopez was

sentenced, required that, with respect to each offense, a sentencing court notify the

offender, both at the sentencing hearing and in the judgment of conviction, of the

length and mandatory or discretionary nature of postrelease control, of the

consequences of violating postrelease control, and of the length of confinement that

could be imposed for a postrelease-control violation. See former R.C. 2929.14(F),

2929.19(B)(3)(c) through (e), and 2967.28(B) and (C) (superseded in 2011 by R.C.

2929.14[D], 2929.19[B][2][c] through [e], and 2967.28[B] and [C]); State v.

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 77-79; State v.

Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 69; State v.

Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the

syllabus. Accord State v. Smith, 1st Dist. Hamilton No. C-120163, 2012-Ohio-5965, ¶

10-11.

{¶11} In sentencing Lopez for second-degree-felony drug possession and

second-degree-felony drug trafficking, the trial court was required to notify him that

upon his release, he would be subject to a mandatory three-year period of postrelease

control. See former R.C. 2929.19(B)(3)(c) and 2967.28(B)(2) (superseded by R.C.

2929.19[B][2][c] and 2967.28[B]). And the court was required to notify him of the

consequences of violating postrelease control and of the length of confinement that

could be imposed for a violation. See former R.C. 2929.19(B)(3)(e) (superseded by

R.C. 2929.19[B][2][e]).

{¶12} At Lopez’s sentencing hearing, the trial court advised him concerning

the consequences of, and the length of confinement that could be imposed for, a

postrelease-control violation. But with respect to the length and mandatory nature

5
 OHIO FIRST DISTRICT COURT OF APPEALS

of his postrelease-control supervision, the court misinformed him that “upon [his]

release, [he] could be placed upon at least three years of post-release control [sic] by

the parole board.”

{¶13} Nor did the notification incorporated in the judgment of conviction

comport with the statutory requirements. The notification simply stated that “[a]s

part of the sentence in this case, the defendant is subject to the post release [sic]

control supervision of R.C. 2967.28”; it did not specify the duration or the mandatory

nature of his postrelease-control supervision or the consequences of, or the length of

confinement that could be imposed for, a postrelease-control violation. See Smith,

1st Dist. Hamilton No. C-120163, 2012-Ohio-5965, at ¶ 13-20 (noting that the Ohio

Supreme Court has not adopted a rule of substantial compliance such that the

statutory mandate is satisfied by merely referring to postrelease control or the

postrelease-control statute either at sentencing or in the judgment of conviction).

{¶14} To the extent that a sentence is not imposed in conformity with the

statutory mandates concerning postrelease control, it is void, and the void portion of

the sentence is subject to review at any time and “must be set aside.” State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the

syllabus and ¶ 26-27. But any correction of the offending portion of the sentence

must be accomplished before the offender is released from prison. If it is not, the

offender may not be placed under the postrelease-control supervision of the Ohio

Adult Parole Authority, nor may he be sanctioned for any postrelease-control

violation. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, at ¶ 70-

73; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568,

syllabus; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 18

6
 OHIO FIRST DISTRICT COURT OF APPEALS

(modified on other grounds in Fischer at paragraph two of the syllabus); Hernandez

v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 28 and 32; see State

v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 24 (holding that if

postrelease-control notification was properly given at the sentencing hearing, flawed

notification in the judgment of conviction may be corrected by a Crim.R. 36 nunc pro

tunc entry, “as long as the correction is accomplished prior to the defendant’s

completion of his prison term”). Accord State v. Wurzelbacher, 1st Dist. Hamilton

No. C-130011, 2013-Ohio-4009, ¶ 16-17; State v. Duncan, 1st Dist. Hamilton No. C-

120324, 2013-Ohio-381, ¶ 15.

{¶15} Lopez’s sentences are void to the extent that he was not adequately

notified concerning postrelease control. Therefore, the common pleas court had

jurisdiction to review the sentences and to vacate the offending portions. But

because Lopez has been released from prison, the common pleas court could not

correct his sentences, postrelease control could not be imposed, and Lopez could not

be sanctioned for any postrelease-control violation.

{¶16} We affirm, but remand with instructions. To summarize, we

dismiss the case numbered C-120555 as superfluous to the case numbered C-120436.

And we hold that Lopez’s “Motion to Terminate Post Release [sic] Control” was

subject to dismissal, because the postconviction statutes did not confer on the

common pleas court jurisdiction to entertain the motion on its merits. Accordingly,

upon the authority of App.R. 12(A)(1)(a), we modify the judgment appealed from to

reflect a dismissal of the motion. And we affirm the judgment as modified.

{¶17} The court did have jurisdiction to review and to vacate Lopez’s

sentences as void to the extent that they were not imposed in conformity with the

7
 OHIO FIRST DISTRICT COURT OF APPEALS

statutory mandates concerning postrelease control. But the court could not correct

the offending portions of the sentences because Lopez had completed his sentences.

Accordingly, we remand with instructions to vacate the void portions of the

sentences and to note on the record that, because Lopez has completed his sentences,

the offending portions of his sentences may not be corrected, postrelease control may

not be imposed, and Lopez may not be sanctioned for any postrelease-control

violation.

Judgment accordingly.

CUNNINGHAM, P.J., and DINKELACKER, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.

8