State v. Smith

[Cite as State v. Smith, 2012-Ohio-5965.]

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

STATE OF OHIO, : APPEAL NO. C-120163
TRIAL NO. B-0402830
Plaintiff-Appellee, :

vs. : O P I N I O N.

ROBERT SMITH, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified and Cause Remanded

Date of Judgment Entry on Appeal: December 19, 2012

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

Robert Smith, pro se.

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

Per Curiam.

{¶1} Defendant-appellant Robert Smith appeals from the Hamilton County

Common Pleas Court’s judgment overruling an array of postconviction motions. We

affirm the court’s judgment overruling the motions, but we remand this case for the

proper imposition of postrelease control.

{¶2} In 2004, Smith was convicted upon a guilty plea to drug possession

and upon jury verdicts finding him guilty of aggravated robbery and felonious

assault. His convictions were affirmed in his direct appeals to this court and to the

Ohio Supreme Court. State v. Smith, 1st Dist. Nos. C-040512 and C-040524 (May

31, 2004), appeals not accepted, 109 Ohio St.3d 1459, 2006-Ohio-2226, 847 N.E.2d

7, and 108 Ohio St.3d 1437, 2006-Ohio-421, 842 N.E.2d 63.

{¶3} Smith also unsuccessfully challenged his convictions collaterally in a

series of postconviction motions. See State v. Smith, 1st Dist. No. C-070288 (Mar.

12, 2008) (affirming the denial of Smith’s 2005 and 2007 postconviction petitions).

He here appeals from the common pleas court’s judgment overruling his September

2010 “Motion to Vacate Sentence,” October 2010 “Motion to Vacate Defendant’s

Conviction and Sentence Due to Court’s Lack of Subject Matter Jurisdiction,”

December 2010 “Motion to Vacate Sentence * * * Pursuant to State v. Foster,” and

February 2012 “Motion to Vacate Payment of Fines and/or Court Cost.”

{¶4} On appeal, Smith presents two assignments of error. His first

assignment of error challenges the overruling of his September 2010 “Motion to

Vacate Sentence.” His second assignment of error essentially restates the claim

advanced in his December 2010 “Motion to Vacate Sentence * * * Pursuant to State

2
 OHIO FIRST DISTRICT COURT OF APPEALS

v. Foster” and may thus fairly be read to challenge the overruling of that motion. We

address together, and overrule, the assignments of error.

{¶5} Claims were reviewable under R.C. 2953.21 et seq. In his

September and December 2010 motions, Smith sought to be resentenced. In his

September 2010 motion, he argued that his sentences were void to the extent that

the trial court had failed to adequately notify him concerning postrelease control. In

his December 2010 motion, Smith cited the United States Supreme Court’s decisions

in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and

Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), as well as the Ohio

Supreme Court’s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470, in arguing that the trial court, by sentencing him to maximum

consecutive prison terms, had denied him the right to a jury trial guaranteed under

the Sixth Amendment to the United States Constitution.

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

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

petition, permit a collateral attack upon a judgment of conviction by one “who claims

that there was such a denial or infringement of his rights [in the proceedings

resulting in his conviction] as to render [his conviction] void or voidable under the

Ohio Constitution or the Constitution of the United States.” R.C. 2953.21(A)(1)(a).

The postconviction statutes 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 common pleas court should have recast

Smith’s motions as postconviction petitions and reviewed them under the standards

3
 OHIO FIRST DISTRICT COURT OF APPEALS

provided by R.C. 2953.21 et seq. See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-

545, 882 N.E.2d 431, ¶ 12.

{¶7} Postconviction statutes conferred no jurisdiction to

entertain Smith’s claims. A postconviction petition must be filed with the

common pleas court within 180 days after the transcript of the proceedings is filed in

the direct appeal. R.C. 2953.21(A)(2). R.C. 2953.23 closely circumscribes the court’s

jurisdiction to entertain a late postconviction petition. 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 federal or state right recognized by the United States

Supreme Court since the expiration of the time prescribed in R.C. 2953.21(A)(2).

R.C. 2953.23(A)(1)(a). And he must show “by clear and convincing evidence that,

but for constitutional error at trial, no reasonable factfinder would have found the

petitioner guilty of the offense of which the petitioner was convicted.” R.C.

2953.23(A)(1)(b).

{¶8} Smith’s motions were filed well after the expiration of the time

prescribed by R.C. 2953.21(A)(2). And the record does not demonstrate either that

Smith was unavoidably prevented from discovering the facts underlying his claims,

or that his claims were predicated upon a new or retrospectively applicable federal or

state right recognized by the United States Supreme Court since the time for filing a

postconviction petition had expired. Because Smith satisfied neither the time

strictures of R.C. 2953.21(A)(2) nor the jurisdictional requirements of R.C.

2953.23(A), the postconviction statutes did not confer upon the common pleas court

jurisdiction to entertain Smith’s postconviction claims on their merits.

4
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶9} Court had jurisdiction to correct sentences to the extent

postrelease-control notification was inadequate. A trial court retains

jurisdiction to correct a void judgment. State ex rel. Cruzado v. Zaleski, 111 Ohio

St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 18-19. The common pleas court had

no jurisdiction to grant Smith the relief sought in his December 2010 motion,

because a sentence imposed under a statute declared unconstitutional in Foster, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, is not void. See State v. Payne, 114

Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27-29. But the court had

jurisdiction to grant Smith the relief sought in his September 2010 motion, because

his sentences were void to the extent that he had not been adequately or accurately

notified concerning postrelease control.

{¶10} A felony prison sentence must include a term of postrelease control.

R.C. 2967.28 and 2929.14(F). And the sentencing court must notify the offender at

the sentencing hearing concerning postrelease control and must incorporate

postrelease-control notification in the judgment of conviction. R.C. 2929.19(B)(3)(c)

and (d); State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864,

paragraph one of the syllabus; see also Woods v. Telb, 89 Ohio St.3d 504, 513, 733

N.E.2d 1103 (2000) (holding that incorporation of postrelease-control notification in

the judgment of conviction empowers the Adult Parole Authority to exercise its

discretion to impose postrelease control).

{¶11} In sentencing Smith for the first-degree felony of aggravated robbery,

the trial court was required to notify Smith that upon his release from prison, he

would be subject to a mandatory five-year period of postrelease-control supervision.

See R.C. 2929.19(B)(3)(c) and 2967.28(B)(1). In sentencing him for the second-

5
 OHIO FIRST DISTRICT COURT OF APPEALS

degree felony of felonious assault, the court was required to notify Smith that upon

his release from prison, he would be subject to a mandatory three-year period of

postrelease-control supervision. See R.C. 2929.19(B)(3)(c) and 2967.28(B)(2). In

sentencing him for the fourth-degree felony of drug possession, the court was

required to notify Smith that upon his release from prison, he could be subject to up

to three years of postrelease-control supervision. See R.C. 2929.19(B)(3)(d) and

2967.28(C). And the court was required to notify Smith, with respect to each

offense, of the consequences of violating postrelease control and of the length of

confinement that could be imposed for a postrelease-control violation. See R.C.

2929.19(B)(3)(e); State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d

9, ¶ 77-79.

{¶12} At Smith’s sentencing hearing, the trial court advised him as follows:

I will note that * * * since this is a felony of the first degree, you will be

supervised under Section 2967.28 of the Ohio Revised Code, * * * after

you leave prison, for postrelease control. I further notify you, sir, that

* * * if, in fact, you are placed on postrelease control, which I believe

the law calls for, if you do violate any of the conditions of the

postrelease control, you could be returned to the institution for a term

of up to one half of the original sentence. I will further indicate to you

that if, in fact, you’re placed on postrelease control, which I believe the

law indicates you must be, and if, while on postrelease control, you

commit a new felony, you can receive a prison term for the violation of

the postrelease control as well as a prison term for * * * the new felony

6
 OHIO FIRST DISTRICT COURT OF APPEALS

for a total of up to the period of postrelease control or one year,

whichever is greater.

Thus, the postrelease-control notification provided at sentencing concerned only the

first-degree felony of aggravated robbery, and with respect to that offense, did not

specify the duration of his postrelease-control supervision, was less than clear about

the mandatory nature of the supervision, and did not specify the length of

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

{¶13} The notification incorporated in the judgment of conviction was also

inadequate, stating simply 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.” The

judgment of conviction did not specify, with respect to each offense, the duration or

the mandatory or discretionary nature of the postrelease-control supervision, the

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

could be imposed for a postrelease-control violation.

{¶14} The state nevertheless insists that the postrelease-control notification

provided to Smith at sentencing and in the judgment of conviction complied with the

statutory requirements, and that Smith “waived” any challenge to the notification

when he failed to raise it in his direct appeal. This argument is feckless.

{¶15} In support of its position, the state cites the Ohio Supreme Court’s

decision in State ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio

St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722. In Pruitt, the court denied a petition

for a writ of mandamus to compel the common pleas court to enter a revised

judgment of conviction. The court held that Pruitt was not entitled to an

extraordinary writ because the judgment of conviction, which fully complied with

7
 OHIO FIRST DISTRICT COURT OF APPEALS

Crim.R. 32(C), constituted a final appealable order. Id. at ¶ 3. The court then added,

but without specifying the postrelease-control notification provided, that the

judgment of conviction “sufficiently included language that postrelease control was

part of [Pruitt’s] sentence so as to afford him sufficient notice to raise any claimed

errors on appeal rather than by extraordinary writ.” Id. at ¶ 4. Accord State ex rel.

Quillen v. Warden, Marion Corr. Inst., 133 Ohio St.3d 161, 2012-Ohio-4299, 976

N.E.2d 898.

{¶16} The supreme court’s statement in Pruitt concerning the “sufficien[cy]”

of the judgment of conviction’s postrelease-control language was based on its 2006

decision in Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78.

In Watkins, inmates incarcerated for postrelease-control violations had petitioned

for writs of habeas corpus because their judgments of conviction had contained the

suggestion that postrelease control was discretionary when it was mandatory. The

supreme court denied the writs on the ground that the petitioners had an adequate

remedy at law. Watkins at ¶ 53. The court stated that “[a]ny challenge to the

propriety of the sentencing court’s imposition of postrelease control in the entries

could have been raised on appeal,” because the “erroneous” postrelease-control

notifications provided in the sentencing entries at issue in Watkins, unlike the

inadequate notifications that had led to the inmate’s release in successful habeas

cases, had been “sufficient to afford notice to a reasonable person that the courts

were authorizing postrelease control as part of each petitioner’s sentence” and “that

postrelease control could be imposed following the expiration of the person’s

sentence.” Id. at ¶ 51. Accord State ex rel. Peterson v. Durkin, 129 Ohio St.3d 213,

2011-Ohio-2639, 951 N.E.2d 381.

8
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶17} The state’s reliance on Watkins and Pruitt is misplaced. Watkins and

its progeny were writ cases that were decided on the ground that the petitioners had

an adequate remedy at law. In that context, the court’s statements concerning the

“sufficien[cy]” of the postrelease-control notifications contained in the judgments of

conviction may be read to state not a rule of law concerning satisfaction of the

statutory mandates concerning postrelease-control notification, but a circumstance

under which an offender may fairly be deemed to have been on notice of an error in

his postrelease-control notification for which he had an adequate remedy at law.

{¶18} The supreme court said as much in its 2010 decision in State v.

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9. Ketterer stood

convicted of both capital and noncapital offenses. In his appeal from his

resentencing on the noncapital offenses, the supreme court again remanded the case

for the proper imposition of postrelease control, upon its determination that the

postrelease-control notifications provided at sentencing and in the judgment of

conviction had been inadequate and inaccurate. Justice Lundberg Stratton alone

dissented, citing Watkins in support of a rule of substantial compliance. Id. at ¶ 83-

84 (Lundberg Stratton, J., dissenting). But the majority, noting the “considerabl[e]”

difference between the standard of review in a habeas case and the standard of

review in a direct appeal, found the dissent’s reliance on Watkins to be “misplaced”

and thus “rejected” the state’s invitation to “overlook[]” the postrelease-control-

notification “errors” on the authority of Watkins. Id. at ¶ 72-73 and 78; see also State

v. Burns, 4th Dist. No. 11CA19, 2012-Ohio-1626, fn. 3 (distinguishing Pruitt because

it was a mandamus action).

9
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶19} Moreover, the state’s reading of Watkins—that the case establishes

both a rule of substantial compliance when some reference to postrelease control is

made at sentencing and in the judgment of conviction and a rule of “waiver” when

postrelease-control notification is not challenged on direct appeal—cannot be

reconciled with the supreme court’s subsequent non-writ decisions. In its 2009

decision in State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d

1254, the supreme court declared that “the most basic requirement” of the

postrelease-control statutes and the court’s postrelease-control decisions is that a

sentencing court must “notify the offender of the mandatory nature of the term of

postrelease control and the length of that mandatory term and incorporate that

notification in its entry.” Id. at ¶ 69. Accord State v. Edwards, 2d Dist. No. 2012-

CA-7, 2012-Ohio-4443, ¶ 10; State v. Clarke, 8th Dist. No. 97017, 2012-Ohio-924, ¶

6-9; State v. Ward, 1st Dist. No. C-110158, 2011-Ohio-6382, ¶ 4; State v. Williams,

10th Dist. No. 10AP-922, 2011-Ohio-4923, ¶ 12; State v. Perry, 12th Dist. Nos.

CA2011-01-008 and CA2011-02-017, 2011-Ohio-3637, ¶ 16; State v. Shepherd, 11th

Dist. No. 2010-A-0052, 2011-Ohio-2451, ¶ 25. In its 2010 decision in Ketterer, 126

Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, the court held that a sentencing

court must also notify the offender, with respect to each offense, of the consequences

of violating postrelease control and of the length of confinement that could be

imposed for a postrelease-control violation. Id. at ¶ 77-79. Accord State v. Lang, 129

Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 307-309; State v. Harris, 4th

Dist. No. 11CA15, 2012-Ohio-2185, ¶ 8; State v. Harris, 8th Dist. No. 95097, 2011-

Ohio-1072, ¶ 9. And in 2010, in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, 942 N.E.2d 332, the court reaffirmed its 2007 decision in State v. Bezak, 114

10
 OHIO FIRST DISTRICT COURT OF APPEALS

Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus, to the extent of Bezak’s

holding that “[a] sentence that does not include the statutorily mandated term of

postrelease control is void.” Fischer at paragraph one of the syllabus and ¶ 27. And

the court held that “the offending portion of the sentence is subject to review and

correction” “at any time, on direct appeal or by collateral attack.” Id. Accord State v.

Tensley, 1st Dist. Nos. C-110452 and C-110453, 2012-Ohio-4265, ¶ 11-12; State v.

Ward, 1st Dist. No. C-110158, 2011-Ohio-6382, ¶ 4-6; State v. Copeland, 1st Dist. No.

C-110120, 2011-Ohio-6034, ¶ 4-6; State v. Truitt, 1st Dist. No. C-050188, 2011-Ohio-

1885, ¶ 19-20; State v. Thomas, 1st Dist. Nos. C-100411 and C-100412, 2011-Ohio-

1331, ¶ 7-9.

{¶20} Finally, in November 2012, the supreme court in State v. Billiter, ___

Ohio St.3d ___, 2012-Ohio-5144, ___ N.E.2d ___, put to rest any question

concerning the applicability of Watkins and its progeny to non-writ cases. In Billiter,

the court addressed a certified conflict between the Fifth and Second Appellate

Districts concerning “whether res judicata bars a criminal defendant from arguing

that his plea is void due to an earlier postrelease-control sentencing error when the

defendant has entered a plea of guilty to escape.” Id. at ¶ 1. Billiter’s 1998 judgment

of conviction had imposed for aggravated burglary a mandatory term of postrelease

control of up to three years, when a five-year term was mandated. In 2008, after he

had been placed on postrelease control and then convicted upon his guilty plea to

escape for violating the terms of that postrelease control, Billiter collaterally

challenged his 2008 escape conviction on the ground that postrelease control had

not, in 1998, been properly imposed. The Fifth Appellate District held, based on

Watkins, that res judicata barred Billiter from collaterally challenging the imposition

11
 OHIO FIRST DISTRICT COURT OF APPEALS

of postrelease control, because “the trial court’s incorrect sentence had nevertheless

given Billiter proper notice that he was subject to postrelease control, and so the

sentence was not void.” Id. at ¶ 5 (citing State v. Billiter, 5th Dist. No. 2008 CA

00198, 2009-Ohio-2709, ¶ 13 and 21). The supreme court, citing its post-Watkins

decisions in Fischer, Bloomer, and Bezak, reversed, holding that Billiter’s

aggravated-burglary sentence was “void” to the extent that the trial court had “failed

to sentence [him] to a correct term of postrelease control,” and that, as a

consequence, the Adult Parole Authority had no “authority” to impose postrelease

control, the trial court “was without jurisdiction to convict him on the escape

charge,” and res judicata did not bar his collateral challenge. Id. at ¶ 12. Accord State

v. Moats, 6th Dist. No. WM-11-009, 2012-Ohio-5555, ¶ 6 (following Billiter to

reverse the trial court’s holding that any error in the imposition of postrelease

control was “de minimis” and “cured” by Watkins).

{¶21} We, therefore, hold that to the extent that the trial court did not

adequately or accurately notify Smith concerning postrelease control, either at

sentencing or in the judgment of conviction, his sentences are void. Smith did not

assign this matter as error in his direct appeal from his convictions. He instead

presented a collateral challenge in his September 2010 motion. But regardless of a

case’s procedural posture, when a sentence is void to the extent that it was not

imposed in conformity with the statutory mandates concerning postrelease control,

and the matter has come to a court’s attention, whether on direct appeal or in a

collateral challenge, the court “cannot ignore” the matter, State v. Boswell, 121 Ohio

St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, ¶ 12; see also State v. Simpkins, 117

Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 23, and “the offending portion

12
 OHIO FIRST DISTRICT COURT OF APPEALS

of the sentence is subject to review and correction.” Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus and ¶ 27.

{¶22} We affirm, but remand for resentencing. The postconviction

statutes did not confer upon the common pleas court jurisdiction to entertain

Smith’s claims. Therefore, his postconviction motions were subject to dismissal. See

R.C. 2953.21(C) and 2953.23(A). Accordingly, upon the authority of App.R.

12(A)(1)(a), we modify the judgment appealed from to reflect the dismissal of the

motions, and we affirm the judgment as modified.

{¶23} But Smith’s sentences are void to the extent that he was not adequately

notified concerning postrelease control. We, therefore, remand this case for

correction of the offending portions of his sentences in accordance with the law and

this opinion.

Judgment accordingly.

HENDON, P.J., CUNNINGHAM and FISCHER, JJ.

Please note:

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

13