[Cite as State v. Burroughs, 2014-Ohio-4688.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101123
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RICHARD BURROUGHS
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-07-496450-B
BEFORE: McCormack, J., Keough, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: October 23, 2014
ATTORNEYS FOR APPELLANT
Michael E. Stepanik
Charles J. Wilkins
Jack W. Bradley Co., L.P.A.
520 Broadway – 3rd Floor
Lorain, OH 44052
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: KatherineMullin
Daniel T. Van
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Richard Burroughs, appeals the trial
court’s judgment denying his motion to terminate postrelease control. For the reasons
that follow, we reverse.
{¶2} On February 11, 2008, Burroughs pleaded guilty to drug trafficking in
violation of R.C. 2925.03, a first-degree felony that carries a mandatory term of three to
ten years incarceration. In consideration of the plea agreement, the parties agreed to a
six-year term of incarceration.
{¶3} At the sentencing hearing, the trial court sentenced Burroughs to the
agreed-upon sentence of six-years incarceration and advised Burroughs that he is subject
to postrelease control for a mandatory period of five years after incarceration. The court
also advised Burroughs of the consequences of violating the terms of postrelease control,
stating that he may receive an “additional time of up to half of the original sentence or a
charge of felony escape.” With respect to postrelease control, the sentencing entry
stated: “(Agreed and mandatory) Post release control is part of this prison sentence for 5
years for the above felony(s) under R.C. 2967.28.”
{¶4} According to Burroughs, he completed serving his entire sentence and was
released from prison on May 4, 2013. Upon his release, Burroughs was placed on
postrelease control. On February 10, 2014, Burroughs filed with the trial court a motion
to terminate his postrelease control based upon the fact that his original sentencing entry
failed to state the consequences for a violation of postrelease control. The court denied
the motion, and Burroughs now appeals.
{¶5} In his sole assignment of error, Burroughs contends that the trial court erred
when it refused to terminate his postrelease control, stating that he was improperly
sentenced to postrelease control because the sentencing entry did not include the
consequences for violation of postrelease control. He argues that because that portion of
his sentence is void and he has completed his sentence, the trial court could not
retrospectively impose postrelease control.
{¶6} In its response, the state essentially concedes the law in this district.
However, the state argues that there is a conflict among Ohio’s districts and it wishes to
preserve for further appellate review its argument that the trial court did not err when it
denied Burroughs’s motion to terminate postrelease control. The state contends, in
accordance with the law as stated in other districts, that Burroughs was properly advised
of postrelease control because the trial court orally notified Burroughs at the sentencing
hearing of the consequences of postrelease control and the language contained in the
journal entry that references the postrelease control statute satisfies the imposition of
postrelease control. The state therefore urges this court to follow the law of other
districts, as stated in State v. Clark, 2d Dist. Clark No. 2012 CA 16, 2013-Ohio-299 (the
sentencing entry that noted the term “consequences” in connection with R.C. 2967.28 was
sufficient notice of the consequences for violation of postrelease control), State v. Darks,
10th Dist. Franklin No. 12AP-578, 2013-Ohio-176 (the journal entry that included a
reference to the sentencing statute, R.C. 2929.19(B)(3), was sufficient notice); and State
v. Murray, 6th Dist. Lucas No. L-10-1059, 2012-Ohio-4996 (the sentencing entry that
included reference to R.C. 2953.08 and 2967.28 was sufficient for purposes of notice of
postrelease control sanction).1 We decline to do so.
{¶7} This court has repeatedly held that where a trial court properly advised the
defendant of postrelease control at the sentencing hearing, but the corresponding journal
entry did not include the consequences for violating postrelease control, that failure to
incorporate the notice of consequences for violation in the sentence entry rendered void
any action to impose postrelease control. State v. Lawson, 8th Dist. Cuyahoga No.
100626, 2014-Ohio-3498; State v. Pyne, 8th Dist. Cuyahoga No. 100580,
2014-Ohio-3037; Elliott; Mills; State v. Middleton, 8th Dist. Cuyahoga No. 99979,
2013-Ohio-5591; State v. Viccaro, 8th Dist. Cuyahoga No. 99816, 2013-Ohio-3437.
And where the defendant has already served his prison term for the charges underlying
the postrelease control, the court is barred from taking any action to reimpose postrelease
control, correct any sentencing errors by resentencing, or correct its sentencing entry nunc
pro tunc. Mills at ¶ 14; Elliott at ¶ 12.
In State v. Elliott, 8th Dist. Cuyahoga No. 100404, 2014-Ohio-2062, and State v. Mills, 8th
1
Dist. Cuyahoga No. 100417, 2014-Ohio-2188, the state filed a motion to certify a conflict pursuant to
App.R. 25 and Article IV, Section 3(B)(4) of the Constitution, requesting conflict certification with
the decisions in Darks and Clark. On June 30, 2014, the state appealed the Elliott decision to the
Ohio Supreme Court, seeking review of whether a sentencing entry that imposes postrelease control
but does not journalize the consequences for violating postrelease control invalidates the imposition of
postrelease control. This court denied the state’s motions to certify on July 1, 2014, and July 8,
2014, respectively. And on October 8, 2014, the Supreme Court declined to accept the state’s appeal
for review. State v. Elliott, 10/08/2014 Case Announcements, 2014-Ohio-4414.
{¶8} More specifically, we have held that the mere reference to the postrelease
control statute, R.C. 2967.28, in the sentencing entry is not adequate notice of the
consequences of violating postrelease control. See Elliott; Mills. In Elliott, the trial
court properly advised the defendant of postrelease control at his sentencing hearing,
informing him that he would be subject to a five-year period of postrelease control upon
his release from prison and that a violation of postrelease control could result in his return
to prison for up to one-half of the time he was receiving. The sentencing entry, however,
simply stated: “postrelease control is part of this prison sentence for 5 years for the above
felony(s) under R.C. 2967.28.” Elliott at ¶ 5. We found that this language, which is
nearly identical to the language in the Burroughs entry, did not provide the defendant with
sufficient notice of the consequences of violating postrelease control. Id. at ¶ 12. While
verbal notification of the consequences “is the best proof that the defendant understands
the notice, * * * the court is not excused from incorporating that same notice into its
sentencing entry.” Id. at ¶ 11, citing State v. Jordan, 104 Ohio St.3d 21,
2004-Ohio-6085, 817 N.E.2d 864, ¶ 9; Mills (finding the same language and reference to
R.C. 2967.28 in the sentencing entry insufficient notice of the consequences of violating
postrelease control such that the sentence was void).
{¶9} In light of the foregoing precedent in this district, we find that the trial court
erred in denying Burroughs’s motion to terminate postrelease control. Because
postrelease control sanctions were not properly included in his sentencing entry,
particularly with respect to the failure to state the consequences for violation of
postrelease control, and Burroughs has served his prison term for the charges underlying
the postrelease control, any attempt to impose postrelease control was void.
{¶10} Accordingly, Burroughs’s sole assignment of error is sustained.
{¶11} The case is reversed and remanded to the trial court with instructions to
release Burroughs from further postrelease control supervision.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MARY EILEEN KILBANE, J., CONCUR