[Cite as State v. Smith, 2015-Ohio-5436.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 13 CO 53
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
ROBERT J. SMITH )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Columbiana County,
Ohio
Case No. 2005-CR-358
JUDGMENT: Affirmed in part.
Reversed and Vacated in part.
APPEARANCES:
For Plaintiff-Appellee: Atty. Robert Herron
Columbiana County Prosecutor
Atty. Tammie M. Jones
Assistant Prosecuting Attorney
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant: Robert J. Smith, Pro se
376 Florine Street,
Leavittsburg, Ohio 44430
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: December 18, 2015
[Cite as State v. Smith, 2015-Ohio-5436.]
WAITE, J.
{¶1} Appellant Robert J. Smith appeals a November 29, 2013 Columbiana
County Common Pleas Court’s decision to deny his motion to correct what he refers
to as an illegal sentence. Appellant’s appeal does not address his underlying
conviction, which we previously upheld in State v. Smith, 7th Dist. No. 07 CO 10,
2007-Ohio-6913. Appellant contends instead that the trial court erroneously declined
to resentence him despite finding that his driver’s license suspension was mistakenly
attached to his convictions on both robbery and failure to comply. He additionally
argues that the trial court erroneously imposed a five-year period of postrelease
control for failure to comply, a third-degree felony. The state concedes both errors,
but argues that the errors can be corrected within the sentencing entry without
resentencing Appellant.
{¶2} According to State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1
N.E.3d 382 and State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d
332, Appellant’s postrelease control term is void as it pertains to his failure to comply
conviction. As to the suspension of his driver’s license, although the trial court
erroneously attached the suspension to both his convictions on robbery and failure to
comply, this error does not render the suspension entirely invalid. Accordingly,
Appellant’s argument regarding both his postrelease control period and driver’s
license suspension has merit in part. The postrelease control period to which he was
sentenced based on his conviction for failure to comply is vacated. The driver’s
license suspension associated with his robbery conviction is also vacated. However,
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both his sentencing to five years of postrelease control for robbery and a ten year
license suspension for failure to comply remain valid and enforceable.
Factual and Procedural History
{¶3} Appellant led police on a high-speed car chase after robbing Tri State
Credit Union in East Liverpool, Ohio. He was charged with one count of robbery, a
felony of the second degree, and one count of failure to comply, a felony of the third
degree. He eventually pleaded guilty to both offenses but refused to sign a plea
agreement form. On March 30, 2007, he was sentenced to six years in prison on the
robbery conviction and two years for failure to comply. The trial court ordered the
sentences to run consecutively for an aggregate total of eight years of incarceration.
The court additionally imposed a ten-year driver’s license suspension and five years
of postrelease control.
{¶4} On October 30, 2013, shortly after his release from prison, Appellant
filed a motion to correct his sentence. In his motion, Appellant alleged that the trial
court erred in attaching the license suspension to both his robbery and failure to
comply convictions and that the trial court erred in imposition of five years of
postrelease control regarding his conviction for failure to comply. The trial court
agreed that both were errors. However, the court found that so long as the license
suspension was properly attached to the correct conviction, Appellant was not
prejudiced by inclusion of this attachment to the other conviction. As to postrelease
control, the court found any error to be harmless because Appellant was already
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subject to five years of postrelease control for robbery. Appellant has timely
appealed the court’s decision.
{¶5} Pro se Appellant presents issues within his assignment of error which
we will construe as separate assignments. We note that a party who proceeds pro
se is held to the same standards as parties who have retained counsel. Tuckosh v.
Cummings, 7th Dist. No. 07 HA 9, 2008-Ohio-5819, ¶34, citing State ex rel. Fuller v.
Mengel, 100 Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25. However, a court may
grant some latitude towards pro se litigants on minor matters. Tuckosh at ¶34 citing
Robb v. Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863, 846 N.E.2d 878 (4th
Dist.).
First Assignment of Error
The Trial Court erred and/or abused its discretion by denying
appellant's “Motion to Correct an Illegal Sentence” (Appendix 4) in
violation of appellant's right to due process of law as guaranteed by the
United States Constitution fifth and fourteenth amendments as put forth
to the State of Ohio in Ohio's Constitution article I-III.
{¶6} Appellant contends that the trial court erroneously sentenced him to a
five-year non-mandatory postrelease control period for failure to comply, when the
statutory maximum for a third-degree felony is three years. Accordingly, Appellant
requests resentencing.
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{¶7} The state concedes the trial court’s error. However, as Appellant has
already served his period of incarceration, the state argues that resentencing is not
the proper remedy and that the error should be corrected within the sentencing entry.
{¶8} Pursuant to R.C. 2967.28(B)(2), the maximum postrelease control term
that can be imposed on an offender who has committed a third-degree felony is three
years. Appellant correctly argues that the trial court imposed a five-year term for his
failure to comply conviction. As Appellant has already been released from
incarceration, the question becomes what remedies, if any, are available to
Appellant.
{¶9} We begin our discussion by addressing two cases from the Ohio
Supreme Court. First, in Fischer, supra, the Court examined the effect of a trial
court’s failure to impose postrelease control. Procedurally, the Court first held that an
issue regarding statutorily mandated terms, such as postrelease control, can be
reviewed at any time and is not barred by res judicata. Substantively, the Court held
that “[t]he failure to impose a statutorily mandated period of postrelease control is
more than administrative or clerical error. It is an act that lacks both statutory and
constitutional authority.” Fischer, supra, at ¶22. Thus, the failure of a trial court to
impose a statutorily mandated term of postrelease control renders the underlying
sentence void in that regard, and the offender may be resentenced accordingly.
{¶10} However, the Ohio Supreme Court revisited this issue in a case where
the appellant had completed his incarceration. Here, the Court held that “once the
prison-sanction portion of a sentence for a crime has been fully served, the structure
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of Ohio felony-sentencing law and the defendant’s legitimate expectation in finality in
his sentence prevent a court from further modifying the sentence for that crime in any
way.” Holdcroft, at ¶18. Accordingly, the Court held that once a prison term has
been served for an offense, a trial court does not have authority to add a term of
postrelease control for that offense. Id.
{¶11} The state cites to our decision in State v. Butler, 7th Dist. No. 10 JE 14,
2011-Ohio-6366 which held that an incorrect term of postrelease control can be
corrected by means of remand. However, it is not clear whether the defendant in
Butler had completed his sentence, which is a crucial consideration in light of the
facts in the instant case. Even so, the Ohio Supreme Court issued its Opinion in
Holdcroft two years after our decision in Butler.
{¶12} Appellant raised the trial court’s error in his October 30, 2013 motion to
correct his sentence. The trial court acknowledged its error, but stated that “[s]uch a
discussion would be purely academic because the Defendant had a mandated period
of Post-Release Control of five (5) years pursuant to Count I.” (11/29/13 J.E., p. 2.)
The court correctly found that Appellant was properly sentenced to five years of
postrelease control for robbery. The court also correctly stated that any termination
or diminution of Appellant’s postrelease control for failure to comply still leaves him
with a five year postrelease control period. See State v. Fischer, supra (only the void
portion of a sentence must be rectified; the remainder of the sentence can be
separated and remain in effect).
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{¶13} While the trial court’s observation in this regard may be accurate,
Appellant’s sentence as it regards postrelease control for failure to comply is
erroneous. Contrary to the state’s argument, however, this error cannot be corrected
by means of a nunc pro tunc entry. Resentencing is also inappropriate pursuant to
Ohio law. Instead, in accordance with Holdcroft, Appellant’s postrelease control term
for his failure to comply count is void and that part of his sentence must be vacated.
However, the trial court’s imposition of postrelease control for robbery is still valid.
Appellant’s sentence in that regard is affirmed and remains in effect. Appellant’s
arguments have merit in part and are sustained as to the imposition of postrelease
control for failure to comply.
Second Assignment of Error
Does the trial court have the authority to sentence appellant outside the
statutory mandates set forth in ORC 2967.28 (B) (2) for a 2nd degree
felony? Is a judgment void for sentencing purposes if the trial court
failed to sentence appellant to a statutorily mandated term? Does the
trial court's failure to directly attach a mandated sanction to an offence,
[sic] either at sentencing or in its judgment entry cause it to be void?
{¶14} The trial court imposed a ten-year driver’s license suspension as part of
Appellant’s sentence; however, Appellant argues that the trial court appended the
suspension to both the failure to comply and robbery convictions. While the trial
court acknowledged the error and that suspension could not result from a robbery
conviction, the court did not correct its error because it determined, once again, that
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Appellant had not been prejudiced. Appellant not only seeks to have the error
corrected, he argues that the trial court never informed him that he could lose his
license and he would not have pleaded guilty had he known of this possibility.
{¶15} The state argues that a trial court must inform a defendant of a
mandatory license loss at both the sentencing hearing and in its sentencing entry.
The state cites to the sentencing hearing where the trial court correctly informed
Appellant that, as to his conviction on failure to comply, the court planned to order his
“operator’s license be suspended for a period of ten (10) years.” (Appellee’s Brf., p.
5.) However, the state concedes that the suspension was inadvertently attached to
both convictions in the sentencing entry. The state argues that the error did not
prejudice Appellant, especially as he had already been notified of the suspension and
the suspension was, in fact, correctly attached to the failure to comply conviction.
{¶16} Pursuant to R.C. 2921.331(E), “[i]n addition to any other sanction
imposed for a felony violation of division (B) of this section, the court shall impose a
class two suspension from the range specified in division (A)(2) of section 4510.02 of
the Revised Code.” Pursuant to R.C. 4510.02 a license is to be suspended, “[f]or a
class two suspension, a definite period of three years to life.”
{¶17} At the sentencing hearing in this case, the trial court sentenced
Appellant as follows: “On Count Two, a two (2) year definite term of incarceration in a
state correctional facility, for a total term of incarceration of eight (8) years, and that
your operator’s license be suspended for a period of ten (10) years.” (3/30/07
Sentencing Hrg. Tr., p.13.) Thus, the trial court properly informed Appellant of the
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correct length of his license suspension and attached the suspension to the correct
count (count two, involving his failure to comply) at the sentencing hearing.
{¶18} In the trial court’s sentencing entry, the court stated: “[t]he Court also
orders a concurrent operator’s license suspension of Ten (1)) (sic) years as to each
count.” (4/18/07 J.E.) Thus, the trial court correctly stated the term of years for the
suspension, but erroneously attributed it to both the robbery count (count one) and
the failure to comply (count two).
{¶19} No Ohio court has addressed the exact factual situation presented in
the instant case. However, the Ohio Supreme Courts has presented us with some
guidance in State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509.
The Court stated that “[b]ecause a mandatory driver’s license suspension is a
statutorily mandated term, we hold that a trial court’s failure to include this term in a
criminal sentence renders the sentence void in part.” Id. at ¶15, citing Fischer.
However, in reaching this decision, the Harris Court also stated: “a mandatory
driver’s license suspension is akin to postrelease control.” Id. at ¶14.
{¶20} Due to Appellant’s conviction on failure to comply, he was subject to a
mandatory license suspension ranging from three years to life, pursuant to R.C.
4510.02. Contrary to Appellant’s contention, the trial court properly advised
Appellant of his suspension at the sentencing hearing. Although the trial court
attached the suspension to both the failure to comply and robbery convictions within
the sentencing entry, the court did properly inform Appellant of the suspension and
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the length of the suspension. It appears, then, a ten year term of suspension
remains valid.
{¶21} It is clear from the sentencing hearing that the trial court correctly
determined that Appellant’s ten-year driver’s license suspension arose solely from
the failure to comply conviction. It is equally clear that the additional imposition of
suspension to the robbery conviction within the sentencing entry was error. As the
Supreme Court in Harris has determined that postrelease control sentencing issues
are analogous to license suspension sentencing issues, it appears that Appellant’s
sentence must be partially voided in this regard, also. Again, we stress that the trial
court’s action in sentencing Appellant to license suspension for failure to comply was
completely correct, and that portion of Appellant’s sentence is affirmed. However, to
the extent that the sentencing entry also imposes a period of license suspension for
Appellant’s conviction for robbery, this portion of Appellant’s sentence is invalid and
void.
Third Assignment of Error
Does the trial court abuse its discretion when it refuses to correct an
illegal sentence?
{¶22} Appellant argues that the trial court abused its discretion by failing to
correct the issues contained within the first and second assignments of error. As we
have addressed these issues, this assignment of error is moot.
Conclusion
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{¶23} Appellant argues that his entire sentence is void because the trial court
partially sentenced him to an incorrect term of postrelease control and improperly
attached his driver’s license suspension to both his conviction for failure to comply
and robbery. Appellant is correct that a portion of his postrelease control term,
stemming from his conviction on failure to comply, is void. As he has completed his
incarceration, resentencing on this issue is improper and the remaining postrelease
control term attached to his failure to comply conviction is vacated. Although the trial
court inadvertently attached his driver’s license suspension to both his conviction on
failure to comply and to robbery, Appellant is correct that his sentence is partially void
in this regard, also, in that the suspension period attributed to his robbery conviction
is also invalid. Hence, as a matter of law his sentence is vacated regarding a
suspension period for robbery and also regarding postrelease control for failure to
comply. We note, however, that Appellant’s five year postrelease control period for
robbery and ten year driver’s license suspension for failure to comply are valid. On
that basis, the judgment of the trial court is partially affirmed, and Appellant’s
sentence is partially reversed and vacated.
Donofrio, P.J., concurs.
Robb, J., concurs.