State v. Bigelow

[Cite as State v. Bigelow, 2018-Ohio-3508.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-17-1306

Appellee Trial Court No. CR0201102596

v.

Brian Bigelow DECISION AND JUDGMENT

Appellant Decided: August 31, 2018

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Peter Galyardt,
Assistant State Public Defender, for appellant.

*****

MAYLE, P.J.

{¶ 1} In this accelerated appeal, defendant-appellant, Brian Bigelow, appeals the

December 6, 2017 judgment of the Lucas County Court of Common Pleas, denying his

motion to vacate judicial sanction. For the reasons that follow, we affirm the trial court

judgment.
 I. Background

{¶ 2} In 1997, Brian Bigelow was convicted and sentenced in the following cases,

listed in chronological order by date of journalization:

Lucas Date Offense/ Sentence Consecutive/
County Degree of concurrent
Case Offense
No.
CR-97- August 11, Aggravated 10 years To be served consecutively to
1554 1997 robbery (F1) + + 3 years each other, consecutively to CR-
firearm 97-1309, and concurrently to CR-
specification 97-1480
CR-97- August 12, Robbery (F3) 5 years To be served consecutively to
1309 1997 CR-97-1554, and concurrently to
CR-97-1480
CR-97- August 12, Failure to 17 To be served concurrently to CR-
1480 1997 Comply with months 97-1309 and CR-97-1554
Signal of
Police Officer
(F4)
CR-97- October 8, Escape (F2) 8 years To be served consecutively to
2526 1997 CR-97-1309, CR-97-1480, and
CR-97-1554

{¶ 3} The term “post-release control” was not specifically used in any of the

sentencing entries, however, each of the entries stated that Bigelow was “given notice

under R.C. 2929.19(B)(3),” which, at the time, required the trial court to “notify” the

offender that a term of post-release control either would or may be imposed (depending

on the nature and degree of the offense of which the offender was convicted) and the

consequences of violating post-release control. As related to these offenses, R.C.

2967.28(B) provided for a mandatory term of five years’ post-release control for a felony

of the first degree; a mandatory term of three years’ post-release control for a felony of

2.
the second degree or a felony of the third degree during which the offender caused or

threatened physical harm to a person; and a discretionary term of up to three years’ post-

release control for a felony of the third or fourth degree. Under R.C. 2967.28(B), this

period of post-release control would necessarily begin upon Bigelow’s ultimate “release

from imprisonment”—i.e., after he served all of the consecutive terms imposed.

{¶ 4} Bigelow appealed his convictions in Lucas County case Nos. CR-97-1554

and CR-97-2526. In Lucas County case No. CR-97-1554, this court vacated the three-

year firearms specification. State v. Bigelow, 6th Dist. Lucas No. L-97-1330, 1998 Ohio

App. LEXIS 5893 (Dec. 11, 1998). We affirmed Bigelow’s conviction in case No.

CR-97-2526. State v. Bigelow, 6th Dist. Lucas No. L-97-1403, 1998 Ohio App. LEXIS

3715 (Aug. 14, 1998).

{¶ 5} In October of 2010, Bigelow was resentenced in case Nos. CR-97-1554,

CR-97-1309, and CR-97-2526, purportedly pursuant to State v. Bloomer, 122 Ohio St.3d

200, 2009-Ohio-2462, 909 N.E.2d 1254, so that the trial court could afford Bigelow his

right of allocution and advise him of the terms of post-release control and the penalties

for violating post-release control, details that were not specifically set forth in the court’s

original judgment entries. Bigelow was resentenced as follows:

3.
 Lucas Date Offense/ Sentence Consecutive/ Post-Release
County Degree of concurrent Control
Case Offense
No.
CR-97- October 18, Aggravated 7 years To be served 5 years mandatory
1554 2010 robbery (F1) consecutively to
CR-97-1309, and
concurrently to
CR-97-1480
CR-97- October 18, Robbery (F3) 5 years To be served 3 years
1309 2010 consecutively to discretionary
CR-97-1554, and
concurrently to
CR-97-1480
CR-97- October 21, Escape (F2) 2 years To be served 3 years mandatory
2526 2010 consecutively to up to 5 years
CR-97-1309 and
CR-97-1554

{¶ 6} Following his release from prison on these 1997 cases, Bigelow was charged

with robbery, a third-degree felony, in case No CR-11-2596. He was sentenced to a

prison term of 48 months, in addition to up to three years’ discretionary post-release

control. This conviction and sentence were memorialized in a judgment entry journalized

on February 24, 2012. Because Bigelow was subject to post-release control at the time of

committing this new offense, the court imposed a judicial sanction of 1,444 days in case

No. CR-97-1554, to be served consecutively to his 48-month sentence in case No.

CR-11-2596.1

1
From the record, we are unable to ascertain when Bigelow was released from prison on
the 1997 cases. Without a complete appellate record, we must presume the regularity of
the proceedings. State v. Newman, 6th Dist. Wood No. WD-15-031, 2016-Ohio-2667,

4.
 {¶ 7} In a motion dated September 14, 2017, Bigelow moved the trial court to

vacate the judicial sanction sentence imposed in case No. CR-97-1554. He argued that

post-release control was not properly ordered in the 1997 judgment entry, and by the time

the trial court corrected the entry in 2010 to properly impose post-release control, he had

already completed his sentence. Accordingly, he argued, the 1,444-day judicial sanction

imposed by the court in 2012 was void.

{¶ 8} The state responded that: (1) Bigelow was resentenced after July 11, 2006

(the effective date of H.B. 137), and under R.C. 2929.19(B)(3)(e), 2967.28(B), and

2929.14(B)(3), the failure of a sentencing court to notify the offender of post-release

control or to include it in the journal entry after this date “does not negate, limit, or

otherwise affect” the mandatory period or affect the authority to impose a prison term for

its violation; (2) Bigelow himself requested to be resentenced to correct the notification

and sentencing entry relative to the imposition of post-release control—at which time his

overall sentence in case No. CR-97-1554 was reduced—thus, he cannot now complain

that the resentencing occurred; and (3) Bigelow did not demonstrate that he relied on the

absence of post-release control at his resentencing.

{¶ 9} In a judgment entry journalized on December 6, 2017, the trial court denied

Bigelow’s motion “for the reasons stated in the State’s opposition.” Bigelow appealed

and assigns a single error for our review:

¶ 7; App.R. 9. We therefore assume that the judicial sanction was properly calculated
and complied with the sentence imposed.

5.
 The trial court erred when it denied Brian Bigelow’s motion to

vacate his judicial-sanction sentence. State v. Grimes, 151 Ohio St.3d 19,

2017-Ohio-2927, 85 N.E.3d 700. Dec. 5, 2017 Judgment Entry.

II. Law and Analysis

{¶ 10} Bigelow claims that the judicial sanction imposed by the court in 2012 is

invalid because the 1997 judgment entry in case No. CR-97-1554 did not comply with

the mandates set forth by the Ohio Supreme Court in Grimes, thereby rendering the

judgment void. He further claims that because he had completed his sentence by the time

he was resentenced in October of 2010, the error could not be corrected.

{¶ 11} The state argues that Bigelow invited error and is judicially estopped from

challenging his resentencing because he took a contrary position in requesting to be

resentenced. It contends that Bigelow’s sentence had not expired at the time of

resentencing because when consecutive prison terms are imposed, under Ohio Adm.Code

5120-2-03.1, “the term to be served is the aggregate of all of the stated prison terms so

imposed.” The state insists that the 1997 entry complied with then-existing law, Grimes

does not apply retroactively, and the information he received at the 1997 sentencing was

sufficient to put a reasonable person on notice of the terms and consequences of violating

post-release control. And it maintains that the 1997 entry was voidable, not void, and the

doctrine of res judicata prevents collateral attacks that were raised or could have been

raised on direct appeal of a voidable sentence.

6.
 {¶ 12} We review a trial court’s denial of a motion to vacate under a de novo

standard of review. State v. Brown, 11th Dist. Lake No. 2017-L-038, 2017-Ohio-7963,

¶ 8. Applying that standard, we find here that the trial court did not err in denying

Bigelow’s motion to vacate the judicial sanction.

A. Grimes is not applied retroactively.

{¶ 13} In Grimes, the Ohio Supreme Court examined what information a trial

court must include in a sentencing entry when imposing post-release control. It held that

the entry must specify (1) whether post-release control is discretionary or mandatory,

(2) the duration of the post-release-control period, and (3) a statement to the effect that

the Adult Parole Authority will administer the post-release control pursuant to R.C.

2967.28 and that any violation by the offender of the conditions of post-release control

will subject the offender to the consequences set forth in that statute. Id. at ¶ 1.

{¶ 14} In essence, Bigelow argues that Grimes must be applied retroactively. We

recently considered a similar argument in State v. Madrid, 6th Dist. Lucas No.

L-17-1299, 2018-Ohio-1873. In Madrid, the defendant argued that the trial court erred in

denying his motion to vacate his 1,361-day sentence imposed for his violation of post-

release control. He claimed that because the sentencing entry in his case did not contain

the information required by Grimes, his post-release control sanction should be vacated.

The state argued, inter alia, that the sentencing entry complied with the requirements in

effect at the time of sentencing, and it urged that Grimes should not be applied

retroactively.

7.
 {¶ 15} We held that under Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819

N.E.2d 687, Grimes did not apply retroactively. Ali at ¶ 6, citing State v. Evans, 32 Ohio

St.2d 185, 186, 291 N.E.2d 466 (1972) (A new judicial ruling “may not be applied

retroactively to a conviction that has become final,” and “may be applied only to cases

that are pending on the announcement date.”). We found that appellant had exhausted all

of his appellate remedies several years before Grimes and his motion to vacate was not

pending on the announcement date of Grimes, therefore, his conviction had already

become final and was not subject to the application of Grimes. And because his

sentencing entry complied with the then-existing body of case law concerning the

imposition of post-release control, we concluded that the trial court properly denied

appellant’s motion to vacate his post-release control sanction.

{¶ 16} But this case adds an extra layer of complexity that was not present in

Madrid. This is because the trial court—at Bigelow’s request and believing that it had

not properly advised Bigelow of “the applicable five-year period of post-release control

[and] penalty for violating that post-release control”—resentenced Bigelow in October of

2010. While it is undisputed that the 2010 resentencing entry contained all the required

information concerning post-release control, it was entered 13 years after the original

sentencing, therefore, Bigelow had already served his entire sentence in case No.

CR-97-1554; he had not, however, completed the terms imposed in case Nos.

CR-97-1309 and CR-97-2526. Accordingly, we must examine a number of issues in

evaluating Bigelow’s assignment of error, including:

8.
 (1) whether the 1997 entry complied with the then-existing body of law

concerning the imposition of post-release control;

(2) whether Bigelow was properly resentenced in October of 2010 in case

No. CR-97-1554 when he had served his entire sentence in that case but

had yet to complete the terms imposed consecutive to that sentence; and

(3) if, in fact, Bigelow was not properly resentenced in October of 2010 in

case No. CR-97-1554, whether the penalty for violation of post-release

control in case No. CR-97-1554 could properly be imposed in 2012.

B. The 1997 entry complied with then-existing law for post-release control.

{¶ 17} Bigelow does not claim that the trial court failed to orally notify him of the

mandatory term of post-release control and the consequences of violating it, and he did

not include in the record the transcript from the 1997 sentencing hearing. We, therefore,

presume that the proper advisements were made and that the only issue here is with

respect to the adequacy of the sentencing entry. See Grimes, 151 Ohio St.3d 19, 2017-

Ohio-2927, 85 N.E.3d 700, at ¶ 20 (recognizing that where no hearing transcript is

introduced into the record, we must assume the regularity of the sentencing hearing).

{¶ 18} On a number of occasions, this court has had the opportunity to consider

whether the language used by the trial court in the sentencing entry here—“Defendant

has been given notice under R.C. 2929.19(B)(3)”—was sufficient to meet the statutory

requirement to incorporate post-release control into the sentencing judgment entry. We

held that it was. State v. Milazo, 6th Dist. Lucas No. L-07-1264, 2008-Ohio-5137, ¶ 27;

9.
State v. Tribue, 6th Dist. Lucas Nos. L-10-1250, L-10-1251, 2011-Ohio-4282, ¶ 11

(“Because the trial court’s judgment entry of sentence referenced R.C. 2929.19(B)(3)(c)

and because that statute at that time referenced the postrelease control statute, R.C.

2967.28, the judgment entry was sufficient to impose postrelease control.”); State v.

Rossbach, 6th Dist. Lucas No. L-09-1300, 2011-Ohio-281, ¶ 104-108.

{¶ 19} Because the sentencing entry here provides that “Defendant has been given

notice under R.C. 2929.19(B)(3),” we find that the 1997 entry complied with then-

existing law for providing notice in a sentencing entry of the terms of post-release

control.

C. Bigelow was not properly resentenced in October of 2010.

{¶ 20} Despite our conclusion that the 1997 entry was proper, Bigelow filed a

motion for resentencing on November 18, 2009, on the basis that the court had failed to

properly advise him of the terms of post-release control and failed to incorporate the

notification into the sentencing entry. The trial court granted that motion and resentenced

Bigelow. When it did so, the court actually decreased Bigelow’s prison term from ten to

seven years.

{¶ 21} For criminal sentences imposed before July 11, 2006, R.C. 2929.191

permits a trial court to correct an error in a judgment entry relating to the imposition of

post-release control, but only if it does so before the offender’s release from

imprisonment as to that particular offense. A trial court may not resentence a defendant

to add a term of post-release control as a sanction for a particular offense after the

10.
defendant has already served the prison term for that offense. State v. Holdcroft, 137

Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 18. In other words, an entry cannot be

corrected after the offender has served his sentence for that offense, even if he is serving

a term of imprisonment on another offense. The Ohio Supreme Court clarified this in

Holdcroft when it held that “Neither this court’s jurisprudence nor Ohio’s criminal-

sentencing statutes allow a trial court to resentence a defendant for an offense when the

defendant has already completed the prison sanction for that offense. It is irrelevant

whether the defendant is still in prison for other offenses.” Id. at ¶ 19. This is because

“Ohio felony sentencing is offense-specific, not incarceration-specific, and a prison

sanction that forms a sentence for one offense cannot be packaged with a prison sanction

for another offense.” See Holdcroft at ¶ 13.

{¶ 22} The state argues that under the doctrines of judicial estoppel and invited

error, Bigelow cannot now challenge the October 2010 judgment entry. It also argues

that Bigelow received the benefit of the shorter sentence imposed in the second entry.

But Ohio courts recognize that “[p]arties to an action cannot, through invited error,

confer jurisdiction where none exists.” State v. Minkner, 194 Ohio App.3d 694, 2011-

Ohio-3106, 957 N.E.2d 829, ¶ 25 (2d Dist.). In fact, where the trial court modifies a

sentence without jurisdiction to do so, the original sentence must be reinstated. Id., citing

State v. Purnell, 171 Ohio App.3d 446, 2006-Ohio-6160, 871 N.E.2d 613, ¶ 12 (1st

Dist.).

11.
 {¶ 23} We find here that the trial court actually lacked jurisdiction to resentence

Bigelow in 2010 because Bigelow had served his sentence. The effect of this is that in

this case, the 1997 judgment remains valid, except as to the firearms specification

vacated by this court. Thus, the 1997 entry—not the 2010 entry—controls here.

D. The penalty for violation of post-release control was properly imposed.

{¶ 24} Because the court was without jurisdiction to resentence Bigelow after he

had fully served the prison sentence in case No. CR-97-1554, and because we have

determined that the imposition of post-release control in 1997 complied with then-

existing law, the trial court properly imposed the 1,444-day judicial sanction when

Bigelow was convicted of the offense in case No. CR-11-2596. We, therefore, conclude

that the trial court properly denied Bigelow’s motion to vacate judicial sanction.

{¶ 25} Accordingly, we find Bigelow’s sole assignment of error not well-taken.

III. Conclusion

{¶ 26} We conclude that (1) the trial court’s 1997 sentencing entry properly

notified Bigelow of post-release control requirements; (2) the trial court did not have

jurisdiction to resentence Bigelow in 2010, therefore, the 1997 sentencing entry controls;

(3) the Ohio Supreme Court’s decision in Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927,

85 N.E.3d 700, is not to be applied retroactively; and (4) the trial court properly ordered

Bigelow to serve 1,444 days for violation of post-release control upon his conviction in

case No. CR-11-2596.

12.
 {¶ 27} We, therefore, find Bigelow’s sole assignment of error not well-taken and

affirm the December 6, 2017 judgment of the Lucas County Court of Common Pleas.

The costs of this appeal are assessed to Bigelow under App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

13.