[Cite as State v. Smith, 2022-Ohio-832.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 110926
v. :
JOSEPH ALVIN SMITH III, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: March 17, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-657196-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender,
Robert B. McCaleb, Assistant Public Defender, for
appellee.
LISA B. FORBES, J.:
The state of Ohio (“the state”) appeals Joseph Alvin Smith III’s
(“Smith”) sentence, alleging the trial court erred in imposing a specific term of
postrelease control that is inconsistent with R.C. 2967.28(B)(4). Smith submitted a
“Notice of Conceded Error,” agreeing with the state. After reviewing the facts of the
case and pertinent law, we vacate the imposition of postrelease control and remand
for resentencing consistent with R.C. 2967.28.
I. Facts and Procedural History
In open court, Smith entered a plea of guilty to attempted felonious
assault, a felony of the third degree, in violation of R.C. 2923.02 and 2903.11(A)(1).
The trial court sentenced Smith to 18 months in prison and advised him that he “will
be subject to post-release control for three years upon release.” The prosecutor
stated as follows: “it’s my understanding the statute that relates to post-release
control has changed effective late last week, September 30th. * * * I think they have
a more definite period, so it’s a minimum and maximum term.” In response, the
court stated, “I will specify three years. If the Department of Rehabilitation and
Corrections [sic] takes issue with that, I will cross that bridge when I come to it.”
In its sentencing entry, the court stated, “18 months post release
control.” However, the court went on, “the defendant will/may be subject to a period
of post-release control of: a mandatory minimum of 18 months, up to a maximum
of 3 years.” It is from this entry that the state appeals.
II. Law and Analysis
The Ohio Supreme Court held “pursuant to R.C. 2967.28(B) * * *, a
trial court must inform the offender at sentencing or at the time of a plea hearing
that post-release control is part of the offender’s sentence.” Woods v. Telb, 89 Ohio
St.3d 504, 513, 733 N.E.2d 1103 (2000). Further, the trial court must inform the
offender of the proper amount of postrealease control and whether it is mandatory
or discretionary. When the trial court incorrectly informs the offender of postrelease
control pursuant to R.C. 2967.28, the imposition of postrelease control must be
vacated and remanded for resentencing. See State v. Wright, 2021-Ohio-3818, 180
N.E.3d 32, ¶ 26 (8th Dist.) (vacating the imposition of postrelease control and
remanding to the trial court for resentencing when the trial court imposed
mandatory rather than discretionary postrelease control).
Pursuant to R.C. 2967.28(B)(4), criminal defendants are subject to
“up to three years, but not less than one year” of postrelease control for a felony of
the third degree that is an offense of violence and not a felony sex offense. Further,
the parole board is the body that manages postrelease control after an offender is
released from prison. Id. Smith pled guilty to attempted felonious assault, a felony
of the third degree, which is an “offense of violence” under R.C. 2901.01(A)(9)(d)
and is not a felony sex offense. Therefore, Smith’s sentence should have included
that, upon his release from prison, he will be subject to postrelease control for up to
three years, but not less than one year.
At the sentencing hearing, the trial court informed Smith that he will
be subject to postrelease control upon his release from prison. However, a review of
the record reveals that the court made inconsistent statements in open court —
sentencing Smith to three years of postrelease control — and in its sentencing entry
— imposing 18 months to three years of postrelease control — neither of which
comports with R.C. 2967.28(B)(4). The state’s assignment of error is sustained.
Accordingly, we vacate the trial court’s imposition of postrelease
control and remand this case for resentencing in accordance with this opinion.
It is ordered that appellant recover from 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. Case remanded to the
trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LISA B. FORBES, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, A.J., CONCURS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, A.J., CONCURRING:
I fully concur with the majority opinion. Because we must remand
this case for the proper imposition of postrelease control, I find it necessary to
discuss the trial court’s statutory responsibility for imposing postrelease control as
part of a felony sentence in view of the amendment to R.C. 2967.28, effective
September 30, 2021.
As applicable in this case, R.C. 2967.28(B), as amended by 2021 Ohio
H.B. 110, Section 101.01, provides in relevant part:
(B) Each sentence to a prison term, other than a term of life
imprisonment, for a felony of the first degree, for a felony of the second
degree, for a felony sex offense, or for a felony of the third degree that
is an offense of violence and is not a felony sex offense shall include a
requirement that the offender be subject to a period of post-release
control imposed by the parole board after the offender’s release from
imprisonment. * * * This division applies with respect to all prison
terms of a type described in this division, including a non-life felony
indefinite prison term. * * * Unless reduced by the parole board
pursuant to division (D) of this section when authorized under that
division, a period of postrelease control required by this division for an
offender shall be of one of the following periods:
***
(4) For a felony of the third degree that is an offense of violence and is
not a felony sex offense, up to three years, but not less than one year.
(Emphasis added.)
Importantly, pursuant to R.C. 2967.28(B), the trial court must
include the required period of postrelease control in the offender’s sentence.
“R.C. 2967.28(B) requires that prison sentences for certain felonies include a
mandatory term of postrelease control to be imposed by the parole board after the
offender is released from imprisonment.” State v. Bates, Slip Opinion No. 2022-
Ohio-475, ¶ 10. “R.C. 2967.28(B) and (C) identify the length of the term of
postrelease-control supervision for each degree of felony.” Bates at ¶ 10.
As recently explained in Bates:
At its core, postrelease control is a sanction; it is an additional term of
supervision after an offender’s release from prison that imposes certain
restrictions on the offender and, if violated, it allows the [Adult Parole
Authority (“APA)”] to impose conditions and consequences, including
prison time, upon the offender. See R.C. 2967.01(N). Postrelease
control is “aimed at behavior modification in the attempt to reintegrate
the offender safely into the community.” Woods v. Telb, 89 Ohio St.3d
504, 512, 733 N.E.2d 1103 (2000); see also State v. Martello, 97 Ohio
St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 16. In essence,
postrelease control is a continued restraint on an offender’s liberty after
he or she serves the initial prison sentence. See Watkins v. Collins, 111
Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, ¶ 52; see also
Hernandez v. Kelly, 108 Ohio St. 3d 395, 2006-Ohio-126, 844 N.E.2d
301, ¶ 31, superseded by statute as stated in State v. Singleton, 124
Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.
Bates at ¶ 21.
Additionally, when imposing postrelease control, a trial court is
required to provide advisements at the sentencing hearing and also must
incorporate those advisements into the sentencing entry. As elaborated upon in
Bates:
It is established that “a trial court has a statutory duty to provide notice
of postrelease control at the sentencing hearing.” State v. Jordan, 104
Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23, overruled on
other grounds, [State v. Harper], 160 Ohio St.3d 480, 2020-Ohio-
2913, 159 N.E.3d 248. The trial court must advise the offender at the
sentencing hearing of the term of supervision, whether postrelease
control is discretionary or mandatory, and the consequences of
violating postrelease control. See [State v. Grimes], 151 Ohio St.3d 19,
2017-Ohio-2927, 85 N.E.3d 700, at ¶ 11. Among other consequences,
an offender’s violation of a postrelease-control sanction or condition
may result in the APA imposing a prison term on the offender.
R.C. 2967.28(F)(3). However, the maximum cumulative prison term
for all violations under R.C. 2967.28(F)(3) “shall not exceed one-half”
of the stated prison term originally imposed. Id.
In Grimes, we explained that once the court orally provides all the
required advisements at the sentencing hearing, it must then
incorporate those advisements into the sentencing entry. Id. at ¶ 8,
citing Jordan at ¶ 17. Thus, we held that to validly impose postrelease
control when the court provides all the required advisements at the
sentencing hearing, the sentencing entry must include:
(1) whether postrelease control is discretionary or mandatory, (2) the
duration of the postrelease-control period, and (3) a statement to the
effect that the [APA] will administer the postrelease control pursuant
to R.C. 2967.28 and that any violation by the offender of the conditions
of postrelease control will subject the offender to the consequences set
forth in that statute.
[Grimes] at ¶ 1.
Bates at ¶ 11-12.
Accordingly, upon remand in this case, the trial court is required to
include postrelease control as part of Smith’s sentence for the statutorily required
period of “up to three years, but not less than one year” pursuant to
R.C. 2967.28(B)(4), and the court must provide the required advisements and
incorporate those advisements into the sentencing entry.