State v. Bezak

Lanzinger, J.,

dissenting.

{¶ 23} I disagree with the majority’s determination that Bezak should be subject to resentencing. In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, we severed certain subsections of Ohio felony sentencing statutes to comply with Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, on which the majority seems to rely in part, is no longer vital, since it relied on unconstitutional statutes. See State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 26, fn. 7.

{¶ 24} Although as a result of Foster, trial judges are freed from making certain findings that earlier they had been required to make, other statutes remain unaffected by the severance remedy. The mandatory notification provisions within R.C. 2929.19, for example, provide that at the sentencing hearing the court must notify the offender of mandatory postrelease control (R.C. 2929.19(B)(3)(c)) or discretionary postrelease control (R.C. 2929.19(B)(3)(d)) and the consequences of a violation of postrelease control (R.C. 2929.19(B)(3)(e)).

{¶ 25} We have held that notification must be placed in a journal entry as well as given to the defendant at the sentencing hearing. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864. This case asks what happens when the mandatory notification was not given but the offender has already served the stated prison term.

{¶ 26} The General Assembly has recently enacted a statute, Am.Sub.H.B. No. 137, effective July 11, 2006, that answers the question of what a trial court must do to correct an inadequate notification. According to the statute, a trial court’s failure to include postrelease control in a prison sentence is to be remedied while the offender is still in prison. R.C. 2929.191(A) provides: “(1) If, prior to the effective date of this section, a court imposed a sentence including a prison term of a type described in division (B)(3)(c) of section 2929.19 of the Revised Code and failed to notify the offender pursuant to that division that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison or to include a statement to that effect in the judgment of conviction entered on the journal or in the sentence pursuant to division (F)(1) of section 2929.14 of the Revised Code, at any time before the offender is released from imprisonment under that term and at a hearing conducted in accordance with division (C) of this section, the court may prepare and issue a correction to the judgment of conviction that includes in the judgment of conviction the statement that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison.” The next paragraph of this subsection contains a corresponding provision regarding the notification of discretionary postrelease *100control required by R.C. 2929.19(B)(3)(d), and a similar remedy for failure to notify an offender of the consequences of a violation of postrelease control is discussed in R.C. 2929.191(B)(1). Before making a correction under this statute, a court must conduct a hearing pursuant to R.C. 2929.191(C).

{¶ 27} R.C. 2929.191(A)(2) discusses the method and effect of a correction. “If a court prepares and issues a correction to a judgment of conviction as described in division (A)(1) of this section before the offender is released from imprisonment under the prison term the court imposed prior to the effective date of this section, the court shall place upon the journal of the court an entry nunc pro tunc to record the correction to the judgment of conviction and shall provide a copy of the entry to the offender or, if the offender is not physically present at the hearing, shall send a copy of the entry to the department of rehabilitation and correction for delivery to the offender. If the court sends a copy of the entry to the department, the department promptly shall deliver a copy of the entry to the offender. The court’s placement upon the journal of the entry nunc pro tunc before the offender is released from imprisonment under the term shall be considered, and shall have the same effect, as if the court at the time of original sentencing had included the statement in the sentence and the judgment of conviction entered on the journal and had notified the offender that the offender will be so supervised regarding a sentence including a prison term of a type described in division (B)(3)(c) of section 2929.19 of the Revised Code or that the offender may be so supervised regarding a sentence including a prison term of a type described in division (B)(3)(d) of that section.” (Emphasis added.)

{¶ 28} In other words, the General Assembly has enacted a procedure whereby postrelease control may be properly authorized and given effect, even though initial notification was inadequate, if the offender has not been released from prison. But Bezak has already served his stated prison term.

{¶ 29} In Bezak’s case, the issue of postrelease control was at least mentioned by the trial court: “You’ll be out in the not too distant future, at that point you won’t have a — probably will not be on post-release control given that it’s a six-month sentence, but I can’t guarantee that.” Counsel had the opportunity to explore the meaning of postrelease control with the court on behalf of his client, but apparently nothing further was said, although postrelease control was stated to be part of the sentence in the judgment entry.

{¶ 30} The majority relies on State v. Beasley (1984), 14 Ohio St.3d 74, 14 OBR 511, 471 N.E.2d 774, which I believe to be distinguishable. Beasley involved the sentencing procedure in effect before Senate Bill 2,1 and the trial court disregarded the mandatory minimum prison term of two to 15 years with an optional fine *101for felonious assault and instead imposed only a fine. Beasley held that “[a]ny attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.” Id. at 75, 14 OBR 511, 471 N.E.2d 774. The trial court in Beasley had exceeded its authority by-disregarding the statute and imposing a void, that is, an unauthorized sentence. Bezak, however, has not challenged his stated prison term as being unauthorized by statute. He attacks only the notification provision.

William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allen Regas, Assistant Prosecuting Attorney, for appellee. Robert L. Tobik, Cuyahoga County Public Defender, John T. Martin and Cullen Sweeney, Assistant Public Defenders, and James Foley, Assistant State Public Defender, for appellant.

{¶ 31} I am extremely troubled by the majority’s application of the term “void” to Bezak’s case. The majority states that an imperfect notification regarding postrelease control will void the sentence “ ‘as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment’ ” (emphasis added), quoting Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267-268, 39 O.O.2d 414, 227 N.E.2d 223. I believe this holding undermines the principles of res judicata that we discussed in State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824.

{¶ 32} The sentencing court did not properly notify Bezak of the possibility that he would be subject to postrelease control upon his release from prison. Although the General Assembly has now provided a procedure by which this type of error must be corrected, the correction is to be made while the offender is still in prison. I do not agree that Bezak’s prison term, which he has already served, is a nullity. I would strictly construe the provisions of R.C. 2929.191 concerning the correction of notifications and hold that an offender who is released after completing a stated prison term may not be subject to the correction of a notification error pursuant to R.C. 2929.191. I would reverse the decision of the court of appeals.

. Am.Sub.S.B. No. 2,146 Ohio Laws, Part IV, 7136.