[Cite as State v. Harris, 2022-Ohio-3310.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210661
TRIAL NO. B-0402915
Plaintiff-Appellee, :
vs. : O P I N I O N.
FRED HARRIS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 21, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Fred Harris appeals a nunc pro tunc sentencing
entry incorporating his specific postrelease-control obligations after serving his
sentence. Ultimately, we find no merit in his sole assignment of error, and we affirm
the trial court's judgment.
{¶2} On February 14, 2005, Harris pleaded no contest to and was convicted
of two counts of attempted murder, three counts of felonious assault, one count of
carrying a concealed weapon, and one count of escape. The attempted-murder counts
and the felonious-assault counts had accompanying firearm specifications. Harris was
sentenced to a total of 18 years in prison. The judgment entry stated, “As part of the
sentence in this case, the defendant is subject to the post release control supervision
of R.C. 2967.28.” Because we do not have a transcript from the original hearing, we
cannot determine whether Harris was properly informed of his postrelease-control
obligations. The entry, however, did not go into specifics.
{¶3} In 2007, Harris attempted to appeal those convictions. This court
dismissed the appeal because Harris failed to file a docket statement. Ten years later,
in April 2017, Harris filed a motion for a delayed appeal under App.R. 5 seeking review
of the trial court’s sentencing entry of February 14, 2005. We denied his motion and
dismissed the appeal.
{¶4} After his convictions in 2005, Harris filed numerous pro se motions
with the trial court, all of which were denied. On November 10, 2021, the trial court
appointed counsel to represent Harris. Subsequently, the court held a hearing on the
issue of postrelease control. Harris argued that because the state had not appealed
from the original judgment entry, the court lacked the authority to impose postrelease
control, and the issue was res judicata.
{¶5} The state argued that the court had authority to correct the judgment
entry under R.C. 2929.191, which sets forth procedures to correct a sentence that fails
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OHIO FIRST DISTRICT COURT OF APPEALS
to properly impose a term of postrelease control. See State v. Singleton, 124 Ohio
St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 23; State v. Williams, 1st Dist.
Hamilton No. C-081148, 2010-Ohio-1879, ¶ 21. For sentences imposed after July 11,
2006, the effective date of the statute, those procedures contemplate only a correction
of the postrelease-control defect and not a de novo resentencing. State v. Brown, 1st
Dist. Hamilton Nos. C-100309 and C-110310, 2011-Ohio-1029, ¶ 8. Harris was
originally sentenced before the effective date of the statute. For sentences imposed
before that date, R.C. 2929.191 requires a trial court to hold a hearing informing the
offender that he would be subject to postrelease control, the terms of postrelease
control, and the consequences of violating the terms of postrelease control.
{¶6} The trial court found that R.C. 2929.191 applied to Harris. It advised
Harris that when he was released from prison, he would be subject to (1) five years of
mandatory postrelease control on the two counts of attempted murder and one of the
counts of felonious assault, (2) three years of mandatory postrelease control on the
other two counts of felonious assault and escape count, and (3) three years of
discretionary postrelease control on the count of carrying a concealed weapon. The
court also informed Harris of the consequences for violating the terms of his
postrelease control. On December 9, 2021, the court journalized an entry nunc pro
tunc to February 14, 2005, specifying the terms of postrelease control. Harris has filed
a timely appeal from that judgment.
{¶7} In his sole assignment of error, Harris contends that the trial court’s
judgment is contrary to law. He argues that because neither he nor the state appealed
the trial court’s original entry, the trial court lacked jurisdiction to alter the entry with
respect to postrelease control, and the clarification or addition is barred by res
judicata. This assignment of error is not well taken.
{¶8} Former R.C. 2967.28(B), in effect at the time of the offense, required
prison sentences for felonies to include a mandatory or discretionary term of
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OHIO FIRST DISTRICT COURT OF APPEALS
postrelease control after the offender is released from prison. Former R.C. 2967.28(B)
and (C) identified the length of the term of postrelease-control supervision for each
degree of felony.
{¶9} Under former R.C. 2929.19(B), the trial court had a mandatory duty to
provide notice of postrelease control at the sentencing hearing. State v. Bates, 167
Ohio St.3d 197, 2022-Ohio-475, 190 N.E.3d 610, ¶ 10-11, citing State v. Jordan, 104
Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23. The court was required to
notify the defendant at the sentencing hearing of the term of supervision, whether
postrelease control was discretionary or mandatory and the consequences of violating
postrelease control. Bates at ¶ 11, citing State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-
2927, 85 N.E.3d 700, ¶ 11. The court was also required to incorporate the same
information in the sentencing entry. Bates at ¶ 12. As stated, we do not know whether
the trial court correctly informed Harris of his postrelease-control obligations at the
original sentencing hearing. We do know that the entry was insufficient.
{¶10} Prior to 2020, the Ohio Supreme Court held in series of cases beginning
with Jordan, that the trial court’s failure to validly impose postrelease control
rendered the sentence void and subject to correction at any time before the offender
was released from prison. Bates at ¶ 12. In response to those cases, the legislature
enacted R.C. 2929.191. State v. Ryan, 172 Ohio App.3d 281, 2007-Ohio-3092, 874
N.E.2d 853, ¶ 10-14 (1st Dist.). It established procedures to correct a sentence that
failed to properly impose a term of postrelease control. Singleton, 124 Ohio St.3d 173,
2009-Ohio-6434, 920 N.E.2d 958, at ¶ 23; Williams, 1st Dist. Hamilton No. C-081148,
2010-Ohio-1879, at ¶ 21. Which procedure applied depended upon whether the
offender was sentenced before or after July 11, 2006, the effective date of the statute.
{¶11} Subsequently, the Ohio Supreme Court held that R.C. 2929.191 could
not be applied retroactively. Singleton at ¶ 26; Williams at ¶ 21. Therefore, for
sentences imposed before July 11, 2006, the effective date of the statute, the trial court
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OHIO FIRST DISTRICT COURT OF APPEALS
must “conduct a de novo sentencing hearing in accordance with decisions of Supreme
Court of Ohio.” Singleton at paragraph one of the syllabus. Relying on its previous
decisions that declared sentences in which it held that postrelease control was not
properly imposed void, the court stated,
R.C. 2929.191 purports to authorize application of the remedial
procedure set forth therein to add postrelease control to sentences
imposed before its effective date. We recognize the General Assembly’s
authority to alter our caselaw's characterization of a sentence lacking
postrelease control as a nullity and to provide a mechanism to correct
the procedural defect by adding postrelease control at any time before
the defendant is released from prison. However, for sentences imposed
prior to the effective date of the statute, there is no existing judgment
for a sentencing court to correct. [R.C. 2929.191] cannot retrospectively
alter the character of sentencing entries issued prior to its effective date
that were nullities at their inception, in order to render them valid
judgments subject to correction. Therefore, for criminal sentences
imposed prior to July 11, 2006, in which a trial court failed to properly
impose postrelease control, the de novo sentencing procedure detailed
in decisions of the Supreme Court of Ohio should be followed to
properly sentence an offender.
Id. at ¶ 26.
{¶12} The court later clarified that when a trial court does not properly impose
postrelease control as part of a defendant’s sentence, only that part of the sentence is
void, not the entire sentence. Brown, 1st Dist. Hamilton Nos. C-100309 and C-
100310, 2011-Ohio-1029, at ¶ 9. Therefore, the new sentencing hearing to which the
offender is entitled is limited to the proper imposition of postrelease control. State v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Fisher, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph two of the
syllabus; Brown at ¶ 10.
{¶13} In State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d
248, the Ohio Supreme Court overruled the line of cases in which it had held that a
trial court’s failure to validly impose postrelease control rendered that part of the
sentence void. It stated, “Today, we realign our precedent in cases involving the
imposition of postrelease control with the traditional understanding of what
constitutes a void judgment.” Id. at ¶ 4. The court held that “[w]hen a case is within
a court’s subject-matter jurisdiction and the accused is properly before the court, any
error in the exercise of that jurisdiction in imposing postrelease control renders the
court’s judgment voidable, permitting the sentence to be set aside if the error has been
successfully challenged on direct appeal.” Id.
{¶14} Harris argues that under Harper, the failure to correctly impose
postrelease control rendered that part of the sentence voidable, and because the state
did not raise the issue on direct appeal, it is res judicata. He relies heavily on Bates,
167 Ohio St.3d 197, 2022-Ohio-475, 190 N.E.3d 610.
{¶15} In Bates, the original sentencing occurred in 2008, after the effective
date of R.C. 2929.191. The trial court failed to notify the defendant that postrelease
control was mandatory and the consequences of violating postrelease control. Neither
the state nor the defendant raised the issue of postrelease control on direct appeal. In
2018, the state raised the issue at a sexual-predator-classification hearing. At that
time, the trial court notified the defendant about postrelease control. Subsequently,
the court journalized a sentencing entry incorporating those notifications.
{¶16} The defendant appealed and challenged the postrelease-control portion
of the sentence. The appellate court affirmed the trial court’s decision. The defendant
appealed to the Ohio Supreme Court, which vacated the 2018 entry to the extent that
it imposed postrelease control. The court held that the state was the party aggrieved
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OHIO FIRST DISTRICT COURT OF APPEALS
by the trial court’s failure to properly impose postrelease control. Bates, 167 Ohio
St.3d 197, 2022-Ohio-475, 190 N.E.3d 610, at ¶ 20-22. It held that Harper applied to
the state as well as the defendant, and because the state had failed to raise the issue on
direct appeal it was barred by res judicata. Id. at ¶ 23-25.
{¶17} One of the dissents in Bates stated that R.C. 2929.191 applied, and that
it granted the trial court authority to hold a hearing and issue a corrected judgment
entry. Id. at ¶ 45. In response, the majority opinion stated that “R.C. 2929.191 does
not provide a resolution in this case * * *.” It acknowledged that R.C. 2929.191
“provides a procedure to correct a court’s failure to validly impose postrelease control.”
Id. at ¶ 30. But the statute required the trial court to hold a hearing and provide proper
notice of that hearing, which had not occurred in Bates. The court therefore did not
address the issue presented in this case: whether postrelease control can be clarified
by following the proper procedures under R.C. 2929.191 when the issue was not raised
on direct appeal. We also note that the court declined to “address the effect of the
trial court’s improper imposition of postrelease control on the [Adult Parole
Authority’s] ability to supervise Bates based on the facts and arguments” before them.
Id. at 30-31.
{¶18} It can be argued that the majority in Bates believed that R.C. 2929.191
was not operative after Harper. The opinion indicates that the majority did not agree
with the second dissenter’s statements that the court “need look no further than the
plain language of Ohio’s statutes” to decide the case, and that if the court “simply
follow[ed] the statutes,” the case would be easily resolved. Id. at ¶ 45 and 66 (Dewine,
J., dissenting). Further, if the majority believed that the statute still applied, it could
have remanded the case to the trial court to hold the hearing required by R.C.
2929.191(C), rather than conclude that the issue was not properly before it.
{¶19} Nevertheless, the court did not hold that R.C. 2929.191 does not apply
post-Harper, and specifically noted that the trial court failed to follow the procedures
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OHIO FIRST DISTRICT COURT OF APPEALS
in R.C. 2929.191. Following Harper, the failure to properly impose postrelease control
renders the sentence voidable in that regard, and not void, meaning that the parties
must raise it on direct appeal. But that requirement does not necessarily mean that
the statute is no longer operative.
{¶20} In this case, we agree with state’s position that R.C. 2929.191 applies,
and that the trial correctly followed the procedures in the statute. Harris has not
claimed that the statue is unconstitutional or repealed. Rather, he argues that after
Harper, the doctrine of res judicata renders it inoperative.
{¶21} This court cannot simply ignore the statute or declare it inoperative.
The General Assembly’s role is to enact legislation. See In re Estate of Centorbi, 129
Ohio St.3d 78, 2011-Ohio-2267, 950 N.E.2d 505, ¶ 11. The judiciary does not share the
responsibility of establishing legislative policies or second-guessing those policies.
Courts are charged with determining the constitutionality of statutes enacted by the
legislature. Stetter v. R.J. Corman Derailment Servs., LLC, 125 Ohio St.3d 280, 2010-
Ohio-1029, 927 N.E.2d 1092, ¶ 35; State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536,
¶ 19 (8th Dist.). “The judgment of the judiciary is not to be substituted for that of the
legislature when an issue is fairly debatable so that reasonable minds can differ.” Cent.
Motors Corp. v. Pepper Pike, 73 Ohio St.3d 581, 586-587, 653 N.E.2d 639 (1995),
quoting Gerijo v. Fairfield, 7o Ohio St.3d 223, 229, 638 N.E.2d 533 (1994).
{¶22} The legislature enacted R.C. 2929.191 in response to the Ohio Supreme
Court’s cases holding that the failure of the trial court to properly impose postrelease
control rendered that part of the sentence void. That line of cases has now been
overruled, but the statute is still in place. The legislature has not amended or repealed
it, and the Supreme Court has not squarely addressed its continued viability, noting
instead only that the procedure was not properly followed in Bates. We conclude that
R.C. 2929.191 remains viable, allowing the court to address the issue of postrelease
control postsentence.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} We cannot substitute our judgment for that of the legislature. We note
that two other appellate courts have also indicated that the statute still applies after
Harper. See State v. Patterson, 3d Dist. Hancock No. 5-20-32, 2021-Ohio-1237; State
v. Barnette, 7th Dist. Mahoning No. 19 MA 0114, 2020-Ohio-6817. Consequently, we
hold that the trial court did not err in finding that R.C. 2929.191 applied to Harris and
following the procedures set forth in the statute. We overrule Harris’s sole assignment
of error and affirm the trial court’s judgment.
Judgment affirmed.
ZAYAS and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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