Ohio Criminal Appeals Lawyer Blog

Today the Second District Court of Appeals decided State v. Hamby, 2011-Ohio-4542. The Court of Appeals reversed and remanded for the trial court to fix sentencing errors made by the trial court. First, Criminal Rule 32(C) requires that the judgment of conviction shall set forth the manner of conviction. In Hamby's case, the trial court indicated he had pled guilty but Hamby was convicted by a jury. Second, the trial court disapproved of transitional control for Hamby at sentencing and in the sentencing entry. This was plain error since the determination about transitional control must come near the end of a defendant's sentence, and it must be based a defendant's behavior during his prison term. Finally, the trial court sentenced Hamby to several terms of post-release control but terms of PRC must be served concurrently with each other. The Court of Appeals ordered the trial court to indicate that the terms of PRC must be served concurrently.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

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If you are on PRC you should check to see if the post-release control was properly imposed at your sentencing. If you were not properly notified of postrelease control, and the PRC you are serving is "void," then maybe the parole officers cannot be searching you, your vehicle, or your home under the authority granted to the APA. If the search or seizure was not otherwise allowed under the Fourth Amendment to the Constitution of the United States, you may be able to get the evidence suppressed.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Were you on post-release control and then charged with escape based on postrelease control as the detention you "escaped" from in Ohio? If you were not properly notified of the PRC you faced at your sentencing, you may be able to get out of your escape charge. If your post-release control was void and you were not properly under "detention," how could you be guilty of escape? It may be worth checking out.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Are you on post-release control in Ohio and you want to end your PRC? You may be able to. You'll have to check your sentencing entry and maybe the transcript from your sentencing hearing. If the trial judge failed to properly notify you about the PRC you faced, your post-release control could be void. Since you completed your prison term, the trial court cannot fix the problem and your PRC would be terminated. That is what happened in State v. Adkins, 2011-Ohio-2819.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

A Summit County trial judge sentenced a man to an aggregate seven year prison term on March 12, 2008. But the trial judge failed to properly sentence the defendant to postrelease control. So the case was remanded to the trial judge who corrected the postrelease control problem. But the trial judge also decided to triple the defendant's aggregate prison term. The Ninth District Court of Appeals for Summit County just ruled that the trial judge exceeded their authority in re-sentencing on anything other than the postrelease control. The aggregate seven year term remains. The Ninth District based its decision on the Ohio Supreme Court's decision in State v. Fischer, 2010-Ohio-6238. Read the Ninth District's decision here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private Ohio criminal defense attorney. Otherwise, contact your county or state public defender to see if they can help.

The Ohio Department of Rehabilitation and Correction placed a man on postrelease control even though no trial court properly included postrelease control in a valid sentence. While on this postrelease control, the man was charged with escape for failure to comply with the terms of his prc. Eventually, a trial court dismissed the indictment charging the man with escape and the State appealed. The Eighth District Court of Appeals says the APA had no authority to impose its postrelease control authority on the man so there was no escape. Read the decision here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.

A Clark County Ohio defendant was incorrectly sentenced in the Judgment Entry of Conviction and Sentence to "up to" three years of post-release control when he should have been sentenced to a mandatory three years of post-release control for his burglary conviction in April of 2007. The Second District Court of Appeals of Clark County just ruled that Ohio Revised Code Section 2929.191 applies to his case and he should be provided a hearing pursuant to that section so the trial court can impose the correct term of post-release control. The Court of Appeals decided the case you can read here, by relying on R.C. 2929.191(C) and State v. Fischer, 2010-Ohio-6238. Pursuant to Fischer, the rest of the defendant's sentence remains undisturbed.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.

The Fifth District Court of Appeals of Perry County, Ohio, just determined that a nunc pro tunc entry was insufficient to properly sentence a defendant to PRC (postrelease control). At the original sentencing hearing, the defendant was properly informed that they would have to serve a mandatory five years of PRC. But the sentencing entry incorrectly stated that PRC was mandatory "up to three years." There is no dispute there was an error. The question was how to fix it.

The trial court determined that it could just do a nunc pro tunc entry since the sentencing entry contained a clerical mistake since the defendant was properly notified at the sentencing hearing. But the Court of Appeals said that a full re-sentencing hearing was required based on State v. Bezak, 2007-Ohio-3250, and State v. Jordan, 2004-Ohio-6085. Not only that, but the Court of Appeals wrote that the defendant's argument that two offenses were allied offenses of similar import is "not ripe for appeal" even though the defendant already lost their appeal from the first, incorrect, sentencing entry. Read the decision here.

The way the cases are going, it may be worth it for you to hire me to look at your sentencing entry - even if you already had an appeal! You may be able to get a new sentencing hearing and appeal from that. On the other hand, maybe you should be careful what you wish for. Delawrence A. King got a new sentencing hearing and the trial judge imposed a longer sentence. The Ninth District Court of Appeals allowed this as you can read here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.

At the sentencing hearing, the trial judge stated that a term of post-release control did not apply to this aggravated murder case. Then in the Sentencing Entry the judge ordered the defendant to serve five years of post-release control. Both of these positions were incorrect and the Second District Court of Appeals reversed the sentence and remanded the case to the trial court so the defendant could be sentenced to the correct three year term of post-release control. Read the decision by clicking here.

I wrote about post-release control here.

Imposing the correct period of post-release control has been difficult in too many instances in Ohio. As a result, there are several cases decided by the Ohio Supreme Court which deal with how to handle a case where post-release control was either not imposed at all or not correctly imposed pursuant to Section 2967.28.

Today the Ohio Supreme Court ruled that (and this is from the Syllabus of the Court which is consistent with what is stated in the opinion you can read by clicking here, State v. Singleton, 2009-Ohio-6434), "[f]or criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease [sic] control, trial courts shall conduct a de novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio." That is right, a whole new sentencing hearing must be held under the remedy established by the Court which applies to any sentence imposed prior to July 11, 2006. It is as if the sentencing never took place just because the trial judge messed up on the post-release control.

The second part of the Court's holding today is that "[f]or criminal sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease [sic] control, trial courts shall apply the procedures set forth in R.C. 2929.191." R.C. 2929.191 allows the trial court to prepare and issue a correction to the judgment of conviction instead of having to have a new sentencing hearing.

Read the Ohio Supreme Court's decision in State v. Singleton, 2009-Ohio-6434, by clicking here or watch and/or listen to the oral argument by clicking here.

Post-release control is what people might generally understand to be "parole." By statute, trial judges must impose post-release control at sentencing. Ohio Revised Code Section 2967.28 clearly states that a period of post-release control must be either five years, three years or "up to" three years

If the judge is sentencing a defendant for a felony that is a sex offense, the judge must sentence the defendant to a five year term of post release control.

If the judge is sentencing a defendant for a felony of the first degree, the judge must sentence the defendant to a five year term of post release control.

If the judge is sentencing a defendant for a felony of the second degree that is not a sex offense, the judge must sentence the defendant to a three year term of post release control.

If the judge is sentencing a defendant for a felony of the third degree (not including felony sex offenses because those get five years of post release control as stated above) and in the course of committing that third degree felony the defendant either threatened physical harm or caused physical harm to a person, the judge must sentence the defendant to a three year term of post release control.

For any other felony not listed above, the trial judge must sentence the defendant to a term of post release control of up to three years and the parole board will determine if a period of post release control is "necessary for that offender."