Ohio Criminal Appeals Lawyer Blog

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."