Hernandez v. Kelly

• Decision Date: 12 January 2006
• Docket Number: No. 2005-2258.,2005-2258.
• Citation: 2006 Ohio 126,844 N.E.2d 301,108 Ohio St.3d 395
• Parties: HERNANDEZ v. KELLY, Warden.
• Court: Ohio Supreme Court

Page 301

844 N.E.2d 301

108 Ohio St.3d 395

2006-Ohio-126

HERNANDEZ v. KELLY, Warden.

No. 2005-2258.

Supreme Court of Ohio.

Submitted January 11, 2006.

Decided January 12, 2006.

John P. Parker, Cleveland, for petitioner.

Jim Petro, Attorney General, and M. Scott Criss, Assistant Attorney General, for respondent.

PER CURIAM.

{¶ 1} This is an action for a writ of habeas corpus to compel the release of a petitioner who is in prison for violating the terms of postrelease control imposed by the Ohio Adult Parole Authority ("APA"), when he was not notified at his sentencing hearing that he would be subject to postrelease control and the postrelease control was not incorporated into the trial court's sentencing entry.

The First Conviction

{¶ 2} In 1998, the Cuyahoga County Court of Common Pleas convicted petitioner, Henry Hernandez, upon a jury verdict finding Hernandez guilty of possession of cocaine in an amount exceeding 1,000 grams and conspiracy to possess cocaine, and accompanying specifications. The common pleas court sentenced Hernandez to an aggregate prison term of 19 years. The court advised Hernandez at his sentencing hearing that he was "being sent to prison and placed on post-release control by the Parole Board for a period of up to five years." This notification was erroneous because under R.C. 2967.28(B)(1), his offense warranted a mandatory postrelease control period of five years, not "up to" five years. The court also failed to incorporate its imposition of postrelease control into its sentencing entry.

Appeal of First Conviction and Remand

{¶ 3} On appeal, the Court of Appeals for Cuyahoga County reversed the judgment of conviction on the cocaine possession and conspiracy charges, as well as the specifications, and remanded the cause to the trial court for further proceedings. State v. Hernandez (Feb. 24, 2000), Cuyahoga App. No. 74757, 2000 WL 218384.

{¶ 4} On remand, at an August 9, 2000 hearing, Hernandez pleaded guilty to an amended charge of possession of cocaine in an amount exceeding 500 grams but not exceeding 1,000 grams in violation of R.C. 2925.11, a felony of the first degree. The prosecutor and defense counsel had agreed that, in exchange for Hernandez's guilty plea, the state would dismiss the remaining charge and specifications. The common pleas court accepted the plea agreement, convicted Hernandez, and sentenced him to a prison term of seven years. At his sentencing, the common pleas court did not notify Hernandez that he would be subject to postrelease control. In addition, the common pleas court did not incorporate a period of postrelease control in its journal entries imposing sentence.

Action of the Adult Parole Authority

{¶ 5} On February 7, 2005, Hernandez completed his seven-year sentence and was released from prison and placed on postrelease control for five years by the Adult Parole Authority.

{¶ 6} In June 2005, Hernandez was detained by Texas State Troopers after a car in which he was a passenger was stopped for speeding and approximately $18,000 was found inside the car. The Adult Parole Authority conducted a hearing and determined that Hernandez had violated several conditions of his postrelease control. In October 2005, the APA imposed a prison sentence of 160 days, with continued APA supervision upon his release.

{¶ 7} On December 1, 2005, Hernandez filed this action for a writ of habeas corpus to compel respondent, Lorain Correctional Institution Warden Bennie Kelly, to release him from prison and from any further postrelease control.

{¶ 8} This cause is now before us for a consideration of the merits.

Habeas Corpus

{¶ 9} "A writ of habeas corpus is warranted in certain extraordinary circumstances `where there is an unlawful restraint of a person's liberty and there is no adequate remedy in the ordinary course of law.'" Johnson v. Timmerman-Cooper (2001), 93 Ohio St.3d 614, 616, 757 N.E.2d 1153, quoting Pegan v. Crawmer (1996), 76 Ohio St.3d 97, 99, 666 N.E.2d 1091.

{¶ 10} Hernandez asserts that he is entitled to be released from prison and from any further postrelease control because the trial court did not notify him at his sentencing hearing that he would be subject to postrelease control and did not incorporate postrelease control into its sentencing entry.

{¶ 11} In general, "[s]entencing errors by a court that had proper jurisdiction cannot be remedied by extraordinary writ," because the petitioner "has or had adequate remedies in the ordinary course of law, e.g., appeal and postconviction relief, for review of any alleged sentencing error." State ex rel. Jaffal v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107.

{¶ 12} This precedent is inapposite, however, because Hernandez is not challenging his sentencing entry. He is instead challenging the Adult Parole Authority's decision — not a court's decision — to place him on postrelease control and the APA's subsequent decision to sanction him for violating the terms of that control. Habeas corpus will lie to challenge certain decisions of the Adult Parole Authority because there is no remedy of appeal available. See State ex rel. Jackson v. McFaul (1995), 73 Ohio St.3d 185, 187, 652 N.E.2d 746.

{¶ 13} Therefore, Hernandez's petition states a potentially viable habeas corpus claim.

Postrelease Control: Failure to Notify Offender

{¶ 14} "[I]n order to properly impose sentence in a felony case, a trial court must consider and analyze numerous sections of the Revised Code to determine applicability and must provide notice to offenders at the sentencing hearing and incorporate that notice into its journal entry." State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 9.

{¶ 15} More pertinently, "[w]hen sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about postrelease control and is further required to incorporate that notice into its journal entry imposing sentence." Id. at paragraph one of the syllabus.

{¶ 16} The trial court in Hernandez's case committed error because it did not notify him at his sentencing hearing that he would be subject to mandatory postrelease control and did not incorporate postrelease control into its sentencing entry. Warden Kelly argues that notwithstanding this error, the Adult Parole Authority was authorized to impose postrelease control on Hernandez because its authority and duty to do so emanate from R.C. 2967.28.

{¶ 17} Under R.C. 2967.28(B), each sentence imposing a prison term for certain offenses — including first-degree felonies — "shall include a requirement that the offender be subject to a period of postrelease control imposed by the parole board after the offender's release from imprisonment." The period of postrelease control for first-degree felonies is five years. R.C. 2967.28(B)(1). "If a post-release control sanction is imposed upon an offender under [R.C. 2967.28], the offender upon release from imprisonment shall be under the general jurisdiction of the adult parole authority * * *." R.C. 2967.28(F)(1).

{¶ 18} Notwithstanding Warden Kelly's argument to the contrary, nothing in R.C. 2967.28 authorizes the Adult Parole Authority to exercise its postrelease-control authority if postrelease control is not imposed by the trial court in its sentence. See, e.g., R.C. 2929.14(F) ("If a court imposes a prison term of a type described in division (B) of section 2967.28 of the Revised Code, it shall include in the sentence a requirement that the offender be subject to a period of post-release control after the offender's release from imprisonment, in accordance with that division" [emphasis added]); Woods v. Telb (2000), 89 Ohio St.3d 504, 512, 733 N.E.2d 1103 ("post-release control is part of the original judicially imposed sentence" [emphasis added]). Here the trial court failed to comply with its clear duty to advise Hernandez of the statutorily required postrelease control.

{¶ 19} As we observed in Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19, this construction avoids any potential separation-of-powers problem:

{¶ 20} "In Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103, we detailed the constitutional significance of a trial court including postrelease control in its sentence. We stated that because the separation-of-powers doctrine precludes the executive branch of government from impeding the judiciary's ability to impose a sentence, the problem of having the Adult Parole Authority impose postrelease control at its discretion is remedied by a trial court incorporating postrelease control into its original sentence. Id. at 512-513, 733 N.E.2d 1103. Consequently, unless a trial court includes postrelease control in its sentence, the Adult Parole Authority is without authority to impose it." (Emphasis added.)

{¶ 21} Warden Kelly further contends that Jordan and Woods do not apply in this case, because Hernandez was subject to mandatory postrelease control and Jordan and Woods should be limited to discretionary postrelease control.

{¶ 22} Kelly's contention lacks merit because one of the consolidated cases in Jordan involved mandatory postrelease control imposed under R.C. 2967.28(B). Id. at ¶ 2. We expressly determined that "the distinction between discretionary and mandatory postrelease control is one without a difference with regard to the duty of the trial court to notify the offender at the sentencing hearing and to incorporate postrelease control notification into its journal entry." Id. at ¶ 22.

{¶ 23} Nor is there merit in Kelly's additional assertion that Jordan should not be retroactively applied to cases like this in which the conviction became final before the court's decision in Jordan. Cf., e.g., Jimison v. Wilson, 106 Ohio St.3d 342, 2005-Ohio-5143, 835 N.E.2d 34, ¶ 12, quoting Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6-7 ("`A new judicial ruling may be applied only to cases...