State ex rel. Cruzado v. Zaleski

• Decision Date: 22 November 2006
• Docket Number: No. 2006-1007.,2006-1007.
• Citation: 856 N.E.2d 263,111 Ohio St.3d 353,2006 Ohio 5795
• Parties: The STATE ex rel. CRUZADO v. ZALESKI, Judge.
• Court: Ohio Supreme Court

856 N.E.2d 263

111 Ohio St.3d 353

2006-Ohio-5795

The STATE ex rel. CRUZADO v. ZALESKI, Judge.

No. 2006-1007.

Supreme Court of Ohio.

Submitted August 8, 2006.

Decided November 22, 2006.

John P. Parker, Cleveland, for relator.

Dennis P. Will, Lorain County Prosecuting Attorney, and M. Robert Flanagan, Assistant Prosecuting Attorney, for respondent.

David H. Bodiker, State Public Defender, and Stephen P. Hardwick, Assistant Public Defender, urging granting of writ, for amicus curiae, Ohio Public Defender.

PER CURIAM.

{¶ 1} This is an original action for a writ of prohibition to vacate an entry resentencing a criminal defendant. The new sentencing entry includes a statutorily mandated period of postrelease control that was not present in the original sentencing entry. The trial court judge did not patently and unambiguously lack jurisdiction to issue the new entry, because the defendant's original sentence had not expired, and therefore we deny the writ.

Robbery and Attempted Escape: 2003 Common Pleas Court Proceedings

{¶ 2} In February 2003, in separate indictments, relator, Brandon Cruzado, was charged with one count of robbery, a felony of the second degree, with an accompanying firearm specification, and one count of attempted escape, a felony of the third degree. On April 7, 2003, Cruzado entered guilty pleas to the robbery and attempted-escape charges. In the written pleas that Cruzado signed, he was notified about postrelease control:

{¶ 3} "If you are sentenced to prison for a 2nd or a 3rd degree felony where the 3rd degree felony involves causing or threatening physical harm, you will have mandatory post-release control of three (3) years. If you receive prison for a non-violent 3rd, 4th, or 5th degree felony, you may be given up to three (3) years of post-release control."

{¶ 4} At the plea hearing, respondent, Lorain County Common Pleas Court Judge Edward M. Zaleski, accepted Cruzado's guilty pleas after determining that the pleas were knowingly, intelligently, and voluntarily made. At this hearing, Cruzado responded affirmatively to Judge Zaleski's asking, "Do you understand that upon your release from the institution, you will have five years of post-release control with the Adult Parole Authority and the Adult Parole Authority could return you to prison for up to nine months if you violate their conditions to a maximum of 50 percent additional time?"

{¶ 5} On July 7, 2003, Judge Zaleski again notified Cruzado that after he finished serving his prison sentence, he would be placed on postrelease control:

{¶ 6} "Now, upon your release from the institution, you will have five years of post-release control with the Adult Parole Authority. And if you violate their terms, they may impose a nine month prison term for each violation up to a maximum of 50 percent of the stated term originally imposed. Fifty percent of three years is 1-1/2 years."

{¶ 7} Judge Zaleski's specification of a postrelease-control period of five years at both the plea and sentencing hearings was incorrect because Cruzado's second-degree-felony conviction for robbery required a postrelease-control period of only three years. R.C. 2967.28(B)(2). There was no objection made to the erroneous statements at either hearing.

{¶ 8} On July 18, 2003, Judge Zaleski sentenced Cruzado to terms of three years for robbery and one year for attempted escape, to be served concurrently. In the sentencing entry for Cruzado's robbery conviction, the form used by Judge Zaleski included some language regarding "post conviction control," but this applied only to an unchecked section for repeat violent offenders and major drug offenders, which did not apply to Cruzado. The parties agree that the July 18, 2003 sentencing entry did not contain a written statement concerning postrelease control. The July 18, 2003 sentences were not appealed.

Resentencing: 2006 Common Pleas Court Proceeding

{¶ 9} On May 24, 2006, before the expiration of Cruzado's three-year sentence for his robbery conviction, Judge Zaleski held a resentencing hearing at which he informed Cruzado of his mandatory three-year period of postrelease control:

{¶ 10} "[U]pon your release from the institution, you will be placed on post-release control for a period of a mandatory three years. For violating post-release control conditions, the Adult Parole Authority or Parole Board may impose a more restrictive or longer controlled sanction, including a nine month prison term, for each violation up to a maximum of 50 percent of the stated term original[ly] imposed."

{¶ 11} Judge Zaleski also issued a judgment entry reflecting his resentencing of Cruzado to a three-year term for his robbery conviction and a mandatory three-year period of postrelease control. Upon the expiration of his robbery sentence Cruzado was released from prison and was placed on a three-year term of postrelease control, as ordered by Judge Zaleski's resentencing order.

Prohibition Case

{¶ 12} Cruzado filed this action for a writ of prohibition two days before his resentencing to prevent Judge Zaleski from conducting the hearing. At the time, Cruzado's sentence for his attempted-escape conviction had expired, and his sentence for his robbery conviction was set to expire on June 6, 2006. On June 2, we granted an alternative writ and ordered the parties to submit evidence and briefs. The Ohio Public Defender submitted amicus curiae briefs in support of Cruzado.

{¶ 13} This cause is now before us for our consideration of the merits.

{¶ 14} Because the resentencing hearing has already occurred, Cruzado now requests a writ of prohibition to vacate the resentencing and void his postrelease control. Judge Zaleski counters that this case is now moot because prohibition will not issue to review an accomplished act.

{¶ 15} Judge Zaleski's contention lacks merit. A "prohibition action is not necessarily rendered moot when the act sought to be prevented occurs before a court can rule on the prohibition claim." State ex rel. Consumers' Counsel v. Pub. Util. Comm., 102 Ohio St.3d 301, 2004-Ohio-2894, 809 N.E.2d 1146, ¶ 11; see, also, State ex rel. Brady v. Pianka, 106 Ohio St.3d 147, 2005-Ohio-4105, 832 N.E.2d 1202, ¶ 8. "If a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition * * * will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions." (Emphasis added.) State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12.

{¶ 16} Nevertheless, if the lower court does not patently and unambiguously lack jurisdiction to proceed, that court has general subject-matter jurisdiction to determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal. Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶ 12. Under these circumstances, extraordinary relief in prohibition will not lie. State ex rel. Downs v. Panioto, 107 Ohio St.3d 347, 2006-Ohio-8, 839 N.E.2d 911, ¶ 27 ("prohibition will not issue if the relator has an adequate remedy in the ordinary course of law").

{¶ 17} Cruzado asserts that he is entitled to the writ because Judge Zaleski patently and unambiguously lacked jurisdiction to modify his 2003 sentencing entry to include postrelease control.

{¶ 18} It is true, as Cruzado asserts, that "trial courts lack authority to reconsider their own valid final judgments in criminal cases." State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335, 338, 686 N.E.2d 267; State ex rel. Hansen v. Reed (1992), 63 Ohio St.3d 597, 599, 589 N.E.2d 1324.

{¶ 19} It is equally true, however, that this general rule is subject to two exceptions under which the trial court retains continuing jurisdiction. State v. Garretson (2000), 140 Ohio App.3d 554, 559, 748 N.E.2d 560. First, a trial court is authorized to correct a void sentence. Id., citing State v. Beasley (1984), 14 Ohio St.3d 74, 75, 14 OBR 511, 471 N.E.2d 774. Second, a trial court can correct clerical errors in judgments. Id., citing Crim.R. 36 ("Clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time"). "The term `clerical mistake' refers to a mistake or omission, mechanical in nature and apparent on the record, which does not involve a legal decision or judgment." See, e.g., State v. Brown (2000), 136 Ohio App.3d 816, 819-820, 737 N.E.2d 1057. Although courts possess inherent authority to correct clerical errors in judgment entries so that the record speaks the truth, "nunc pro tunc entries `are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided.'" Mayer, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 14, quoting State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 164, 656 N.E.2d 1288.

{¶ 20} Judge Zaleski's error falls within the first exception.¹ In the July 2003 sentencing entry for Cruzado's robbery conviction, Judge Zaleski did not include the three-year postrelease-control term, which R.C. 2967.28(B)(2) requires for a second-degree-felony conviction such as Cruzado's. "Any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void." Beasley, 14 Ohio St.3d at 75, 14 OBR 511, 471 N.E.2d 774. "[W]here a sentence is void because it does not contain a statutorily mandated term, the proper remedy is * * * to resentence the defendant." State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23.

{¶ 21} In Jordan at ¶ 27, we held that "when a trial court fails to notify an offender about postrelease control at the sentencing hearing but incorporates that notice into its journal entry imposing sentence, it fails to comply with the mandatory provisions of R.C. 2929.19(B)(3)(c) and (d), and,...