State v. Jordan, 2002-1888

• Court: United States State Supreme Court of Ohio
• Citation: 104 Ohio St.3d 21,817 NE 2d 864
• Docket Number: No. 2002-1888,2003-0567.,2002-1888
• Parties: THE STATE OF OHIO, APPELLEE, v. JORDAN, APPELLANT. THE STATE OF OHIO, APPELLANT AND CROSS-APPELLEE, v. FINGER, APPELLEE AND CROSS-APPELLANT.
• Decision Date: 01 December 2004

104 Ohio St.3d 21

2004-Ohio-6085

817 NE 2d 864

2004-Ohio-6085

THE STATE OF OHIO, APPELLEE, v. JORDAN, APPELLANT.

THE STATE OF OHIO, APPELLANT AND CROSS-APPELLEE, v. FINGER, APPELLEE AND CROSS-APPELLANT.

Nos. 2002-1888, 2003-0567.

Supreme Court of Ohio.

Submitted March 30, 2004.

Decided December 1, 2004.

COPYRIGHT MATERIAL OMITTED

William D. Mason, Cuyahoga County Prosecuting Attorney, and Lisa Reitz Williamson, Assistant Prosecuting Attorney, for the state of Ohio.

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant Jordan in case No. 2002-1888 and for appellee and cross-appellant Finger in case No. 2003-0567.

Eric Allen and Paul Skendelas, urging reversal in case No. 2002-1888 for amicus curiae, Ohio Association of Criminal Defense Lawyers.

O'DONNELL, J.

{¶ 1} In these separate appeals, which we have consolidated for opinion purposes, we confront conflicting appellate resolutions of the situation that occurs when a trial court fails to notify an offender about postrelease control at the time of sentencing but incorporates that notice into its sentencing entry. We are called upon to settle the issue as presented in the following two cases:

State v. Elven Finger: case No. 2003-0567

{¶ 2} A Cuyahoga County petit jury returned verdicts finding Elven Finger guilty of three counts of felonious assault, all felonies of the second degree; for these offenses, R.C. 2967.28(B)(2) specifies a three-year period of mandatory postrelease control. Although the trial court did not notify Finger at the sentencing hearing that mandatory postrelease control would be part of his sentence, the court included it in the sentencing entry. Because the trial court did not notify Finger about postrelease control at the sentencing hearing, upon review, the appellate court ordered that postrelease control was not part of his sentence. State v. Finger, Cuyahoga App. No. 80691, 2003-Ohio-402, 2003 WL 194773, at ¶ 101.

State v. Lenorris Jordan: case No. 2002-1888

{¶ 3} Following his plea of no contest to one count of possession of cocaine, a felony of the fifth degree, the Cuyahoga County Court of Common Pleas convicted Lenorris Jordan of that offense. Upon the trial court determining that a prison term was necessary, R.C. 2929.19(B)(3)(d) required the court to advise Jordan that he could be subject to a period of postrelease control after his release from imprisonment if the parole board determined that to be necessary for him. The court did not notify Jordan at the sentencing hearing that he could be subject to postrelease control, but it included that notice in its sentencing entry. Upon appellate review, the court remanded the matter for resentencing. State v. Jordan, Cuyahoga App. No. 80675, 2002-Ohio-4587, 2002 WL 2027525, at ¶ 14-16.

{¶ 4} These cases are similar in that the trial courts in both instances failed to notify the offenders about postrelease control at the sentencing hearings but properly incorporated postrelease control into the respective sentencing entries. A chief distinction between them, however, arises in that State v. Finger involves a period of mandatory postrelease control, while State v. Jordan involves a period of up to three years of postrelease control imposed at the discretion of the Adult Parole Authority, provided however, that the trial court has complied with our decision in Woods v. Telb (2000), 89 Ohio St.3d 504, 733 N.E.2d 1103.

{¶ 5} One of the principal issues for our resolution, therefore, concerns whether a sentencing court satisfies R.C. 2929.19(B)(3) when it incorporates postrelease control into a sentencing entry but fails to notify the offender about it at the sentencing hearing.

{¶ 6} As a general rule, a court speaks only through its journal. Kaine v. Marion Prison Warden (2000), 88 Ohio St.3d 454, 455, 727 N.E.2d 907; Schenley v. Kauth (1953), 160 Ohio St. 109, 51 O.O. 30, 113 N.E.2d 625, paragraph one of the syllabus ("A court of record speaks only through its journal and not by oral pronouncement or mere written minute or memorandum"). "Were the rule otherwise it would provide a wide field for controversy as to what the court actually decided." Indus. Comm. v. Musselli (1921), 102 Ohio St. 10, 15, 130 N.E. 32.

{¶ 7} Crim.R. 32(C) is reflective of this long-standing rule in Ohio. Kaine, 88 Ohio St.3d at 455, 727 N.E.2d 907. It states:

{¶ 8} "A judgment of conviction shall set forth the plea, the verdict or findings, and the sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, the court shall render judgment accordingly. The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk." (Emphasis added.)

{¶ 9} In enacting Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, effective July 1, 1996, the General Assembly has placed additional duties on the trial courts of this state in furtherance of its goal of achieving "truth in sentencing." See State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 10; see, also, R.C. 181.24. The law now makes sentencing a more complex task and requires a court to make findings when it exercises its discretion to impose the maximum sentence, consecutive sentences, or more than the minimum sentence. See, inter alia, State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473; see, also, State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837. Now, in 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. See, e.g., R.C. 2925.02, 2929.11, 2929.12, 2929.13, 2929.14, 2929.15, and 2929.18. Nonetheless, in every sentencing, courts must follow the dictates of the General Assembly.

{¶ 10} Due to the present complexity of sentencing, S.B. 2 envisions participation by both the prosecutor and defense counsel at the sentencing hearing. See R.C. 2929.11 et seq. It also affords the parties meaningful review of sentencing decisions. R.C. 2953.08(G)(2); see, also, Comer, at ¶ 10; State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837.

{¶ 11} Today, we consider cases governed by R.C. 2929.19(B)(3), which states:

{¶ 12} "Subject to division (B)(4) of this section, if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:

{¶ 13} "* * *

{¶ 14} "(c) Notify the offender that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the first degree or second degree, for a felony sex offense, or for a felony of the third degree in the commission of which the offender caused or threatened to cause physical harm to a person;

{¶ 15} "(d) Notify the offender that the offender may be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the third, fourth or fifth degree that is not subject to division (B)(3)(c) of this section."¹

{¶ 16} In State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, we recently considered whether R.C. 2929.19(B)(2) requires a trial court, when imposing consecutive sentences, to make certain findings and to state its reasons for those findings at the sentencing hearing, or whether it could fulfill those requirements by incorporating them in its written sentencing entry. There, we held that "R.C. 2929.19 clearly prescribes what a trial judge must do and say at a felony sentencing hearing." Id. at ¶ 20. We also determined that requiring these statutory obligations to be satisfied at the sentencing hearing "comports with case law and with the purposes and intent of S.B. 2." Id. at ¶ 21. See, also, State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, where we held that "pursuant to R.C. 2929.19(B)(5), a trial court sentencing an offender to a community control sanction is required to deliver the statutorily detailed notifications at the sentencing hearing." (Emphasis added.) Id. at paragraph one of the syllabus.

{¶ 17} The reasoning in Comer and Brooks equally applies to R.C. 2929.19(B)(3) — a subdivision that expressly prescribes what a trial court must do "at the sentencing hearing" after it has decided to impose a prison term. Therefore, when sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about postrelease control² and is further required to incorporate that notice into its journal entry imposing sentence. Here, the trial courts erred by failing to notify Finger and Jordan about postrelease control at the sentencing hearings, despite incorporating that notice into their respective sentencing entries.

{¶ 18} The question then becomes whether, under these circumstances, the matter should be remanded for resentencing, as contended by the state, or whether postrelease control should be eliminated from the sentence, as argued by Finger and Jordan.

{¶ 19} 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...