State v. Bates (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Bates, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                           SLIP OPINION NO. 

              THE STATE OF OHIO, APPELLEE, v. BATES, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State v. Bates, Slip Opinion No. 

.]
Criminal law—Postrelease control—A collateral attack on the trial court’s
        imposition of postrelease control in the sentence must be brought on direct
        appeal or it will be barred by res judicata—Court of appeals’ judgment
        reversed and trial-court order vacated in part.
    (No. 2020-0255—Submitted March 3, 2021—Decided February 22, 2022.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                               No. 107868, 

.
                                 _____________________
        O’CONNOR, C.J.
        {¶ 1} In this appeal, we consider the application of our recent decisions in
State v. Harper, 

, 

, 

, and State
v. Hudson, 

, 

, 

. In 2008, the
trial court failed to include in appellant Robert Bates’s sentencing entry a statement
that postrelease control was mandatory and that a violation of postrelease control
                              SUPREME COURT OF OHIO




would subject him to the consequences set forth in R.C. 2967.28. Ten years later,
in 2018, the state brought this error to the trial court’s attention and the court issued
a new sentencing entry that included the required notification as to the postrelease-
control portion of Bates’s sentence. Based on this court’s previous void-sentence
jurisprudence, the Eighth District Court of Appeals affirmed the trial court’s 2018
judgment. Subsequent to our acceptance of this appeal, we decided Harper, which
overruled the void-sentence jurisprudence on which the court of appeals here relied.
See id. at ¶ 5, 40. For the following reasons, we reverse the Eighth District’s
judgment and vacate the portion of the 2018 sentencing entry imposing postrelease
control.
                              I. Relevant Background
        {¶ 2} In October 2008, the Cuyahoga County Court of Common Pleas
sentenced Bates to a nine-year prison term for his convictions of kidnapping, rape,
and robbery. The trial court held a sentencing hearing; however, the transcript of
the hearing was not made part of the record in this appeal. According to Bates, the
trial court failed to advise him at the sentencing hearing of the consequences of
violating postrelease control. A few days later, the court journalized its sentencing
entry. The portion of the entry concerning postrelease control stated: “Post release
control is part of this prison sentence for 5 years for the above felony(s) under R.C.
2967.28.”
        {¶ 3} Bates filed a direct appeal challenging his convictions. Neither Bates
nor the state challenged the postrelease-control portion of his sentence on appeal.
State v. Bates, 8th Dist. Cuyahoga No. 92323, 

. The Eighth
District affirmed Bates’s convictions. Id. at ¶ 1. We declined discretionary review.
State v. Bates, 

, 

, 

.
        {¶ 4} In October 2018, ten years after Bates’s original sentencing, the trial
court held a classification hearing on Bates’s sexual-predator status. At this
hearing, the prosecutor raised an issue concerning the trial court’s 2008 imposition




                                           2
                                      January Term, 2022




of postrelease control.         The prosecutor explained that he had reviewed the
sentencing entry and discovered that the trial court had failed to include in that entry
notification of the mandatory nature of postrelease control and notification of the
consequences for violating postrelease control. Based on this court’s decision in
State v. Grimes, 

, 

, 

, overruled on
other grounds, Harper, 

, 

, 

, the
prosecutor believed that the court needed to inform Bates of these aspects of
postrelease control before his release from prison. Over objection, the court
proceeded to advise Bates of his postrelease-control obligations and the
consequences of violating postrelease control.
         {¶ 5} A few days later, the trial court journalized this information in a new
sentencing entry. Specifically, it noted that Bates’s sentence included mandatory
three- and five-year terms of postrelease control and that if Bates violated his
supervision or a condition of postrelease control, the parole board could impose a
prison term, as part of his sentence, of up to one-half of the original prison sentence
imposed. Bates appealed this entry to the Eighth District.1
         {¶ 6} On appeal, Bates challenged the postrelease-control portion of the
trial court’s 2018 sentencing entry. The Eighth District affirmed the sentence.

. Relying on State v. Simpkins, 

, 2008-Ohio-
1197, 

, and Grimes, the court of appeals concluded that the trial
court’s 2008 sentencing entry did not validly impose postrelease control, because
it failed to indicate that postrelease control was mandatory and it did not incorporate
a statement that the Adult Parole Authority (“APA”) would administer postrelease
control, pursuant to R.C. 2967.28, and that any violation of postrelease control
would subject Bates to additional consequences set forth in that statute. 

 at ¶ 20-


1. For reasons not relevant to this appeal, the Eighth District twice remanded the matter to the trial
court for it to issue a new final judgment. Both of the trial court’s subsequent entries contained
language regarding postrelease control identical to that in the October 2018 sentencing entry.




                                                  3
                             SUPREME COURT OF OHIO




21. The Eighth District therefore concluded that the postrelease-control portion of
Bates’s sentence, as imposed in 2008, was void. Id. at ¶ 21. But, because Bates
had not served his entire prison sentence at that point, the court of appeals also held
that “the trial court was permitted to correct the previously defective postrelease
control sanction” when it notified Bates of postrelease control at the 2018 hearing
and issued the corresponding entry. Id. at ¶ 26.
       {¶ 7} We accepted Bates’s discretionary appeal to address the following
proposition of law: “The failure to include a sentence of post-release control when
imposing a prison sentence must be corrected on direct appeal and failure to do so
precludes supervision on [postrelease control] at the end of the prison sentence.”
See 

, 

, 

.
                                    II. Analysis
       {¶ 8} Bates’s proposition of law is two-fold. First, Bates argues that the
trial court failed to properly impose postrelease control in 2008, rendering that
portion of his sentence voidable and subject to the doctrine of res judicata. He
asserts that res judicata precluded the trial court from correcting his sentence in
2018. Second, Bates contends that because the court failed to properly impose the
postrelease-control portion of his sentence in 2008, his original sentence never
included postrelease control and that this precluded the state from imposing
postrelease-control supervision at the end of his prison sentence.
       {¶ 9} Our recent decisions in Harper, 

, 

,

, and Hudson, 

, 

, 

, resolve the first issue. However, we cannot reach the second issue today based
on the facts and arguments before us.
                               A. Legal background
       {¶ 10} R.C. 2967.28(B) requires that prison sentences for certain felonies
include a mandatory term of postrelease control to be imposed by the parole board
after the offender is released from imprisonment. R.C. 2967.28(B) and (C) identify




                                          4
                                   January Term, 2022




the length of the term of postrelease-control supervision for each degree of felony.
At the sentencing hearing, the court must notify the offender of this mandatory
supervision under R.C. 2967.28(B). Former R.C. 2929.19(B)(3)(c).2 The court
also must notify the offender at the sentencing hearing that if he or she “violates
that supervision or a condition of post-release control * * *, the parole board may
impose a prison term, as part of the sentence, of up to one-half of the stated prison
term originally imposed upon the offender.” Former R.C. 2929.19(B)(3)(e).
        {¶ 11} It is established that “a trial court has a statutory duty to provide
notice of postrelease control at the sentencing hearing.” State v. Jordan, 

, 

, 

, ¶ 23, overruled on other grounds,
Harper, 

, 

, 

. The trial court
must advise the offender at the sentencing hearing of the term of supervision,
whether postrelease control is discretionary or mandatory, and the consequences of
violating postrelease control. See Grimes, 

, 

, 

, at ¶ 11. Among other consequences, an offender’s violation of a
postrelease-control sanction or condition may result in the APA imposing a prison
term on the offender. R.C. 2967.28(F)(3). However, the maximum cumulative
prison term for all violations under R.C. 2967.28(F)(3) “shall not exceed one-half”
of the stated prison term originally imposed. 

        {¶ 12} In Grimes, we explained that once the court orally provides all the
required advisements at the sentencing hearing, it must then incorporate those
advisements into the sentencing entry. Id. at ¶ 8, citing Jordan at ¶ 17. Thus, we
held that to validly impose postrelease control when the court provides all the
required advisements at the sentencing hearing, the sentencing entry must include:



2. The General Assembly has renumbered R.C. 2929.19(B) several times since Bates was sentenced
in 2008. Former R.C. 2929.19(B)(3)(c) and (e), as in effect on the date of Bates’s sentencing
hearing, are now R.C. 2929.19(B)(2)(d) and (f). 2018 Am.Sub.S.B. No. 201, Section 1. There has
been no substantive change in the wording of the statutes.




                                              5
                              SUPREME COURT OF OHIO




        (1) whether postrelease control is discretionary or mandatory, (2)
        the duration of the postrelease-control period, and (3) a statement to
        the effect that the [APA] will administer the postrelease control
        pursuant to R.C. 2967.28 and that any violation by the offender of
        the conditions of postrelease control will subject the offender to the
        consequences set forth in that statute.


Id. at ¶ 1. Prior to this court’s decision in Harper, a trial court’s failure to validly
impose postrelease control rendered the postrelease-control portion of the sentence
void and subject to correction at any time before the offender’s release from prison.
See generally Jordan, 

, 

, 

.
        {¶ 13} We recently overruled this void-sentence jurisprudence. Harper at
¶ 5, 40-41. In Harper, the court held that “[w]hen a case is within a court’s subject-
matter jurisdiction and the accused is properly before the court, any error in the
exercise of that jurisdiction in imposing postrelease control renders the court’s
judgment voidable.” Id. at ¶ 4. The court cautioned that this holding would apply
to both the state and the defendant. Id. at ¶ 43. The court then concluded that
because the trial court had subject-matter jurisdiction over the case and personal
jurisdiction over Harper, the trial court’s failure to include notice of the
consequences of violating postrelease control in the sentencing entry, as required
by Grimes, rendered Harper’s sentence voidable, not void, and therefore subject to
the doctrine of res judicata. Id. at ¶ 41.
        {¶ 14} Similar to Harper, in Hudson, 

, 

,

, the trial court failed to include notice of the consequences of
violating postrelease control in the sentencing entry. 

. The court
concluded that because the trial court had jurisdiction over both the case and
Hudson, any error in imposing postrelease control rendered the sentence voidable;
thus, res judicata barred Hudson’s collateral attack on his sentence. Id. at ¶ 16.




                                             6
                                January Term, 2022




 B. The 2018 sentencing entry is of no effect and the onus was on the state to
                                 file a direct appeal
       {¶ 15} As a preliminary matter, we reject the state’s request to dismiss this
appeal as improvidently allowed. The state asserts that Bates has abandoned the
issue raised below—i.e., his challenge to the trial court’s 2018 correction of his
2008 sentence—and now for the first time challenges the trial court’s imposition of
postrelease control at the 2008 sentencing hearing. We disagree.
       {¶ 16} In the court of appeals, Bates argued that “the trial court’s failure to
properly impose postrelease control rendered the postrelease control sanction
voidable, not void, and that the trial court erred by correcting the defective
imposition of postrelease control in 2018.” 

. Accordingly,
Bates certainly preserved his challenge to the trial court’s 2008 sentencing entry.
Moreover, at the time Bates appealed the 2018 sentencing entry, this court had not
yet decided Harper. Consequently, Bates’s argument that the trial court’s errors in
imposing postrelease control in 2008 now preclude his supervision on postrelease
control did not become an issue until his appeal reached this court.
       {¶ 17} Bates and the state agree that under Harper and Hudson, any error
in the trial court’s 2008 imposition of postrelease control rendered that portion of
the sentence voidable, not void, and therefore res judicata barred the court from
correcting the sentence in 2018. The parties, however, disagree regarding whose
burden it was in this case to raise the postrelease-control errors on direct appeal.
       {¶ 18} Neither Bates nor the state challenged the trial court’s 2008
imposition of postrelease control on direct appeal. See Bates, 8th Dist. Cuyahoga
No. 92323, 

. Bates contends that the burden was on the state to
appeal this issue. More specifically, Bates asserts that because the trial court failed
to notify him at the 2008 sentencing hearing of the consequences of violating
postrelease control, postrelease control was never imposed as part of his original
sentence. Thus, Bates argues, the fact that postrelease control was not part of his




                                          7
                             SUPREME COURT OF OHIO




sentence benefits him and hinders the state’s desire to have him under postrelease-
control supervision.
       {¶ 19} The state, on the other hand, maintains that Bates bore this
responsibility. The state does not disagree that errors occurred in the trial court’s
2008 imposition of postrelease control. But it believes that the burden is on the
defendant to raise these errors “at the earliest possible time.” Amicus curiae,
Attorney General of Ohio, agrees with the state. Specifically, the attorney general
argues that “[t]he party aggrieved by a trial court’s error is the party that bears
responsibility for appealing and correcting the mistake” and that here, the aggrieved
party was Bates.
       {¶ 20} “It is fundamental that appeal lies only on behalf of a party
aggrieved,” Ohio Contract Carriers Assn. v. Pub. Util. Comm., 

, 

 (1942), and for the purpose of “correct[ing] errors injuriously
affecting the appellant,” 

 at syllabus.     See also State ex rel. Gabriel v.
Youngstown, 

, 

 (1996). Accordingly, it
follows that the party that benefits from an error cannot be the party aggrieved. See
Dayton-Montgomery Cty. Port Auth. v. Montgomery Cty. Bd. of Revision, 

, 

, 

 (noting that the appellant was not
the proper party to assert an issue in its appeal “since it was benefited, not
aggrieved, by that error”), citing Ohio Contract Carriers Assn. at syllabus.
       {¶ 21} At its core, postrelease control is a sanction; it is an additional term
of supervision after an offender’s release from prison that imposes certain
restrictions on the offender and, if violated, it allows the APA to impose conditions
and consequences, including prison time, upon the offender. See R.C. 2967.01(N).
Postrelease control is “aimed at behavior modification in the attempt to reintegrate
the offender safely into the community.” Woods v. Telb, 

,

 (2000); see also State v. Martello, 

, 2002-Ohio-
6661, 

. In essence, postrelease control is a continued restraint




                                          8
                                January Term, 2022




on an offender’s liberty after he or she serves the initial prison sentence. See
Watkins v. Collins, 

, 

, 

, ¶ 52; see
also Hernandez v. Kelly, 

, 

, 

, superseded by statute as stated in State v. Singleton, 

,

, 

.          The trial court’s errors in imposing the
postrelease-control portion of the sentence were to Bates’s benefit; without
postrelease control properly imposed, his liberty would not be restrained after he
served his prison sentence and he would not be under the obligations associated
with supervision. The court’s errors therefore “injuriously affect[ed]” the state and
its interest in regulating Bates’s conduct so that he could be reintegrated safely back
into society. Ohio Contract Carriers Assn. at syllabus; see 

.
       {¶ 22} Res judicata does not occur in a vacuum. The party aggrieved by a
court’s error in imposing postrelease control must challenge it on direct appeal;
otherwise, the sentence will be subject to res judicata. Here, the trial court’s errors
in imposing postrelease control favored Bates; the state, as the aggrieved party,
should have appealed the 2008 entry to correct them. See State ex rel. Fraley v.
Ohio Dept. of Rehab. & Corr., 

, 

, 

.
       {¶ 23} The second dissenting opinion states that because the statutory
scheme “allows postrelease control to be imposed on Bates,” dissenting opinion of
DeWine, J., ¶ 72, he is the aggrieved party. But, as explained above, to validly
impose postrelease control as part of a defendant’s sentence, the trial court must
orally provide all the required advisements at the sentencing hearing and it must
incorporate those advisements into the sentencing entry. See Grimes, 

, 

, 

, at ¶ 8. Thus, regardless of R.C.
2929.191 or the so-called “harmless error” language in former R.C. 2929.19(B)(3)
upon which the second dissenting opinion relies, the trial court here provided
deficient notice in 2008 and therefore did not validly impose postrelease control on




                                          9
                              SUPREME COURT OF OHIO




Bates. Because the trial court failed to validly impose postrelease control in 2008—
a decision that benefited, not aggrieved, Bates—the state should have filed a direct
appeal. To say otherwise would be to advocate that Bates, after receiving deficient
notice, should have filed a direct appeal alerting the appellate court that his
postrelease control was not validly imposed as part of his sentence and requesting
that it correct said errors in order to ensure that he receive a postrelease-control
sanction and additional restraint on his liberty. We find this to be a ridiculous
suggestion. Further, as discussed more below, the statutes upon which the second
dissent relies are unhelpful in resolving the issues before us, because R.C. 2929.191
is not applicable here and because we cannot determine the effect of former R.C.
2929.19(B)(3)’s language based on the facts and arguments before us.
       {¶ 24} This court made clear in Harper, and again in Hudson, that
prosecuting attorneys and defense counsel throughout Ohio are “now on notice that
any claim that the trial court has failed to properly impose postrelease control in the
sentence must be brought on appeal from the judgment of conviction or the sentence
will be subject to res judicata.” Harper, 

, 

, 

; Hudson, 

, 

, 

. Unlike in Harper and Hudson, the state is the party here that raised
the claim that the trial court failed to properly impose postrelease control in the
2008 sentence and requested that the court advise Bates of postrelease-control
obligations and the consequences for violating postrelease control and correct the
judgment entry. Thus, contrary to the second dissenting opinion’s notions, it is
fully in line with Harper and Hudson for the doctrine of res judicata to apply against
the state here for its failure to file a direct appeal from the 2008 sentencing entry.
       {¶ 25} The state had “a full and fair opportunity” to challenge the trial
court’s errors in imposing postrelease control on direct appeal. State v. Henderson,

, 

, 

. But it failed to do so.
In fact, it did not seek to correct the errors for ten years. Because res judicata bars




                                          10
                                January Term, 2022




collateral attack on Bates’s sentence, the trial court’s 2018 sentencing entry was
improper and, therefore, of no effect. We therefore vacate the trial court’s 2018
sentencing entry to the extent that it attempted to impose postrelease control upon
Bates.
 C. We cannot reach the effect of the trial court’s improper 2008 imposition of
            postrelease control on the APA’s ability to supervise Bates
         {¶ 26} With the 2018 sentencing entry of no consequence, Bates also
requests that this court hold that the trial court’s errors in imposing postrelease
control in 2008 now disqualify him from any postrelease-control supervision. More
specifically, Bates asserts that because the trial court failed to advise him at the
2008 sentencing hearing of the consequences of violating postrelease control, the
court did not impose postrelease control as part of his original sentence and the
APA therefore lacks the power to supervise him.
         {¶ 27} There is no dispute that the trial court’s imposition of postrelease
control in 2008 was improper. Bates asserts, and the state does not dispute, that the
trial court failed to provide notice of the consequences of violating postrelease
control at the 2008 sentencing hearing. Accordingly, the record before us does not
establish that the trial court satisfied its statutory duty under former R.C.
2929.19(B)(3)(e) to notify Bates that the APA may impose a prison term for
violations of postrelease control. Moreover, the 2008 sentencing entry does not
include two of the necessary advisements under Grimes—i.e., that Bates’s
postrelease control was mandatory and that violating it would subject him to the
consequences set forth in R.C. 2967.28. We cannot reach the effect of the trial
court’s improper 2008 imposition of postrelease control on the APA’s ability to
supervise Bates today, however, because we do not have the facts or arguments
before us with which to resolve the issue.
         {¶ 28} We take judicial notice that Bates has been released from prison on
the charges relevant to this appeal and was convicted and sentenced on new felony




                                         11
                                SUPREME COURT OF OHIO




offenses in 2019.      See https://appgateway.drc.ohio.gov/OffenderSearch/Search
/Details/A764729 (accessed Sept. 27, 2021) [https://perma.cc/T97H-WXLZ].
Nevertheless, there are no facts before us that Bates has been subject to any
consequences for postrelease-control violations. Nor do we know whether Bates’s
postrelease control was unfavorably terminated by his 2019 convictions. For
instance, we do not know whether the trial court imposed a judicial sanction
pursuant to R.C. 2929.141, converting the remainder of the postrelease-control term
into prison time and thereby terminating the period of postrelease control for the
earlier 2008 felony. See R.C. 2929.141(A)(1).
        {¶ 29} Bates also does not provide developed arguments permitting us to
reach this issue. Former R.C. 2929.19(B)(3)(c) and (e) each include similar
language regarding the effect of trial-court errors on an offender’s postrelease
control. This language explains that errors in postrelease-control notice—i.e., a
trial court’s failure to notify the offender at the sentencing hearing or in the
judgment entry that the offender “will be supervised” on postrelease control or that
the APA may impose a prison term for violating it—do not “negate, limit, or
otherwise affect” the mandatory period of supervision, see former R.C.
2929.19(B)(3)(c), nor the authority of the parole board to impose a prison term for
a violation if “the parole board notifies the offender prior to the offender’s release
of the board’s authority to so impose a prison term,” see former R.C.
2929.19(B)(3)(e). Here, we cannot determine the effect of this statute because we
do not know whether the parole board notified Bates prior to his release of its
ability to impose a prison term for a violation of postrelease control. Additionally,
no developed constitutional challenges to this language in former R.C.
2929.19(B)(3)(c) and (e) are before us. Nor does the state rely upon this language
in its request for dismissal.
        {¶ 30} Similarly, R.C. 2929.191 does not provide a resolution in this case,
contrary to the second dissenting opinion’s suggestions.        It is true that R.C.




                                         12
                                 January Term, 2022




2929.191 provides a procedure to correct a court’s failure to validly impose
postrelease control. But the trial court “shall not issue the correction until after the
court has conducted a hearing in accordance with [that] division.”                 R.C.
2929.191(C); Singleton, 

, 

, 

 (“R.C. 2929.191(C) prescribes the type of hearing that must occur to make
such a correction to a judgment entry”). A requirement of R.C. 2929.191(C) is that
before the court holds such a hearing, “the court shall provide notice of the date,
time, place, and purpose of the hearing to” the offender, the prosecuting attorney,
and the department of rehabilitation and correction. No such notice occurred in
this case, as the prosecutor brought the postrelease-control errors to the trial court’s
attention in the middle of Bates’s sexual-predator-classification hearing.
        {¶ 31} Accordingly, we decline to address the effect of the trial court’s
improper 2008 imposition of postrelease control on the APA’s ability to supervise
Bates based on the facts and arguments before us. See State ex rel. LetOhioVote.org
v. Brunner, 

, 

, 

 (“declining
to address a legal issue not squarely before us is consistent with our reluctance to
issue advisory opinions [and] the principle of judicial restraint”).
                                   III. Conclusion
        {¶ 32} Our decision today is aligned with Harper and Hudson. A collateral
attack on the trial court’s imposition of postrelease control in the sentence must be
brought on direct appeal or it will be barred by res judicata. Harper, 

, 

, 

; Hudson, 

, 2020-
Ohio-3849, 

. This holding applies to the state as well as the
defendant. See Harper at ¶ 43; 

. Because res judicata precluded the
collateral attack on Bates’s sentence, the trial court’s 2018 sentencing entry was
improper and, therefore, of no effect. We accordingly reverse the Eighth District’s
decision to the extent it holds otherwise, and we vacate the portion of the 2018
sentencing entry imposing postrelease control upon Bates.




                                          13
                             SUPREME COURT OF OHIO




                                                                  Judgment reversed
                                                and trial-court order vacated in part.
       DONNELLY, STEWART, and BRUNNER, JJ., concur.
       KENNEDY, J., dissents, with an opinion.
       DEWINE, J., dissents, with an opinion joined by FISCHER, J., except for
paragraphs 64 and 65 and basis No. 3 in paragraph 66.
                               _________________
       KENNEDY, J., dissenting.
       {¶ 33} R.C. 2929.19 requires a trial court to give a defendant notice at the
sentencing hearing of the details of postrelease control and the consequences for
violating it. The statute does not require courts to incorporate that notice into the
sentencing entry, but our caselaw does. State v. Grimes, 

, 2017-
Ohio-2927, 

, ¶ 1, 15, overruled on other grounds, State v. Harper,

, 

, 

. In this case, the trial court’s
2008 sentencing entry did not include all the notices required by the statute.
However, a court that properly notifies the defendant of postrelease control at the
sentencing hearing without incorporating that notice into the sentencing entry has
authority to correct the entry to reflect the notice that was given. State v. Qualls,

, 

, 

, ¶ 15. Appellant, Robert
Bates, did not provide the court with the sentencing-hearing transcript. There is no
record to prove that the trial court did not provide all the required notices at the
original sentencing hearing. Therefore, we are obliged to presume regularity in that
proceeding, State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs., 

, 

, 

, ¶ 14, hold that the trial court had the
authority to correct the omission of the required notices in the sentencing entry, and
affirm the judgment of the court of appeals. Because the majority does not, I
dissent.




                                         14
                                January Term, 2022




       {¶ 34} When pronouncing a sentence that includes a term of postrelease
control, the trial court is required to notify the defendant whether postrelease
supervision by the Adult Parole Authority (“APA”) is mandatory or discretionary
as well as the duration of the term of postrelease control.                See R.C.
2929.19(B)(2)(d). The court is also required to give oral notice of the consequences
of a violation, i.e., “the parole board may impose a prison term, as part of the
sentence, of up to one-half of the stated prison term originally imposed upon the
offender.” Former R.C. 2929.19(B)(3)(e). R.C. 2929.19 does not require all those
notices to be incorporated into the sentencing entry. However, we have explained
that “[a] sentencing entry’s silence on postrelease control * * * is impermissible
because it is the sentencing entry that ‘empowers the executive branch of
government to exercise its discretion.’ ” Grimes at ¶ 15, quoting State v. Jordan,

, 

, 

, ¶ 22. We have therefore held
that to properly impose postrelease control, the sentencing entry must incorporate
the oral notice provided at the sentencing hearing, including “(1) whether
postrelease control is discretionary or mandatory, (2) the duration of the
postrelease-control period, and (3) a statement to the effect that the [APA] will
administer the postrelease control pursuant to R.C. 2967.28 and that any violation
by the offender of the conditions of postrelease control will subject the offender to
the consequences set forth in that statute.” Grimes at ¶ 1.
       {¶ 35} The trial court’s original sentencing entry was not silent on
postrelease control but provided only: “Post release control is part of this prison
sentence for 5 years for the above felony(s) under R.C. 2967.28.” Neither Bates
nor the state challenged the imposition of postrelease control on direct appeal. State
v. Bates, 8th Dist. Cuyahoga No. 92323, 

. And it is not disputed
that the trial court informed Bates that postrelease control was mandatory.
       {¶ 36} Ten years later, the prosecutor asked the trial court to correct Bates’s
sentencing entry before his release from prison because the entry lacked notice that




                                         15
                             SUPREME COURT OF OHIO




postrelease control was mandatory and did not state the consequences for violating
it, as required by Grimes. The trial court journalized a new entry stating that Bates’s
sentence included mandatory postrelease control. It notified Bates that if he
violated a condition of postrelease control, the parole board could impose a prison
term of up to one-half of the original prison sentence imposed.
       {¶ 37} On Bates’s appeal, the Eighth District Court of Appeals affirmed,
concluding that the error in imposing postrelease control rendered that sanction
void and correctable prior to Bates’s release from prison. It noted that the transcript
of the 2008 sentencing hearing was not in the record, and it therefore presumed that
the trial court properly imposed postrelease control at the 2008 sentencing hearing.
       {¶ 38} It is important to clarify the question currently before us. We are not
reviewing the validity of the trial court’s imposition of postrelease control in 2008.
For this reason, it is not necessary to decide which party was aggrieved by the
sentence imposed in 2008 and therefore required to appeal it. Instead, we are
reviewing only whether the trial court had authority to correct the sentencing entry
in 2018, resulting in the order that was appealed to the court of appeals and now to
this court. As the appellant and the only party possibly aggrieved by the corrected
sentence, Bates bears the burden to affirmatively demonstrate error on the record.
Knapp v. Edwards Laboratories, 

, 

 (1980),
citing State v. Skaggs, 

, 

 (1978). Therefore,
to obtain a reversal of the courts below, Bates must establish that the trial court
lacked the power to issue the new sentencing entry in 2018.
       {¶ 39} This court has “recognized that ‘trial courts lack authority to
reconsider their own valid final judgments in criminal cases.’ ” State v. Raber, 

, 

, 

, quoting State ex rel. White
v. Junkin, 

, 

 (1997); see also State v. Gilbert,

, 

, 

 (“Once a final judgment
has been issued pursuant to Crim.R. 32, the trial court’s jurisdiction ends”).




                                          16
                                January Term, 2022




Nonetheless, trial courts retain continuing jurisdiction to correct a clerical error in
a judgment. Raber at ¶ 20. As Crim.R. 36 provides, “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.”
       {¶ 40} In State v. Qualls, we held that the trial court had authority to correct
the failure to include any mention of postrelease control in the sentencing entry by
issuing a nunc pro tunc entry “to include in the sentencing entry notification of
postrelease control that was properly given in the sentencing hearing.” 

, 

, 

, at ¶ 15. “A nunc pro tunc entry * * *
relates back to the original sentencing entry,” id. at ¶ 14, and corrects the error “so
that the record speaks the truth,” id. at ¶ 13. We cautioned, however, that “a nunc
pro tunc entry pursuant to Crim.R. 36 to modify a sentencing entry cannot serve to
correct the failure to notify a defendant of postrelease control or a mistake in the
notification that was given. * * * [T]hat action would improperly change the
substance of the entry to include events that never occurred.” Id. at ¶ 26.
       {¶ 41} Therefore, the trial court in this case had inherent authority to correct
any deficiency in providing notice of postrelease control in the entry by issuing a
nunc pro tunc entry, but only if the trial court gave the notices required by R.C.
2929.19(B) at the original sentencing hearing. Making that determination requires
a review of the hearing transcript, but Bates did not ensure that it was included in
the record when he appealed to the Eighth District. Rather, he waited until after
this court accepted his appeal to move to supplement the record with the transcript
of the sentencing hearing, and we denied that request.
       {¶ 42} “Where an authenticated transcript of proceedings in the trial court
is necessary to exemplify the facts which determined the issues presented there, its
absence requires a reviewing court to dismiss the appeal, or to affirm the judgment
of the court from which the appeal is taken.” State v. Render, 

,

 (1975), paragraph two of the syllabus. Therefore, “[w]hen an




                                          17
                             SUPREME COURT OF OHIO




appeal is filed in this court without a transcript, we generally presume the regularity
of that proceeding and affirm.” Bardwell, 

, 

,

, at ¶ 14.
       {¶ 43} Without a transcript of the 2008 sentencing hearing, we do not know
whether the trial court failed to give all the notices about postrelease control
required by R.C. 2929.19. Bates therefore cannot sustain his burden to demonstrate
error on the record. Rather, we must presume that the trial court complied with the
statute and gave those notices at the sentencing hearing. For this reason, I would
hold that the trial court had authority to issue a new entry that includes the notices
omitted from the 2008 sentencing entry and affirm the judgment of the Eighth
District Court of Appeals. The majority does not, and I therefore dissent.
                                _________________
       DEWINE, J., dissenting.
       {¶ 44} Once again, this court makes the issue of postrelease control a lot
more complicated than it needs to be. Within the proposition of law we accepted
in this case are really two questions: (1) may a trial court that has provided an
imperfect advisement about postrelease control in a sentencing entry correct that
advisement after the time for a direct appeal has passed? and (2) may a convicted
criminal whose sentencing entry contains an imperfect advisement about
postrelease control still be placed on postrelease control?
       {¶ 45} The answer to both questions is yes. We need look no further than
the plain language of Ohio statutes to get there. First, there is no statutory
requirement that anything about postrelease control be included in a sentencing
entry. Second, R.C. 2929.191(C) grants the trial court authority to hold a hearing
and issue a corrected judgment entry when the original notification provided to the
offender regarding postrelease control fails to meet judicially manufactured
standards.   And third, under R.C. 2929.19(B)(2)(d), the failure to provide a




                                          18
                                January Term, 2022




postrelease-control advisement “does not negate, limit, or otherwise affect the
mandatory period of supervision that is required for the offender.”
       {¶ 46} The majority, though, doesn’t follow the statutory scheme. And
what it does do doesn’t make much sense and is sure to cause a good deal of
confusion going forward.
                                   I. Background
       {¶ 47} Bates was sentenced in 2008. The judgment entry imposed a period
of postrelease control upon his release from prison, stating: “Post release control is
part of this prison sentence for 5 years for the above felony(s) under R.C. 2967.28.”
No one disputes that five years is the proper term of postrelease control for Bates’s
crimes. And while the entry does not say that this term of postrelease control is
mandatory, Bates acknowledges that he was informed of this fact at the sentencing
hearing.
       {¶ 48} At the state’s request, the trial court issued a revised sentencing entry
in 2018 following a hearing at which the trial court advised Bates of his postrelease-
control obligations. The state noted that the original entry had failed to include
language indicating that the term of postrelease control imposed upon Bates was
mandatory and explaining the consequences of violating the conditions of
postrelease control, as required under this court’s decision in State v. Grimes, 

, 

, 

, overruled on other grounds, State
v. Harper, 

, 

, 

. Bates appealed
the revised entry, asserting that the trial court had not imposed a term of postrelease
control in 2008 and could not do so by issuing a revised sentencing entry in 2018.
Relying on caselaw from this court that has since been overruled, the Eighth District
Court of Appeals determined that the improper imposition of postrelease control in
the 2008 sentencing entry rendered that part of the sentence void and subject to
correction at any point prior to Bates’s release from prison. 

,




                                          19
                             SUPREME COURT OF OHIO




¶ 13-17, citing State v. Simpkins, 

, 

, 

, overruled by Harper.
       {¶ 49} We accepted Bates’s appeal on a single proposition of law: “The
failure to include a sentence of post-release control when imposing a prison
sentence must be corrected on direct appeal and failure to do so precludes
supervision on [postrelease control] at the end of the prison sentence.”
                     II. Our Out-of-Control Jurisprudence
       {¶ 50} For a long time, our postrelease-control jurisprudence was a mess.
See generally Grimes at ¶ 57 (DeWine, J., concurring in judgment only). Between
2004 and 2020, we issued a variety of bewildering pronouncements about what
judges needed to say to offenders and what they needed to write in their sentencing
entries so as to allow the Adult Parole Authority (“APA”) to supervise the offenders
after they left prison. See, e.g., State v. Jordan, 

, 2004-Ohio-
6085, 

; State v. Bezak, 

, 

, 

; State v. Singleton, 

, 

, 

 (lead opinion); Grimes. We also issued a confusing, and changing, set of rules
about challenges to an improper postrelease-control advisement. See, e.g., Bezak;
State v. Fischer, 

, 

, 

; State v.
Billiter, 

, 

, 

; Simpkins; Grimes.
       {¶ 51} Our jurisprudence suffered from two basic problems. First, we had
largely ignored the straightforward statutory scheme created by the legislature
concerning postrelease-control advisements. See Grimes at ¶ 41 (DeWine, J.,
concurring in judgment only). Second, we had abandoned traditional principles of
res judicata and allowed an improper postrelease-control advisement to be
challenged at any time. Id. at ¶ 37 (DeWine, J., concurring in judgment only).
       {¶ 52} We fixed the second problem last year in Harper, 

, 

, 

, and State v. Hudson, 

,

, 

. In those cases, we held that an error in the




                                         20
                                January Term, 2022




imposition of postrelease control rendered a sentence voidable, not void. Thus, any
challenge to the postrelease-control portion of a sentence needed to be brought on
direct appeal.
        {¶ 53} What we need to do now is fix the other problem. If we do that—if
we simply follow the language of the postrelease-control statutes—this is an easy
case.
        III. The Postrelease-Control Statutes Easily Resolve This Case
        {¶ 54} While our caselaw on postrelease control is bewildering, the
statutory scheme is straightforward.
    A. The statutes require only oral notification at the sentencing hearing
        {¶ 55} R.C. 2967.28 sets forth the postrelease-control period for various
felonies and specifies whether postrelease control is mandatory or may be imposed
at the discretion of the parole board. The only notifications concerning postrelease
control are to be provided “at the sentencing hearing.” R.C. 2929.19(B)(2).
(Although the numbering of the statute has changed since Bates’s sentencing, the
statutory language is substantively the same.) A trial court that has imposed a
prison term is to notify the offender that he “will” or “may” be subject to postrelease
control under R.C. 2967.28 after he leaves prison. R.C. 2929.19(B)(2)(c) and (d).
In addition, the trial court must notify the offender that if he violates the terms of
his postrelease control, the parole board may impose a prison term of up to one-half
of the original prison sentence. R.C. 2929.19(B)(2)(e). That’s it. These two oral
notifications are all that is required by statute concerning postrelease control. There
is no requirement that anything be included in the sentencing entry related to
postrelease control.
        {¶ 56} The notion that postrelease control must be imposed in a sentencing
entry is completely judge-made law. It comes from this court’s decision in Jordan,

, 

, 

, a case that might charitably
be described as under-reasoned. There, without any analysis, the court proclaimed:




                                          21
                             SUPREME COURT OF OHIO




“[B]ecause 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 ¶ 19.
       {¶ 57} What we didn’t do in Jordan, and what we have failed to do in the
years since, is explain in any cogent fashion why the separation-of-powers doctrine
requires the judiciary to include a rote recitation about postrelease control in a
sentencing entry. The judicial power is the power to render judgments and decide
cases. See Stanton v. Tax Comm., 

, 151 N.E.760 (1926).
It includes the authority to determine guilt or innocence and to make individualized
sentencing determinations. State ex rel. Bray v. Russell, 

,

 (2000), citing State ex rel. Atty. Gen. v. Peters, 

,
648, 

 (1885), and 

. The legislative power is the power to
make generalized enactments, including the power to prescribe punishment for
crimes. See State v. Morris, 

, 

 (1978), citing
Toledo Mun. Ct. v. State ex rel. Platter, 

, 

 (1933); In re
Victor, 

, 208 (1877); 

.
       {¶ 58} Once an offender has been convicted of a crime, the question
whether someone is subject to postrelease control does not depend on the exercise
of the judicial power. Rather, the legislature has made a generalized determination
of the crimes for which postrelease control is mandatory and those for which
postrelease control is discretionary. With respect to those crimes for which it is
discretionary, the legislature has granted the APA the power to decide who must
serve postrelease control and for how long. A judge has no decision-making
authority in the process, only a statutory obligation to provide oral notification
about postrelease control to the offender.




                                         22
                                January Term, 2022




       {¶ 59} When it comes to postrelease control, the judge’s role is purely
ministerial. Thus, it is nonsensical to say that the judicial power is infringed upon
“by the imposition of postrelease control absent advisement in the sentencing entry.
Such a hypertechnical reading of the separation-of-powers doctrine does nothing to
promote the independence of the judiciary; to the contrary, it treats judges as
bureaucratic functionaries.” Grimes, 

, 

, 

, at ¶ 52 (DeWine J., concurring in judgment only).
          B. A court is authorized to issue a corrected judgment entry
       {¶ 60} Presumably recognizing that this court was causing needless
confusion in the area of postrelease control and imposing requirements upon trial
judges that were not found in statute, the legislature enacted R.C. 2929.191 to allow
trial judges to correct postrelease-control advisements that failed to meet statutory
and judicially imposed requirements.
       {¶ 61} As this court has explained,


       R.C. 2929.191 establishes a procedure to remedy a sentence that
       fails to properly impose a term of postrelease control. It applies to
       offenders who have not yet been released from prison and who fall
       into at least one of three categories: those who did not receive notice
       at the sentencing hearing that they would be subject to postrelease
       control, those who did not receive notice that the parole board could
       impose a prison term for a violation of postrelease control, or those
       who did not have both of these statutorily mandated notices
       incorporated into their sentencing entries.


Singleton, 

, 

, 

.
       {¶ 62} Under R.C. 2929.191, a court is empowered to hold a hearing any
time before a defendant is released from prison, to provide an offender with a




                                         23
                              SUPREME COURT OF OHIO




postrelease-control advisement, and to incorporate that advisement into a
sentencing entry. That is exactly what happened in Bates’s case. The majority says
that this hearing somehow doesn’t count on the theory that Bates wasn’t notified
that the postrelease-control error would be corrected until he was in front of the
judge. But Bates and his counsel were present for the hearing and there has been
no suggestion that he suffered prejudice as a result of any deficiency in notice.
Moreover, Bates has not raised any argument relating to deficient notice on appeal.
        {¶ 63} Our decisions in Harper and Hudson put to rest the idea that a
postrelease-control error rendered a sentence void and could be corrected on that
basis at any time. But even though Bates’s sentence was not void, R.C. 2929.191
provided statutory authorization for the court to render more complete the
advisement about postrelease control in Bates’s sentencing entry. The statute
remains good law, and there is no reason to ignore the fact that the trial court in this
case acted with statutory authorization when it issued a corrected sentencing entry.
   C. The statutory scheme renders most postrelease-control errors harmless
        {¶ 64} Furthermore, the statutory scheme renders nearly all postrelease-
control errors that occur at sentencing harmless. For sentences imposed after July
11, 2006,


        the failure of a court to notify the offender pursuant to division
        (B)(2)(d) of this section that the offender will be supervised under
        section 2967.28 of the Revised Code after the offender leaves prison
        or to include in the judgment of conviction entered on the journal a
        statement to that effect does not negate, limit, or otherwise affect the
        mandatory period of supervision that is required for the offender.


(Emphasis added.) R.C. 2929.19(B)(2)(d); see also R.C. 2967.28(B). The statute
could not be clearer. A trial court’s failure to notify an offender, either orally or in




                                          24
                                  January Term, 2022




the judgment entry, that he is subject to a mandatory term of postrelease control
does not affect the ability of the APA to impose postrelease control upon the
offender.
       {¶ 65} Likewise, a trial court’s failure to notify an offender of the
consequences of violating the conditions of postrelease control or to include a
statement to that effect in the judgment entry “does not negate, limit, or otherwise
affect the authority of the parole board to so impose a prison term for a violation of
that nature if * * * the parole board notifies the offender prior to the offender’s
release of the board’s authority to so impose a prison term.” R.C. 2929.19(B)(2)(f);
see also R.C. 2967.28(D)(1) (requiring the parole board to notify the offender of
the potential consequences of violating a condition of postrelease control).
            D. If we simply follow the statutes, this case is easily resolved
       {¶ 66} So if we follow the statutes, this case can be resolved in the state’s
favor on any number of bases:
1.     The only challenge Bates raised was to the terms of his initial sentencing
       entry, not to the oral advisement. There is no statutory requirement that
       anything about postrelease control be included in the sentencing entry. So,
       on this basis alone, the state should prevail.
2.     If we ignore the fact that the statute doesn’t require the postrelease control
       advisement to be repeated in the sentencing entry, the state still prevails.
       This is because R.C. 2929.191(C) expressly authorizes a court to provide a
       corrected judgment entry.
3.     Even if we ignore the absence of a statutory requirement for a postrelease-
       control advisement in the sentencing entry and we ignore the court’s
       authority to correct a sentencing entry, the parole board still has the
       authority to supervise Bates upon his release from prison.                R.C.
       2929.19(B)(2)(d) and 2967.28(B) make this clear.




                                           25
                             SUPREME COURT OF OHIO




                   IV. The Majority Creates More Confusion
       {¶ 67} The majority largely ignores these statutes. In addition, it reaches a
result that it not supportable even on its own terms. In the process, it adds more
confusion to this body of law.
       {¶ 68} Recall the proposition of law we accepted: “The failure to include a
sentence of post-release control when imposing a prison sentence must be corrected
on direct appeal and failure to do so precludes supervision on [postrelease control]
at the end of the prison sentence.” In his memorandum in support of jurisdiction,
Bates asked this court to hold that the failure to impose postrelease control at the
time of sentencing is a voidable error that the state must challenge on direct appeal.
       {¶ 69} The majority answers only the first part of the question. It says that
a postrelease-control error may be corrected only on direct appeal and that such an
error must be appealed by the state. It then punts on the second part of the question,
saying that it “decline[s] to address the effect of the trial court’s improper 2008
imposition of postrelease control on the APA’s ability to supervise Bates based on
the facts and arguments before us,” majority opinion, ¶ 31. The problem is that we
cannot answer the first part of the question without also addressing the second.
       {¶ 70} The first part of the question—who must appeal a postrelease-
control error—turns on who has been “aggrieved” by the error. In Bates’s view, an
inadequate postrelease-control notification means that postrelease control has not
been imposed at all and that the state loses any opportunity to supervise the
offender. In this formulation, the state is the aggrieved party and must appeal. The
state’s position is that an incomplete explanation about postrelease control in a
sentencing entry does not prevent the state from placing an offender on postrelease
control. Under this view, Bates is the one who would have benefitted from a
sentencing entry explaining the consequences of a violation of postrelease control
and whether it was mandatory. Therefore, it is Bates who is aggrieved by a




                                         26
                                  January Term, 2022




procedural error in the imposition of postrelease control and he is the one who must
appeal.
          {¶ 71} The majority’s opinion is internally contradictory. In the first part
of its opinion, it suggests that unless the sentencing judge strictly satisfies all of the
judicially created requirements for the imposition of postrelease control, an
offender may not be supervised at all. It says “without postrelease control properly
imposed, his liberty would not be restrained after he served his prison sentence and
he would not be under the obligations associated with supervision.” Majority
opinion at ¶ 21. But later on it retreats from this pronouncement, telling us that it
“cannot reach the effect of the trial court’s improper 2008 imposition of postrelease
control on the APA’s ability to supervise Bates today,” majority opinion at ¶ 27.
The reader is left befuddled.
          {¶ 72} I, of course, disagree that the state is the aggrieved party here. As I
explained in the previous section, the statutory scheme plainly allows postrelease
control to be imposed on Bates notwithstanding the purported errors committed by
the sentencing judge. Because the APA could supervise Bates regardless of
whether he received the judicially created Grimes advisement, the advisement
would have only served to benefit Bates by providing additional notice about the
terms of his supervision. Thus, Bates was the aggrieved party and had the burden
to appeal the 2008 sentence.
          {¶ 73} Indeed, the majority’s conclusion that the state must appeal the
omission of the judicially created Grimes requirements directly contradicts our
recent jurisprudence on this issue. In Harper, 

, 2020-Ohio-
2913, 

, we considered a deficiency like the one before us here—the
failure to include in the sentencing entry language informing the defendant of the
consequences of violating postrelease control. We determined that such an error
was voidable and must be raised on direct appeal. In so holding, we explicitly
“reject[ed] the notion that the failure to incorporate a notice of the consequences of




                                            27
                             SUPREME COURT OF OHIO




a violation of postrelease control in the sentencing entry as required by Grimes
renders the sentence void to the extent that it does not properly impose postrelease
control.” Harper at ¶ 6. And we indicated that it was the defendant who must
appeal such an error, concluding that “because Harper could have raised his
argument that the trial court failed to properly impose postrelease control on appeal,
it is now barred by the doctrine of res judicata.” Id. at ¶ 41; see also Hudson, 

, 

, 

.
                                  V. Conclusion
       {¶ 74} Our decisions in Hudson and Harper provided hope that this court
was finally on the path to cleaning up our postrelease-control caselaw that had
“confused litigants and jurists alike,” Harper at ¶ 39. But today, the majority seems
determined to put Ohio courts right back in the same soup. Rather than simply
follow the postrelease-control statutory scheme, it decrees that the state must appeal
any purported technical error in a postrelease-control advisement. Remarkably, it
reaches this conclusion without determining what effect, if any, an imperfect
postrelease-control advisement has on the state’s ability to supervise an offender
after he is released from prison. More confusion is sure to follow the majority’s
decision today.
       {¶ 75} Things need not be so complicated.              I would follow the
straightforward statutory scheme that the legislature has enacted. And on this basis,
I would affirm the judgment of the court of appeals.
       FISCHER, J., concurs in the foregoing opinion except for paragraphs 64 and
65 and basis No. 3 in paragraph 66.
                               _________________
       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank
Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.
       Mark A. Stanton, Cuyahoga County Public Defender, and John T. Martin,
Assistant Public Defender, for appellant.




                                         28
                              January Term, 2022




       Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Zachery P. Keller, Deputy Solicitor General, urging affirmance for amicus curiae,
Attorney General Dave Yost.
                              _________________




                                       29