State v. Bezak

{¶ 1} Appellant, Jack Bezak, appeals from the judgment of the Court of Appeals for Cuyahoga County that vacated his sentence for obstructing justice in violation of R.C. 2921.32 and remanded his case to the trial court for resentencing.

{¶ 2} For the following reasons, we affirm the judgment of the court of appeals vacating Bezak’s sentence and modify the remand instructions to the trial court.

{¶ 3} At trial, the state presented evidence, upon which Bezak was convicted, that he had given false information to the police about a parolee who had failed to report to his parole officer. At sentencing, the trial judge stated: ‘Ybu’11 be out in the not too distant future, at that point you won’t have a — probably will not be on post-release control given that it’s a six-month sentence, but I can’t guarantee that.” The trial judge allowed for postrelease control in the journal entry imposing the sentence.

{¶ 4} Bezak appealed his conviction and sentence to the Eighth District Court of Appeals. The court of appeals affirmed the conviction but remanded the case for resentencing pursuant to State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864. The court of appeals stated: “When a trial court fails to properly discharge its statutory duty with respect to postrelease control notification, the sentence must be vacated and the matter remanded for resentencing.” State v. Bezak, Cuyahoga App. No. 84008, 2004-Ohio-6623, 2004 WL 2830799, at ¶ 40, citing Jordan at ¶ 28. The court of appeals held that Bezak’s case “must be remanded for resentencing so that appellant may be advised that he is subject to post-release control.” Id. at ¶ 41.

{¶ 5} Bezak filed a motion for reconsideration with the court of appeals, requesting that the court remove the clause that stated “so that appellant may be advised that he is subject to post-release control.” Bezak argued that the clause was ambiguous and requested that the clause be removed to ensure that the trial court would grant Bezak a new sentencing hearing. Bezak’s motion for reconsideration was denied without opinion.

{¶ 6} The question presented is whether, when a court of appeals remands a case for resentencing because of the trial court’s failure to inform the offender at the sentencing hearing that he may be subject to postrelease control, the court must conduct a new sentencing hearing or may instead merely give that information in open court and summarily reimpose the original sentence. We conclude that Bezak was entitled to a de novo sentencing hearing pursuant to Jordan.

{¶ 7} In Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, this court resolved a conflict between appellate court decisions addressing trial courts that failed at sentencing hearings to inform offenders about postrelease control but incorporated the notice into a sentencing entry. Id. at ¶ 1. We briefly reviewed provisions of Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, effective July 1, 1996, and noted the additional duties imposed on trial courts in furtherance of the General Assembly’s goal of truth in sentencing. We also examined two of our cases: State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, which held that certain findings required by R.C. 2929.19 must be spoken on the record at the sentencing hearing, and State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, which held that R.C. 2929.19(B)(5) requires a trial court to deliver the statutorily required notification at the sentencing hearing when sentencing an offender to a community-control sanction.

{¶ 8} We determined that the reasoning used in both State v. Comer and State v. Brooks also applied in State v. Jordan and held that “[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.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at paragraph one of the syllabus.

{¶ 9} We next considered the question presented when a trial court fails to notify the offender of postrelease control at the sentencing hearing: Should the case be remanded for resentencing or should the postrelease control be eliminated from the offender’s sentence? We held that “[bjecause a trial court has a statutory duty to provide notice of postrelease control at the sentencing hearing, any sentence imposed without such notification is contrary to law.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 23.

{¶ 10} We relied on our reasoning in State v. Beasley (1984), 14 Ohio St.3d 74, 14 OBR 511, 471 N.E.2d 774 (holding that the trial court’s correction of a statutorily incorrect sentence did not violate appellant’s right to be free from double jeopardy), for the proposition that “where 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, at ¶ 23.

(¶ 11} As a result, we held in State v. Jordan that “[w]hen 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, therefore, the sentence must be vacated and the matter remanded to the trial court for resentencing.” Id. at paragraph two of the syllabus.

{¶ 12} Our decision in State v. Jordan controls in this case. The relevant portions of the version of the statute at issue here, former R.C. 2929.19, 2003 Sub.S.B. No. 5, Section 1, were unchanged since Jordan. Here, Bezak was not informed about the imposition of postrelease control at his sentencing hearing. As a result, the sentence imposed by the trial court is void. “The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment.” (Citations omitted.) Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267-268, 39 O.O.2d 414, 227 N.E.2d 223.

{¶ 13} The court of appeals remanded the matter to the trial court, stating that Bezak’s case “must be remanded for resentencing so that appellant may be advised that he is subject to post-release control.” (Emphasis added.) However, in such a resentencing hearing, the trial court may not merely inform the offender of the imposition of postrelease control and automatically reimpose the original sentence. Rather, the effect of vacating the trial court’s original sentence is to place the parties in the same place as if there had been no sentence. See Romito v. Maxwell, 10 Ohio St.2d at 267, 39 O.O.2d 414, 227 N.E.2d 223. Therefore, the decision to vacate Bezak’s void sentence would require the trial court to resentence Bezak as if there had been no sentence.

{¶ 14} The state argues that our decision in State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, requires us to hold that an offender’s sentencing hearing upon remand must be limited to only the issue found to be in error; here, the failure of the trial court to inform him of his postrelease control. The state urges us to affirm the decision of the court of appeals, which would permit a sentencing hearing on remand to include only a statement informing an offender that he is subject to postrelease control. In Saxon, we held that “[a]n appellate court may modify, remand, or vacate only a sentence for an offense that is appealed by the defendant and may not modify, remand, or vacate the entire multiple-offense sentence based upon an appealed error in the sentence for a single offense.” Id. at paragraph three of the syllabus.

{¶ 15} State v. Saxon is distinguishable from this case. In Saxon, we determined the proper treatment of an appellant’s multiple-offense sentence when the appellant assigns error to one or more of those offenses, but not the entire multiple-offense sentence. Unlike Saxon, who pleaded guilty to multiple offenses, Bezak was convicted of only one offense. Therefore, Bezak’s entire sentence was vacated upon the court of appeals’ decision to sustain his one assignment of error.

{¶ 16} We hold that when a trial court fails to notify an offender that he may be subject to postrelease control at a sentencing hearing, as required by former R.C. 2929.19(B)(3), the sentence is void; the sentence must be vacated and the matter remanded to the trial court for resentencing. The trial court must resentence the offender as if there had been no original sentence. When a defendant is convicted of or pleads guilty to one or more offenses and postrelease control is not properly included in a sentence for a particular offense, the sentence for that offense is void. The offender is entitled to a new sentencing hearing for that particular offense.

{¶ 17} The decision of the court of appeals vacated Bezak’s sentence but remanded the matter with this instruction: “the case must be remanded for resentencing so that appellant may be advised that he is subject to post-release control.” The judgment of the court of appeals vacating the sentence is affirmed and the remand instruction is modified to inform the trial court that a new sentencing hearing is required in cases where postrelease control is not properly included in a sentence for a particular offense. In such cases, the trial court must impose a new sentence on the defendant.

{¶ 18} However, in this case, Bezak has already served the prison term ordered by the trial court, and therefore he cannot be subject to resentencing in order to correct the trial court’s failure to impose postrelease control at Bezak’s original sentencing hearing. In order that its record may be complete, the trial court is instructed to note on the record of Bezak’s sentence that because he has completed his sentence, Bezak will not be subject to resentencing pursuant to our decision.

Judgment affirmed as modified and remanded with instructions.

Pfeifer, O’Donnell and Cupp, JJ., concur.

Lundberg Stratton, O’Connor and Lanzinger, JJ., dissent.