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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

PAROLE AND POST-RELEASE CONTROL (131)

Also see Prisoners; Sentencing; Habeas Corpus/Parole; Ex Post Facto Laws.

 

Eligibility; Hearings

Conditions upon release; Supervision

Revocation

Post-release control notice at sentencing

Escape

Other issues

 

Revised Code Chapter 2967.

Ohio Administrative Code Chapter 5120.

Eligibility; Hearings

State v. Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509 – Syllabus: “(1) If a trial court fails during a plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the defendant may dispute the knowing, intelligent, and voluntary nature of the plea either by filing a motion to withdraw the plea or upon direct appeal. (2) If the trial court fails during the plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the court fails to comply with Crim.R. 11, and the reviewing court must vacate the plea and remand the case.” Court rejects waiver and substantial compliance claims.

State v. Cedeno, 192 Ohio App. 3d 738, 2011-Ohio-674 – According to State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085 postrelease control must be addressed both at the sentencing hearing and in the judgment entry. Using Jordan the defendant’s motion to reopen his 1991 appeal as granted. Court reweighs its decision on the prior assignments of error, reaching the same conclusions, though it does order a new sentencing hearing. But see State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238.

Patterson v. Ohio Adult Parole Authority, 120 Ohio St. 3d 311, 2008-Ohio-6147 – Habeas does not lie to challenge placement on postrelease control upon notice from the Adult Parole Authority. In the court’s view appeal from the sentence provided an adequate remedy at law.

Layne v. Ohio Adult Parole Authority, 97 Ohio St. 3d 456, 2002-Ohio-6719 -- Defendants are entitled to the benefit of the plea bargains struck in determination of parole eligibility. APA rating system looked to original charges instead. APA still retains discretion to consider relevant circumstances in making the ultimate decision. Syllabus: "In any parole determination involving indeterminate sentencing, the Adult Parole Authority must assign an inmate the offense category score that corresponds to the offense or offenses of conviction."

Ankrom v. Hageman, Franklin App. Nos. 04AP-984 et. seq., 2005-Ohio-1546 -- Broad relief granted pre-S.B. 2 inmates in challenge of the guideline system adopted by the APA which frequently led to a range of months to be served before parole that was well beyond the minimum sentence. Adherence to the guidelines meant for many there was not meaningful consideration of parole upon serving the minimum sentence, among other things violating the contractual basis of the plea agreements struck when an earlier system, the "matrix," was is use. Ankrom v. Hageman, 118 Ohio Misc. 2d 226, 2001-Ohio-4369, affirmed.

State v. Stephens, Hamilton App. No. C-020683, 2003-Ohio-6193 -- The remedy for a Layne violation is a declaratory judgment action against the Adult Parole Authority and the county prosecutor, not a motion to withdraw the guilty plea. Also see State v. Davis, 158 Ohio App. 3d 478, 2004-Ohio-5354.

State v. Harris, Cuyahoga App. No. 81677, 2003-Ohio-1003 -- Failure to advise sex offender of mandatory post-release control requires remand.

State v. Peacock, Lake App. No. 2002-L-115, 2003-Ohio-6772, ¶40-41 -- Failure to advise concerning post-release control at the time of sentencing renders a sentence void. Case remanded for resentencing with the defendant present.

State ex rel. Vaughn v. Money, 104 Ohio St. 3d 322, 2004-Ohio-6561 -- Good time credit under former law only accelerated the time for the first parole hearing, and does not continue to accrue once that hearing has been conducted. Good time does not reduce the maximum sentence.

Greenholtz v. Nebraska Penal Inmates (1979), 442 U.S. 1 -- The presence of a parole system does not give rise to a constitutionally protected interest in parole release, however, the use of mandatory language in establishing the conditions for release, creating an expectancy of release, gives rise to a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. Also see Board of Pardons v. Allen (1987), 482 U.S. 369.

Rose v. Haskins (1970), 21 Ohio St. 2d 94, 95 -- Parole is a matter of grace. Parole is a release from confinement but not from legal custody. Otherwise, the opinion's holding that due process standards do not apply to parole revocation is overruled by Morrissey v. Brewer.

State ex rel Deters v. Wilkinson (1995), 72 Ohio St. 3d 54 -- (1) Notice to the county prosecutor that a hearing relating to release on parole would be held on or after a specified date related to a hearing before the entire parole board. Separate notice of the hearing before the full board was not required where an earlier hearing was held before a panel consisting of a member of the board and a hearing officer. (2) Though aggravated felonies were not added to the code until 1983, R.C. 2967.121 still requires the APA to give two weeks notice to the home county prosecutor of the release of those convicted of equivalent offenses before that date. However, if such an inmate has been released without such notice, parole may not be revoked, vacated or set aside on this basis alone.

Morgan v. Ohio Adult Parole Authority (1994), 68 Ohio St. 3d 344 -- Court rejects claim that somehow the defendant was to be credited by the APA for the time served on a firearm specification against the five year maximum of his indeterminate sentence. The three year term must be completely served before a defendant begins to serve the balance of his sentence.

State, ex rel. Ubienski, v. Shoemaker (1985), 17 Ohio St. 3d 145 -- Though the underlying facts are difficult to follow, court finds no ex post facto violation in change of parole eligibility date, in accordance with provisions of the Ohio Administrative Code, on the basis that there is no constitutional or state-granted right to parole.

State, ex rel. Thompson, v. Clark (1982), 7 Ohio App. 3d 191 -- Mandamus does not lie to control the exercise of discretion by the Adult Parole Authority. It may lie where the where the parole board has failed to perform an act it is legally required to perform. Also see Swiss v. Ohio Pardon and Parole Commission (1963), 117 Ohio App. 141, 23 Ohio Ops. 2d 304; State, ex rel. Blake, v. Shoemaker (1983), 4 Ohio St. 3d 42.

In re Long (1985), 24 Ohio App. 3d 32 -- Headnotes: "(1) R.C. 2151.38, which establishes the parole provisions for juveniles in Ohio, comports with the requirements of the Due Process Clause, and does not mandate a full-scale adversarial adjudicatory hearing in juvenile parole revocation cases. (2) The determination of whether a violation of the terms and conditions of a juvenile's parole constitutes a serious violation for purposes of revoking that parole is to be made at the discretion of the trial court."

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Conditions upon release; Supervision

Samson v. California (2006), 126 S.Ct. 2193 -- The Fourth Amendment does not bar searches of parolees not based on individualized suspicion, conducted pursuant to the parolee's agreement to be subject to search at any time.

State v. Benton (1998), 82 Ohio St. 3d 316 -- Syllabus: "A warrantless search performed pursuant to a condition of parole requiring a parolee to submit to random searches of his or her person, motor vehicle, or place of residence by a parole officer at any time is constitutional. Dissent points out scope of decision is limited by enactment of R.C. 2967.13(B).

State v. Hill (1998), 127 Ohio App. 3d 441 -- A parole officer lawfully enters a parolee's premises pursuant to the consent to search made a condition of parole when there are reasonable grounds to believe a condition of parole is being violated. That consent extends to areas controlled by the parolee and common areas, but not to areas such as bedrooms controlled by other residents. The parolee does not have standing to challenging an unlawful search of such premises unless a reasonable expectation of privacy can be demonstrated.

State v. Cowans (1999), 87 Ohio St. 3d 68, 74-77 -- The pretext doctrine may still apply to searches not requiring probable cause, such as searches by parole officers. A parole officer may not be used as a stalking horse by other investigators.

State v. Braxton (1995), 102 Ohio App. 3d 28, 36-37 -- Luggage rack from stolen car sitting on blocks outside was discovered by parole officer making home visit. Though noting conditions of parole included consent to search home and vehicle, court avoids resting decision on scope of that consent by finding actual consent was given to the parole officers when their suspicions were aroused, and that there was no evidence the parole search was used as a subterfuge for a criminal investigation otherwise lacking in probable cause.

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Revocation

Reyes v. Tate (2001), 91 Ohio St. 3d 84 -- Parole may be revoked even though criminal charges based on the same facts are dismissed, the defendant is acquitted, or the conviction is overturned on appeal, unless all factual support for the revocation is removed. Criminal charges were nollied, but documents before the parole board constituted substantial evidence of parole violation. Also see Duganitz v. Ohio Adult Parole Authority (2001), 92 Ohio St. 3d 556.

Wilkins v. Wilkerson, 157 Ohio App. 3d 209, 2004-Ohio-2530 -- A parolee contesting revocation does not have the same confrontation and due process rights as a trial defendant. Parole revocation hearing was conducted at Lucasville. Parole officer and witnesses were in Akron. Use of teleconferencing equipment found not to violate confrontation rights as the technology permitted free and unimpeded visual and auditory communication among the hearing officer, witnesses, the parolee and counsel.

State v. Dalton, 153 Ohio App. 3d 286, 2003-Ohio-3813 -- A court may not impose an increased sentence upon revocation of post-release control.

Morrissey v. Brewer (1972), 408 U.S. 471 -- Minimum due process standards applicable to parole or probation revocation are: (1) written notice of the claimed violations; (2) disclosure of the evidence against the individual; (3) the opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing such confrontation); (5) a neutral and detached hearing officer; and (6) a written statement by the factfinder as to the evidence relied on and the reasons for the revocation.

State, ex rel. Jackson, v. Denton (1983), 5 Ohio St. 3d 179 -- While a final parole revocation hearing must be held within a reasonable time after the parolee becomes available, the court declines adopting a six day rule. Also see Roberson v. Mohr (1991), 73 Ohio App. 3d 262 (sixteen day delay not unreasonable following conviction of other crimes).

State, ex rel Colverson, v. Ohio Adult Parole Authority (1991), 62 Ohio St. 3d 12, 16 -- "A parolee convicted of a new crime has no right to defend against revocation by insisting that...he is really innocent. The board, it its discretion, may treat misdemeanor convictions as conclusive evidence of a violation."

Pennsylvania Board of Probation and Parole v. Scott (1998), 524 U.S. 357 -- The Fourth Amendment's exclusionary rule does not apply to illegally seized evidence used in state parole revocation proceedings.

State ex rel. Wright v. Ohio Adult Parole Authority (1996), 75 Ohio St. 3d 82 -- Paragraph two of the syllabus: "Evidence obtained through an unreasonable or unlawful search and seizure is generally admissible in probation and/or parole revocation proceedings. (State v. Burkholder [1984], 12 Ohio St. 3d 205...overruled.)" See dissenting opinions.

State, ex rel. Nedea, v. Capots (1988), 40 Ohio App. 3d 74 -- Since there is no clearly established right to counsel at parole revocation hearings, there is no right to effective assistance of counsel. Also see State, ex rel. Stamper, v. Ohio Adult Parole Authority (1991), 62 Ohio St. 3d 85.

Young v. Harper (1997), 520 U.S. 143 -- A preparole program designed to alleviate prison overcrowding by releasing prisoners on terms similar to parole was sufficiently like parole that a person so released, but facing return to prison, was entitled to the procedural protections set forth in Morrissey v. Brewer (1972), 408 U.S. 471.

State ex rel. Duganitz v. Ohio Adult Parole Authority (1996), 77 Ohio St. 3d 190, 193 -- "...(A) reversal of the conviction which formed the basis for parole revocation does not automatically entitle a parolee to final release pursuant to R.C. 2967.16.)" Reversal may lead to release from custody, but general terms for final release must be satisfied.

Flenoy v. Ohio Adult Parole Authority (1990), 56 Ohio St. 3d 131 -- (1) At p. 132 "Parole may be revoked even though criminal charges based on the same facts are dismissed, the defendant is a acquitted, or a conviction is overturned...However, if the dismissal of the criminal charges removes all factual support from the revocation, the revocation will not be upheld." Also see State, ex rel. Hickman, v. Capots (1989), 45 Ohio St. 3d 324; In re Petition for Mallory (1985), 17 Ohio St. 3d 34. (2) At p. 134: When a revocation is voided, the APA is obliged to conduct a further revocation hearing within a reasonable time. If an unreasonably long period of time passes, the APA loses its right to revoke parole. Also see Coleman v. Stobbs (1986), 23 Ohio St. 3d 137; United States, ex rel. Sims, v. Sielaff (7th Cir. 1977), 563 F. 2d 821, 828.

Barnett v. Adult Parole Authority (1998), 81 Ohio St. 3d 385 -- (1) Reversal of involuntary manslaughter conviction which had led to parole revocation did not remove all factual support for finding violation of terms of parole. (2) Imposition of new parole conditions is improper only when the APA has failed to find a violation of the old terms within a reasonable period of time.

State ex rel Jackson v. McFaul (1995), 73 Ohio St. 3d 185, 187 -- "Due process rights are involved in parole revocation, and there is no appeal from an APA decision. Therefore, while the most common situation in which the writ of habeas corpus will issue is when the petition successfully attacks the jurisdiction of the sentencing court, see R.C. 2725.05, habeas corpus will also lie to challenge a decision of the APA in extraordinary cases involving parole revocation."

Wilson v. State (1995), 101 Ohio App. 3d 487 -- Declaratory judgment action asserting right to bail while parole revocation proceedings are pending, notwithstanding contrary provision in R.C. 2967.15, fails. No Eighth Amendment or Article I, Section 9 violation found, nor is there a denial of due process.

State ex rel. Davis v. Ghee (1998), 126 Ohio App. 3d 569 -- Venue for a mandamus action seeking to compel the APA to conduct a parole revocation hearing lies in Franklin County where the Adult Parole Authority conducts business.

Speakman v. Department of Rehabilitation and Correction (1987), 36 Ohio App. 3d 36 -- Headnote: "A writ of mandamus will not issue to compel the Ohio Department of Rehabilitation and Correction to 'speedily' hold a parole revocation hearing in Ohio for an Ohio parolee who is being incarcerated in another state pursuant to a conviction for a new offense in that state."

Spencer v. Kemna (1998), 523 U.S. 1 -- Federal habeas action relating to parole revocation no longer presented a case or controversy once petitioner was released. Though wrongful conviction has been presumed to have continuing collateral consequences, more than possible adverse consequences must be demonstrated with respect to parole matters.

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Post-release control notice at sentencing

State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434 – Syllabus: “(1) For criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall conduct a de novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio. (2) For criminal sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall apply the procedures set forth in R.C. 2929.191.” H.B. 137 purported to allowed correction without de novo resentencing in all cases where PRC had been omitted. Court reviews its line of void judgment cases, then at ¶26 states, “H.B. 137 cannot retrospectively alter the character of sentencing entries issued prior to its effective date that were nullities at their inception, in order to render them valid judgments subject to correction.” However, it may apply prospectively. Five-two split on ¶1 of the syllabus (merely voidable, thus no jeopardy violation). Four-three split on ¶2 (void is void). See State v. Sawyer, 124 Ohio St. 3d 547, 2010-Ohio-923 for what this may mean.

State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238 – The Court returns again to discussion of void versus voidable sentences that goes back to State v, Beasley, (1984), 14 Ohio St. 3d 74, and continued through cases concerning correction of the omission of postrelease control from sentences. Recognizing (somewhat) the difficulties that have resulted the court interposes the concept of limited voidness, premised on failure to follow statutory mandates in passing sentence, as opposed to the broader compass of voidness based on a lack of jurisdiction. Syllabus: “(1) A sentence that des not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack. (2) The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, 868 N.E. 2d 961, syllabus, modified.) (3) Although the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence. (4) The scope of an appeal from a resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues arising at the resentencing hearing.” See dissent.

State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, ¶65-81 – Though the defendant faces the death penalty, his case was remanded for resentencing on the non capital counts based on State v. Foster. Reversed as the court failed to comply with R.C. 2929.191.

State v. Williams, 195 Ohio App. 3d 505, 2011-Ohio-4653, 960 N.E.2d 1027 (10th Dist.) – At resentencing the court failed to advise regarding postrelease control. Reversed. Though is some cases the Tenth District has relied on a “Prison Imposed” notice signed by the defendant, such form is not in the record. Furthermore, since this was a jury trial the defendant did not have the benefit of the advisement included in the standard guilty plea form.

State v. Holcomb, 184 Ohio App. 3d 577, 2009-Ohio-3187 – A sentence that fails to include postrelease control is void. An inmate’s motion to correct sentence may not be brushed aside as a successive petition for postconviction relief. Opinion, styled as “per curiam,” includes considerable discussion of void versus voidable sentences, reflecting the current confusion in that regard arising from Ohio Supreme Court decisions.

State v. Ortiz, 185 Ohio App. 3d 733, 2010-Ohio-38, ¶11 – Defendant was sentenced to community control. Sentence was not void because the judge failed to indicate whether postrelease control would be mandatory or discretionary. The requirement postrelease control be included in a sentence applies only when a prison sentence is imposed.

State v. Arnold, 189 Ohio App. 3d 238, 2009-Ohio-3636 – A court’s jurisdiction to resentence a defendant, here pursuant to R.C. 2929.191, ends with completion of the journalized sentence, not release from prison upon completion of multiple sentences. OAC provisions control the Department of Corrections, not courts. Remanded for determination which of two consecutive sentences was to be served first. Even though the defendant faced a single term of postrelease control, the order would be of consequence in the event of clemency or subsequent successful litigation.

State v. Bedford, 184 Ohio App. 3d 588, 2009-Ohio-3972 – Trial court erroneously attached three years of mandatory postrelease control to non-sex-offense F-4. Instead of reversing, the court finds this rendered the judgment void. Thus there was no final appealable order. Court vacates the judgment and does not rule on the remaining assignments of error.

State v. Bloomer, 122 Ohio St. 3d 200, 2009-Ohio-2462 – Three cases dealing with postrelease control issues. (1) Bloomer: Resentencing to add postrelease control does not amount to double jeopardy or deny due process. Defendant does not have standing to challenge R.C. 2929.191 as he was sentenced before the effective date. (2) Mosmeyer: No due process, double jeopardy, or separation of powers violation in R.C. 2929.191. Nor did the enacting legislation violate the one-subject rule. (3) Barnes: Court need not reach the claim that a complete resentencing hearing was required as the defendant has completed his sentence. The judgment entry must reflect the term of postrelease control. When postrelease control is mandatory, it is error to recite that it may be imposed. Even though postrelease control was mandatory in this case, it may not now be imposed because the defendant has completed his sentence.

State v. Harrison, 122 Ohio St. 3d 512, 2009-Ohio-3547 – Once a sentence has been completed the trial court loses jurisdiction to add postrelease control to the sentence. Police chief pled to a bill of information pertaining to child pornography and completed his sentence. Postrelease control was not made a part of the sentence. More than six months following release the prosecutor sought to have the defendant resentenced to add postrelease control. An attempt to head this off through prohibition was unavailing. When the judge indicated resentencing would go forward the defendant was allowed to withdraw his guilty plea. Reindictment followed.

State v. Weems, 192 Ohio App. 3d 560, 2011-Ohio-721 – Applying Weems and Bloomer, because the defendant had completed his sentence he could not be subjected to another sentencing hearing and was entitled to release from postrelease control.

State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197 – Syllabus: “In cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed upon the defendant unless the defendant has completed his sentence.”

State v. Winston, 182 Ohio App. 3d 306, 2009-Ohio-2171 – When a sentence is void because of the failure to include postrelease control a full resentencing hearing is required. A court may not put on a nunc pro tunc entry in such circumstances. But see State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238.

Hernandez v. Kelly, 108 Ohio St. 3d 395, 2006-Ohio-126 -- Mandatory, post-release control was not mentioned in court or in the judgment entry. Nonetheless, it was imposed by the Adult Parole Authority upon release, and the defendant was subsequently imprisoned for violations. Writ of habeas corpus granted. Post-release control had to be a part of the sentence imposed by the court. Without that having been done, it may not be imposed and enforced by the APA. Since the only journalized sentence has expired, remand for resentencing is precluded.

State ex rel Cruzado v. Zaleski, 111 Ohio St. 3d 353, 2006-Ohio-5795 -- Sentencing entry did not make mention of postrelease control. Trial judge had the authority to add post release before the expiration of the defendant's prison sentence. Writ of prohibition denied.

State v. Ryan, 172 Ohio App. 3d 281, 2007-Ohio-3092 -- Court properly recalled defendant to inform him postrelease control was mandatory, not optional as originally stated.

Watkins v. Collins, 111 Ohio St. 3d 425, 2006-Ohio-5082 -- Opinion refers to a class action lawsuit in federal court which may preclude postrelease control being added to the sentence once the defendant has been released from prison if there has been no mention in the judgment entry. But the petitioners in this habeas action were not entitled to relief where the entries mistakenly referred to PRC at the option of the APA instead of mandatory PRC.

State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250 -- Syllabus: "When a defendant is convicted 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." But in this case the sentence has been completely served and the defendant will not be subject to resentencing. Dissent is troubled by so readily treating the entire sentence as void. Also see State v. Bock, Franklin App. No. 07AP-119, 2007-Ohio-6276.

State v. Grim, Franklin App. No. 06AP-318, 2007-Ohio-166 -- A trial court may not add a term of postrelease control to a sentence after the prison term has been served.

State v. Turner, Franklin App. No. 06AP-491, 2007-Ohio-2187 -- A trial court loses authority to resentence a defendant and add a term of postrelease control at the expiration of the journalized sentence, even though the defendant may remain in prison serving a separate sentence.

North v. Beightler, 112 Ohio St. 3d 122, 2006-Ohio-6515 -- Inmate returned for additional time as a postrelease control violator flummoxed by pleading technicalities, addition of claims, attachment omissions, and a hard to follow adequate remedy at law assertion in relation to his habeas action.

State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085 -- Syllabus: "(1) 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 control and is further required to incorporate that notice into its journal entry imposing sentence. (2) 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, therefore, the sentence must be vacated and the matter remanded to the trial court for resentencing." Omission does not preclude postrelease control, but it may not be imposed unless it is a part of the trial court's judgment.

State v. Harris, 160 Ohio App. 3d 851, 2005-Ohio-2503 ¶13-18 -- Postrelease control must be addressed at the sentencing hearing even if it has been addressed at the plea hearing.

State v. Brown, Hamilton App. Nos. C-020162, C-020163, C-020164, 2002-Ohio-5983 -- After reviewing decisions in the First and other districts concerning what advice must be given concerning post-release control, held that there must be some verbal exchange between the judge and the defendant concerning post-release control. It is sufficient if this merely confirms the defendant's understanding of the conditions spelled out in the written plea agreement. Reference in the judgment entry is not sufficient where the defendant does not see the entry at the plea or sentencing hearing. Since advice in this case is deemed adequate, court does not further consider whether a failure to properly advise renders post-release control unenforceable, as the defendant claimed, or requires resentencing. Also see State v. Todd, Hamilton App. No. C-020559, 2003-Ohio-3056.

State v. Lamb, 156 Ohio App. 3d 128, 2004-Ohio-474, ¶16 -- "We...therefore hold that in order to substantially comply with Crim. R. 11(C)(2)(a), a trial court must advise a defendant of any mandatory post-release control at the time of a defendant's plea." When post-release control is mandatory, it is a part of the maximum sentence. Court only advised that post-release control was a possibility. Also see State v. Prom, 12th Dist No. CA2002-01-007, 2003-Ohio-6543; State v. Perry, 8th Dist No. 82085, 2003-Ohio-6344, ¶ 10; State v. Jones (May 24, 2001), 8th Dist. No. 77657.

Woods v. Telb (2000), 89 Ohio St. 3d 504 -- (1) Post-release control, unlike bad time, is a part of the original sentence, and does not amount to punishment of new crimes through executive power. See State ex rel Bray v. Russell (2000), 89 Ohio St. 3d 132. (2) Post-release control violation procedures set forth in the Ohio Administrative Code comport with the due process standards set forth in Morrissey v. Brewer (1972), 408 U.S. 471. (3) Once the defendant has served the maximum period of additional imprisonment, post-release control may continue, utilizing other residential sanctions short of imprisonment. Local jail time counts as imprisonment. (4) The Adult Parole Authority may not impose post-release control unless it is included in the sentence of the trial court. Reaffirmed: State v. Jordan, 104 Ohio St. 3d 22, 2004-Ohio-6085. ¶19.

State v. Martello, 97 Ohio St. 3d 398, 2002-Ohio-6661 -- Syllabus: "R.C. 2967.28(F)(4), which specifies that a person released on postrelease control who violates conditions of that postrelease control faces a term of incarceration for the violation as well as criminal prosecution for the conduct that was the subject of the violation as a felony in its own right, does not violate the Double Jeopardy Clauses of the United States and Ohio Constitutions."

State v. Jones, Montgomery App. No. 19978, 2004-Ohio-1698 -- Since post-release control is mandatory for those convicted of a felony sex offense, the trial court lacked authority to terminate post-release control.

State v. Hall, Montgomery App. No. 20025, 2004-Ohio-3561 -- According to 1990 plea bargain, prosecutor and judge were to recommend an early release parole to the APA. Instead they opposed such release when interviewed. Denied parole in 2000, the defendant sought to withdraw his guilty plea. (1) Specific performance of original agreement, albeit lackluster, and initial grant of an earlier date to be reconsidered were an adequate remedy. (2) Subsequent opposition by the family, facilitated by the Office of Victims' Services was not within the original agreement, provided this action was not orchestrated by the prosecutor.

State v. Madaris, 156 Ohio App. 3d 211, 2004-Ohio-653 -- No prejudice where advice on post-release control was at the plea hearing instead of the sentencing hearing. Also see State v. Haynie, 157 Ohio App. 3d 708, 2004-Ohio-2452.

State v. Brown, Hamilton App. Nos. C-020162, C-020163, C-020164, 2002-Ohio-5983 -- After reviewing decisions in the First and other districts concerning what advice must be given concerning post-release control, held that there must be some verbal exchange between the judge and the defendant concerning post-release control. It is sufficient if this merely confirms the defendant's understanding of the conditions spelled out in the written plea agreement. Reference in the judgment entry is not sufficient where the defendant does not see the entry at the plea or sentencing hearing. Since advice in this case is deemed adequate, court does not further consider whether a failure to properly advise renders post-release control unenforceable, as the defendant claimed, or requires resentencing. Also see State v. Todd, Hamilton App. No. C-020559, 2003-Ohio-3056.

State v. Washington (August 27, 1998), Franklin Co. App. No. 97APA12-1610, unreported (1998 Opinions 3103) -- (1) Post release control is a matter within the discretion of the Adult Parole Authority and may not be ordered by the trial court. (2) If a defendant is sentenced to prison, the court may also impose a fine or order restitution. It may not add a requirement prohibiting future employment in a specific field.

State v. Spikes (1998), 129 Ohio App. 3d 142 -- A defendant does not have standing to challenge bad time and post-release control provisions in a direct appeal. Opinion discusses alternative methods for seeking relief.

State v. Nutt (September 16, 1999), Pickaway Co. App. No. 98CA36, unreported -- Double jeopardy violation found in prosecution of an inmate for an offense based on conduct already punished as bad time added to his existing sentence.

State v. Warbington (1998), 129 Ohio App. 3d 568 -- With respect to F-5's, post release control is within the discretion of the APA, not the trial court, and it is error to make post-release control a part of the sentence.

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Escape

State v. Hobson, 187 Ohio App. 3d 630, 2010-Ohio-2638 – Defendant was convicted of escape based on a violation of the terms of his postrelease control. He was released on appeal bond, which was amended to require he continue to comply with the conditions of his postrelease control. A second conviction for escape followed after he failed to report. Defendant is unsuccessful in an attempt to have the added condition of the appeal bond equated to belated addition of postrelease control to a sentence. The second escape charge was based on his original sentence, not the appeal bond.

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Other issues

State v. Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509 – Syllabus: "(1) If a trial court fails during a plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the defendant may dispute the knowing, intelligent, and voluntary nature of the plea either by filing a motion to withdraw the plea or upon direct appeal. (2) If the trial court fails during the plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the court fails to comply with Crim.R. 11, and the reviewing court must vacate the plea and remand the case." Court rejects waiver and substantial compliance claims.

State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197 – Syllabus: "In cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed upon the defendant unless the defendant has completed his sentence."

Patterson v. Ohio Adult Parole Authority, 120 Ohio St. 3d 311, 2008-Ohio-6147 – Habeas does not lie to challenge placement on postrelease control upon notice from the Adult Parole Authority. In the court‘s view appeal from the sentence provided an adequate remedy at law.

State ex rel. Mayer v. Henson, 97 Ohio St. 3d 276, 2002-Ohio-6323 -- In 2001 a Common Pleas Court judge put on a nunc pro tunc entry altering the consecutive sentence he imposed in 1983 to make it concurrent to the defendant's other sentences. This was in order to net the defendant the amount of time the judge originally intended be served instead of the actual time to be served at the discretion of the Adult Parole Authority. Prosecutor's complaint in mandamus and prohibition was dismissed by the court of appeals. Supreme Court reverses, strongly indicating that the judge did not have jurisdiction to alter his prior order.

State ex rel. Amburgey (2000), 139 Ohio App. 3d 857 -- Ohio parolee's new sentence in Kansas was made consecutive with Ohio sentence, but the Department of Corrections refused to credit him with time served in Kansas when he was adjudicated a parole violator. The Full Faith and Credit Clause of Article IV of the U.S. Constitution does not require Ohio to honor the Kansas sentence.

Pennsylvania Department of Corrections v. Yeskey (1998), 524 U.S. 206 -- By its language the Americans with Disabilities Act applies to state prisons, which are included within the definition of "public entity." Court leaves open the question whether federal regulation in this manner is a proper exercise under the Commerce Clause.

State v. Peck (1985), 26 Ohio App. 3d 133 -- Due process violation found where: (1) defendant won on appeal, (2) by the time he came up for resentencing he had been released on shock parole, and (3) resentencing resulted in return to prison instead of continuation of parole status.

Reynolds v. State (1984), 14 Ohio St. 3d 68 -- Paragraph two of the syllabus: "Once a decision has been made to furlough a prisoner pursuant to R.C. 2967.26, a cause of action can be maintained against the state for personal injuries proximately caused by the failure to confine the prisoner during non-working hours in accordance with R.C. 2967.26(B). Such a failure to confine is negligence per se, and is actionable pursuant to R.C. 2743.01."

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