Resentencing is a must, 5th District rules on petition
KEITH ARNOLD, Daily Reporter Staff Writer
A London Correctional Institution inmate was unable to convince a 5th District Court of Appeals panel that the appellate court should stop the trial court's plan to resentence him as a result of post-release control having been omitted from his initial sentence.
A three-judge panel of the appellate court, however, denied Robert Barcus' petition, having determined Licking County Court of Common Pleas Judge W. David Branstool has jurisdiction to resentence the man.
"The Supreme Court has held, 'A trial court's jurisdiction over a criminal case is limited after it renders judgment, but it retains jurisdiction to correct a void sentence and is authorized to do so,'" 5th District Judge William Hoffman wrote for the court, citing State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, and State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864.
"Indeed, the trial court has an obligation to do so when its error is apparent," as in State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, and Bowen v. Sheldon (2010),124 Ohio St.3d 551, 925 N.E.2d 129, 131.
Barcus' petition suggested that Branstool failed to properly impose post-release control when he was sentenced in Licking County Case Number 04 CR 089, case summary provided. Barcus suggested the sentence is therefore voidable which would prevent resentencing.
Additionally, he has argued that because the state failed to appeal the sentence, the trial court lacks jurisdiction to resentence him.
Branstool filed a motion to file outside of time and a motion to dismiss in response. The appellate panel reasoned they should be denied as moot.
"The Supreme Court has held, 'Sua sponte dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate if the complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the complaint,'" Hoffman continued, citing Rule 12(B)(6) of Rules Civ.Proc. and State ex rel. Kreps v. Christiansen 88 Ohio St.3d 313, 725 N.E.2d 663 (Ohio, 2000).
"Relator has not provided the court with a copy of the sentencing entry. Even assuming all of the facts alleged in the petition are true, relator has not stated a claim upon which relief may be granted.
"The Supreme Court has specifically held prohibition does not lie where the sentencing entry fails to include post-release control."
The panel recognized that Supreme Court holdings have determined such a sentence is void, not voidable. The high court has held that, as required by former R.C. 2929.19(B)(3), the sentence must be vacated and the matter remanded to the trial court for resentencing - as if there had been no original sentence.
Presiding Judge W. Scott Gwin and fellow 5th District Judge Sheila Farmer joined Hoffman to form the majority.
The case is cited as Barcus v. Branstool, 2010-Ohio-4061.
Date Published: September 8, 2010