In the

Supreme Court of Ohio

STATE OF OHIO,

Plaintiff-Appellant,

v. BRADLEY E. GRIMES,

Defendant-Appellee.

::::::::::

Case No. 2016-0215 On Appeal from the Muskingum County Court of Appeals, Fifth Appellate District Court of Appeals Case No. CT2015-0026

______________________________________________________________________________

BRIEF OF AMICUS CURIAE OHIO ATTORNEY GENERAL MICHAEL DEWINE IN SUPPORT OF APPELLANT STATE OF OHIO

______________________________________________________________________________

D. MICHAEL HADDOX (0004913) Muskingum County Prosecutor

GERALD V. ANDERSON II* (0092567) Assistant Prosecutor *Counsel of Record 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43702-0189 740-455-7123 740-455-7141 fax gvanderson@muskingumcounty.org

Counsel for Appellant State of Ohio STEPHEN P. HARDWICK* (0062932) Assistant Public Defender *Counsel of Record Office of the Ohio Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215 614-466-5394 614-752-5167 fax stephen.hardwick@opd.ohio.gov

Counsel for Appellee Bradley E. Grimes

MICHAEL DEWINE (0009181) Attorney General of Ohio

ERIC E. MURPHY* (0083284) State Solicitor *Counsel of Record MICHAEL J. HENDERSHOT (0081842) Chief Deputy Solicitor 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 614-466-5087 fax eric.murphy@ohioattorneygeneral.gov

Counsel for Amicus Curiae Ohio Attorney General Michael DeWine

Supreme Court of Ohio Clerk of Court - Filed May 23, 2016 - Case No. 2016-0215

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ................................................................................................................. i 

TABLE OF AUTHORITIES ......................................................................................................... iii 

INTRODUCTION ...........................................................................................................................1 

STATEMENT OF AMICUS INTEREST .......................................................................................3 

STATEMENT OF THE CASE AND FACTS.................................................................................3 

ARGUMENT ...................................................................................................................................5 

Amicus Curiae’s Proposition of Law:  

To impose valid postrelease control, the sentencing entry may incorporate the advisements given during the sentencing hearing by referencing the relevant statute and the consequences of violating postrelease control rather than repeating what was said during the sentencing hearing. ..............................................................................5 

A.  Res judicata bars Grimes’s collateral attack on his postrelease control. .............................5 

1.  When a court advises the defendant of the consequences of violating postrelease control at sentencing and references those consequences and the relevant statute in the sentencing entry, the sentence is, at best, voidable. .............5 

2.  Grimes’s release from prison does not change the res judicata analysis. ................8 

B.  The text and purpose of the sentencing provisions governing postrelease control demonstrate that the trial court was not required to restate the effects of postrelease-control violations in full in the sentencing entry. ................................................................9 

1.  The plain text of the sentencing and postrelease control statutes requires the court to explain the effects of violating postrelease control, but does not require the court to restate those consequences in full in the sentencing entry. ......9 

2.  The General Assembly’s purpose in passing the sentencing provisions relating to postrelease control reinforces the text. .................................................12 

C.  This Court’s precedent shows that the court in Grimes’s first case “incorporated” its statements regarding the consequences of violating postrelease control into the sentencing entry. ................................................................................................................13 

1.  This Court’s cases show that a trial court may incorporate its statements from the sentencing hearing regarding violations of postrelease-control into the sentencing entry by referencing those statements and the relevant statute. ...........14 

ii

2.  Grimes’s reliance on Ketterer is misplaced. ..........................................................16 

D.  Any error committed by the trial court imposing Grimes’s postrelease control was harmless because Grimes cannot demonstrate prejudice. ..................................................17 

E.  This Court should consider revising its void and voidable doctrines in the postrelease-control context. ...............................................................................................19 

1.  This Court wrongly applied an overly broad interpretation of voidness to postrelease-control sentences. ................................................................................20 

2.  This Court’s postrelease-control cases have created an unworkable standard resulting in inconsistencies, confusion among lower courts, and damage to res-judicata principles. ...........................................................................................24 

3.  Returning to the traditional concept of res judicata would not result in undue hardship to defendants. ..........................................................................................28 

CONCLUSION ..............................................................................................................................31 

CERTIFICATE OF SERVICE 

iii

TABLE OF AUTHORITIES

Cases Page(s)

A.B. Jac., Inc. v. Liquor Control Comm’n, 29 Ohio St. 2d 139 (1972) .......................................................................................................12

Andrews v. Bd. of Liquor Control, 164 Ohio St. 275 (1955)...........................................................................................................12

Carmelo v. Maxwell, 173 Ohio St. 569 (1962)...........................................................................................................22

Case of the Marshalsea, 77 Eng. Rep. 1027 (K.B. 1612) ...............................................................................................24

Durfee v. Duke, 375 U.S. 106 (1963) .................................................................................................................23

Ex parte Fenwick, 110 Ohio St. 350 (1924)...........................................................................................................22

Ex parte Shaw, 7 Ohio St. 81 (1857)...........................................................................................................22, 30

Ex parte Van Hagan, 25 Ohio St. 426 (1874).............................................................................................................22

Ex parte Winslow, 91 Ohio St. 328 (1915).............................................................................................................22

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394 (1981) .................................................................................................................30

Garverick v. Hoffman, 23 Ohio St. 2d 74 (1970) .........................................................................................................22

Gilner v. Saint-Gobain Norton Indus. Ceramics Corp., 89 Ohio St. 3d 414 (2000) .......................................................................................................14

Hamilton v. State, 78 Ohio St. 76 (1908)...............................................................................................................22

Hart Steel Co. v. R.R. Supply Co., 244 U.S. 294 (1917) .................................................................................................................30

In re J.S., 136 Ohio St. 3d 8, 2013-Ohio-1721 ........................................................................................25

iv

Johnson v. Sachs, 173 Ohio St. 452 (1962)...........................................................................................................22

Joyce v. Gen. Motors Corp., 49 Ohio St. 3d 93 (1990) .........................................................................................................12

Kelley v. Wilson, 103 Ohio St. 3d 201, 2004-Ohio-4883.....................................................................................22

Knapp v. Edwards Labs., 61 Ohio St. 2d 197 (1980) ............................................................................................... passim

Lamar v. United States, 240 U.S. 60 (1916) ...................................................................................................................24

McNitt v. Turner, 83 U.S. 352 (1872) ...................................................................................................................24

Pope v. United States, 323 U.S. 1 (1944) .....................................................................................................................23

Pratts v. Hurley, 102 Ohio St. 3d 81, 2004-Ohio-1980.................................................................................22, 29

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) .................................................................................................................24

S. Pac. R.R. Co. v. United States, 168 U.S. 1 (1897) .....................................................................................................................30

Stahl v. Currey, 135 Ohio St. 253 (1939).....................................................................................................22, 29

State ex rel. Hanley v. Roberts, 17 Ohio St. 3d 1 (1985)............................................................................................................12

State ex rel. O’Farrell v. New Philadelphia City Counsel, 57 Ohio St. 3d 73 (1991) .........................................................................................................12

State ex rel. Waver v. Gallagher, 105 Ohio St. 3d 134, 2005-Ohio-780.......................................................................................22

State v. Adams, 2016-Ohio-336 (9th Dist.) .......................................................................................................27

State v. Ball, 2013-Ohio-3443 (5th Dist.) .....................................................................................................27

v

State v. Beasley, 14 Ohio St. 3d 74 (1984) .......................................................................................20, 21, 29, 30

State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250.......................................................................................25

State v. Billiter, 134 Ohio St. 3d 103, 2012-Ohio-5144.............................................................................6, 7, 25

State v. Black, 142 Ohio St. 3d 332, 2015-Ohio-513.......................................................................................12

State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177.......................................................................6, 7, 15, 16

State v. Brown, 2002-Ohio-5983 (1st Dist.) ......................................................................................................18

State v. Clark, 2013-Ohio-299 (2d Dist.).........................................................................................................27

State v. Ditterline, No. 96CA47, 1997 WL 567944 (4th Dist. Sept. 5, 1997) .......................................................11

State v. Fincher, No. 97APA03-352, 1997 WL 638410 (10th Dist. Oct. 14, 1997) ...........................................11

State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238............................................................................... passim

State v. Fisher, 99 Ohio St. 3d 127, 2003-Ohio-2761.......................................................................................18

State v. Hawk, 616 N.W.2d 527 (Iowa 2000) ..................................................................................................14

State v. Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-5014.......................................................................7, 8, 21, 29

State v. Holsinger, 2014-Ohio-2523 (7th Dist.) .....................................................................................................27

State v. Kepler, 2015-Ohio-3291 (5th Dist.) .....................................................................................................26

State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831............................................................................. passim

vi

State v. Martin, 2015-Ohio-2865 (8th Dist.) .....................................................................................................27

State v. Miller, 127 Ohio St. 3d 407, 2010-Ohio-5705.....................................................................................11

State v. Moore, 2015-Ohio-3435 (5th Dist.) .....................................................................................................26

State v. Murray, 2012-Ohio-4996 (6th Dist.) .....................................................................................................27

State v. Patterson, No. 97CA28, 1998 WL 720733 (4th Dist. Sept. 21, 1998) .....................................................11

State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642.......................................................................................5

State v. Perry, 10 Ohio St. 2d 175 (1967) .......................................................................................................22

State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-1111............................................................................. passim

State v. Radcliff, Nos. 97APA08-1054, 97APA08-1056, 1998 WL 120304 (10th Dist. March 17, 1998) ..................................................................................................................................11

State v. Richard-Bey, 2014-Ohio-2923 (5th Dist.) ...............................................................................................16, 26

State v. Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245.....................................................................................30

State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434.................................................................................9, 14

State v. Smith, 2010-Ohio-6361 (8th Dist.) .....................................................................................................27

State v. Vanzandt, 142 Ohio St. 3d 223, 2015-Ohio-236.........................................................................................9

Stoll v. Gottlieb, 305 U.S. 165 (1938) .................................................................................................................30

Surella v. Ohio Adult Parole Auth., 2011-Ohio-6833 (10th Dist.) ...................................................................................................27

vii

Thompson v. Tolmie, 27 U.S. 157 (1829) ...................................................................................................................24

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010) .................................................................................................8, 20, 23, 29

Watkins v. Collins, 111 Ohio St. 3d 425, 2006-Ohio-5082............................................................................. passim

Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849...................................................................19, 20, 24, 26

Statutes

R.C. 1.49 ........................................................................................................................................13

R.C. 109.02 ......................................................................................................................................3

R.C. 2929.11 ..................................................................................................................................21

R.C. 2929.12 ..................................................................................................................................21

R.C. 2929.19(B)(2)(a) ....................................................................................................................11

R.C. 2929.19(B)(2)(b)....................................................................................................................11

R.C. 2929.19(B)(2)(e) ..............................................................................................................10, 13

R.C. 2929.19(B)(2)(g)(i) ................................................................................................................11

R.C. 2945.06 ..................................................................................................................................22

R.C. 2953.08(G)(2) ........................................................................................................................28

R.C. 2967.28 ..................................................................................................................4, 13, 15, 17

R.C. 2967.28(D)(1) ........................................................................................................................10

Other Authorities

App. R. 4(A)(1) ................................................................................................................................8

Black’s Law Dictionary (7th ed. 1999) ..........................................................................................14

Crim. R. 52(A) ...............................................................................................................................18

Note, Developments in the Law: Res Judicata, 65 Harv. L. Rev. 818 (1952) ...............................28

Note, Filling the Void: Judicial Power and Jurisdictional Attacks on Judgments, 87 Yale L.J. 164 (1977) .....................................................................................................30, 31

INTRODUCTION

While on postrelease control after serving a prison sentence for robbery and vandalism,

Bradley E. Grimes engaged in unlawful sexual contact with a minor. He pleaded guilty and

received a prison sentence for the offense, as well as a sentence for violating the terms of his

postrelease control. In an effort to escape the latter sentence, Grimes collaterally attacked his

postrelease control as improperly imposed. The trial court rejected his claim that the court in his

first case erred when, after delivering a full explantion of the consequences of violating

postrelease control at sentencing, it merely referenced those consequences and the relevant

statute (rather than repeating the explanation in full) in the sentencing entry. The Fifth District

reversed. That decision was incorrect.

First, res judicata bars Grimes’s claim because the purported error in his sentencing entry

would render his sentence voidable rather than void, and only void sentences may be collaterally

attacked. This Court has held that, aside from omitting postrelease control entirely, sentencing-

entry errors that do not also occur at the sentencing hearing do not render a sentence void. See

State v. Qualls, 131 Ohio St. 3d 499, 2012-Ohio-1111 ¶ 25. Thus, because Grimes’s claim

relates solely to his sentencing entry, he may not pursue the claim in a collateral proceeding.

Second, the plain language of the postrelease-control sentencing provisions shows that no

error occurred here. The statutes require the sentencing court to inform the defendant of the

consequences of violating postrelease control at the sentencing hearing but nowhere require the

court to restate those admonitions in the sentencing entry rather than referencing them and the

relevant statutes. The statutory purpose confirms this reading. This Court has emphasized that

the “main focus in interpreting the sentencing statutes regarding postrelease control has always

been on notification itself and not on the sentencing entry.” Id. ¶ 19 (collecting cases). Grimes’s

claim flies in the face of this purpose, because it would permit defendants who receive full and

2

accurate postrelease-control notifications to invalidate their postrelease control based solely on

technical complaints about the sentencing entry.

Third, case law reinforces the statutory text. This Court has held that a trial court must

“incorporate” the statutory language regarding postrelease-control violations into the sentencing

entry. Id. Incorporation may be accomplished by referencing the consequences of postrelease-

control violations and the relevant statutory provisions, as precedent from this Court and others

demonstrates. Indeed, requiring a full restatement of the consequences of violations would

undermine the sentencing statute’s focus on notification rather than the sentencing entry. See id.

Moreover, Grimes’s reliance on this Court’s Ketterer decision for the contrary conclusion is

misplaced. See State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831. That case involved: (1)

a direct appeal rather than a collateral attack, (2) sentencing errors and sentencing-entry errors

(rather than the latter alone), and (3) a sentencing entry that included less language than Grimes’s

entry. Ketterer also applied an exceedingly lenient harmless-error analysis due to the “unique

status” of capital cases and held that harm occurred because “at least four errors” resulted in

prejudice when “[v]iewed cumultively.” None of those factors are present here, and Ketterer is

therefore of little use.

Fourth, even if this Court concludes that res judicata does not apply and that the trial

court improperly imposed Grimes’s postrelease control, it should still reverse the Fifth District

because any error was harmless. Grimes does not dispute that he was fully informed of the

consequences of violating postrelease control at sentencing. No prejudice results from receiving

a lawful punishment after being fully informed of it.

Finally, while the Court need not do so, it should use this case to revisit its postrelease

control jurisprudence. Those cases erred in their sweeping application of the voidness doctrine,

3

as demonstrated by their inconsistency with this Court’s cases in other contexts and precedent

from the U.S. Supreme Court. Those cases have consistently held that only certain jurisdictional

errors or due-process violations render a sentence void. Additionally, this Court’s approach is

unworkable and has resulted in inconsistencies, exceptions, and lower-court confusion. No

undue hardship would result from doing away with that approach. Doing so would simply

prevent parties from initiating untimely appeals that are not allowed in virtually any other

context, a result which often benefits defendants.

STATEMENT OF AMICUS INTEREST

The Attorney General has a duty to defend legislation duly enacted by the General

Assembly. Grimes’s claim implicates statutory provisions governing postrelease control,

sentencing, and corrections to sentencing entries. As “the chief law officer for the state and all

of its departments,” the Attorney General has an interest in ensuring that these laws are properly

interpreted. R.C. 109.02. Moreover, postrelease control serves to protect the community and

rehabilitate defendants following their release from prison. A decision from this Court endorsing

the Fifth District’s opinion would enable defendants to invalidate postrelease control based on, at

best, technical errors contained in their sentencing entries by simply waiting until after their

release from prison to challenge the imposition of postrelease control. The Attorney General has

an interest in ensuring that this important tool is not blunted through technicalities.

STATEMENT OF THE CASE AND FACTS

In 2011, Grimes was convicted of robbery and vandalism and sentenced to 18 months in

prison. State v. Grimes, 2015-Ohio-3497 ¶ 2 (5th Dist.) (“App. Op.”). At sentencing, the trial

court informed Grimes that he would also receive three years of mandatory postrelease control

and could be imprisoned for up to one-half of the prison term originally imposed if he violated

its conditions. (The lower court did not discuss the sentencing hearing and the sentencing

4

transcript is not part of the record, but Grimes concedes that he received the proper notifications.

See Br. for Appellant at 6, 7, Grimes, 2015-Ohio-3497; see also Knapp v. Edwards Labs., 61

Ohio St. 2d 197, 199 (1980) (when appellant declines to order sentencing transcript on appeal,

courts “presume the validity of the lower court’s proceedings”).) The sentencing entry stated

that Grimes would be subject to three years of mandatory postrelease control. App. Op. ¶ 11. It

also stated that Grimes would be subject to the “consequences for violating conditions of post

release control imposed by the Parole Board under Revised Code 2967.28,” and that Grimes was

“ordered to serve as part of this sentence any term for violation of that post release control.” Id.

While on postrelease control following the completion of his prison sentence, Grimes

was indicted for and pleaded guilty to engaging in unlawful sexual conduct with a minor. Id. ¶ 3.

The court sentenced him to one year in prison and classified him as a Tier II sex offender. Id. It

also imposed a judicial-sanction sentence equal to the time remaining on Grimes’s postrelease-

control and ordered that it be served consecutive to the one-year sentence. Id. Grimes moved to

vacate the judicial-sanction sentence, asserting that his postrelease control was void because the

court in his first case did not properly impose it. Id. ¶ 4. The trial court denied the motion. Id.

Grimes appealed, and the Fifth District reversed. Id. ¶¶ 13-15. The court reasoned that,

while the sentencing entry in Grimes’s first case stated that he would be subject to the

consequences for violating the conditions of postrelease control and referred to the relevant

statutory provision governing violations, it “failed to inform [Grimes] if he violated his

supervision or a condition of postrelease control, the parole board could impose a maximum

prison term of up to one-half of the prison term originally imposed.” Id. ¶¶ 11-12.

5

The Fifth District subsequently granted the State’s request to consider the case en banc,

but it was unable to reach a consensus. See Judgment Entry 22/468-470 (Jan. 11, 2016). This

appeal followed. See 2016-Ohio-899.

ARGUMENT

Amicus Curiae’s Proposition of Law:

To impose valid postrelease control, the sentencing entry may incorporate the advisements given during the sentencing hearing by referencing the relevant statute and the consequences of violating postrelease control rather than repeating what was said during the sentencing hearing.

A. Res judicata bars Grimes’s collateral attack on his postrelease control.

Although the court in Grimes’s first case properly imposed his postrelease control, as

explained below, res judicata bars his claim anyhow. Res judicata bars attacks on voidable, but

not void, sentences. See State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238 ¶ 1; State v.

Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642 ¶ 28. Grimes’s postrelease-control sentence was,

at best, voidable, as this Court’s cases demonstrate. The fact that Grimes has served the sentence

for which postrelease control was imposed does not change this analysis, because a barred claim

remains barred regardless of whether the defendant is in prison.

1. When a court advises the defendant of the consequences of violating postrelease control at sentencing and references those consequences and the relevant statute in the sentencing entry, the sentence is, at best, voidable.

Under this Court’s precedent, a judgment rendered by a court without jurisdiction or

authority to act is void, whereas an “invalid, irregular, or erroneous” judgment rendered by a

court with jurisdiction and authority is merely voidable. Fischer, 2010-Ohio-6238 ¶ 6 (citation

and quotation marks omitted); Payne, 2007-Ohio-4642 ¶ 27; but see infra Part E.

“No court has authority to impose a sentence that is contrary to law.” Fischer, 2010-

Ohio-6238 ¶ 23. In the postrelease control context, this Court has identified two types of

6

judgments that are contrary to law and thus void: (1) “[a] sentence that does not include the

statutorily mandated term of postrelease control,” id. ¶ 1, and (2) a sentence that does not include

the “correct term of postrelease control,” State v. Billiter, 134 Ohio St. 3d 103, 2012-Ohio-5144

¶ 12 (emphasis added).

The Court has been careful to note, however, that sentences are not void when errors

reflected in the sentencing entry did not also occur at the sentencing hearing. Indeed, the Court

observed in State v. Qualls that “our main focus in interpreting the sentencing statutes regarding

postrelease control has always been on the notification itself and not on the sentencing entry.”

131 Ohio St. 3d 499, 2012-Ohio-1111 ¶ 19 (collecting cases). This makes sense. While a court

lacks authority to impose a sentence that is contrary to law, no authority is violated by the mere

commission of sentencing-entry error following the proper imposition of a sentence. See id.

¶ 13; see also infra Part E(1).

In Qualls, this Court observed that “[i]n no previous case in which a sentencing entry was

silent as to postrelease control have we specifically considered the significance of proper

postrelease-control notification at the sentencing hearing.” 2012-Ohio-1111 ¶ 22. The Court

went on to conclude that, “when the notification of postrelease control was properly given at the

sentencing hearing, the essential purpose of notice has been fulfilled and there is no need for a

new sentencing hearing to remedy the flaw” in the sentencing entry. Id. ¶ 24. Thus, whereas “a

sentence that does not properly impose postrelease control is void,” when “notification of

postrelease control was properly given at the sentencing hearing, [the defendant] has no

substantive grounds upon which to pursue an appeal relating to the imposition of postrelease

control.” Id. ¶¶ 23, 25; see also State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177 ¶ 30

(“[a] trial court’s inadvertent failure to incorporate the statutory findings in the sentencing entry

7

after properly making those findings at the sentencing hearing does not render the sentence

contrary to law”).

This Court’s post-Qualls cases have not altered these conclusions. Billiter, for example,

held that the postrelease-control errors it confronted “d[id] not fall outside the scope of our

decision in Fischer.” Billiter, 2012-Ohio-5144 ¶ 12. As in Fischer, no party argued that the trial

court provided proper postrelease-control notifications at the sentencing hearing. The same can

be said of State v. Holdcroft, 137 Ohio St. 3d 526, 2013-Ohio-5014. In that case, the Court noted

that the postrelease-control errors occurred at the sentencing hearing and in the sentencing entry.

Id. ¶ 2. These cases demonstrate that Qualls remains the relevant precedent for errors occurring

solely in the sentencing entry.

Applying Qualls to this case shows that res judicata applies for two reasons. First, as in

Qualls, Grimes concedes that the court imposing his postrelease control fully informed him of its

terms and the consequences of violations at sentencing. See Br. for Appellant at 6, 7, Grimes,

2015-Ohio-3497; see also Knapp, 61 Ohio St. 2d at 199. He claims only that the sentencing

entry failed to fully reiterate those consequences. As this Court’s cases show, such sentences are

not contrary to law and thus are not void. See Qualls, 2012-Ohio-1111 ¶ 25; see also Bonnell,

2014-Ohio-3177 ¶ 30.

Second, even if certain errors in a sentencing entry alone could render postrelease control

void, and even if Grimes’s sentencing entry contained an error, Grimes’s sentence does not

contain the kind of error that this Court has used to void a sentence. Unlike the sentencing entry

in Fischer, the entry here did not fail to mention that Grimes would be subject to postrelease

control. And, unlike the entry in Billiter, the entry here correctly stated the duration of the

postrelease control. Similarly, the entry did not erroneously state that the postrelease control was

8

mandatory rather than discretionary. Cf. Watkins v. Collins, 111 Ohio St. 3d 425, 2006-Ohio-

5082 ¶ 53 (denying writ of habeas corpus because “[t]he petitioners’ sentencing entries, although

they mistakenly included wording that suggested that imposition of postrelease control was

discretionary, contained sufficient language to authorize the Adult Parole Authority to exercise

postrelease control over the petitioners”).

The purported error in this case is different. Under this Court’s precedent, a court has no

authority to impose a sentence not permitted by the General Assembly or to not impose one it

mandated. But a court that imposes a proper sentence and merely declines to repeat in full the

consequences of violating that sentence cannot be deemed to have overstepped its authority. Cf.

Qualls, 2012-Ohio-1111 ¶ 13. At best, such a sentence is “invalid, irregular, or erroneous.”

Fischer, 2010-Ohio-6238 ¶ 6. Indeed, a ruling to the contrary would cause the voidness doctrine

to swallow the voidable doctrine entirely. See United Student Aid Funds, Inc. v. Espinosa, 559

U.S. 260, 270 (2010) (“The list of . . . infirmities [that render a sentence void] is exceedingly

short; otherwise,” the “exception to finality would swallow the rule.”). Accordingly, Grimes’s

sentence is, at most, voidable, and his collateral attack is therefore barred by res judicata.

2. Grimes’s release from prison does not change the res judicata analysis.

Grimes’s release from prison cannot convert a voidable sentence into a void one.

Whether a sentence is void or voidable depends solely on the error committed. Thus, while a

trial court has no jurisdiction to alter the sentencing entry after the defendant’s release from

prison, see Holdcroft, 2013-Ohio-5014 ¶¶ 5, 11, 14, that is irrelevant in this case. Indeed, if

Grimes’s release could render his sentence void, then Grimes would have been able to appeal his

postrelease control during the 30-day appeals period, App. R. 4(A)(1), unable to appeal during

the following 17 months of his 18-month sentence, and able to appeal once again upon his

release from prison when his voidable sentence became void.

9

The only time a defendant’s release from prison affects a sentencing-entry error is when

the entry makes no mention of postrelease control. This Court has noted “that unless a

sentencing entry that did not include notification of the imposition of postrelease control is

corrected before the defendant completed the prison term for the offense for which postrelease

control was to be imposed, postrelease control cannot be imposed.” Qualls, 2012-Ohio-1111

¶ 16. Separation-of-powers principles compel such a conclusion, because the parole board has

no authority to impose postrelease control that was not mentioned in the sentencing entry. See

State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434 ¶ 13; Watkins, 2006-Ohio-5082 ¶¶ 48-

49. But where, as here, “a sentencing entry made some reference to postrelease control, any

deficiencies in the entry could have been raised on appeal, and postrelease control can be

imposed upon the defendant’s release from prison.” Qualls, 2012-Ohio-1111 ¶ 16 (emphasis

added) (citing Watkins, 2006-Ohio-5082 ¶ 48-51).

B. The text and purpose of the sentencing provisions governing postrelease control demonstrate that the trial court was not required to restate the effects of postrelease-control violations in full in the sentencing entry.

Grimes can point to no statutory authority indicating that, after notifying the defendant of

the consequences of violating postrelease control at sentencing, a court must provide a full

written restatement of those effects in the sentencing entry rather than merely referencing them.

As Ohio’s sentencing statute demonstrates, no such restatement is required.

1. The plain text of the sentencing and postrelease control statutes requires the court to explain the effects of violating postrelease control, but does not require the court to restate those consequences in full in the sentencing entry.

“If the meaning of the statute is unambiguous and definite, it must be applied as written

and no further interpretation is necessary.” State v. Vanzandt, 142 Ohio St. 3d 223, 2015-Ohio-

236 ¶ 7 (citation and quotation marks omitted). Here, the sentencing and postrelease control

statutes require a court to “[n]otify the offender that, . . . if the offender violates [a period of]

10

supervision or a condition of postrelease 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.” R.C. 2929.19(B)(2)(e); see also R.C. 2967.28(D)(1). Additionally, the sentencing

statute states that a court’s failure to explain the effects of violating postrelease control or to

include that notification in the journal 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)(e).

The requirement that notification as to the exact effects of violating postrelease control be

repeated in the sentencing entry can be found nowhere in the text of the statutes. The statutes

focus not on where the notification appears but whether it was given. The trial court imposing

Grimes’s postrelease control fulfilled this requirement by notifying Grimes of the effects of

violating his postrelease control. Grimes does not contest that he received this notification. See

Br. for Appellant at 6, 7, Grimes, 2015-Ohio-3497; see also Knapp, 61 Ohio St. 2d at 199. Nor

does he argue that, prior to his release from prison, the parole board failed to notify him of its

power to impose a prison sentence for violating postrelease control. His argument focuses

narrowly on the sentencing entry, but that is not the focus of the statutes.

If the General Assembly wished to focus on the sentencing entry, it could easily have

done so by explicitly requiring courts to fully reiterate the consequences of violating postrelease

control. Indeed, it included scrupulous instructions regarding other aspects of the sentencing

entry. For example, the sentencing statute states that:

[T]he court shall . . . include in the sentencing entry the name and section reference to the offense or offenses, the sentence or sentences imposed and whether the sentence or sentences contain mandatory prison terms, if sentences are imposed for multiple counts whether the sentences are to be served concurrently or

11

consecutively, and the name and section reference of any specification or specifications for which sentence is imposed and the sentence or sentences imposed for the specification or specifications . . . .

R.C. 2929.19(B)(2)(b); see also R.C. 2929.19(B)(2)(g)(i). The idea that the General Assembly

intended to impose the requirements Grimes seeks without stating as much when it so

meticulously outlined the other requirements for sentencing entries strains the imagination.

It is of course true “that a court speaks through its journal entries.” State v. Miller, 127

Ohio St. 3d 407, 2010-Ohio-5705 ¶ 12. But that does not change the above conclusion, because

it is equally true that a court need only speak when required by statute. See, e.g., State v.

Patterson, No. 97CA28, 1998 WL 720733, *3 (4th Dist. Sept. 21, 1998); State v. Radcliff, Nos.

97APA08-1054, 97APA08-1056, 1998 WL 120304, at *2 n.2 (10th Dist. March 17, 1998); State

v. Fincher, No. 97APA03-352, 1997 WL 638410, *5 n.1 (10th Dist. Oct. 14, 1997); State v.

Ditterline, No. 96CA47, 1997 WL 567944, *3 (4th Dist. Sept. 5, 1997). Indeed, interpreting the

speaks-through-journal maxim more broadly would eviscerate the sentencing statute and would

not serve the purposes the maxim was designed to further.

The sentencing statute distinguishes between what the court must do at sentencing and

what it must say in the sentencing entry. Sometimes these requirements overlap; other times

they do not. For example, one division of the sentencing statute requires the court to “[i]mpose a

stated prison term and, if the court imposes a mandatory prison term, notify the offender that the

prison term is a mandatory prison term . . . .” R.C. 2929.19(B)(2)(a). The next division requires

the court to “include in the sentencing entry the . . . sentence or sentences imposed and whether

the sentence or sentences contain mandatory prison terms . . . .” R.C. 2929.19(B)(2)(b). The

latter provision would be entirely superfluous if the sentencing requirement was also a

sentencing-entry requirement. Moreover, the sentencing requirement (and other sentencing

12

requirements in the sentencing statute) would require an interpretive rewrite if they were to be

applied to the sentencing entry despite not mentioning it.

In addition, the principle that a court speaks through its journal serves specific purposes,

none of which are furthered by construing sentencing requirements as sentencing-entry

requirements in contravention of statute. For example, the principle ensures that reviewing

courts consider the whole sentencing entry rather than part of it, A.B. Jac., Inc. v. Liquor Control

Comm’n, 29 Ohio St. 2d 139, 142 (1972), that appeal periods begin running after the issuance of

a final written order, State ex rel. Hanley v. Roberts, 17 Ohio St. 3d 1, 4-5 (1985), and that

discrepancies between the journal and opinion are decided in favor of the journal entry, Andrews

v. Bd. of Liquor Control, 164 Ohio St. 275, 281 (1955). The principle has never been applied

rigidly, however. It does not apply, for example, when a court exercises its administrative

powers, State ex rel. O’Farrell v. New Philadelphia City Counsel, 57 Ohio St. 3d 73, 76 (1991),

or when “the interest of justice” necessitates consideration of the record, Joyce v. Gen. Motors

Corp., 49 Ohio St. 3d 93, 95 (1990). Most importantly, the principle has never been interpreted

as a means of trumping statutory text.

The statute here requires the trial court to inform the defendant of the consequences of

violating postrelease control at the sentencing hearing. It does not require a full recitation of

those consequences in the sentencing entry. The speaks-through-journal principle cannot

undermine plain text. Accordingly, this Court should apply the statute as written.

2. The General Assembly’s purpose in passing the sentencing provisions relating to postrelease control reinforces the text.

If there is ambiguity as to the meaning of a statute, courts may consider “the purpose to

be accomplished by the statute.” State v. Black, 142 Ohio St. 3d 332, 2015-Ohio-513 ¶ 37. In

this case, that purpose is clear. This Court has frequently observed that the “main focus in

13

interpreting the sentencing statutes regarding postrelease control has always been on notification

itself and not on the sentencing entry.” Qualls, 2012-Ohio-1111 ¶ 19 (collecting cases). This

focus is consistent with the statutory text, which concerns itself with notification rather than the

sentencing entry. See R.C. 2929.19(B)(2)(e) (court must “[n]otify the offender” of the

consequences of violating postrelease control). Indeed, “the preeminent purpose of R.C.

2967.28” is to let “offenders subject to postrelease control know at sentencing that their liberty

could continue to be restrained after serving their initial sentences.” Watkins, 2006-Ohio-5082

¶ 52. Reading the requirement as Grimes requests would undermine this purpose.

Additionally, when analyzing the purpose to be accomplished, a court may consider the

“consequences of a particular construction.” R.C. 1.49. Here, Grimes argues that the court

improperly imposed postrelease control because it failed to restate the consequences of violations

in his sentencing entry, and that his postrelease control must be vacated because the court could

only correct the entry before his release from prison. Under this construction, any defendant

may invalidate his postrelease control so long as he waits until he is released from prison to

challenge technical errors in the sentencing entry. The General Assembly aimed to ensure that

defendants received the proper notifications; it did not intend for those who received the proper

notifications to escape postrelease control based on technicalities.

C. This Court’s precedent shows that the court in Grimes’s first case “incorporated” its statements regarding the consequences of violating postrelease control into the sentencing entry.

This Court’s cases reinforce the text and purpose of the sentencing statute. Under that

precedent, a court must “incorporate” its postrelease-control statements from sentencing into the

sentencing entry, but need not restate them. The court in Grimes’s first case met that standard by

referring to the consequences of violating postrelease control in the sentencing entry and

14

referencing the statutory provision governing violations. Grimes’s relies on this Court’s Ketterer

decision for the contrary claim, but that case is inapplicable for numerous reasons.

1. This Court’s cases show that a trial court may incorporate its statements from the sentencing hearing regarding violations of postrelease-control into the sentencing entry by referencing those statements and the relevant statute.

A trial court must “incorporate” statements made at sentencing about postrelease control

into the sentencing entry. See Qualls, 2012-Ohio-1111 ¶ 19; Singleton, 2009-Ohio-6434 ¶ 13.

At the same time, it has emphasized substance over form, noting that the “main focus” and

“preeminent purpose” of the statutes relates to notification itself rather than the sentencing entry.

Qualls, 2012-Ohio-1111 ¶ 19; Watkins, 2006-Ohio-5082 ¶ 52.

The Court’s reasoning in these cases suggests that the sentencing entry need not repeat all

that the trial court said at the sentencing hearing regarding postrelease control. For one, if a

sentencing entry could not incorporate the consequences of postrelease-control violations

through reference rather than restatement, then the Court’s statements in Qualls, Watkins, and

other cases would be meaningless. The “main focus” would not, in fact, be on notification itself

if full and accurate notifications made at sentencing never actually sufficed unless repeated in

full in the entry.

Moreover, courts have recognized that “incorporation” encompasses more than mere

“restatement” and thus may be achieved by reference. Cf. State v. Hawk, 616 N.W.2d 527, 530

(Iowa 2000) (“‘incorporate’ means ‘[t]o combine with something else,’ or ‘[t]o make the terms

of another (esp. earlier) document part of a document by specific reference’” (quoting Black’s

Law Dictionary 769 (7th ed. 1999))). Indeed, “restatement by reference” is a contradiction in

terms, whereas “incorporation by reference” is commonplace. For example, this Court has

incorporated lower-court opinions into its own by reference. See, e.g., Gilner v. Saint-Gobain

Norton Indus. Ceramics Corp., 89 Ohio St. 3d 414, 414 (2000) (“The court of appeals’ opinion

15

summarized the evidence presented in ninety-seven pages of cogent and comprehensive prose,

which we hereby incorporate by reference.”). Additionally, the Court has held in other contexts

that trial courts are not “required to give a talismanic incantation of the words of the statute,

provided that the necessary findings can be found in the record and are incorporated into the

sentencing entry.” Bonnell, 2014-Ohio-3177 ¶ 37. “[I]ncorporating” statutory findings means

something short of restating them.

In this case, Grimes received all the notifications at sentencing that he claims his

sentencing entry omitted. See Br. for Appellant at 6, 7, Grimes, 2015-Ohio-3497; see also

Knapp, 61 Ohio St. 2d at 199. That is, the court informed him that he would be subject to three

years of postrelease control following his release from prison, that this term was mandatory, and

that he could be imprisoned for up to one-half of the prison term originally imposed if he

violated the conditions of postrelease control.

The sentencing entry referenced the latter notification, stating that Grimes would be

subject to the “consequences for violating conditions of post release control imposed by the

Parole Board under Revised Code 2967.28” and that he “is ordered to serve as part of this

sentence any term for violation of that post release control.” App. Op. ¶ 11. This language

explicitly refers to the consequences of violating postrelease control and the statutory provision

under which those consequences can be found, effectively informing Grimes of the existence and

location of penalties to which he may be subject. Short of restating the statutory language

entirely—a standard which would require this Court to adopt a new “restatement” test and to

disavow its longstanding interpretation of the sentencing statutes—it is difficult to imagine what

more the court could have said to “incorporate” the statutory language into the sentencing entry.

16

2. Grimes’s reliance on Ketterer is misplaced.

In the lower court, Grimes relied primarily on the Fifth District’s decision in State v.

Richard-Bey, 2014-Ohio-2923 (5th Dist.). That case, in turn, relied on this Court’s decision in

State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831 ¶ 78. The Fifth District cited both cases

in support of its decision accepting Grimes’s claim. See App. Op. ¶ 12. Ketterer, however, is

distinguishable on numerous grounds.

First, Ketterer involved consolidated direct appeals to the defendant’s resentencing entry

and a nunc pro tunc entry correcting the resentencing entry. See id. ¶ 5. Accordingly, res

judicata was not at issue. That is not the case here. As a result, the res judicata analysis

described above, while inapplicable to Ketterer, is fully applicable here.

Second, the errors in Ketterer occurred not only in the sentencing entry, but also at the

sentencing hearing, during which “the trial court failed to notify [the defendant] orally of

postrelease control as to Count Three . . . .” Id. ¶ 70. Thus, Quall’s observation that no prior

case had previously addressed “the significance of proper postrelease-control notification at the

sentencing hearing” when analyzing a sentencing-entry error, 2012-Ohio-1111 ¶ 22, includes

Ketterer. Because the purported error here appears only in the sentencing entry, this case is more

like Qualls. And, as Qualls observed, when “notification of postrelease control was properly

given at the sentencing hearing, [the defendant] has no substantive grounds upon which to pursue

an appeal relating to the imposition of postrelease control.” Id. ¶¶ 25; see also Bonnell, 2014-

Ohio-3177 ¶ 30.

Third, Ketterer merely reiterates what the Court has often said, namely that a postrelease-

control sentence must “incorporate” the statutory language governing violations of postrelease

control. Ketterer, 2010-Ohio-3831 ¶ 77. As explained above, any other interpretation would

render this Court’s numerous cases placing primary focus on the notification itself meaningless.

17

See Qualls, 2012-Ohio-1111 ¶ 19 (collecting cases). Thus, while it may be insufficient to

reference “any prison term for violation of that post release control,” Ketterer, 2010-Ohio-3831

¶ 77, this does not suggest that a full recitation of the statutory language is necessary. Here, the

sentencing entry included more than just language like that in Ketterer; it also stated that Grimes

would be subject to the “consequences for violating conditions of post release control imposed

by the Parole Board under Revised Code 2967.28.” App. Op. ¶ 11. This incorporated the

consequences of violating postrelease control and the relevant statutes where those consequences

can be found. As explained above, nothing more was required.

Finally, the standard for and substance of the harmless-error test in this case is materially

different. Ketterer took a broad view of “harm” due to the “unique status” and “strict level of

care” required in capital cases. 2010-Ohio-3831 ¶ 78 (citation and quotation marks omitted).

That permissive view is unwarranted here. Moreover, the Court held that “at least four errors

occurred in notifying [the defendant] of postrelease control,” and that, “[v]iewed cumulatively,

these errors on the part of the trial court cannot be considered harmless.” Id. The errors included

inaccurate statements made at sentencing and in the sentencing entry, as well as the failure to

provide a required hearing. See id. Here, in contrast, the court made no inaccurate statements,

provided Grimes will full and accurate information at the sentencing hearing, and never followed

improper procedures. Grimes has not argued that he was prejudiced in any way, perhaps because

receiving a lawful punishment after being informed of it cannot be credibly construed as

prejudicial.

D. Any error committed by the trial court imposing Grimes’s postrelease control was harmless because Grimes cannot demonstrate prejudice.

Even if this Court concludes that Grimes may collaterally attack his postrelease control

and that an error occurred, this Court should still reverse because no harm resulted. “Any error,

18

defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”

Crim. R. 52(A). To satisfy this standard, the defendant must demonstrate that the error resulted

in prejudice. See State v. Fisher, 99 Ohio St. 3d 127, 2003-Ohio-2761 ¶ 7. Grimes cannot

satisfy this standard.

Grimes does not dispute that the court imposing his postrelease control informed him of

its terms and the consequences of violations at sentencing. See Br. for Appellant at 6, 7, Grimes,

2015-Ohio-3497; see also Knapp, 61 Ohio St. 2d at 199. He claims only that the sentencing

entry did not fully restate those consequences. Accordingly, a “reasonable person” in Grimes’s

“position . . . would have had sufficient notice” regarding the consequences of violating

postrelease control. Watkins, 2006-Ohio-5082 ¶ 51. No prejudice results from receiving a

lawful punishment after being fully informed of it, and Grimes has no plausible argument to the

contrary. See Qualls, 2012-Ohio-1111 ¶ 23. This is particularly true given that many defendants

do not see judgment entries at all. See, e.g., State v. Brown, 2002-Ohio-5983 ¶ 17 (1st Dist.) (“in

this jurisdiction . . . the defendant never sees the judgment entry”). Ruling for Grimes would

mean not only concluding that accurate references in a sentencing entry prejudice a properly

notified defendant, but that those references prejudice a properly notified defendant even when

he does not seem them.

Additionally, there is no reason to jettison harmless-error review in this case. Indeed, this

Court applied it in Ketterer. See 2010-Ohio-3831 ¶ 78; id. ¶ 85 (Lundberg Stratton, J.,

dissenting). Similar to Ketterer, this case involves purported postrelease-control errors and is

amenable to harmless-error review. But, as explained above, the differences between this case

and Ketterer show that no harm occurred here. Specifically: (1) the trial court here committed at

most one error rather than “at least” four; (2) the court fulfilled the “preeminent purpose” of the

19

sentencing statutes by fully and accurately notifying Grimes of his postrelease-control

obligations at sentencing, see Qualls, 2012-Ohio-1111 ¶ 19 (quoting Watkins, 2006-Ohio-5082 ¶

52); (3) the purported error in the entry involved only the failure to fully restate accurate

notifications rather than the inclusion of inaccurate notifications; and (4) this is not a capital case

whose “unique status” warrants a more generous view of “harm.” As a result, the Court should

hold that any error in this case was harmless.

E. This Court should consider revising its void and voidable doctrines in the postrelease-control context.

Because this Court’s precedent indicates that res judicata applies when a court fully and

accurately advises the defendant regarding postrelease control at sentencing, includes postrelease

control in the judgment entry, and merely omits certain additional details about postrelease

control in the entry, the Court need not address broader questions relating to void postrelease-

control sentences. This is particularly true given that the court in Grimes’s first case properly

imposed postrelease control and any error it did make was harmless.

Should the Court reject these claims and hold that Grimes’s sentence is void, it will

implicate an enduring conflict between its voidness cases in the postrelease-control context and

other contexts. In that event, the Court should revisit its jurisprudence in that area. “[A] supreme

court not only has the right, but is entrusted with the duty to examine its former decisions and,

when reconciliation is impossible, to discard its former errors.” Westfield Ins. Co. v. Galatis,

100 Ohio St. 3d 216, 2003-Ohio-5849 ¶ 43. This Court’s “precedents are not sacrosanct;” it has

“overruled prior decisions where the necessity of doing so has been established.” Id. ¶ 44

(citation and quotation marks omitted). Necessity exists when: “(1) the decision was wrongly

decided at that time, or changes in circumstances no longer justify continued adherence to the

20

decision, (2) the decision defies practical workability, and (3) abandoning the precedent would

not create an undue hardship for those who have relied upon it.” Id. ¶ 28.

This Court’s postrelease-control cases addressing voidness were wrongly decided, as

demonstrated by their irreconcilability with this Court’s cases in other contexts and precedent

from the U.S. Supreme Court. The approach is also unworkable. It has resulted in numerous

inconsistencies and exceptions and caused confusion among lower courts, rendering res judicata

all but meaningless in the process. Finally, applying the traditional res judicata doctrine would

not create undue hardship. It would merely prevent parties from initiating untimely appeals that

are not allowed in virtually any other context. In fact, such an approach may reduce hardships to

defendants, as this Court’s precedent demonstrates.

The Supreme Court and this Court in other contexts have articulated the proper test for

determining whether a sentence is void or voidable: Voidable sentences merely contain errors,

whereas void sentences arise “only in the rare instance where a judgment is premised either on a

certain type of jurisdictional error or on a violation of due process that deprives a party of notice

or the opportunity to be heard.” Espinosa, 559 U.S. at 270-71. This Court should consider

adopting that straightforward approach.

1. This Court wrongly applied an overly broad interpretation of voidness to postrelease-control sentences.

The Court’s postrelease-control cases cannot be reconciled with other cases addressing

void and voidable sentences. With the exception of some sentencing-entry errors that did not

also occur at sentencing, see Qualls, 2012-Ohio-1111 ¶ 25, this Court has treated all sentences

containing postrelease-control errors as void, see Fischer, 2010-Ohio-6238 ¶¶ 8-9. This

approach arose from the Court’s application of State v. Beasley, 14 Ohio St. 3d 74 (1984). In

that case, the Court held that a court “exceeded its authority” by issuing a sentence below the

21

statutory minimum and that the resulting sentence was void. Id. at 75. The decision is narrow.

It involved a court willfully disregarding the statute rather than merely committing an error. See

id. at 76 (“[I]t is the function of a court to construe statutes, not to defeat them. Clemency is a

function of the Executive Branch . . . .”); id. (noting that “circumvention of statutory sentencing

requirements” is prohibited). But the Court later applied Beasley sweepingly in the postrelease-

control context, holding that nearly all errors constitute breaches of authority rendering a

sentence void. See Fischer, 2010-Ohio-6238 ¶¶ 9-10 (discussing Beasley).

Whatever the validity of Beasley’s narrow rule, the Court’s broad transformation of that

standard in the postrelease-control context finds no support in the case law. On the contrary,

both this Court and the U.S. Supreme Court have maintained for over a century that non-

jurisdictional errors merely result in voidable sentences.

This Court’s Precedent. The Court’s approach to voidness in the postrelease-control

context is out of step with its approach in other areas. In Fischer, the Court noted that its

rationale only applied to “a discrete vein of cases: those in which a court does not properly

impose a statutorily mandated period of postrelease control.” Id. ¶ 28. The Court noted in a later

case that “[t]he Fischer rule does not apply to most sentencing challenges.” Holdcroft, 2013-

Ohio-5014 ¶ 8. For example, it does not apply to “challenges to a trial court’s compliance with

R.C. 2929.11 and 2929.12” or to “challenges to a sentencing court’s determination whether

offenses are allied and its judgment as to whether sentences must be served concurrently or

consecutively,” all of which must be challenged on direct appeal. Id.

In those and other contexts, a sentence issued in violation of a statute does not render a

sentence void. As this Court has explained:

[C]ourts are sometimes prone to speak of any erroneous deviation from the prescribed statutory procedure as a lack of ‘jurisdiction.’ . . . In its historic and

22

more accurate sense, jurisdiction is a matter of power and covers wrong as well as right decisions. . . . [E]very wrong decision . . . is not void as being beyond the so-called jurisdiction of the tribunal, even though voidable by proper judicial process.

Garverick v. Hoffman, 23 Ohio St. 2d 74, 78-79 (1970) (internal citations omitted). The Court

has employed this approach continuously for well over a century. See, e.g., State ex rel. Waver

v. Gallagher, 105 Ohio St. 3d 134, 2005-Ohio-780 ¶ 7; Kelley v. Wilson, 103 Ohio St. 3d 201,

2004-Ohio-4883 ¶ 14; Pratts v. Hurley, 102 Ohio St. 3d 81, 2004-Ohio-1980 ¶ 24 (“The failure

of a court to convene a three-judge panel, as required by R.C. 2945.06, does not constitute a lack

of subject-matter jurisdiction that renders the court’s judgment void ab initio and subject to

collateral attack in habeas corpus.”); State v. Perry, 10 Ohio St. 2d 175, 178-79 (1967) (“[A]

judgment of conviction is void if rendered by a court having . . . no jurisdiction . . . . Conversely,

where a judgment of conviction is rendered by a court having jurisdiction . . . , such judgment is

not void, and the cause of action merged therein becomes res judicata as between the state and

the defendant.”); Carmelo v. Maxwell, 173 Ohio St. 569, 570 (1962); Johnson v. Sachs, 173 Ohio

St. 452, 454 (1962) (“The imposition of an erroneous sentence does not deprive the trial court of

jurisdiction.”); Stahl v. Currey, 135 Ohio St. 253, 261 (1939) (“when a court has jurisdiction of

the person and of the offense, the imposition, by mistake, of a sentence in excess of what the law

permits, is within the jurisdiction, and does not render the sentence void, but only voidable by

proceedings upon a write of error” (citation and quotation marks omitted)); Ex parte Fenwick,

110 Ohio St. 350, 353-54 (1924); Ex parte Winslow, 91 Ohio St. 328, 329-30 (1915); Hamilton

v. State, 78 Ohio St. 76, 83-86 (1908); Ex parte Van Hagan, 25 Ohio St. 426, 432 (1874) (“The

punishment inflicted by the sentence, in excess of that prescribed by the law in force, was

erroneous and voidable, but not absolutely void.”); Ex parte Shaw, 7 Ohio St. 81, 82 (1857)

(“The court had jurisdiction over the offense and its punishment. It had authority to pronounce

sentence; and while in the legitimate exercise of its power, committed a manifest error and

23

mistake in the award of the number of years of the punishment. The sentence was not void, but

erroneous.”).

U.S. Supreme Court Precedent. The U.S. Supreme Court has adopted a similar

dichotomy, holding that sentences are voidable when erroneous but void only when certain

jurisdictional errors or a due-process violation occurred. Espinosa, 559 U.S. at 270-71; see also

Durfee v. Duke, 375 U.S. 106, 111-16 (1963) (noting that res judicata still applies to

jurisdictional questions “fully and fairly litigated” in first case). Under this approach, even if a

court lacks “authority” to issue a judgment, the judgment is not void. In Espinosa, a bankruptcy

court erroneously discharged accrued interest on student debts without making a statutorily

required “undue hardship” determination, and the creditor later filed a collateral attack on the

judgment. Id. at 265-66. The Court noted that the creditor, “[u]nable to demonstrate a

jurisdictional error or a due process violation, . . . urge[s] us to expand the universe of judgment

defects that” render a sentence void. Id. at 273. “Specifically, [the creditor] contend[s] that the

Bankruptcy Court’s confirmation order is void because the court lacked statutory authority to

confirm [the debtor’s] plan absent a finding of undue hardship.” Id. The Court was “not

persuaded that a failure to find undue hardship in accordance with [the statute] is on par with the

jurisdictional and notice failings that define void judgments . . . .” Id. Thus, since the statute did

“not limit the bankruptcy court’s jurisdiction over student loan debts” or “impose requirements

that, if violated, would result in a denial of due process,” the failure to make the determination

was a “legal error” not subject to collateral attack. Id. at 273-75.

This rationale is consistent with the Court’s long line of cases holding that improper

sentences issued by courts with jurisdiction are not void and may only be attacked on direct

appeal. See, e.g., Pope v. United States, 323 U.S. 1, 14 (1944) (“Jurisdiction to decide is

24

jurisdiction to make a wrong as well as a right decision.”); Rooker v. Fidelity Trust Co., 263 U.S.

413, 415 (1923) (“[T]he circuit court had jurisdiction of both the subject-matter and the

parties . . . . If the decision was wrong, that did not make the judgment void, but merely left it

open to reversal or modification in an appropriate and timely appellate proceeding.”); Lamar v.

United States, 240 U.S. 60, 64 (1916) (“Jurisdiction is a matter of power, and covers wrong as

well as right decisions.”); McNitt v. Turner, 83 U.S. 352, 366 (1872) (“It is an axiomatic

proposition that when jurisdiction has attached, whatever errors may subsequently occur in its

exercise, the proceeding being coram judice, can be impeached collaterally only for fraud.”);

Thompson v. Tolmie, 27 U.S. 157, 169 (1829) (“When a court has jurisdiction, . . . whether its

decision be correct or not, its judgment, until reversed, is regarded as binding in every other

court. But if it acts without authority, its judgments and orders are regarded as nullities. They

are not voidable, but simply void . . . .”); see also Case of the Marshalsea, 77 Eng. Rep. 1027,

1038-41 (K.B. 1612) (Coke, J.) (“when a Court has . . . jurisdiction of the cause, and proceeds

inverso ordine or erroneously, there the party who sues, or the officer or minister of the Court

who executes the precept or process of the Court, no action lies against them”).

This Court has never articulated a convincing reason for the disparity in its treatment of

postrelease-control errors and other errors. As shown below, there is no justification for the

inconsistencies, exceptions, and confusion created by this approach.

2. This Court’s postrelease-control cases have created an unworkable standard resulting in inconsistencies, confusion among lower courts, and damage to res-judicata principles.

This Court’s current approach to voidness for postrelease-control errors is also

unworkable. It has resulted in inconsistencies, criticism, and conflicts among lower courts. See

Galatis, 2003-Ohio-5849 ¶¶ 50 (considering “widespread criticism,” “conflicts emanating from

the lower courts,” and the “mudd[ying]” of settled doctrine when analyzing workability).

25

Inconsistencies. The Court has frequently confronted the “recurrent and increasingly

divisive debate” regarding void and voidable sentences in the postrelease control context.

Fischer, 2010-Ohio-6238 ¶ 6. In a recent case dismissed as improvidently granted, Justice

Lanzinger, writing for herself and two other justices, emphasized the necessity of addressing the

“confusing and inconsistent” “decisions in this area . . . .” In re J.S., 136 Ohio St. 3d 8, 2013-

Ohio-1721 ¶¶ 7-20 (Lanzinger, J., dissenting); see also Billiter, 2012-Ohio-5144 ¶¶ 15-26

(Lanzinger, J., concurring in part and dissenting in part) (discussing the “quagmire created in the

void/voidable line of cases” and noting that “the court has been anything but clear and consistent

in its postrelease control cases, in which it has followed various lines of reasoning only to change

or reverse court when the consequences of this reasoning become unworkable”).

Examples abound. See Billiter, 2012-Ohio-5144 ¶ 20 n.2-3 (Lanzinger, J., concurring in

part and dissenting in part) (citing criticisms of and inconsistencies in Court’s voidness cases).

For instance, the Court previously held that when a trial court improperly imposes postrelease

control the defendant’s sentence is void and he is entitled to a new sentencing hearing. State v.

Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250 ¶ 17. It later overruled Bezak, holding that the

sentence is only “in part void.” Fischer, 2010-Ohio-6238 ¶ 28. But in a later case purporting to

follow Fischer, the Court voided an escape conviction based on postrelease-control errors

without mentioning the “in part void” caveat, stating instead that, “if a trial court imposes a

sentence that is unauthorized by law, the sentence is void.” Billiter, 2012-Ohio-5144 ¶ 10. As

Justice Lanzinger noted, “[i]t is hard to believe that Fischer has clarified the law when [Billiter]

states that it is being consistent in directly contradicting it.” J.S., 2013-Ohio-1721 ¶¶ 7

(Lanzinger, J., dissenting).

26

In addition to the “in part void” exception, the Court has held that a sentence is not void

when the trial court properly informs the defendant regarding postrelease control at sentencing

and the only error appears in the sentencing entry. See Qualls, 2012-Ohio-1111 ¶ 25. But this

exception is itself subject to an exception, because a sentencing entry that makes no reference to

postrelease control remains void. See id. ¶ 16. And some cases simply fit nowhere in these

rules. Ketterer held that a sentence was not void at all even though errors occurred at the

sentencing hearing and in the sentencing entry. See 2010-Ohio-3831 ¶ 63 (defendant’s

“noncapital sentences are not void”); id. ¶ 78 (detailing post-conviction-control errors). The

examples could go on.

These inconsistencies, exceptions, and exceptions to exceptions, have resulted in exactly

what Galatis sought to avoid. In that case, the Court warned that, “[i]f we were to slowly create

a patchwork of exceptions and limitations, we would abandon certainty in the law and contribute

to the continuing morass of litigation. Maintaining . . . precedent, while eviscerating it with

exceptions, would not respect the principle of stare decisis but mock it . . . .” 2003-Ohio-5849

¶ 57. Unfortunately, the postrelease-control cases addressing voidness have done just that.

Lower-Court Confusion. The lack of clarity in the Court’s cases has manifested itself in

confusion among lower courts. Even limiting the analysis to the narrow question at issue in this

case—whether purported errors occurring in the sentencing entry but not at sentencing render a

sentence void—the difficulties are apparent. The Fifth District, for example, has issued

numerous conflicting decisions on the matter. Last year it held that postrelease-control was void

because the sentencing entry used language similar to that at issue here. See State v. Kepler,

2015-Ohio-3291 ¶¶ 14-15 (5th Dist.); see also Richard-Bey, 2014-Ohio-2923 ¶¶ 17, 19. Less

than a week later it reached the opposite conclusion in a similar case. See State v. Moore, 2015-

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Ohio-3435 ¶ 13 (5th Dist.); see also State v. Ball, 2013-Ohio-3443 ¶¶ 23-25 (5th Dist.). And less

than a week after that it changed its position again when it issued the opinion in this case. See

App. Op. ¶¶ 12-13. The court subsequently considered the issue en banc but was unable to reach

a decision.

Other districts have also grappled with the question without success. The Sixth District

took different sides of the issue in different cases before finally holding that language like that in

Grimes’s sentencing entry did not render a sentence void. See State v. Murray, 2012-Ohio-4996

¶ 24 (6th Dist.) (discussing cases). The Eighth District has also issued inconsistent opinions.

Compare State v. Martin, 2015-Ohio-2865 ¶ 10 (8th Dist.) (“Because postrelease control

sanctions were not properly included in [the defendant]’s sentencing journal entry, any attempt to

impose postrelease control is void.”), with State v. Smith, 2010-Ohio-6361 ¶ 12 (8th Dist.) (“no

court has held the failure to state in the journal entry the consequences of violating postrelease

control results in a void sentence”). The Second and Tenth District have held that references to

the consequences of violations and the relevant statute suffice. See State v. Clark, 2013-Ohio-

299 ¶ 11 (2d Dist.); Surella v. Ohio Adult Parole Auth., 2011-Ohio-6833 ¶¶ 23, 27 (10th Dist.).

The Seventh and Ninth districts, in contrast, have held that such language renders a sentence

void. See State v. Adams, 2016-Ohio-336 ¶ 9 (9th Dist.); State v. Holsinger, 2014-Ohio-2523 ¶¶

13, 16 (7th Dist.). The only point that has received little pushback is that the law in this area is

needlessly convoluted. See, e.g., Clark, 2013-Ohio-299 ¶ 11 (noting “the difficult-to-decipher

trends in this area”).

Res Judicata Extinguished. Limiting voidness to jurisdictional and due-process errors

makes sense. Indeed, definitions of void sentences that reach “beyond those roots,” Fischer,

2010-Ohio-6238 ¶ 9, ultimately fail to provide a principled method of distinguishing between

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non-jurisdictional errors that render a sentence void and those that do not. Instead, the approach

invites the death of res judicata by a thousand cuts. See Note, Developments in the Law: Res

Judicata, 65 Harv. L. Rev. 818 (1952) (“allowing the finality of judgments to be questioned in a

subsequent proceeding because of a court’s nonjurisdictional errors, which are correctible on

appeal, might lead to unpredictable limitations on the doctrine of res judicata”). This Court’s

postrelease-control cases demonstrate as much.

This is the inevitable outcome of treating any statutory error as a breach of authority and

any resulting sentence as void. Were this Court to apply such an approach elsewhere, it would

be forced to allow all sorts of collateral attacks and to overrule much of its existing precedent. A

party fails to appeal a court’s consideration of the felony-sentencing factors? No problem; bring

a collateral attack. Declines to challenge an allied-offense determination? That’s okay too.

Decides not to contest consecutive sentences? Excessive sentences? Lenient sentences? Jury-

waiver errors? All allowed, because to err is to overstep authority, except in those rare instances

where a court’s error happens to fall within the statute (such as an erroneous but within-

guidelines prison term). In fact, by this logic, a court lacks authority to commit even those

errors. After all, a court may not issue a sentence that is contrary to law. See R.C.

2953.08(G)(2). If a court that issues such a sentence lacks authority to do so, and if the lack of

authority so defined renders a sentence void, see Fischer, 2010-Ohio-6238 ¶ 23, then a judgment

that is merely “invalid, irregular, or erroneous,” id. ¶ 6 (citation and quotation marks omitted), is

not, in fact, voidable; it is void.

3. Returning to the traditional concept of res judicata would not result in undue hardship to defendants.

No undue hardship to those with reliance interests would result from applying the usual

approach to res judicata to postrelease-control errors. The only subset of the population with

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possible reliance interests are those who are currently on postrelease control, are serving terms

that were improperly imposed, did not challenge their postrelease control on direct appeal, are

not able to collaterally attack their sentences under a statute (such as Ohio’s post-conviction-

relief statute) or on jurisdictional or due-process grounds, and would decide to violate their

postrelease control only if they were permitted to collaterally attack its imposition after the fact.

It is difficult to imagine that such individuals exist.

Even if they do exist, no hardship will befall them when, as here, they received full and

accurate notifications regarding postrelease control. As explained above, technical errors do not

result in prejudice in those instances. And if an individual received no notice, a collateral attack

might be appropriate on due-process grounds. See Espinosa, 559 U.S. at 270-71. Moreover, it

would be an even further stretch to say that undue hardship would result from a decision that in

no way affects trial rights, direct-appeal rights, statutory collateral-appeal rights, or collateral-

appeal rights based on jurisdictional errors or due-process violations. The decision would merely

prevent parties from instituting collateral proceedings that are not allowed in virtually any other

context. Res judicata has been applied, among other issues, to the imposition of consecutive

sentences, see Holdcroft, 2013-Ohio-5014 ¶ 8, the failure to convene a three-judge panel, see

Pratts, 2004-Ohio-1980 ¶ 24, and excessive sentences, see Stahl, 135 Ohio St. at 261. There is

no basis for concluding that applying it to postrelease control would cause undue hardship.

Moreover, lax res judicata standards are as likely to harm as to help defendants.

Consider Beasley, the root of the Court’s current approach. In that case, the prosecution sought

to collaterally attack “the trial court’s erroneous imposition of a sentence less severe than the

statutory minimum . . . .” Beasley, 14 Ohio St. 3d at 75 (emphasis added). This Court held that

“the trial court exceeded its authority and this sentence must be considered void,” that

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“[j]eopardy did not attach to the void sentence,” and that a greater punish could be imposed. Id.

Conversely, enforcing res judicata often prevents the imposition of more severe punishments.

See, e.g., Shaw, 7 Ohio St. at 81-82 (res judicata barred attack on one-year sentence even though

statutory minimum was three years). Thus, applying res judicata to postrelease control is as

likely to protect defendants from undue hardship as to cause them hardship.

* * *

Authorities have long recognized that res judicata safeguards the principle of finality, a

principle of paramount importance to the legal system. See, e.g., Federated Dep’t Stores, Inc. v.

Moitie, 452 U.S. 394, 401 (1981) (“‘[R]es judicata is not a mere matter of practice or procedure

inherited from a more technical time than ours. It is a rule of fundamental and substantial

justice, of public policy and of private peace, which should be cordially regarded and enforced

by the courts . . . .’” (quoting Hart Steel Co. v. R.R. Supply Co., 244 U.S. 294, 299 (1917))); Stoll

v. Gottlieb, 305 U.S. 165, 172 (1938) (“Courts to determine the rights of parties are an integral

part of our system of government. It is just as important that there should be a place to end as

that there should be a place to begin litigation.”); S. Pac. R.R. Co. v. United States, 168 U.S. 1,

49 (1897) (“[Res judicata’s] enforcement is essential to the maintenance of social order; for the

aid of judicial tribunals would not be invoked for the vindication of rights of person and property

if, as between parties and their privies, conclusiveness did not attend the judgments of such

tribunals in respect of all matters properly put in issue, and actually determined by them.”); State

v. Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245 ¶ 18 (“res judicata promotes the principles of

finality and judicial economy by preventing endless relitigation of an issue on which a defendant

has already received a full and fair opportunity to be heard”); Note, Filling the Void: Judicial

Power and Jurisdictional Attacks on Judgments, 87 Yale L.J. 164, 198 (1977) (“if . . . judgments

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may be attacked after they have ostensibly become final—after the system has announced that

the underlying dispute is settled—then the system is not settling disputes, it is offering tentative

suggestions”); id. at 199 (“every decision concerning questions of judicial power made in the

drafting of the Constitution came down on the side of finality”). This Court should hesitate to

abandon a principle so essential to our judicial system, especially when doing so means breaking

ranks with most other courts—including this Court in other areas—and avoids no hardship.

CONCLUSION

This Court should reverse the Fifth District’s judgment and reinstate Grimes’s judicial-

sanction sentence.

Respectfully submitted, MICHAEL DEWINE (0009181) Attorney General of Ohio

/s Eric E. Murphy ERIC E. MURPHY* (0083284) State Solicitor *Counsel of Record MICHAEL J. HENDERSHOT (0081842) Chief Deputy Solicitor 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 614-466-5087 fax eric.murphy@ohioattorneygeneral.gov

Counsel for Amicus Curiae Ohio Attorney General Michael DeWine

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Brief of Amicus Curiae Ohio Attorney

General Michael DeWine in Support of Appellant was served via ordinary mail this 23rd day of

May, 2016 upon the following counsel:

D. Michael Haddox Muskingum County Prosecutor Gerald V. Anderson II Assistant Prosecutor 27 North Fifth Street P.O. Box 189 Zanesville, Ohio 43702-0189

Counsel for Appellant State of Ohio

Stephen P. Hardwick Assistant Public Defender Office of the Ohio Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215

Counsel for Appellee Bradley E. Grimes

/s Eric E. Murphy Eric E. Murphy State Solicitor