When a trial court fails to properly impose postrelease control during criminal sentencing, the sentence is voidable, not void, and the error must be raised on direct appeal, the Ohio Supreme Court ruled today.

Writing for the Supreme Court majority, Justice Sharon L. Kennedy explained that the Court’s decision is intended to clear up years of confusion among judges and parties in criminal cases and to put them on notice that errors in imposing postrelease control do not result in a void sentence that may be challenged at any time. The Court needed to address the issue, she wrote, because prior decisions have led to “seemingly endless litigation asking us to determine which sentencing errors must be raised on direct appeal and which may be raised at any time.”

The Court addressed the issue while reversing a Tenth District Court of Appeals decision to the extent that it ordered the trial court to correct Andre D. Harper’s sentence to include the consequences of violating his postrelease control sanction.

Justices R. Patrick DeWine, Michael P. Donnelly, and Melody J. Stewart joined the opinion, as did Eleventh District Court of Appeals Judge Mary Jane Trapp, sitting for Justice Judith L. French, who did not participate in the case.

Chief Justice Maureen O’Connor concurred in judgment only.

Justice Patrick F. Fischer concurred in judgment only, writing that the Court did not need to address the challenging issue of void and voidable sentences to resolve Harper’s case. Instead, he noted that in other cases before the Court the parties have been instructed to fully brief the void-sentence issue, and one of those cases would provide a better opportunity to bring clarity.

Offender Challenges Sentence after Court Decision
In 2012, Harper was charged with two felony counts of robbery. In 2013, he agreed to plead guilty to one of those counts in exchange for the dismissal of the other. At a plea hearing, the trial court advised Harper in writing that he would be subject to postrelease control and notified him of the consequences if he violated the conditions.

Harper was sentenced to three years in prison and a mandatory three-year term of postrelease control. At the sentencing hearing, the trial court provided notice of the consequences of violating the conditions of postrelease control as required by R.C. 2929.19(B), telling Harper that the Adult Parole Authority may impose a prison term of up to one-half of his stated three-year prison term. However, the court did not include the consequences of the violation in the sentencing entry on the court’s written journal.

Harper did not file a direct appeal of his conviction and was released from prison in September 2015. He began to serve his three-year postrelease control term.

In May 2017, the Court in State v. Grimes ruled that a trial court fails to properly impose postrelease control if the sentencing entry does not notify the offender that any violation of a condition of postrelease control can lead to additional sanctions, including more prison time.

In July 2017, Harper violated the conditions of his postrelease control.  Faced with the possibility of sanctions, Harper sought to vacate the postrelease control portion of his sentence. Citing Grimes, he argued that the imposition of postrelease control was void because the trial court did not include the consequences of violating postrelease control in the written entry.

Ability to Challenge Sentence Disputed
The trial court denied the motion, and Harper appealed to the Tenth District. Franklin County prosecutors argued that Harper did not have the right to file a postconviction challenge to his sentence. They maintained that the only way he could appeal an error in his original sentence was if he filed a direct appeal, but Harper had failed to do so.

The Tenth District denied the state’s argument, concluding that the Grimes decision allowed Harper to challenge the sentence at any time. However, the Tenth District ruled that Harper had been sufficiently notified of the consequences in writing and orally, and directed the trial court to prepare a nunc pro tunc entry correcting the original sentence to include the consequences of a violation of the conditions of postrelease control.

The prosecutors appealed to the Supreme Court, which agreed to hear the case. Harper maintained the Court should not consider his case because by the time it was accepted, he had already fully served his sentence. The Court concluded that the state’s appeal was properly before the Court.

Void and Voidable Judgments
Justice Kennedy stated that under the traditional rule, a judgment is void only if the trial court lacked subject-matter jurisdiction over the case or personal jurisdiction over the parties.  When the court has the constitutional and statutory power to decide a case, any error in the exercise of that power renders the judgment voidable, not void.  A void judgment may be challenged at any time. By contrast, generally, a voidable judgment may only be set aside if successfully challenged on direct appeal, she noted.

The majority opinion explained, however, that the Court had developed a void-sentence jurisprudence applicable to a “discrete vein of cases.” Recognizing that the General Assembly alone has the authority to define offenses and prescribe the punishment for violations, the Court had held that the failure to impose a statutorily mandated term in the sentence rendered that sentence void and subject to correction at any time.  

In 2004, the Court stated, in dicta, that when a trial court fails to provide notice of postrelease control at a sentencing hearing, it fails to properly impose a statutorily mandated term of postrelease control and the sentence is void. Following the decision, offenders and the state began challenging errors in imposing postrelease control that had not been raised on direct appeal. From that point, other errors in sentences were challenged as making the sentence void, the opinion explained, extending the void-sentence jurisprudence beyond the discrete vein of cases relating to the failure to properly impose postrelease control.

Court Finds Finality of Judgments Disrupted
The Court concluded that its decisions allowing delayed challenges of the original sentence disrupted principles of “finality and judicial economy,” permitting attacks on sentences sometimes more than a decade after they had been imposed.

The opinion also stated that “non-compliance with requirements for imposing postrelease control is best remedied the same way as other trial and sentencing errors – through timely objections at sentencing and an appeal of the sentence.”

The Court  ruled that when the sentencing court has jurisdiction over a case and the parties, the failure to properly impose postrelease control renders the sentence voidable, not void.  It then overruled “prior cases in conflict” with its holding today, the opinion stated

Concurrence Found State Raised Issue Too Late
In his concurring opinion, Justice Fischer wrote that because of procedural concerns, the Court should not have addressed the sentencing issue. He noted that prior to their appeal to the Supreme Court, prosecutors did not challenge the claim that Harper’s sentence was void based on the entry error. Because it was not raised in an earlier challenge, the Court should not consider it now, especially since that issue has been properly raised in other cases.

Justice Fischer also wrote that there is nothing in state statutes that requires the sentencing entry must include the consequences of violating postrelease control. It was only the Court in its Grimes decision that required the written statement. Because it did not violate a statute, the error was voidable, and Harper could only challenge it on direct appeal, Justice Fischer concluded.

2018-1144. State v. Harper, Slip Opinion No. 2020-Ohio-2913.

View oral argument video of this case.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.