      [Cite as State v. Madrid, 2018-Ohio-1873.]




                          IN THE COURT OF APPEALS OF OHIO
                              SIXTH APPELLATE DISTRICT
                                   LUCAS COUNTY


State of Ohio                                       Court of Appeals No. L-17-1299

      Appellee                                      Trial Court No. CR0201401143

v.

Michael Ray Madrid                                  DECISION AND JUDGMENT

      Appellant                                     Decided: May 11, 2018

                                               *****

      Julia R. Bates, Lucas County Prosecuting Attorney, and
      Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

      Timothy Young, State Public Defender, and Peter Galyardt,
      Assistant State Public Defender, for appellant.

                                               *****

      JENSEN, J.

                                          I. Introduction

      {¶ 1} This is an accelerated appeal of the judgment of the Lucas County Court of

Common Pleas, denying appellant’s, Michael Madrid, “Motion to Vacate Void Judicial-

Sanction Sentence.”
                         A. Facts and Procedural Background

       {¶ 2} The facts of this case are straightforward. On November 29, 2006, appellant

entered a plea pursuant to North Carolina v. Alford in case No. CR0200601180 to one

count of aggravated robbery in violation of R.C. 2911.01(A)(1) and one count of

involuntary manslaughter in violation of R.C. 2903.04(A) and (C), felonies of the first

degree. The trial court accepted appellant’s plea, found him guilty of the aforementioned

charges, and sentenced him to seven years in prison on each offense, to be served

concurrently. While sentencing appellant, the trial court informed him that he would be

subject to five years mandatory postrelease control. However, the court’s sentencing

entry merely states: “Defendant given * * * postrelease control notice under R.C.

2929.19(B)(3) and R.C. 2967.28.” The entry omits any reference to a mandatory five-

year term of postrelease control.

       {¶ 3} On January 29, 2014, appellant was indicted on one count of possession of

heroin in violation of R.C. 2925.11(A) and (C)(6)(d), a felony of the second degree, one

count of trafficking in heroin in violation of R.C. 2925.03(A)(2) and (C)(6)(e), a felony

of the second degree, one count of possession of cocaine in violation of R.C. 2925.11(A)

and (C)(4)(c), a felony of the third degree, one count of trafficking in cocaine in violation

of R.C. 2925.03(A)(2) and (C)(4)(d), a felony of the third degree, one count of

aggravated possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(a), a felony of

the fifth degree, one count of aggravated trafficking in drugs in violation of R.C.

2925.03(A)(2) and (C)(1)(a), a felony of the fourth degree, and one count of having



       2.
weapons while under disability in violation of R.C. 2923.13(A)(3), a felony of the third

degree. Appellant was serving his five-year term of postrelease control at the time of his

indictment.

       {¶ 4} Following pretrial discovery and plea negotiations, appellant appeared

before the trial court on March 13, 2014, and entered a plea of no contest to the lesser

included offense of trafficking in heroin in violation of R.C. 2925.03(A)(2) and (C)(6)(e),

a felony of the third degree, trafficking in cocaine in violation of R.C. 2925.03(A)(2) and

(C)(4)(d), a felony of the third degree, and aggravated trafficking in drugs in violation of

R.C. 2925.03(A)(2) and (C)(1)(a), a felony of the fourth degree. Pursuant to the parties’

plea agreement, the state agreed to dismiss the remaining charges. The trial court

accepted appellant’s no contest plea, found him guilty of the aforementioned charges, and

continued the matter for sentencing.

       {¶ 5} At a sentencing hearing held on April 17, 2014, the court ordered appellant

to serve 30 months in prison for the charges of trafficking in heroin and trafficking in

cocaine, to be served concurrently. Additionally, the court imposed a 14-month prison

sentence as to the charge for aggravated trafficking in drugs, and ordered that the 14-

month sentence be served consecutive to the 30-month sentence, for a total prison

sentence of 44 months. Additionally, the court found that appellant committed the

foregoing offenses while released on postrelease control in case No. CR0200601180.

Consequently, the court found appellant in violation of the terms of his postrelease

control, and ordered appellant to serve an additional 1,361 days in prison, to be served

consecutive to his 44-month prison term.

       3.
        {¶ 6} Over three years later, on October 20, 2017, appellant filed a “Motion to

Vacate Void Judicial-Sanction Sentence.” In the motion, appellant argued that the trial

court’s 1,361-day postrelease control prison sentence should be vacated under the

authority of the Ohio Supreme Court’s decision in State v. Grimes, 151 Ohio St.3d 19,

2017-Ohio-2927, 85 N.E.3d 700, because the trial court failed to set forth appellant’s

mandatory five-year term of postrelease control in its sentencing entry in case No.

CR0200601180. As a result of this failure, and because appellant had already completed

his 44-month sentence in this case, appellant asserted that he was entitled to an

immediate release from prison.

        {¶ 7} On November 9, 2017, the trial court released its decision denying

appellant’s motion to vacate. In its decision, the court stated the following, in pertinent

part:

                10. Until the decision in Grimes, it was never designated what had to

        be incorporated into the sentencing entry because the notification was the

        primary concern. Now, the Ohio Supreme Court is applying the Grimes

        requirements to old cases that relied on prior decisions. Because the Ohio

        Supreme Court changed the law, it should have been prospective and not

        retroactively applied like they did in State v. Schroeder, 2017-Ohio-7858.

        This application of Grimes could adversely affect thousands of cases in

        Ohio.

                11. It is interesting that R.C. 2967.28(B) has been totally ignored by

        the Grimes majority. This section specifically states that the failure to

        4.
       comply with R.C. 2929.19(B)(2) does not negate or limit the mandatory

       period of post-release control. See also R.C. 2929.19(B)(2)(c).

              12. It is also interesting to note that the issue could have been raised

       on direct appeal, and pursuant to State v. Perry, 10 Ohio St.2d 175, 226

       N.E.2d 104, it may have been res judicata by not raising this issue on direct

       appeal.

              For the above stated reasons, the court in Case No. CR0200601180

       properly notified the defendant of the post-release conditions and properly

       put the notification in the sentencing entry based upon the law at that time.

       This court has chosen not to apply Grimes retroactively and only hold the

       trial judge to the law at that time. In addition, pursuant to R.C. 2967.28(B),

       the legislature indicated that a violation of R.C. 2929.19(B)(3) does not

       negate the mandatory period of post-release control. The legislature created

       post-release control and should control how it is imposed. For these

       reasons the motion to vacate or void the post-release control portion of

       Case No. CR0200601180 that was imposed in this case is DENIED.

       (Emphasis sic.).

                                 B. Assignment of Error

       {¶ 8} Following the trial court’s denial of his motion to vacate, appellant filed a

timely notice of appeal, asserting the following assignment of error:

       {¶ 9} The trial court erred when it denied Michael Madrid’s motion to

vacate his judicial-sanction sentence.

       5.
                                        II. Analysis

       {¶ 10} In his sole assignment of error, appellant argued that the trial court erred in

denying his motion to vacate the 1,361-day sentence attributable to his postrelease

control violation.

       {¶ 11} We review the trial court’s denial of appellant’s motion to vacate de novo.

State v. Brown, 11th Dist. Lake No. 2017-L-038, 2017-Ohio-7963, ¶ 8.

       {¶ 12} In Grimes, supra, the Ohio Supreme Court examined the manner in which

trial courts must inform criminal defendant’s concerning postrelease control. Ultimately,

the court held that to validly impose postrelease control, a trial court must include the

following information in its sentencing entry:

              (1) whether postrelease control is discretionary or mandatory, (2)

       the duration of the postrelease-control period, and (3) a statement to the

       effect that the Adult Parole Authority (“APA”) will administer the

       postrelease control pursuant to R.C. 2967.28 and that any violation by the

       offender of the conditions of postrelease control will subject the offender to

       the consequences set forth in that statute. Grimes, 151 Ohio St.3d 19,

       2017-Ohio-2927, 85 N.E.3d 700, at ¶ 1.

       {¶ 13} Here, the trial court’s sentencing entry in case No. CR0200601180 did not

include the foregoing information. Thus, appellant contends that his postrelease control

sanction should be vacated. In response, the state advances several arguments as to why




       6.
appellant’s postrelease control sanction should not be vacated. Among these arguments,

the state asserts that the statutes in effect at the time of appellant’s sentencing did not

require the judgment entry to reiterate the trial court’s verbal postrelease control

notification. Indeed, R.C. 2929.19(B)(2)(c) merely requires a trial court to “[n]otify the

offender that the offender will be supervised under section 2967.28 of the Revised Code

after the offender leaves prison” when imposing a sentence for which the offender will be

subject to postrelease control. Moreover, that section also provides:

              If a court imposes a sentence including a prison term of a type

       described in division (B)(2)(c) of this section on or after July 11, 2006, the

       failure of a court to notify the offender pursuant to division (B)(2)(c) of this

       section that the offender will be supervised under section 2967.28 of the

       Revised Code after the offender leaves prison or to include in the judgment

       of conviction entered on the journal a statement to that effect does not

       negate, limit, or otherwise affect the mandatory period of supervision that is

       required for the offender under division (B) of section 2967.28 of the

       Revised Code.

       {¶ 14} Here, the trial court’s verbal notification, paired with its reference to the

relevant sentencing statutes in its sentencing entry, complied with the postrelease control

requirements in effect at the time of sentencing. Appellant does not dispute this fact.

The state insists that Grimes should not be applied retroactively to appellant’s postrelease

control sentence, which was imposed long before Grimes was released. We agree.



       7.
       {¶ 15} In Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, the

Ohio Supreme Court instructed that “[a] new judicial ruling may be applied only to cases

that are pending on the announcement date.” Id. at ¶ 6, citing State v. Evans, 32 Ohio

St.2d 185, 186, 291 N.E.2d 466 (1972). In the criminal context, the court explained that

a new judicial ruling “may not be applied retroactively to a conviction that has become

final, i.e., where the accused has exhausted all of his appellate remedies.” Id.

       {¶ 16} In the present case, appellant had exhausted all of his appellate remedies

several years prior to the Ohio Supreme Court’s decision in Grimes. Consequently, his

conviction had already become final, and therefore not subject to the application of

Grimes. State v. Schroeder, 151 Ohio St.3d 345, 2017-Ohio-7858, 88 N.E.3d 957, does

not command a different result. According to the trial court, the Ohio Supreme Court

retroactively applied Grimes when it issued its decision in Schroeder. However,

Schroeder was pending before the Ohio Supreme Court when Grimes was released.

Thus, Grimes was prospectively applied in Schroeder. Such is not the case here given the

fact that apellant’s motion to vacate had not yet been filed on the date Grimes was

announced and was therefore not pending on the announcement date.

       {¶ 17} Because appellant’s sentencing entry complied with the preexisting body of

case law concerning the imposition of postrelease control, we find that the trial court

properly denied appellant’s motion to vacate his postrelease control sanction.

Accordingly, appellant’s assignment of error is not well-taken.




       8.
                                     III. Conclusion

       {¶ 18} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

                                                                      Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
James D. Jensen, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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