[Cite as State v. Fuller, 124 Ohio St.3d 543, 2010-Ohio-726.]




             THE STATE OF OHIO, APPELLEE, v. FULLER, APPELLANT.
           [Cite as State v. Fuller, 124 Ohio St.3d 543, 2010-Ohio-726.]
Court of appeals’ judgment reversed on the authority of State v. Singleton and
        cause remanded to the trial court.
   (No. 2008-2343 — Submitted January 13, 2010 — Decided March 4, 2010.)
               APPEAL from the Court of Appeals for Madison County,
                                   No. CA2008-04-008.
                                  __________________
        {¶ 1} The judgment of the court of appeals is reversed on the authority of
State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, to the
extent that the court of appeals held that a hearing pursuant to R.C.2929.191 was
not required to correct appellant’s sentence. The cause is remanded to the trial
court for a hearing pursuant to R.C.2929.191.
        MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and
CUPP, JJ., concur.
        LANZINGER, J., concurs separately.
        PFEIFER, J., dissents.
                                  __________________
        LANZINGER, J., concurring.
        {¶ 2} While I recognize that Justice Pfeifer has raised legitimate
concerns regarding the use of this court’s decision in State v. Singleton to dispose
of the present case, I agree that the judgment of the court of appeals should be
reversed in this case.
        {¶ 3} The proposition of law before us in Singleton stated, “Prior to the
expiration of an originally imposed prison term, a trial court may correct an
offender’s felony sentence pursuant to the procedure outlined in R.C. 2929.191 if
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that sentence lacks the sanction of postrelease control.”        In my opinion in
Singleton, I concluded that “the amendments to R.C. 2929.19 and the enactment
of R.C. 2929.191 represent an attempt to return logic and order to this area of the
law and that R.C. 2929.191 should be applied both retroactively and
prospectively.” State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920
N.E.2d 958, ¶ 65 (Lanzinger, J, concurring in part and dissenting in part).
       {¶ 4} For the reasons stated in my opinion in Singleton, I continue to
maintain that the statute should be applied prospectively and join in the majority’s
decision to reverse and remand the present case to the trial court for a hearing
pursuant to R.C. 2929.191.
                              __________________
       PFEIFER, J., dissenting.
       {¶ 5} “[T]he fact of placement of a statement in a syllabus paragraph
does not transform dictum into a conclusion of law.” DeLozier v. Sommer (1974),
38 Ohio St.2d 268, 271, 67 O.O.2d 335, 313 N.E.2d 386, fn. 2. Today this case is
decided on the authority of paragraph two of the syllabus of State v. Singleton,
124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, which is to say it is
decided on the authority of nothing. The second syllabus paragraph of Singleton
is pure dictum.    “Obiter dictum” has been defined as “ ‘an incidental and
collateral opinion uttered by a judge, and therefore (as not material to his decision
or judgment) not binding.’ ” State ex rel Gordon v. Barthalow (1948), 150 Ohio
St. 499, 505-506, 38 O.O. 340, 83 N.E.2d 393, quoting Webster’s New
International Dictionary (2d Ed.). Black’s Law Dictionary defines it as “a judicial
comment made while delivering a judicial opinion, but one that is unnecessary to
the decision in the case and therefore not precedential.” Black’s Law Dictionary
(8th Ed.2004) 1102. The definition of “obiter dictum” in the next edition of
Black’s Law Dictionary should read, “See State v. Singleton, paragraph two of the
syllabus.”



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       {¶ 6} In Singleton, the question before us was “whether the de novo
sentencing procedures detailed in decisions of this court or the remedial
procedures set forth in R.C. 2929.191 * * *, which became effective July 11,
2006, should be used by trial courts to properly sentence an offender when
correcting a failure to properly impose postrelease control.” Singleton at ¶ 1. The
first syllabus paragraph answered the question for the defendant in Singleton:
“For criminal sentences imposed prior to July 11, 2006, in which a trial court
failed to properly impose postrelease control, trial courts shall conduct a de novo
sentencing hearing in accordance with decisions of the Supreme Court of Ohio.”
The second syllabus paragraph of Singleton purports to deal with cases in which
sentences were imposed after the effective date of Am.Sub.H.B. No. 137,
Baldwin’s Ohio Legislative Service Annotated (Vol. 4, 2006) L-1911 (“H.B.
137”). However, the sentence of the only defendant in Singleton was imposed
prior to the effective date of H.B. 137.       The second syllabus paragraph in
Singleton is thus “a judicial comment made while delivering a judicial opinion,
but one that is unnecessary to the decision in the case and therefore not
precedential.”
       {¶ 7} Further, the second syllabus paragraph in Singleton is not the
product of a true majority of this court. Instead, it is cobbled together by only two
of the five justices responsible for the judgment of the case, coupled with the two
dissenters. There was only one judgment in Singleton: this court affirmed the
judgment of the court of appeals because R.C. 2929.191 did not apply to the
defendant. Justices Lanzinger and Lundberg Stratton dissented from the sole
judgment in the case – how can they then be a part of any majority decision?
Singleton did not involve two defendants; there were not two judgments such that
a justice could be in the majority in one, both, or neither. A justice was either in
the majority or not, and thus Justices Lanzinger and Lundberg Stratton as
dissenters cannot be counted upon as part of the majority decision. If they are



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considered four votes of a majority but dissented from the judgment, that
necessarily means that the law with which they agreed, the second syllabus
paragraph, had no bearing on the judgment of the case. They concurred in dictum
only.   Do four judges concurring in dictum constitute a majority opinion?
Whether they do or not, the dictum they agree to has no precedential value.
        {¶ 8} Also, Singleton states that the curative procedure set forth in R.C.
2929.191 controls in cases in which sentencing errors were made after the
effective date of H.B. 137, despite the fact that by the statute’s own terms, it
applies only to sentences imposed prior to the effective date of H.B. 137, and
despite the fact that no defendant anywhere has ever argued that R.C. 2929.191
applies to sentences imposed after the effective date of H.B. 137.
        {¶ 9} This case presents the real issue that H.B. 137 raises regarding
sentences imposed after the effective date of the act. The decision of the court of
appeals in this case is based upon an application of R.C. 2929.19(B)(3)(c), which
was not addressed in Singleton and which purports to essentially make an
imposition of postrelease control automatic and thus not reliant on the imposition
of postrelease control by a trial judge at a sentencing hearing and in the court’s
entry. In State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d
568, this court recognized that the intention of the General Assembly in H.B. 137
was to make the imposition of postrelease control independent of a court order:
“[T]he General Assembly amended the Revised Code through 2006 Am.Sub.H.B.
No. 137, which authorizes the executive branch to impose postrelease control
without a court order. See Section 5(A), Am.Sub.H.B. No. 137, eff. July 11,
2006; R.C. 2929.191 and 2967.28(B).          The validity of that action has been
challenged on constitutional and other grounds, and we agreed to review that
issue [in case No. 2007-1415, State v. Mosmeyer, 115 Ohio St.3d 1472, 2007-
Ohio-5735, 875 N.E.2d 626].” (Emphasis added.) Simpkins, ¶ 17, fn. 1. For one
reason or another, that issue has yet to be reviewed by this court. Simpkins states



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that the issue will be decided in Mosmeyer—a decision that this case was
originally held for. But the issue was not decided in Mosmeyer, see State v.
Mosmeyer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, and this case
was then held for Singleton, which also does not address the legality of the
imposition of postrelease control without a valid court order. The issue should
finally be resolved here.
       {¶ 10} The court below held that pursuant to R.C. 2929.19(B)(3), a trial
judge’s sentencing errors do not affect the executive branch’s ability to impose
postrelease control:
       {¶ 11} “Am.Sub.H.B. No. 137, effective July 11, 2006, amended R.C.
2929.19(B)(3)(c) and addressed the situation where a court imposing sentence for
an offense requiring postrelease control fails to notify the offender at the hearing
that he is subject to postrelease control. Such a failure, according to the amended
statute, ‘does not negate, limit, or otherwise effect the mandatory period of
supervision that is required for the offender under division (B) of section 2967.28
of the Revised Code.’ This version of the statute applies to appellant's case in
view of the fact that appellant's guilty plea and sentencing followed the effective
date of the amended statute.
       {¶ 12} “Although the trial court in this case failed to notify appellant that
he was subject to postrelease control at the sentencing hearing, the amended
version of R.C. 2929.19(B)(3)(c) leaves the required period of his postrelease
control intact. Thus, appellant's sentence is not void as contrary to law, and the
doctrine of res judicata operates to bar appellant's argument in this appeal.” State
v. Fuller (Oct. 22, 2008), Madison App. No. CA2008-04-008, ¶4-5.
       {¶ 13} This court did not discuss the constitutionality of R.C.
2929.19(B)(3)(c) in Singleton.     Even accepting Singleton’s dictum that R.C.
2929.191 applies prospectively, the curative portion of that statute is not
mandatory. It reads, “On and after the effective date of this section, a court that



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wishes to prepare and issue a correction to a judgment of conviction of a type
described in division (A)(1) or (B)(1) of this section shall not issue the correction
until after the court has conducted a hearing in accordance with this division.”
(Emphasis added.)      R.C. 2929.191(C).     Thus, although the second syllabus
paragraph of Singleton may reflect the worthwhile intent to resolve all cases
involving postrelease-control sentencing issues in one fell swoop, it does not
succeed in its goal.    Since R.C. 2929.191 says that a court may correct a
sentencing error if it so wishes, a court is not required by statute to do so. That
leaves unresolved the question that this case raises – is a properly imposed
sentence necessary for the imposition by the Adult Parole Authority of postrelease
control, i.e., can the General Assembly render postrelease-control sentencing
errors meaningless by statute?
       {¶ 14} Since Simpkins, we have been waiting for the right case to address
this issue. This is that case. Instead, a majority of the court today cites dictum
from a non-majority of the court in Singleton to avoid the issue.
                              __________________
       Stephen J. Pronai, Madison County Prosecuting Attorney, and Eamon P.
Costello, Assistant Prosecuting Attorney, for appellee.
       Shaw & Miller and Mark J. Miller, for appellant.
                            ______________________




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