[Cite as State v. Tolbert, 2017-Ohio-9159.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 105326

STATE OF OHIO

PLAINTIFF-APPELLANT

vs.

REGINALD TOLBERT

DEFENDANT-APPELLEE

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-07-498281-A, CR-07-498417-A, and CR-07-501690-B 

BEFORE: Boyle, J., E.T. Gallagher, P.J., and Laster Mays, J. 

RELEASED AND JOURNALIZED: December 21, 2017 
ATTORNEYS FOR APPELLANT

Michael C. O’Malley 

Cuyahoga County Prosecutor 

BY: Brett Hammond 

 Katherine Mullin 

Assistant County Prosecutors 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy Young 

Ohio Public Defender 

BY: Allen Vender 

 Andrew David Hartman 

Assistant State Public Defenders 

250 East Broad Street, Suite 1400 

Columbus, Ohio 43215 
MARY J. BOYLE, J.: 

{¶1} This court granted plaintiff-appellant state of Ohio leave to appeal this case 

after the trial court vacated defendant-appellee Reginald Tolbert’s postrelease control. 

The state raises two assignments of error for our review: 

1. The trial court erred when it granted defendant’s motion to vacate 

postrelease control. To impose valid postrelease control, the language in 

the sentencing entry may incorporate the advisements given during the 

sentencing hearing by referencing the postrelease control sections of the 

Ohio Revised Code and do not need to repeat what was said during the 

sentencing hearing. 

2. The requirement that a trial court must journalize the specific 

requirements of postrelease control is based upon legal precedent that 

should not be retroactively applied in this case. 

{¶2} In this appeal, the state acknowledges that under current precedent in the 

Eighth District, the postrelease-control notification was invalid because the trial court did 

not include the “specific consequences of violating postrelease control in the sentencing 

journal entry.” The state contends, however, that this precedent was decided in error and 

should be overruled. 

{¶3} Finding no merit to the state’s appeal, we affirm the judgment of the trial 

court. 

I. Procedural History

{¶4} In late 2007, Tolbert was sentenced to six years in prison for three separate 

cases: Cuyahoga C.P. No CR-07-498281-A, Cuyahoga C.P. No. CR-07-498417-A, and 

Cuyahoga C.P. No. CR-07-501690-B. In each of these cases, the trial court stated the 
following in the sentencing entries regarding postrelease control: 

Postrelease control is part of this prison sentence for 3 years for the above 

felony(s) under R.C. 2967.28. 

{¶5} Tolbert was released from prison in these cases on May 13, 2013. At that 

time, he was placed on three years of postrelease control. 

{¶6} On December 13, 2013, Tolbert was convicted of receiving stolen property 

in Cuyahoga C.P. No. CR-13-577719-A. He was sentenced to six months in prison and 

advised that upon his release, he may be placed on postrelease control for up to three 

years. 

{¶7} Tolbert was released from prison in CR-13-577719-A on May 15, 2014. 

Upon his release, the Adult Parole Authority (“APA”) chose not to place him on 

postrelease control for this case. Instead, the APA placed Tolbert on postrelease control 

for the time remaining in his 2007 cases, which was 2.44 years. When Tolbert filed his 

motion to vacate postrelease control, he was “serving a prison sanction for violating” the 

terms of his 2007 postrelease control. 

{¶8} When Tolbert filed his motion to vacate postrelease control, the state and 

Tolbert filed a joint statement of justiciability with the trial court along with Tolbert’s 

motion to vacate because Tolbert had previously filed a motion to vacate postrelease 

control that the state opposed, believing that Tolbert was on postrelease control from his 

2013 case. When the state learned that Tolbert was actually on postrelease control from 

his 2007 cases, it conceded that the issue was not moot and joined with Tolbert to file the 

statement of justiciability. The state further acknowledged to the trial court “that current 
binding precedent in the Eighth District Court of Appeals supports Tolbert’s arguments.” 

 But the state opposed Tolbert’s motion “for purposes of further appellate review.” 

{¶9} After the trial court granted Tolbert’s motion to vacate his postrelease 

control, the state moved this court for leave to appeal, asserting that the appeal “presents 

this court with a question of public and general interest.” The state further explained 

that “this exact proposition of law” was currently under review by the Ohio Supreme 

Court in State v. Grimes, Supreme Court Case No. 2016-0215, and that “Grimes will be 

dispositive of the substantive issue in the instant case.” Because the state believed that 

Grimes would be dispositive of the issues in this appeal, it requested this court “to accept 

jurisdiction in this case until the Supreme Court of Ohio render[ed] its decision in 

Grimes.” This court granted the state leave to appeal and held the case until the Ohio 

Supreme Court issued its decision in Grimes, which it did so on May 24, 2017. See 

State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927. 

{¶10} Because the state and Tolbert filed their briefs with this court before the 

Supreme Court decided Grimes, this court sua sponte issued an order asking Tolbert “to 

determine whether the recently announced decision [in Grimes] is applicable to this 

appeal and further determine whether the appellee concedes assignment of error one.” If 

Tolbert conceded the error, we ordered him to file a notice of conceded error by a date 

certain. 

{¶11} Tolbert complied with our order and filed a supplemental memorandum, 

informing this court that Grimes was applicable but that he was not conceding assignment 
of error one. Tolbert explained that Grimes was applicable because it established what 

information a trial court must include in a sentencing entry to validly impose postrelease 

control when the court orally provided all of the required advisements at the sentencing 

hearing. But Tolbert maintained that even under Grimes, the trial court’s advisement in 

his 2007 cases was invalid for two reasons: (1) it was not clear whether his postrelease 

control was discretionary or mandatory, and (2) the sentencing entry gave no indication at 

all that there were consequences for violating postrelease control. 

{¶12} We now turn to the state’s assigned errors. 

II. Motion to Vacate Postrelease Control

{¶13} In its first assignment of error, the state argues that although the trial court 

followed Eighth District precedent when it vacated Tolbert’s postrelease control — 

because the trial court failed to journalize “the specific consequences of violating 

postrelease control in Tolbert’s 2007 cases” — the state maintains that the prior Eighth 

District “decisions were wrongly decided” and should be overruled. 

A. Prior Eighth District Law

{¶14} In granting Tolbert’s motion, the trial court relied on our unanimous en banc 

decision in State v. Mace, 8th Dist. Cuyahoga No. 100779, 2014-Ohio-5036. In Mace, 

we were asked: “whether a sentencing journal entry that states that the appellant is subject 

to postrelease control for the ‘maximum period allowed’ for that felony is void, even if 

the court informed the defendant at the sentencing hearing of the specific period of 

postrelease control imposed.” This court unanimously answered that the appellant’s 
postrelease control was void. Id. at ¶ 1. 

{¶15} This court has repeatedly followed Mace, finding that when a trial court 

failed to set forth the specific consequences for violating postrelease control (that the 

parole board could impose a maximum prison term of up to one-half of the prison term 

originally imposed) in a sentencing entry and the defendant completed his sentence, the 

term of postrelease control was void and should be terminated. See State v. Smith, 8th 

Dist. Cuyahoga No. 104632, 2016-Ohio-7898; State v. Bryant, 8th Dist. Cuyahoga No. 

102650, 2015-Ohio-3678, discretionary appeal not allowed, State v. Bryant, 144 Ohio 

St.3d 1505, 2016-Ohio-652, 45 N.E.3d 1050; State v. Martin, 8th Dist. Cuyahoga No. 

102336, 2015-Ohio-2865; State v. Love, 8th Dist. Cuyahoga No. 102058, 

2015-Ohio-1461. 

{¶16} But we must now consider this viability of this precedent in light of the 

Supreme Court’s recent decision in Grimes. 

B. State v. Grimes

{¶17} In Grimes, the Ohio Supreme Court accepted the state’s discretionary appeal 

to address the following proposition of law: 

To impose valid post release control, the language in the sentencing entry 

may incorporate the advisements given during the sentencing hearing by 

referencing the post release control sections of the Ohio Revised Code and 

do not need to repeat what was said during the sentencing hearing. 

Grimes, Slip Opinion No. 2017-Ohio-2927, at ¶ 7.1

 1

The Ohio Supreme Court accepted the state’s discretionary appeal of an intra-district conflict 

in the Fifth District after the Fifth District issued an en banc decision in the case stating that “a 
{¶18} The trial court in Grimes orally provided all of the required advisements to 

the offender at the sentencing hearing. The sentencing entry, however, only stated: 

The Court further notified the Defendant that “Post Release Control” is 

mandatory in this case for three (03) years as well as the consequences for 

violating conditions of post release control imposed by Parole Board under 

Revised Code § 2967.28. The Defendant is ordered to serve as part of this 

sentence any term for violation of that post release control. 

Id. at ¶ 2. 

{¶19} Grimes appealed to the Fifth District when the trial court denied his motion 

to vacate postrelease control. State v. Grimes, 5th Dist. Muskingum No. CT2015-0026, 

2015-Ohio-3497, ¶ 13. The Fifth District held that the trial court’s August 2011 

sentencing entry was “silent as to the consequences of violating postrelease control” 

because the court “failed to inform [Grimes] if he violated his supervision or a condition 

of post-release control, the parole board could impose a maximum prison term of up to 

one-half of the prison term originally imposed.” Id. at ¶ 12. 

{¶20} The Supreme Court first reviewed the statutory requirements for postrelease 

control notifications that a trial court is required to give an offender at the sentencing 

hearing. It stated: 

The court at a sentencing hearing must notify the offender that he or she 

“will” or “may” “be supervised under section 2967.28 of the Revised Code 

after the offender leaves prison if the offender is being sentenced for” a 

felony. R.C. 2929.19(B)(2)(c) and (d). The offender “will” be 

supervised if the offender has been convicted of a felony subject to 

mandatory postrelease control. R.C. 2929.19(B)(2)(c) and 2967.28(B). 

The offender “may” be supervised if the offender has been convicted of a 

less serious felony for which the APA has discretion to impose postrelease 

 

majority of the full-time judges of the appellate district is unable to concur in a decision.” 
control. R.C. 2929.19(B)(2)(d) and 2967.28(C). The postrelease-control 

law also designates the term of supervision for each degree of felony. 

R.C. 2967.28(B) and (C). Additionally, the court, at the sentencing 

hearing, must notify the offender that if he or she “violates that supervision 

* * *, 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). 

Id. at ¶ 9. 

{¶21} The Supreme Court explained that although it had held in State v. Jordan, 

104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, that in order to validly impose 

postrelease control the notice given at the sentencing hearing must be incorporated into 

the sentencing entry, it had never “decided whether — and if so, how — notice of the 

consequences of violating a condition of postrelease control must also be incorporated 

into the sentencing entry.” Grimes at ¶ 11, citing Jordan at ¶ 17. 

{¶22} The Supreme Court held that to validly impose postrelease control when the 

court orally provides all the required advisements at the sentencing hearing, the 

“minimally compliant” sentencing entry must contain the following information: 

(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 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. 

Id. at ¶ 1, 13. 

{¶23} The Supreme Court explained 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.’” Id. at ¶ 14, quoting State v. Qualls, 131 Ohio St.3d 
499, 2012-Ohio-1111, 967 N.E.2d 718. The court further explained that “we have 

deemed the ‘preeminent purpose’ of R.C. 2967.28 to be that ‘offenders subject to 

postrelease control know at sentencing that their liberty could continue to be restrained 

after serving their initial sentences.’” (Emphasis sic.) Id., quoting Watkins v. Collins, 

111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78. 

{¶24} “A sentencing entry’s silence on postrelease control, however,” would be 

invalid “because it is the sentencing entry that ‘empowers the executive branch of 

government to exercise its discretion[.]’” Id. at ¶ 15, quoting Jordan, 104 Ohio St.3d 

21, 2004-Ohio-6085, 817 N.E.2d 864. Essentially, the Supreme Court made clear that 

“a minimally compliant” sentencing entry “must provide the APA the information it 

needs to execute the postrelease-control portion of the sentence.” Id. at ¶ 17. The 

Supreme Court explained that the entry in Grimes incorporated all the notifications 

necessary for the APA to perform its job. Id. Specifically, “[b]y specifying that Grimes 

was subject to mandatory supervision for three years, the entry informed the APA that it 

lacked discretion as to whether to impose postrelease control or for how long.” Id. 

And because the entry also informed the APA that Grimes had been advised that if he 

violated any of the conditions of postrelease control there would be consequences, up to 

and including prison time, as described in R.C. 2967.28(D)(1), “the APA could review 

R.C. 2967.28 for necessary information about its authority to impose postrelease control 

and to punish Grimes for any violations.” Id. at ¶ 18. 

C. Grimes Applied 
{¶25} The state argued in its motion for leave to appeal that Grimes would be 

dispositive of the issues in this case. When reviewing the trial court’s postrelease 

control advisement in the sentencing entry in this case, there is no question that the trial 

court informed Tolbert of the duration of postrelease control — three years. With 

respect to the remaining requirements, however, Tolbert raises two arguments, which we 

address below. 

1. Discretionary or Mandatory

{¶26} Tolbert first argues that the trial court’s sentencing entry was invalid under 

Grimes because the trial court did not specifically use the word “mandatory.” We 

disagree. 

{¶27} The trial court’s statement that “[p]ostrelease control is part of this prison 

sentence for 3 years” conveyed to Tolbert that his supervision would be mandatory for 

three years. See State v. McGee, 8th Dist. Cuyahoga No. 101307, 2014-Ohio-5289 

(court’s sentencing entry, which stated: “postrelease control is part of this prison sentence 

for 5 years for the above felony(s) under R.C. 2967.28,” provided the defendant with 

notice that he would be subject to mandatory postrelease control); State v. Rucker, 1st 

Dist. Hamilton No. C-150434, 2016-Ohio-5111, ¶ 6 (court’s statement to defendant that 

“you’ll be on a period of supervision” was sufficient to notify him of the mandatory 

nature of his postrelease control). 

2. Consequences for Violating Postrelease Control

{¶28} Tolbert next argues that the trial court’s sentencing entry was invalid under 
Grimes because it did not give any “indication that there are consequences for violating 

postrelease control.” We agree with this argument. 

{¶29} In Grimes, the Supreme Court held that a trial court need not specifically 

spell out the consequences for violating postrelease control in the sentencing entry as long 

as it did so at the sentencing hearing. But it held that the sentencing entry must still 

contain an advisement “that any violation by the offender of the conditions of postrelease 

control will subject the offender to the consequences set forth in the statute.” Here, the 

sentencing entry says nothing about Tolbert being subject to any consequences for 

violating the terms of his postrelease control. Accordingly, we hold that even under 

Grimes, the trial court’s sentencing entry was not sufficient to validly impose postrelease 

control. 

{¶30} Thus, after reviewing Grimes’s applicability to prior Eighth District cases, 

we find that they are overruled by Grimes to the extent that these cases found postrelease 

control to be invalid when the sentencing entry did not spell out the specific consequences 

for violating postrelease control. But we note that a trial court must still advise an 

offender that he or she will be subject to consequences under R.C. 2967.28. Grimes at ¶ 

1. 

{¶31} We need not address the state’s remaining arguments within its first 

assignment of error because they are moot in light of Grimes, which the state 

acknowledged in its motion for leave to appeal and in its appellate brief. 

{¶32} The state’s first assignment of error is overruled. 
III. Retroactivity

{¶33} In its second assignment of error, the state maintains that when the trial 

court announced Tolbert’s sentences in 2007, the postrelease control advisement was 

sufficient under Eighth District law at that time. Subsequent to Tolbert’s sentence, 

however, the Eighth District “announced a new rule of law when it held that in order to 

impose postrelease control sanctions, the sentencing journal entry must specifically state 

that if the offender violates postrelease control, he could be subject up to an additional 

prison term of up to one-half of the originally stated prison term.” The state maintains 

that this “new” rule of law should not have been applied retroactively. We disagree. 

{¶34} It is well established that when postrelease control is not properly imposed, 

the sentence is void and must be set aside. See State v. Singleton, 124 Ohio St.3d 173, 

2009-Ohio-6434, 920 N.E.2d 958 (providing a history of Supreme Court cases on void 

postrelease control). Further, a void sentence can be attacked at any time. See State v. 

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the 

syllabus (a sentence that does not include the statutorily mandated term of postrelease 

control is void, is not precluded from appellate review by principles of res judicata, and 

may be reviewed at any time). 

{¶35} Because the portion of Tolbert’s sentence entry that improperly advised him 

of postrelease control is void, the state’s argument that Eighth District law should not be 

retroactively applied is without merit. 

{¶36} The state’s second assignment of error is overruled. 
{¶37} Judgment affirmed. 

It is ordered that appellee recover from appellant the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MARY J. BOYLE, JUDGE 

EILEEN T. GALLAGHER, P.J., and 

ANITA LASTER MAYS, J., CONCUR