Coss: ‘Form over substance’ at play in sentencing question


A Hillsboro man who has been in prison since 2012 was released on bond Thursday due to an omission of a word from a sentencing entry, a cause the state public defender’s office has taken up recently.

Johnny Groves, 31, Hillsboro, has been incarcerated for more than three years for failing to register a change of address as a registered sex offender. He was sentenced to 18 months in 2012 on the third-degree felony, but at the time of the offense, Groves was on post-release control (PRC) following his release from a previous prison term. According to court records he was sentenced to five years in prison in 2005 for third-degree felony gross sexual imposition.

PRC was applied to the 18 months and ordered to run consecutively, but on Thursday assistant state public defender Terrence Scott argued that Groves’ sentencing entry filed with the court was deficient in its language in regard to PRC time, and therefore the PRC time was void.

According to Highland County Common Pleas Judge Rocky Coss, the public defender’s office has taken up these cases where the word “consecutive” is not present in the sentencing entry that is filed. The matter centers on defendants being informed of the possibility that while they are on PRC time following a prison sentence, and they are convicted of a new felony, the new sentence imposed could be run consecutively to the PRC time.

Scott confirmed on Thursday that his office has filed motions all over the state in regard the lack of the word “consecutive” in a form that is widely used in courts. Coss said that the language that is contained in the form – “in addition to” – should be enough since it means “plus, and plus means more.”

The judge said that the matter – which he referred to as a form of “legal insanity” – has become “a real mess.” He said he believes the issue, which he said was a focus on “form over substance” by the state, should be taken up by the Ohio Supreme Court.

Coss on Thursday overruled the motion filed by the public defender’s office on Groves’ behalf, but he stayed further execution of Groves’ sentence until there is a decision on the issue. Coss told Groves that the issue could take a year or more to be resolved, and in that time he is to report to probation regularly, and to register as he is required to as a sex offender.

Since the issue came to the court’s attention, Coss has been correcting the PRC language as needed through video hearings with incarcerated defendants. As an example, there are four video hearings with defendants in prison scheduled on Friday for that reason alone.

In the meantime, in the handful of cases that have come before his court recently asking to vacate a sentence based on the lack of the word “consecutive,” Coss said he has taken the stance of releasing the defendant on bond until a higher court rules on the matter. The judge said if the court decides he is wrong, he doesn’t want any person serving time that they shouldn’t be.

In those hearings, the judge said he has stood by case law that holds that a PRC notification provided correctly on the record during sentencing, but incorrectly on the sentencing entry, can be corrected via a retroactive entry, as long as the defendant is still in prison on that sentence.

Coss told an assistant public defender in a recent case that the public defender’s office would not see this issue from his courtroom in the future, as the judge and staff have been going through past records to correct the PRC language contained in the sentencing entry.

Reach Angela Shepherd at 937-393-3456, ext. 1681, or on Twitter @wordyshepherd.

Johnny Groves, right, is pictured in Highland County Common Pleas Court with assistant state public defender Terrence Scott on Thursday. Groves, right, is pictured in Highland County Common Pleas Court with assistant state public defender Terrence Scott on Thursday. Angela Shepherd|The Times-Gazette
Coss deals with issue of sentence wording

By Angela Shepherd

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