State v. Gresham ( 2011 )

[Cite as State v. Gresham, 2011-Ohio-4411.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95992
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CLEVELAND GRESHAM
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-472990
BEFORE: Boyle, P.J., Cooney, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: September 1, 2011
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ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building
Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶ 1} Defendant-appellant, Cleveland Gresham, appeals the trial court’s imposition of
postrelease control following his resentencing hearing. He raises a single assignment of error
for our review:
{¶ 2} “The trial court violated Crim.R. 32 when there was an unnecessary delay in
sentencing appellant.”
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{¶ 3} We find no merit to his appeal and affirm.
{¶ 4} In March 2006, Gresham was sentenced to five years in prison for felonious
assault and the attendant firearm specifications. At the time of sentencing, the trial court,
however, failed to properly impose the proper period of postrelease control. Consequently,
on October 13, 2010, the trial court held a resentencing hearing, imposed the exact same
sentence of five years in prison, and also properly imposed a mandatory term of three years of
postrelease control.
{¶ 5} Gresham now appeals, arguing that the mandatory period of postrelease control
should be vacated because there was an unreasonable delay between his conviction and
sentence. Specifically, he argues that, because the original imposition of postrelease control
was void, he was not properly sentenced to a period of postrelease control until more than four
years after his conviction. According to Gresham, this lengthy delay is clearly unreasonable
and directly contravenes Crim.R. 32(A), which mandates that “[s]entence shall be imposed
without unnecessary delay.”
{¶ 6} This court, however, has addressed and rejected this very argument on several
occasions. See, e.g., State v. Hunter, 8th Dist. Nos. 95111-95113, 2011-Ohio-1682, ¶20;
State v. Zganjer, 8th Dist. No. 94724, 2011-Ohio-606, ¶5; State v. Lucas, 8th Dist. No. 90545,
2008-Ohio-4584 (no legitimate expectation of finality in a void sentence); State v. Huber, 8th
Dist. No. 85082, 2005-Ohio-2625, ¶8 (Crim.R.32(A) does not apply to resentencing); Smith
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v. Cuyahoga Cty. Sheriff’s Dept., 8th Dist. No. 94626, 2010-Ohio-1763, ¶11 (court did not
lose jurisdiction to resentence for postrelease control when there was a ten-year delay between
original sentence and resentencing). Accordingly, consistent with our precedent, we
summarily overrule Gresham’s assignment of error.
Judgment affirmed.
It is ordered that appellee recover of appellant 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. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR