State v. Jones , 2011 Ohio 2799 ( 2011 )

[Cite as State v. Jones, 2011-Ohio-2799.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96037
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT JONES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-487528 and CR-492522
BEFORE: Kilbane, A.J., Stewart, J., and Boyle, J.
RELEASED AND JOURNALIZED: June 9, 2011
ATTORNEY FOR APPELLANT
James A. Jenkins
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Thorin O. Freeman
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} In this delayed appeal, defendant-appellant, Robert Jones, appeals from the
orders of the trial court that denied his motions to vacate his sentences in Case Nos.
CR-487528 and CR-492522. For the reasons set forth below, we affirm.
{¶ 2} On October 24, 2006, defendant was indicted in Case No. CR-487528 for drug
trafficking, in violation of R.C. 2925.03; possession of drugs, in violation of R.C. 2935.11;
and possession of criminal tools, in violation of R.C. 2923.24. On February 23, 2007,
defendant was indicted in Case No. CR-492522 for drug trafficking, in violation of R.C.
2925.03; having a weapon while under disability, in violation of R.C. 2923.13; and possession
of criminal tools, in violation of R.C. 2923.24.
{¶ 3} On May 3, 2007, in Case No. CR-487528, defendant pled guilty to a fourth
degree felony drug offense and possession of criminal tools, a fifth degree felony. On the
same date, in Case No. CR-492522, he pled guilty to a fifth degree felony drug offense and
having a weapon while under disability, a third degree felony.
{¶ 4} On May 30, 2007, the trial court sentenced defendant in both matters. In Case
No. CR-492522, he was sentenced to a total of two years of imprisonment. In Case No.
CR-487528, defendant was sentenced to two concurrent ten-month terms of imprisonment, to
be served consecutively to the sentence imposed in Case No. CR-492522. At this time, the
court advised defendant that he “may be placed on postrelease control. *** If you * * *
violate any conditions the parole board may place you on, they can return you to prison to
serve more time.” (Tr. 12.) In its journal entry the court noted “postrelease control is part
of this sentence for 3 years for the above felony(s) under R.C. 2967.28.”
{¶ 5} According to the State, defendant’s “prison sentence expired sometime in
2009.”
{¶ 6} On July 2, 2010, defendant filed a pro se motion to vacate his sentence in Case
No. CR-492522, and his counsel also filed a motion to vacate his sentence. On the same day,
defendant’s counsel filed the same motion in Case No. CR-487528. In these motions,
defendant complained that the trial court did not notify him at the time of sentencing of the
specific term that could be imposed for violating the conditions of postrelease control, and the
court also failed to incorporate that notice into the sentencing journal entry.
{¶ 7} In a supplemental motion filed in both matters on August 24, 2010, defendant
maintained that because he had completed his entire sentence, the sentences had to be vacated
under Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301.
{¶ 8} The trial court denied the motions in both matters, and defendant now appeals
and assigns one error for our review:
“The trial court abused its discretion in denying Appellant’s motion to vacate
sentence where there was inadequate explanation of his postrelease control
rights at the time of sentencing.”
{¶ 9} Defendant maintains that his entire sentence is void and must be vacated. The
State argues that defendant’s motions to vacate his sentence are in fact petitions for
postconviction relief and that they were untimely pursuant to R.C. 2953.21. We reject the
State’s assertion. This court disapproved the same argument in State v. Pesci, Cuyahoga
App. No. 94904, 2011-Ohio-1058, and noted that a reviewing court has an obligation to
recognize void sentences, vacate them, and order resentencing if appropriate to do so.
{¶ 10} With regard to defendant’s sentence, we note that in State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court held that where
postrelease control was erroneously imposed, resentencing is limited to proper imposition of
postrelease control. However, where the defendant has completed his sentence, the trial court
may not hold a new sentencing hearing to remedy defectively imposed postrelease control.
State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568. The trial court’s
authority to resentence an offender to give the required notice of postrelease control is limited
to situations where the offender’s sentence has not yet expired. State v. Schmitt, 175 Ohio
App.3d 600, 2008-Ohio-1010, 888 N.E.2d 479; State v. Watt, 175 Ohio App.3d 613,
2008-Ohio-1009, 888 N.E.2d 489.
{¶ 11} In State v. Pesci, Cuyahoga App. No. 94904, 2011-Ohio-1058, this court
explained:
“Because Pesci’s sentences had expired by the time he filed his motions to
vacate, the trial court was without authority to resentence him. Once an
offender has served the prison term ordered by the trial court, he or she
cannot be subject to resentencing in order to correct the trial court’s failure to
properly impose postrelease control.”
{¶ 12} The Pesci court further held that the portion of the sentence that did not pertain
to postrelease control remained in effect and “only the void part of the sentence is vacated, not
the entire sentence.” Accord State v. Harris, Cuyahoga App. No. 95097, 2011-Ohio-1072(noting that if the defendant’s sentence has expired and he has been released from custody,
postrelease control cannot be imposed); cf. State v. Hayden, Cuyahoga App. No. 94955,
2011-Ohio-616 (resentencing to add postrelease control was affirmed where the trial court
held resentencing hearing solely on the issue of postrelease control and hearing).
{¶ 13} In this matter, defendant’s sentences had expired by the time he filed his
motions to vacate; therefore, the trial court was without authority to resentence him. Once an
offender has served the prison term ordered by the trial court, he or she cannot be subject to
resentencing in order to correct the trial court’s failure to properly impose postrelease control.
We conclude that even if the trial court failed to advise defendant at his plea hearings
regarding postrelease control, he has completed his sentences and is not subject to postrelease
control. Pesci. Accordingly, the assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from 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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
MELODY J. STEWART, J., and
MARY J. BOYLE, J., CONCUR