[Cite as State v. Smith, 2015-Ohio-3612.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                         Court of Appeals No. L-14-1189

        Appellee                                      Trial Court No. CR0200402835

v.

Kevin J. Smith                                        DECISION AND JUDGMENT

        Appellant                                     Decided: August 31, 2015

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
        Assistant Public Defender, for appellant.

                                               *****

        YARBROUGH, P.J.

                                            I. Introduction

        {¶ 1} Appellant, Kevin Smith, appeals the judgment of the Lucas County Court of

Common Pleas, denying his “Motion to Vacate Void Judicial Sanction.” We reverse.
                       A. Facts and Procedural Background

     {¶ 2} The facts of this case were previously summarized by this court as follows:

            In September 2002, appellant was indicted in case No. CR0200202786

     on one count of escape in violation of R.C. 2921.34(A)(1) and (C)(2)(b). He

     subsequently entered a plea of no contest to the charge, and was eventually

     sentenced to one year in prison. During the plea colloquy, and again at

     sentencing, the trial court verbally addressed appellant’s postrelease control

     obligations. Nonetheless, the trial court failed to include any mention of

     postrelease control in its sentencing entry.

            On November 4, 2004, appellant was sentenced to nine years in

     prison following his plea of guilty to one count of felonious assault and one

     count of robbery in case No. CR-04-2835. By this time, appellant had

     already served his prison sentence in case No. CR 200202786 and was

     released from prison on postrelease control. Because appellant was on

     postrelease control at the time of his convictions, the trial court also ordered

     him to serve 919 days in prison in case No. CR 200202786 for violating the

     terms of his postrelease control. The court ordered appellant to serve the

     919-day sentence consecutive to the 9-year sentence imposed in case No.

     CR-04-2835. State v. Smith, 6th Dist. Lucas No. L-14-1189, 2015-Ohio-

     919, ¶ 2-3.




2.
       {¶ 3} In appellant’s direct appeal in case No. CR-04-2835, we held that the trial

court erred in imposing consecutive sentences based upon statutes that were deemed

unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. State v. Smith, 6th

Dist. Lucas No. L-05-1071, 2006-Ohio-2492, ¶ 8. Thus, we remanded the matter to the

trial court for a new sentencing hearing. Id. at ¶ 9.

       {¶ 4} Thereafter, on June 12, 2006, the trial court conducted another sentencing

hearing. At the hearing, appellant was informed that he would be “placed on post release

control for a mandatory 3-year period because physical harm did occur,” and was notified

of the consequences of violating the terms of his postrelease control. In its entry

following the hearing, the trial court once again ordered appellant to serve nine years in

prison on the felonious assault and robbery counts, and ordered appellant to serve that

sentence consecutive to the 919-day sentence imposed for appellant’s violation of the

terms of postrelease control in case No. CR 200202786. Notably, the entry does not

indicate the imposition of a term of postrelease control in connection with the felonious

assault and robbery counts.

       {¶ 5} Almost eight years later, on May 23, 2014, appellant filed a motion to vacate

his 919-day sentence from case No. CR 200202786, arguing that such obligations were

void because the trial court’s sentencing entry failed to mention any postrelease control

obligations. In response, the state conceded that postrelease control was improperly

imposed in case No. CR 200202786. Thus, the state agreed that the 919-day sentence

should be vacated.




3.
       {¶ 6} On July 30, 2014, in response to appellant’s motion to vacate, the trial

court issued its decision vacating the imposition of postrelease control in case No.

CR 200202786 and issued a nunc pro tunc judgment entry removing any reference to the

919-day sentence. Regarding notification of postrelease control obligations concerning

case No. CR-04-2835, the entry provides, in pertinent part:

              Defendant was given notice, orally and in writing, of post release

       control notice under R.C. 2929.19(B)(3) and R.C. 2967.28.

              It was further ORDERED the defendant is subject to 3 years

       mandatory post-release control as to count 2, 3 years mandatory post-

       release control as to count 3, after the defendant’s release from

       imprisonment pursuant to R.C. 2967.28 and 2929.14.

              Defendant was notified of 3 years mandatory post-release control as

       to count 2, 3 years mandatory post-release control as to count 3.

              Defendant was notified that if post release control conditions are

       violated the adult parole authority or parole board may impose a more

       restrictive or longer control sanction or return a defendant to prison for up

       to nine months for each violation, up to a maximum of 50% of the stated

       term originally imposed. Defendant further notified that if the violation of

       post release control conditions is a new felony, a defendant may be both

       returned to prison for the greater of one year or the time remaining on post

       release control, plus receive a prison term for the new felony.




4.
       {¶ 7} Appellant timely appealed the trial court’s decision on his motion to vacate.

On March 13, 2015, we issued our decision in appellant’s appeal, affirming the trial

court’s judgment. In our decision, we examined whether the trial court erred in

sentencing appellant to 919 days in prison for violating the terms of his postrelease

control, which he alleged was improperly imposed and was, therefore, void. Ultimately,

we held that appellant’s argument was moot since the trial court already vacated the 919-

day sentence and appellant had been released from prison. State v. Smith, 6th Dist. Lucas

No. L-14-1189, 2015-Ohio-919, ¶ 6-7.

       {¶ 8} Ten days after we released our decision affirming the trial court’s decision,

appellant filed an “Application for Reconsideration Pursuant to App.R. 26(A) or, in the

Alternative, for Reopening Pursuant to App.R. 26(B).” In his application, appellant

argued that the trial court failed to provide him with proper notification of the terms of

his postrelease control when it initially sentenced him in 2004, and when it resentenced

him in 2006. Although such notification was provided in the trial court’s nunc pro tunc

entry dated July 30, 2014, appellant argued that he had already completed his prison

sentence by the time the trial court issued its nunc pro tunc entry in light of the trial

court’s prior vacation of his 919-day prison sentence from case No. CR 200202786.

Thus, he argued that he should not be subject to postrelease control from case No. CR-

04-2835. We ultimately found that appellant had completed his 9-year prison sentence

prior to the trial court’s issuance of its nunc pro tunc entry dated July 30, 2014. As a

result, we determined that the trial court had no jurisdiction to impose a term of




5.
postrelease control. Thus, we granted appellant’s application to reopen on the issue of

whether the trial court properly imposed his postrelease control in case No. CR-04-2835.

                                B. Assignments of Error

       {¶ 9} In this reopened appeal, appellant assigns the following errors for our

review:

               Assignment of Error No. 1: The trial court erred by failing to

       impose postrelease control at the sentencing hearing.

               Assignment of Error No. 2: The trial court erred by using a nunc pro

       tunc entry to impose postrelease control when the court had not imposed

       the sanction at a sentencing hearing.

               Assignment of Error No. 3: The trial court erred by adding

       postrelease control to Mr. Smith’s sentence after he had finished his prison

       term.

               Assignment of Error No. 4: Even if postrelease control was properly

       imposed at the 2006 sentencing hearing, the resulting entry did not properly

       impose the sanction.

       {¶ 10} Because we find appellant’s third assignment of error dispositive of this

appeal, we will limit our analysis to that assignment.




6.
                                        II. Analysis

       {¶ 11} In appellant’s third assignment of error, he argues that the trial court erred

by adding a postrelease control sanction to his sentence after he had already finished

serving the prison term. We agree.

       {¶ 12} As we stated in our decision granting appellant’s application to reopen, the

trial court’s sentencing entries reveal that appellant was resentenced to a 9-year prison

term on June 12, 2006, with a credit of 648 days as of that date. Additionally, he was

ordered to serve 919 days for violating the terms of his postrelease control in case No.

CR 200202786. However, the imposition of postrelease control in that case was later

determined to be void, because the sentencing entry did not include the mandatory

postrelease control notifications. Thus, the 919-day sentence imposed as a result of the

violation of the terms of the void postrelease control sanction cannot be counted in

calculating appellant’s release date, leaving only the 9-year prison term remaining.

       {¶ 13} With this in mind, appellant’s release date was sometime in September

2013. The trial court did not issue its nunc pro tunc entry properly imposing postrelease

control until July 30, 2014, after appellant’s sentence was completed. The Supreme

Court of Ohio has stated that “a trial court loses jurisdiction to resentence a defendant for

the purpose of imposing postrelease control once the defendant has served his entire

sentence of incarceration.” State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1

N.E.2d 382, ¶ 5. Consequently, we find that the trial court lacked jurisdiction to correct




7.
its imposition of postrelease control via its July 30, 2014 nunc pro tunc entry. Therefore,

the postrelease control sanction must be vacated.

       {¶ 14} Accordingly, appellant’s third assignment of error is well-taken. Having

found the third assignment of error well-taken, appellant’s remaining assignments of

error are moot.

                                        III. Conclusion

       {¶ 15} The judgment of the Lucas County Court of Common Pleas is reversed and

appellant’s postrelease control sanction imposed in the July 30, 2014 judgment entry is

hereby vacated. Appellee is ordered to pay the costs of this appeal pursuant to App.R.

24.

                                                                        Judgment reversed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, P.J.                                 JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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