[Cite as State v. Roberts, 123 Ohio St.3d 465, 2009-Ohio-5800.]




            THE STATE OF OHIO, APPELLEE, v. ROBERTS, APPELLANT.
         [Cite as State v. Roberts, 123 Ohio St.3d 465, 2009-Ohio-5800.]
Court of appeals’ judgment reversed — Appellant ordered released from custody.
(No. 2009-0299 — Submitted November 3, 2009 — Decided November 5, 2009.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-080571,
                        180 Ohio App.3d 216, 2008-Ohio-6827.
                                   __________________
        Per Curiam.
        {¶ 1} Appellant, Lynn Roberts, was convicted of possession of heroin
and trafficking in heroin. On August 29, 2006, appellant was sentenced to a five-
year sentence for trafficking and 18 months for possession, the sentences to be
served concurrently. Appellant appealed to the First District Court of Appeals on
September 8, 2006. While his appeal was pending, the Department of Corrections
and Rehabilitation (“department”) determined that appellant was a good candidate
for placement in an intensive program prison (“IPP”) in lieu of serving the
sentence ordered by the court.
        {¶ 2} In order to place appellant in IPP, the department was required to
inform the sentencing court of its recommendation. R.C. 5120.032(B)(1)(a). That
requirement puts the court on notice and gives the court the opportunity to “veto”
the placement in IPP.        Id.    If the court takes no action after ten days, the
department may proceed with placement in IPP. Id.
        {¶ 3} The department faxed the notice of appellant’s recommended
placement to the sentencing court. The confirmation of this fax is contained in
the record. After receiving no response from the court, the department placed
appellant in the IPP program. Appellant successfully completed IPP on July 18,
2007, and was released.
                               SUPREME COURT OF OHIO




           {¶ 4} On September 21, 2007, the court of appeals sua sponte held that
the trial court had failed to merge the two convictions for sentencing purposes and
remanded the case to the trial court for a new sentencing hearing.         State v.
Roberts, Hamilton App. No. C-060756, 2007-Ohio-4882, ¶ 9-10. Accordingly,
the trial court ordered the department to produce appellant for a new sentencing
hearing. However, appellant had completed IPP and had been released.
           {¶ 5} Appellant moved to dismiss the resentencing, but the trial court
denied his motion.       The trial court determined that the department had not
properly given notice of the proposed IPP placement and entered a new sentence
of five years. The trial court ordered appellant to serve the prison sentence,
allowing credit for time served. On appeal, the court of appeals affirmed the trial
court’s sentence.
           {¶ 6} R.C. 5120.032(B)(1)(a) provides: “If the prisoner is suited for an
intensive program prison, at least three weeks prior to placing the prisoner in the
prison, the department shall notify the sentencing court of the proposed placement
of the prisoner in the intensive program prison and shall include with the notice a
brief description of the placement. The court shall have ten days from receipt of
the notice to disapprove the placement. If the sentencing court disapproves the
placement, the department shall not proceed with it. If the sentencing court does
not timely disapprove of the placement, the department may proceed with plans
for it.”
           {¶ 7} Following oral argument and our review of the record and the
briefs, we conclude that the state has failed to prove that the sentencing court
never received notice of the intended placement of appellant in an intensive
program prison. Having received no objection from the sentencing court, the
department was authorized to place appellant in an intensive program prison and
thereafter to release him consistent with R.C. 5120.032(B)(1)(b). Therefore, we




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                                January Term, 2009




reverse the judgment of the court of appeals and order appellant’s immediate
release.
                                                                Judgment reversed.
       MOYER,     C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                __________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for appellee.
       Louis F. Strigari, Hamilton County Public Defender, and Robert R.
Hastings Jr., Assistant Public Defender, for appellant.
       Timothy Young, Ohio Public Defender, and Katherine A. Szudy, Assistant
Public Defender, urging reversal for amicus curiae, Ohio Public Defender.
                            ______________________




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