[Cite as State v. Henry, 2011-Ohio-3217.]


                                        COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   Sheila G. Farmer, P.J.
                                               :   Julie A. Edwards, J.
                         Plaintiff-Appellee    :   Patricia A. Delaney, J.
                                               :
-vs-                                           :   Case No. 10CAA090075
                                               :
                                               :
JOHN GORDON HENRY, JR.                         :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Delaware
                                                    County Court of Common Pleas Case
                                                    No. 03-CR-I-05-203

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             June 27, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

DAVID A. YOST                                       JOHN R. CORNELY
Prosecuting Attorney                                21 Middle Street
Delaware, Ohio                                      P.O. Box 248
                                                    Galena, Ohio 43201-0248
BY: BRENDAN M. INSCHO
Assistant Prosecuting Attorney
140 N. Sandusky Street
Delaware, Ohio 43015
[Cite as State v. Henry, 2011-Ohio-3217.]


Edwards, J.

        {¶1}     Appellant, John Gordon Henry, Jr., appeals a judgment of the Delaware

County Common Pleas Court resentencing him to a term of five years incarceration for

one count of robbery (R.C. 2911.02(A)(3)) and adding a mandatory term of three years

postrelease control.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     On February 24, 2004, appellant entered a guilty plea to one count of

robbery.     He was sentenced to five years incarceration, and the court ordered the

sentence to run consecutively to a sentence which he was serving from a Franklin

County conviction.

        {¶3}     On January 6, 2010, the trial court ordered a resentencing hearing

because the court had not properly advised appellant of postrelease control. The trial

court held a hearing on September 1, 2010. At the hearing the court advised appellant

that he was to serve a mandatory period of three years postrelease control. Appellant

argued at the hearing that the court should reduce the five year sentence originally

imposed in the case. Appellant argued that he had taken every class available to him in

the prison system, his grandfather had passed away, his sister was murdered and his

mother’s health had taken a turn for the worse. The court told appellant he intended to

impose the same sentence appellant received in 2004.

        {¶4}     Appellant assigns two errors on appeal:

        {¶5}     “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FILING A

JUDGMENT ENTRY OF RE-SENTENCING THAT DOES NOT CORRECTLY

JOURNALIZE THE SENTENCE IMPOSED.
Delaware County App. Case No. 10CAA090075                                                 3


       {¶6}   “II. THE AMBIGUITY BETWEEN THE SENTENCE IMPOSED AT THE

RE-SENTENCING HEARING AND THE SENTENCE SET OUT IN THE JUDGMENT

ENTRY OF RE-SENTENCE MUST BE RESOLVED IN FAVOR OF APPELLANT AND

CONCURRENT SENTENCES ORDERED.”

                                               I, II

       {¶7}   Appellant argues that the court did not correctly journalize the sentence he

imposed at the hearing. He argues that at the hearing, the court did not order the

sentence to run consecutively to the Franklin County sentence, but the judgment entry

orders the sentence to be served consecutively.          Appellant argues that there is

therefore an ambiguity in the sentence and he is entitled to the lesser sentence, i.e. a

concurrent sentence.

       {¶8}   We find no ambiguity between the judgment entry and the sentence

imposed in the courtroom. While the trial court did not expressly state that the sentence

would run consecutively to the Franklin County sentence, the following colloquy

occurred during the resentencing hearing:

       {¶9}   “MR. CORNELY: Mr. Henry has been in prison now for over six years on

this case and some case out of Franklin County. He was sentenced to a total prison

term in both counties of fifteen years, your Honor. He’s got five years in this county.

       {¶10} “THE COURT: Mr. Henry, the court reviewed the file last evening, I went

through the file, the court is of the opinion that the sentence I gave you back on the 28th

of May, 2004, was appropriate. The findings I made at that time were appropriate at

that time.” Tr. 6-7.
Delaware County App. Case No. 10CAA090075                                              4


      {¶11} Counsel had brought to the court’s attention, in appellant’s presence, that

the original sentence was consecutive to the sentence imposed by Franklin County.

The court stated that having reviewed the file the night before, he intended to impose

the same sentence.      Therefore, appellant was made aware by the court that the

sentence would not change, even though the court did not specifically state on the

record that he would again impose the sentence consecutively to the Franklin County

sentence.

      {¶12} Further, the Ohio Supreme Court has held that if a defendant is under a

sentence in which postrelease control was not properly handled, only the offending

portion of the sentence dealing with postrelease control is subject to review and

correction. State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332, 2010-Ohio-6238, ¶27.

The new sentencing hearing to which the offender is entitled is limited to the issue of

postrelease control. Id. at ¶29. Therefore, the court could not reconsider appellant’s

original sentence; his resentencing hearing was limited solely to the issue of the proper

imposition of postrelease control.
Delaware County App. Case No. 10CAA090075                                         5


      {¶13} The first and second assignments of error are overruled.

      {¶14} The judgment of the Delaware County Common Pleas Court is affirmed.



By: Edwards, J.

Farmer, P.J. and

Delaney, J. concur

                                                ______________________________



                                                ______________________________



                                                ______________________________

                                                            JUDGES

JAE/r0401
[Cite as State v. Henry, 2011-Ohio-3217.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
JOHN GORDON HENRY, JR.                           :
                                                 :
                        Defendant-Appellant      :       CASE NO. 10CAA090075




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed

to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
