[Cite as State v. Christian, 2017-Ohio-8249.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                        :
                                                      :
          Plaintiff-Appellee                          :  C.A. CASE NO. 27236
                                                      :
 v.                                                   :  T.C. NO. 11-CR-563
                                                      :
 EVA CHRISTIAN                                        :  (Criminal Appeal from
                                                      :   Common Pleas Court)
          Defendant-Appellant                         :
                                                      :
                                                 ...........

                                                OPINION

                Rendered on the ___20th __ day of _____October_____, 2017.

                                                 ...........

HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 W. First Street, Second Floor,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                                .............

DONOVAN, J.

        {¶ 1} Defendant-appellant Eva Christian appeals a decision of the Montgomery

County Court of Common Pleas, Criminal Division, resentencing her to nine years in

prison. Christian filed a timely notice of appeal on August 25, 2016.

        {¶ 2} We set forth the history of the case in State v. Christian, 2d Dist. Montgomery

No. 25256, 2014-Ohio-2672 (hereinafter ”Christian I”), and repeat it herein in pertinent
                                                                                        -2-


part:

              In March 2011, Christian was indicted as follows: Count One,

        insurance fraud (related to her home), in an amount greater than or equal

        to $5,000 but less than $100,000; Count Two, insurance fraud (related to

        the restaurant), in an amount greater than $100,000; Count Three, making

        false alarm (related to the burglary at her home), resulting in economic harm

        of more than $5,000 but less than $100,000; and Count Four, making false

        alarm (related to the vandalism and fire at the restaurant), with economic

        harm of $500 or more but less than $5,000. In June 2011, an additional

        count of engaging in a pattern of corrupt activity (Count Five) was added by

        a separate indictment. Christian filed a motion to suppress evidence, which

        was overruled following a hearing. The matter was tried to a jury over

        several days in May 2012. The jury found Christian guilty on all counts.

              The trial court sentenced Christian to 18 months and 36 months,

        respectively, on counts one and two of insurance fraud; it sentenced her to

        18 and 12 months, respectively, on counts three and four, making false

        alarms. The court sentenced Christian to nine years on the count of

        engaging in a pattern of corrupt activity. The court ordered that counts one

        through four were to be served consecutively to each other but concurrently

        with count five, for an aggregate term of nine years. The trial court ordered

        Christian to pay restitution as follows: $51,751.96 to Cincinnati Insurance,

        $21,485.29 to Erie Insurance; $8,647.33 to the Montgomery County

        Sheriff's Department; and $2,748.77 to the Miami Township Fire
                                                                                         -3-


       Department. The court also ordered Christian to pay court costs and to

       forfeit her house, due to its use in her offense of engaging in a pattern of

       corrupt activity. It informed Christian that she would be subject to post-

       release control for five years on Count Five and that she may be subject to

       post-release control for three years on all of the other offenses.

Id. at ¶ 21, 22.

       {¶ 3} In Christian I, we reversed Christian’s conviction for engaging in a pattern of

corrupt activity. Additionally, we modified Christian’s convictions for insurance fraud

(Count II) and making false alarms (Count III) to reflect lower degrees of the offenses

pursuant to H.B. 86.       Thereafter, we remanded the matter to the trial court for

resentencing on Counts II and III. The State appealed our decision to the Ohio Supreme

Court, which reversed and remanded on the basis of its decision in State v. Beverly, 143

Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116. State v. Christian, 143 Ohio St.3d 417,

2015-Ohio-3374, 38 N.E.3d 888.

       {¶ 4} In State v. Christian, 2016-Ohio-516, 56 N.E.3d 391 (2d Dist.) (hereinafter

”Christian II”), we stated the following in pertinent part:

               In our prior Opinion [Christian I], we reversed Christian’s conviction

       for engaging in a pattern of corrupt activity, finding that it was supported by

       insufficient evidence. Specifically, we held that there was insufficient

       evidence that Christian had engaged in an “enterprise” with the two

       individuals who helped her stage the events that gave rise to her convictions

       for insurance fraud; the existence of such an “enterprise” is one element of

       the offense of engaging in a pattern of corrupt activity. We relied on our
                                                                                    -4-

holding in State v. Beverly, 2d Dist. Clark No. 2011 CA 64, 2013-Ohio-1365,

which held that, in order to establish the “enterprise,” there must be some

evidence of “(1) an ongoing organization, formal or informal; (2) with

associates that function as a continuing unit; and (3) with a structure

separate and apart, or distinct, from the pattern of corrupt activity.” Christian

at ¶ 74, quoting Beverly at ¶ 26. We found that the “structure” of the efforts

of Christian and her associates did not go beyond Christian’s efforts to stage

crimes to defraud her insurance companies, and thus that the organization

did not have “a structure separate and apart, or distinct, from the pattern of

corrupt activity.” Christian at ¶ 76-79.

       The State appealed from our judgment reversing Christian’s

conviction for engaging in a pattern of corrupt activity. The State also asked

us to certify a conflict between our holding and several holdings of other

courts of appeals, and we did certify that Christian was in conflict with one

of those cases. State v. Christian, 2d Dist. Montgomery No. 25256, Decision

& Entry, August 24, 2014.

****

       The Supreme Court decided Beverly in January 2015. State v.

Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116. It held that

“[n]othing in R.C. Chapter 2923 [which includes R.C. 2923.32, defining the

offense of engaging in a pattern of corrupt activity] implicitly or explicitly

states that an enterprise and a pattern of corrupt activity must be proven

with separate evidence.” Id. at ¶ 8. The court further stated that, with respect
                                                                                           -5-


       to proof of the existence of an enterprise and of the associated pattern of

       corrupt activity, one does not necessarily establish the other, but “logically,

       evidence that proves one of the elements can sometimes prove the other,

       even though it doesn’t necessarily do so.” Id. at ¶ 10.

              In so holding, the Court rejected this court's holding in Beverly that

       there was insufficient evidence that the defendants were involved in any

       type of ongoing organization, functioning as a continuing unit, with a

       structure separate and apart from the pattern of corrupt activity. The

       Supreme Court also, sua sponte, rejected any argument that the conviction

       was against the manifest weight of the evidence.

              Subsequently, the Supreme Court vacated our judgment in Christian

       [I] and remanded for us to “consider the evidence of an enterprise in light

       of” its decision in Beverly. State v. Christian, 143 Ohio St.3d 417, 2015-

       Ohio-3374, 38 N.E.3d 888, ¶ 1. ***.

Christian II at ¶¶ 2-8.

       {¶ 5} On remand, we held in light of the Ohio Supreme Court’s interpretation of the

statutory definition of an “enterprise” for purposes of engaging in a pattern of corrupt

activity, as set forth in Beverly, Christian’s conviction for engaging in a pattern of corrupt

activity was supported by sufficient evidence and was not against the manifest weight of

the evidence. Therefore, we reinstated Christian’s prior conviction of that offense, but

we modified it from a felony of the first degree to a felony of the second degree, due to

our prior judgment (Christian I) that the underlying offense was a felony of the fourth

degree, rather than a felony of the third degree. Finally, we remanded the matter to the
                                                                                           -6-

trial court for resentencing on Counts II, III, and V. Christian II at ¶¶ 36, 37.

       {¶ 6} Thereafter, a hearing was held before the trial court on July 27, 2016, at

which Christian was resentenced as follows:

       Count I, Insurance Fraud (Fourth Degree Felony): Eighteen months;

       Count II, Insurance Fraud (Reduced to a Fourth Degree Felony): Twelve

       months;

       Count III, Making False Alarms (Reduced to a Misdemeanor of the First

       Degree): 180 days;

       Count IV, Making False Alarms (Fifth Degree Felony): Twelve months; and

       Count V: Engaging in a Pattern of Corrupt Activity (Reduced to a Second

       Degree Felony): Eight years.

The trial court ordered Count I to be served consecutively to Count IV; Count II

was to be served consecutively to Count V; Count III was ordered to be served

concurrently to Counts I, II, IV, and V; and Counts II and V were to be served

concurrently with Counts I and IV, for an aggregate sentence of nine years.

Significantly, nine years in prison is the same sentence Christian received when

she was originally sentenced on June 19, 2012.

       {¶ 7} We note that on July 27, 2016, the trial court issued a “Supplemental

Termination Entry” which consisted of a form in which the court simply checked off its

reasons for ordering consecutive prison terms pursuant to R.C. 2929.14(C)(4).

Thereafter, on August 5, 2016, the trial court issued a termination entry in which it outlined

the terms of Christian’s resentencing. The termination entry, however, did not contain

the language pursuant to R.C. 2929.14(C)(4) regarding its findings in support of its
                                                                                         -7-


imposition of consecutive sentences.1

       {¶ 8} Christian’s appeal is now properly before this Court.

       {¶ 9} Christian’s sole assignment of error is as follows:

       {¶ 10} “THE TRIAL COURT ABUSED ITS DISCRETION IN RESENTENCING

CHRISTIAN WHEN IT MADE NEW FACTUAL FINDINGS UPON RESENTENCING

THAT CONTRADICTED THOSE MADE AT THE ORIGINAL SENTENCING, AND WHEN

NO NEW FACTS HAD BEEN PRESENTED.”

       {¶ 11} In her sole assignment, Christian contends that the trial court abused its

discretion at her resentencing because no new facts were presented since her original

sentencing which warranted the imposition of consecutive sentences. We need not

address Christian’s sole assignment, however, because we find, based on the record in

the instant case, that the trial court erred by increasing a sentence that had been

completed at the time of resentencing. 2      Specifically, we find that by the time that

Christian was resentenced following our remand in Christian II, over four years had

lapsed. By virtue of the remand in Christian II, Christian’s sentence to be served on the

predicate offenses, Counts I, II, III, IV, totals not more than three and one-half years. In

her original termination entry, the trial court ordered that Counts I – IV were to be served

consecutively to one another but concurrently with Count V, for an aggregate sentence



1 We note that on September 29, 2016, well after Christian filed notice of appeal with this
Court, the trial court apparently became aware of the omission and issued a nunc pro
tunc termination entry wherein it included the language pursuant to R.C. 2929.14(C)(4)
explaining it findings in support of consecutive sentences.
2 On August 1, 2017, we issued an order to the parties to be prepared to address at oral
argument, on Tuesday, August 22, 2017, the issue of whether Christian completed her
sentence on Count II prior to her resentencing on July 27, 2016.
                                                                                      -8-


of nine years.

       {¶ 12} Before the imposition of H.B. 86, Christian’s sentences were as follows:

Count I (Eighteen months); Count II (Thirty-Six months); Count III (Eighteen months);

Count IV (Twelve months); and Count V (Nine years). Counts I – IV total eighty-four

months or seven years in prison. After the imposition of H.B. 86, Christian’s sentences

for Counts I – V were reduced by operation of law and the trial court resentenced as

follows:

       Count I, Insurance Fraud (Fourth Degree Felony): Eighteen months;

       Count II, Insurance Fraud (Reduced to a Fourth Degree Felony): Twelve

       months;

       Count III, Making False Alarms (Reduced to a Misdemeanor of the First

       Degree): Six months [180 days];

       Count IV, Making False Alarms (Fifth Degree Felony): Twelve months; and

       Count V, Engaging in a Pattern of Corrupt Activity (Reduced to a Second

       Degree Felony): Eight years.

       {¶ 13} As previously noted, the trial court originally ordered Counts I – IV to be

served consecutively to one another but concurrently to Count V. After the passage and

implementation of H.B. 86, Christian’s total sentence for Counts I – IV, served

consecutively with one another, with the exception of Count III, a misdemeanor, is three

and one-half years. Thus, at the time of her resentencing on July 27, 2016, Christian

had already served over four years in prison, thereby satisfying each of her sentences

imposed for Counts I – IV.

       {¶ 14} The Fourth District Court of Appeals addressed a similar issue in State v.
                                                                                        -9-

Mockbee, 4th Dist. Scioto No. 14CA3601, 2015-Ohio-3469. In Mockbee, the defendant

received concurrent and consecutive sentences at his initial sentencing. Following a

reversal and remand for resentencing, the trial court imposed entirely consecutive

sentences. Id. at ¶ 4–9.     The Fourth District initially affirmed but later allowed the

defendant to re-open his appeal to raise the issue of whether the trial court erred by

changing sentences from concurrent to consecutive where the defendant had completed

them prior to resentencing. Id. at ¶ 10–13. The Fourth District relied primarily on State

v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, which involved an

attempt to impose post-release control where the defendant already had completed his

prison term for the offense but still remained in prison for other offenses. The Fourth

District also cited this court's opinion in State v. Powell, 2d Dist. Montgomery No. 24433,

2014-Ohio-3842, which addressed the order of service for consecutive sentences and

construed ambiguity in favor of the defendant.         In particular, the Mockbee court

reasoned:

             At the time Mockbee was resentenced, his original sentences for

      Counts 8, 9, and 10 were for 18 months or less, and they were ordered to

      be served concurrently to each other and to his Count 12 conviction. In

      addition, Mockbee's original sentences for Counts 4 and 7 were also less

      than 18 months, but they were ordered to be served consecutively to each

      other for an aggregate term of 30 months—and concurrent to the other

      counts—including Counts 8, 9, 10, and 12.

             “[W]hen a defendant is sentenced to concurrent terms, * * * the

      sentences are served simultaneously.” State v. Fugate, 117 Ohio St.3d 261,
                                                                                -10-


2008-Ohio-856, 883 N.E.2d 440, ¶ 22. By the time he was resentenced,

Mockbee had already served his original sentences for his convictions on

Counts 8, 9, and 10, which had been ordered to be served concurrently to

each other and to his convictions on Counts 4, 7, and 12. Therefore, the

trial court lacked jurisdiction to resentence him on Counts 8, 9, and 10 and

to order that they be served consecutively to each other because his original

sentences for those convictions had already been served. Holdcraft [sic],

137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 19.

      For Counts 4 (12 months) and 7 (18 months), which the trial court

ordered to be served consecutively in its original sentencing entry, the

aggregate 30–month term had not expired at resentencing. In Holdcroft, the

court held that for consecutive sentences, the defendant served the

lengthier sentence first (i.e., Holdcroft served his ten-year sentence for

aggravated arson before his five-year sentence for arson). See also State

v. Powell, 2d Dist. Montgomery No. 24433, 2014–Ohio–3842, ¶ 28 (noting

the general absence of authority for the order in which a defendant serves

his or her sentences when consecutive sentences are imposed on multiple

counts, but observing that the court should construe any ambiguity in

sentencing entry in favor of the defendant). The state relies on Ohio

Adm.Code 5120–2–03.1(F) to argue that Counts 4 and 7 are treated as an

aggregate 30–month sentence so that Mockbee had not served his

sentence for either of them at resentencing. However, that provision

specifies only the aggregate sentence to be served when consecutive
                                                                                            -11-


       sentences are imposed; it does not specify a rule as to which of the

       individual sentences ordered to be served consecutive to each other is

       served first. Applying Holdcroft here, Mockbee served his original 18–month

       sentence for Count 7 first and that sentence expired by the time the trial

       court resentenced him. Therefore, the trial court lacked authority to

       resentence Mockbee on that count as well.

              Consequently, we conclude that the trial court erred by resentencing

       Mockbee on Counts 7, 8, 9, and 10 because his original sentences for those

       convictions had been completely served by him by that time. Because

       resentencing on these convictions was clearly and convincingly contrary to

       law, we sustain Mockbee's sole assignment of error on reopening.

Mockbee at ¶ 31-34.

       {¶ 15} In the instant case, we note that in the original termination entry and every

subsequent entry issued by the trial court, each count has always been listed in order,

namely Count I, Count II, Count III, Count IV, and Count V. Therefore, absent any

additional direction from the trial court, it is clear that the order in which the sentences are

to be served should follow that particular sequence.          Moreover, Counts I – IV are

predicate offenses to Count V, so it is logical that the predicate offenses were to be served

prior to Count V. Prior to resentencing, the trial court originally ordered that Counts I -

IV were to be served consecutively to each other but concurrently with Count V.

Therefore, at the very least, the sentences imposed for Counts I – IV were being served

at the same time as the sentence imposed for Count V.                  Thus, by the time of

resentencing, Christian had already served the original term imposed for Counts I – IV.
                                                                                            -12-


       {¶ 16} We also note that although the Supreme Court’s specific holding in

Holdcroft is limited to post-release control, the general rule that the court discussed to

reach that holding is not. Significantly, the Supreme Court recognized that “[n]either this

court’s jurisprudence nor Ohio’s criminal-sentencing statutes allow a trial court to

resentence a defendant for an offense when the defendant has already completed the

prison sanction for that offense.” Holdcroft at ¶ 19. Under these circumstances, “[i]t is

irrelevant whether the defendant is still in prison for other offenses.” Id.; see also Holdcroft

at ¶ 16, citing State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684

(“Directly pertinent to the issue here, we held that Raber—who had served the imposed

sentence of incarceration—had a legitimate expectation of finality in his sentence and the

trial court was precluded from imposing additional punishment upon him”).

       {¶ 17} Conversely, the State cites State v. Martin–Williams, 5th Dist. Stark No.

2014CA86, 2015–Ohio–780, in which the court of appeals recently declined to

extend Holdcroft to a case in which the resentencing occurred after a remand for the

limited purpose of the trial court making the statutory findings required to support its

imposition of consecutive sentences. Martin–Williams, however, is distinguishable from

the instant case. At Christian’s resentencing hearing, the trial court modified a sentence

for Count II, a predicate offense that was already completed, altering it from concurrent

to consecutive to Count V, the corrupt activity conviction. Similar to Mockbee, the instant

case “does not involve resentencing to include findings to support previously imposed

consecutive sentences, i.e., the sentences were not altered or the aggregate time of the

pertinent offenses increased in Martin–Williams.” Mockbee at ¶ 30.

       {¶ 18} In further support of its argument that we should not extend Holdcroft to the
                                                                                           -13-

instant case, the State cites State v. Shabazz, 2017-Ohio-2984, ____ N.E.3d ____

(8th Dist.). In Shabazz, the trial court initially ordered the defendant's offenses to be

served consecutively, and he did not challenge the imposition of consecutive sentences

in his direct appeal. Similar to Martin-Williams, the imposition of a consecutive sentence

at Shabazz's resentencing hearing did not increase his aggregate sentence for the counts

addressed. Shabazz does not involve a situation such as in the instant case where the

trial court initially imposed concurrent sentences and only upon a remand for

resentencing, attempted to impose, for the first time, a consecutive sentence where one

of the originally concurrent sentences had been completed. See Mockbee at ¶ 30.

Accordingly, both Martin-Williams and Shabazz are distinguishable from the instant case.

       {¶ 19} In State v. Metcalf, 2016-Ohio-4923, 68 N.E.3d 371 (8th Dist.), the court

found that correction of post-release control and sex offender classification sentencing

errors are to be treated similarly. Id. at ¶ 20-21. Metcalf involved a defendant who was

convicted of a sexually-oriented offense giving rise to a Tier III sex offender classification.

Metcalf was not notified of the sex offender classification at the sentencing hearing and

the sentencing entry made no mention of a sex offender classification. Metcalf was

sentenced to consecutive prison terms for the sexually-oriented offense and an unrelated

post-release control violation. The mistake was discovered after Metcalf had completed

the sentence for the sexually-oriented offense but while he remained imprisoned on the

post-release control violation. Metcalf was brought before the sentencing court and

advised of the imposition of the Tier III sex offender classification, and a new sentencing

entry was journalized to reflect the Tier III sex offender classification.

       {¶ 20} Relying upon Holdcroft, the Eighth District reversed the imposition of the
                                                                                          -14-


sex offender classification because Metcalf had completed the sentence for the sexually-

oriented offense by the time the sex offender classification was imposed. The court noted

that Holdcroft involved post-release control, as opposed to sex offender classification,

and stated as follows:

       Although we recognize that Holdcroft involved the imposition of post-

       release control, as opposed to the sexual offender classification at issue

       here, we note that the general rules and principles relied upon by the court

       were not limited to the issue of post-release control.

Metcalf at ¶ 20.

       {¶ 21} Most recently in State v. Beverly, 2d Dist. Clark No. 2015-CA-71, 2017-

Ohio-7093, the appellant argued in an application to reopen his appeal that he had

completed two eighteen–month prison terms for receiving stolen property (counts II and

V) and a twelve–month prison term for receiving stolen property (count III) prior to the

resentencing at which the trial court ordered these sentences to be served consecutively

to all others. Id. at ¶ 7. The appellant argued that the trial court lacked authority to make

this change. Id. Relying on Mockbee, we found that there was a genuine issue as to

whether appellate counsel provided prejudicially deficient representation by failing to

challenge his resentencing on counts for which he at least potentially already had

completed his sentence. Id.

       {¶ 22} The State cites State v. Huber, 8th Dist. Cuyahoga No. 98206, 2012-Ohio-

6139, for the proposition that sentences that have been vacated on appeal are void

sentences, and therefore, could not have been completed. Specifically, the State argues

that because Counts II, III, and V were vacated in Christian II, the sentences for those
                                                                                       -15-


counts were void, and Christian could not have completed a sentence (Count II, twelve

months) that did not exist.

       {¶ 23} In Huber, the defendant was originally convicted of kidnapping, attempted

felonious assault, and two counts of aggravated robbery, all with repeat violent offender

and notice of prior conviction specifications. The trial court sentenced Huber to an

aggregate 15 years in prison. The Eighth District Court of Appeals affirmed Huber's

convictions, but held that the trial court erred by sentencing him to six-years on each of

the aggravated robbery counts and merging them. Rather, the court of appeals held that

the trial court should have merged the counts and only issued one sentence. See Huber,

2012-Ohio-6139, at ¶ 5.        The court further held that Huber's aggravated robbery

conviction did not merge with his kidnapping or attempted felonious assault convictions.

Id. The court also affirmed the trial court's imposition of consecutive sentences, but

determined that the trial court erred by not advising Huber of the consequences of

violating the terms of his post-release control. Id.      The case was remanded for

resentencing. Id.

       {¶ 24} Upon remand, the State elected to proceed on the first count of aggravated

robbery. The trial court merged the second count of aggravated robbery into the first

count of aggravated robbery, and imposed a prison term of six years for the merged

aggravated robbery offense. The trial court noted that Huber's sentence for kidnapping

and attempted felonious assault remained the same, as well as the court's order that the

aggravated robbery, kidnapping, and attempted felonious assault prison terms be served

consecutive to one another. Thus, the trial court imposed an aggregate sentence of 15

years in prison. Id. at ¶ 6.
                                                                                         -16-


       {¶ 25} Thereafter, Huber again appealed, arguing that the trial court should have

conducted a de novo sentencing hearing on all of the offenses for which he was convicted.

The court of appeals found that the effect of Huber’s prior appeal resulted in certain counts

being vacated, and he was entitled to de novo sentencing on those counts only. Huber at

¶ 22. The court of appeals stated as follows:

              The significance of this court's vacation of part of Huber's sentence

       is that upon remand Huber did not have a sentence for aggravated

       robbery or post-release control. As part of Huber's de novo sentencing

       hearing, the state had to elect which aggravated robbery offense it was

       going to proceed on, which it did.        The trial court then merged the

       aggravated robbery offenses and sentenced Huber to six years in prison for

       aggravated robbery. The trial court then noted that Huber's sentence for

       attempted felonious assault and kidnapping remained the same, as well as

       the consecutive portion of Huber's original sentence, for an aggregate 15

       years in prison.

Id. at ¶ 23 (Emphasis in the original).

       {¶ 26} However, Huber, unlike Christian, had not completed any of the individual

sentences originally imposed for his multiple offenses at the time he was resentenced.

At issue in Huber was whether the trial court was required to conduct a de novo

sentencing hearing with respect to sentences which had been vacated on appeal and its

authority to impose consecutive or concurrent sentences.         As previously stated, the

instant case involves a situation where the trial court attempted to impose, for the first

time, a consecutive sentence on a count where the original sentence has been served.
                                                                                          -17-

Huber is clearly distinguishable from the instant case.

       {¶ 27} The voiding of an original conviction does not render time served under that

conviction a nullity. We reject the conceptual fiction that a complete but voided sentence

has no legal existence. Otherwise, years served on such counts would be subject to

being twice served. Furthermore, we cannot embrace a sentence nullity argument which

offends the double jeopardy clause. See generally North Carolina v. Pearce, 395 U.S.

711, 716-717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds,

Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). The U.S. and

Ohio Constitutions require that punishment already exacted must be fully credited in

imposing sentence upon reversal and remand.

       {¶ 28} In light of the foregoing analysis, we find that Count II, which the trial court

had ordered to be served concurrently in its original sentencing entry to Count V, had

been completed and served by the time Christian was resentenced on July 27, 2016.

Thus, the trial court could not order that Count II’s twelve month sentence, which had

already been served, be served after completion of the modified eight year term in Count

V. In sum, the trial court is instructed to resentence Christian on Count II to reflect that

it is concurrent with Count V for an aggregate term of eight years.

       {¶ 29} Thus, the judgment of the trial court is reversed.

       {¶ 30} The judgment of the trial court having been reversed, we need not address

the argument in Christian’s assigned error regarding the lack of new facts as it is rendered

moot by the foregoing analysis. Therefore, this matter is remanded to the trial court for

resentencing proceedings consistent with this opinion.

                                          .............
                                       -18-


FROELICH, J. and TUCKER, J., concur.

Copies mailed to:

Heather N. Jans
Brock A. Schoenlein
Hon. Barbara P. Gorman
