[Cite as State v. Davis, 2011-Ohio-2308.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                          Plaintiff-Appellee   :       Hon. Sheila G. Farmer, J.
                                               :
-vs-                                           :
                                               :       Case No. 2010-CA-0100
MARK E. DAVIS                                  :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No. 04-CR-
                                                   935H

JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            April 25, 2011



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JAMES J. MAYER, JR.                                KRISTIN E. BROWN
Prosecuting Attorney                               3621/2 Lexington Avenue
By: Gary D. Bishop                                 Mansfield, OH 44907
38 S. Park Street, 2nd Fl.
Mansfield, OH 44907
[Cite as State v. Davis, 2011-Ohio-2308.]


Gwin, P.J.

        {¶1}     Defendant-appellant, Mark E. Davis challenges the trial court's imposition

of mandatory post-release control during a re-sentencing hearing held prior to his

release from prison. The relevant facts leading to this appeal are as follows.

        {¶2}     On December 8, 2004, appellant was indicted on two (2) counts of

Burglary and one (1) count of Aggravated Burglary. On or about June 10, 2005,

appellant entered a plea to amended charges of two (2) counts of Burglary, each a

felony of the third degree. A sentencing hearing was held on September 8, 2005.

Appellant was sentenced to three (3) years on each count of Burglary, to run

consecutively, for a total sentence of six (6) years incarceration. The Sentencing Entry

filed September 8, 2005 notes that appellant was subject to up to five (5) years of post-

release control1. However, R.C. 2967.28 provided that for a felony of the third degree

which the offender caused or threatened physical harm to a person there is a

mandatory period of post-release control for three years.

        {¶3}     On July 6, 2006 the General Assembly enacted R.C. 2929.191. R.C.

2929.191 establishes a procedure to remedy a sentence that fails to properly impose a

term of post-release control. Appellant was brought back for a re-sentencing hearing on

July 9, 2010 in an effort by the trial court to comply with R.C. 2929.191, and correct the

judgment entry of conviction concerning post-release control.

        {¶4}     At the re-sentencing hearing on July 9, 2010, appellant was re-sentenced

to 3 years on each of the two counts of Burglary, for a total of 6 years to run

consecutively, and 3 years of mandatory post-release control. Appellant and his counsel


        1
          The transcript of the original plea and sentencing hearings were not made a part of the record
on this appeal.
Richland County, Case No. 2010-CA-0100                                                     3


raised objections to the re-sentencing for mandatory post-release control, and raised

the issue that the parole board had given appellant notification in September of 2008

that he would not be placed on post-release control. (T. at 4). The court indicated that

the parole board would have no authority to consider appellant for post-release control

unless a corrective judgment entry was filed before the ending term of appellant’s

sentence on January 27, 2011. (T. at 5).

       {¶5}   Appellant was released on August 11, 2010 and is currently on post-

release control.

       {¶6}   Appellant has timely appealed raising one assignment of error:

       {¶7}   “I.   THE   RE-SENTENCING         BY    THE    TRIAL    COURT      VIOLATED

APPELLANT'S DUE PROCESS RIGHTS.”

                                                 I.

       {¶8}   In his sole assignment of error, appellant claims that his re-sentencing in

order to “correct” the omission of his earlier sentence in its failure to include a period of

mandatory post-release control is prohibited. We disagree.

       {¶9}   R.C. 2929.191 sets forth the mechanism for correcting a sentence that

fails to properly impose post-release control.          However, said provision applies

prospectively to sentences entered on or after July 11, 2006. State v. Pearson,

Montgomery App. No. 23974, 2011-Ohio-245, f.n. 3, citing State v. Singleton, 124 Ohio

St.3d 173, 2009-Ohio-6434, ¶¶ 35-36. See, also, State v. Nesser, Licking App. No.

10CA61, 2011-Ohio-94, f.n.1; State v. Samples, Stark App. No. 2010CA00122, 2011-

Ohio-179, ¶ 27. In the case at bar appellant was sentenced on September 8, 2005.
Richland County, Case No. 2010-CA-0100                                                  4

      {¶10} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d

958, paragraph one of the syllabus, the Ohio Supreme Court held that “[f]or criminal

sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose

post-release control, trial courts shall conduct a de novo sentencing hearing in

accordance with decisions of the Supreme Court of Ohio.” In reviewing decisions where

post-release control was lacking, the Singleton court noted:

      {¶11} “In State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864,

this court considered the consequences of a trial court's failure to advise an offender

about post release control at the sentencing hearing. Id. at ¶ 1, 817 N.E.2d 864.

Applying [State v. Beasley (1984), 14 Ohio St.3d 74, 471 N.E.2d 774], we held that

‘[b]ecause a trial court has a statutory duty to provide notice of post-release control at

the sentencing hearing, any sentence imposed without such notification is contrary to

law’ and void, and the cause must be remanded for resentencing. Id. at ¶ 23, 27, 471

N.E.2d 774. (Emphasis added).

      {¶12} “We again confronted a sentencing court's failure to notify or incorporate

post-release control into its sentencing entry in Hernandez v. Kelly, 108 Ohio St.3d 395,

2006-Ohio-126, 844 N.E.2d 301; however, in that case, discovery of the sentencing

error did not occur until after the offender had been released from prison, placed on

post release control by the parole board, and re-imprisoned for violating the terms of

post release control. Id. at ¶ 4-7, 844 N.E.2d 301. There, we granted a writ of habeas

corpus in conformity with our decisions in Jordan and [Woods v. Telb, 89 Ohio St.3d

504, 2000-Ohio-171, 733 N.E.2d 1103], holding that the parole board lacked authority to

impose post-release control because the trial court had failed to notify the offender of
Richland County, Case No. 2010-CA-0100                                                   5


post-release control or to incorporate it into the sentencing entry and because

Hernandez had completed serving that sentence when the error was discovered. Id. at

¶ 32, 844 N.E.2d 301.

       {¶13} “* * *

       {¶14} “In State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961,

we concluded that an offender is entitled to a de novo sentencing hearing for the trial

court to correct a sentence that omitted notice of post-release control. * * * Importantly,

because Bezak had already completed his term of imprisonment, the trial court could

not, consistent with our decision in Hernandez * * * conduct a resentencing.

       {¶15} “ * * *

       {¶16} “Most recently, in State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462,

909 N.E.2d 1254, we * * * held that when a court fails to impose post-release control

before an offender completes the stated term of imprisonment, under either our case

law or R.C. 2929.191, the offender must be discharged, ¶ 69-71.” Id. at ¶ 14-18, 20, 909

N.E.2d 1254. See also, State v. Atkinson, Cuyahoga App. No. 93855, 2010-Ohio-2783.

       {¶17} In the instant case, a review of the record reveals that appellant was

advised of post-release control at his original sentencing. However, appellant, at the

time of his original sentencing, was informed that he may be subject to up to five years

of post-release control. The trial court conducted a de novo re-sentencing hearing on

July 9, 2010 to correct this mistake.

       {¶18} In State v. Simpkins, 117 Ohio St.3d 420, 884 N.E.2d 568, 2008-Ohio-

1197 the appellant argued that he could not be re-sentenced because he had

completed a substantial majority of his sentence at the time of resentencing and had a
Richland County, Case No. 2010-CA-0100                                                 6


cognizable interest in the finality of his sentence. Id. at 427, 884 N.E.2d at 576, 2008-

Ohio-1197 at ¶31. In rejecting this argument the Court noted,

       {¶19} “Given that the sentence was issued without the authority of law and that

Simpkins was represented by counsel, we find that there was no unfair surprise or

prejudice to Simpkins in his resentencing. Because he did not have a legitimate

expectation of finality in his sentence, Simpkins could be resentenced without offending

the Double Jeopardy or Due Process Clauses. See United States v. Fogel

(C.A.D.C.1987), 829 F.2d 77, 87.” Simpkins at ¶37.

       {¶20} In the case at bar, the re-sentencing hearing occurred before appellant

was released from prison.      Additionally, at the original sentencing hearing in 2005

appellant was made aware that he was subject to up to five years of post-release

control. Thus, this was not a case where appellant was totally unaware that he may be

subject to a period of post-release control upon his release from prison. Furthermore,

re-sentencing a defendant to add a mandatory period of post-release control that was

not originally included in the sentence does not violate due process. State v. Simpkins,

supra, at paragraph 20 of syllabus.

       {¶21} After independently reviewing the record, we find that because appellant

was notified prior to his release from prison pursuant to R.C. 2929.191(A)(1) that he

would be subject to a mandatory term of post-release control, his due process rights

were not violated as he had no sufficient "expectation of finality" in his sentence.
Richland County, Case No. 2010-CA-0100                                             7


      {¶22} Appellant’s Assignment of Error is overruled.

      {¶23} For these reasons, after independently reviewing the record, the judgment

of the Richland County Court of Common Pleas is affirmed.

By: Gwin, P.J.,

Wise, J., and

Farmer, J., concur




                                           _________________________________
                                           HON. W. SCOTT GWIN

                                           _________________________________
                                           HON. JOHN W. WISE

                                           _________________________________
                                           HON. JULIE A. EDWARDS
WSG:clw 0413
[Cite as State v. Davis, 2011-Ohio-2308.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
MARK E. DAVIS                                     :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2010-CA-0100




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

judgment of the Richland County Court of Common Pleas is affirmed.                Costs to

appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. JOHN W. WISE

                                                      _________________________________
                                                      HON. JULIE A. EDWARDS
