[Cite as State v. Jones, 2011-Ohio-2799.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 96037




                                        STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                 vs.


                                            ROBERT JONES

                                                DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                               Case Nos. CR-487528 and CR-492522

        BEFORE: Kilbane, A.J., Stewart, J., and Boyle, J.
       RELEASED AND JOURNALIZED:                  June 9, 2011

ATTORNEY FOR APPELLANT

James A. Jenkins
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Thorin O. Freeman
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

       {¶ 1} In this delayed appeal, defendant-appellant, Robert Jones, appeals from the

orders of the trial court that denied his motions to vacate his sentences in Case Nos.

CR-487528 and CR-492522.         For the reasons set forth below, we affirm.

       {¶ 2} On October 24, 2006, defendant was indicted in Case No. CR-487528 for drug

trafficking, in violation of R.C. 2925.03; possession of drugs, in violation of R.C. 2935.11;
and possession of criminal tools, in violation of R.C. 2923.24.          On February 23, 2007,

defendant was indicted in Case No. CR-492522 for drug trafficking, in violation of R.C.

2925.03; having a weapon while under disability, in violation of R.C. 2923.13; and possession

of criminal tools, in violation of R.C. 2923.24.

         {¶ 3} On May 3, 2007, in Case No. CR-487528, defendant pled guilty to a fourth

degree felony drug offense and possession of criminal tools, a fifth degree felony.        On the

same date, in Case No. CR-492522, he pled guilty        to a fifth degree felony drug offense and

having a weapon while under disability, a third degree felony.

         {¶ 4} On May 30, 2007, the trial court sentenced defendant in both matters.       In Case

No. CR-492522, he was sentenced to a total of two years of imprisonment.             In Case No.

CR-487528, defendant was sentenced to two concurrent ten-month terms of imprisonment, to

be served consecutively to the sentence imposed in Case No. CR-492522.           At this time, the

court advised defendant that he “may be placed on postrelease control.        ***     If you * * *

violate any conditions the parole board may place you on, they can return you to prison to

serve more time.”     (Tr. 12.)   In its journal entry the court noted “postrelease control is part

of this sentence for 3 years for the above felony(s) under R.C. 2967.28.”

         {¶ 5} According to the State, defendant’s “prison sentence expired sometime in

2009.”
       {¶ 6} On July 2, 2010, defendant filed a pro se motion to vacate his sentence in Case

No. CR-492522, and his counsel also filed a motion to vacate his sentence.        On the same day,

defendant’s counsel filed the same motion in Case No. CR-487528.                  In these motions,

defendant complained that the trial court did not notify him at the time of sentencing of the

specific term that could be imposed for violating the conditions of postrelease control, and the

court also failed to incorporate that notice into the sentencing journal entry.

       {¶ 7} In a supplemental motion filed in both matters on August 24, 2010, defendant

maintained that because he had completed his entire sentence, the sentences had to be vacated

under Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301.

       {¶ 8} The trial court denied the motions in both matters, and defendant now appeals

and assigns one error for our review:

       “The trial court abused its discretion in denying Appellant’s motion to vacate
       sentence where there was inadequate explanation of his postrelease control
       rights at the time of sentencing.”

       {¶ 9} Defendant maintains that his entire sentence is void and must be vacated.         The

State argues that defendant’s motions to vacate his sentence are in fact petitions for

postconviction relief and that they were untimely pursuant to R.C. 2953.21.           We reject the

State’s assertion.   This court disapproved the same argument in State v. Pesci, Cuyahoga

App. No. 94904, 2011-Ohio-1058, and noted that a reviewing court has an obligation to

recognize void sentences, vacate them, and order resentencing if appropriate to do so.
       {¶ 10} With regard to defendant’s sentence, we note that in State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court held that where

postrelease control was erroneously imposed, resentencing is limited to proper imposition of

postrelease control.    However, where the defendant has completed his sentence, the trial court

may not hold a new sentencing hearing to remedy defectively imposed postrelease control.

State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568.          The trial court’s

authority to resentence an offender to give the required notice of postrelease control is limited

to situations where the offender’s sentence has not yet expired. State v. Schmitt, 175 Ohio

App.3d 600, 2008-Ohio-1010, 888 N.E.2d 479; State v. Watt, 175 Ohio App.3d 613,

2008-Ohio-1009, 888 N.E.2d 489.

       {¶ 11} In State v. Pesci, Cuyahoga App. No. 94904, 2011-Ohio-1058, this court

explained:

       “Because Pesci’s sentences had expired by the time he filed his motions to
       vacate, the trial court was without authority to resentence him. Once an
       offender has served the prison term ordered by the trial court, he or she
       cannot be subject to resentencing in order to correct the trial court’s failure to
       properly impose postrelease control.”

       {¶ 12} The Pesci court further held that the portion of the sentence that did not pertain

to postrelease control remained in effect and “only the void part of the sentence is vacated, not

the entire sentence.”    Accord State v. Harris, Cuyahoga App. No. 95097, 2011-Ohio-1072

(noting that if the defendant’s sentence has expired and he has been released from custody,
postrelease control cannot be imposed); cf. State v. Hayden, Cuyahoga App. No. 94955,

2011-Ohio-616 (resentencing to add postrelease control was affirmed where the trial court

held resentencing hearing solely on the issue of postrelease control and hearing).

       {¶ 13} In this matter, defendant’s     sentences had expired by the time he filed his

motions to vacate; therefore, the trial court was without authority to resentence him.   Once an

offender has served the prison term ordered by the trial court, he or she cannot be subject to

resentencing in order to correct the trial court’s failure to properly impose postrelease control.

 We conclude that even if the trial court failed to advise defendant at his plea hearings

regarding postrelease control, he has completed his sentences and is not subject to postrelease

control. Pesci.     Accordingly, the assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
MELODY J. STEWART, J., and
MARY J. BOYLE, J., CONCUR
