         [Cite as State v. Harris, 2011-Ohio-2729.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NOS. C-100470
                                                                       C-100471
        Plaintiff-Appellee,                           :   TRIAL NOS. B-0001819-B
                                                                     B-0000754-B
  vs.                                                 :
                                                          D E C I S I O N.
PHARO HARRIS,                                         :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Appeal Dismissed in C-100471; Affirmed in Part,
                           Sentence Vacated in Part, and Cause Remanded in
                           C-100470

Date of Judgment Entry on Appeal: June 8, 2011


Joseph T. Deters, Prosecuting Attorney, and James Michael Keeling, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

Rubenstein & Thurman, L.P.A., and Scott Rubenstein, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                        OHIO FIRST DISTRICT COURT OF APPEALS




S UNDERMANN , Judge.

          {¶1}     Pharo Harris appeals from the ten-year sentence imposed by the trial
court in the case numbered B-0001819-B. We affirm the judgment of the trial court
with respect to the notification concerning postrelease control. But because the trial
court did not have the authority to merge the offenses for which Harris was
convicted, we vacate that portion of the resentencing entry that addressed issues
other than postrelease control, and we remand the case for reinstatement of Harris’s
original sentence. Harris has also filed a notice appeal from his conviction in the
case numbered B-0000754-B, but he has assigned no error related to that case. We,
therefore, dismiss the appeal in case number C-100471.
          {¶2}     In June 2000, Harris pleaded guilty to one count of aggravated
robbery with a specification and two counts of kidnapping. The trial court sentenced

him to three years’ incarceration for each count and to one year’s incarceration for
the specification to aggravated robbery.          The sentences were consecutive for an
aggregate sentence of ten years.         Harris’s motion for a delayed appeal of his

conviction was overruled by this court in 2004.
          {¶3}     In 2010, Harris was returned to the trial court for resentencing so that
the court could inform him about mandatory postrelease control. At the time of the
hearing, Harris argued that the trial court had erred in 2000 when it convicted him
of aggravated robbery and kidnapping because the offenses were allied offenses of
similar import.1 The trial court agreed, and in addition to notifying Harris about the
terms of postrelease control, it merged the aggravated-robbery and kidnapping
counts and resentenced Harris. The new sentence was nine years’ incarceration for
aggravated robbery with one year’s incarceration for the specification. The aggregate
sentence remained ten years.




1   See R.C. 2941.25.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}     In his sole assignment of error, Harris asserts that the trial court
erred when it increased his sentence for aggravated robbery. He contends that the
new sentence was vindictive.
       {¶5}     At the time Harris was returned for resentencing, State v. Bezak
required that when a sentence omitted a statutorily mandated term of postrelease
control, the trial court had to conduct a de novo sentencing hearing to correct the
error.2 But the Ohio Supreme Court has since limited Bezak in State v. Fischer,
holding that a sentence that omits notification about postrelease control is only
partly void.3 As a result, rather than conducting a de novo resentencing to correct a
postrelease-control error, trial courts may only resentence to correct the erroneous
or omitted provision for postrelease control.4
       {¶6}     In this case, the trial court’s authority was limited to informing Harris

about mandatory postrelease control. It did not have the authority to merge the
offenses and to resentence Harris. Harris’s assignment of error is without merit. But
because the trial court exceeded its authority by merging the offenses for sentencing,

we vacate that part of the resentencing entry that addressed issues other than

postrelease control and remand the case to the trial court for reinstatement of
Harris’s original sentence, as modified with the inclusion of postrelease control.

                                                                    Judgment accordingly.



H ILDEBRANDT , P.J., and C UNNINGHAM , J., concur.


Please Note:
       The court has recorded its own entry this date.




2 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, syllabus.
3 __ Ohio St.3d __, 2010-Ohio-6238, __ N.E.2d __, paragraph two of the syllabus.
4 Fischer, supra, at ¶29.




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