[Cite as State v. Harris, 2011-Ohio-6196.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                          C.A. No.       09CA009689

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
MATTHEW HARRIS                                         COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   99CR054795

                                  DECISION AND JOURNAL ENTRY

Dated: December 5, 2011



        CARR, Presiding Judge.

        {¶1}     Appellant, Matthew Harris, appeals the judgment of the Lorain County Court of

Common Pleas. This Court affirms, in part, and vacates, in part.

                                                  I.

        {¶2}     On November 17, 1999, the Lorain County Grand Jury indicted Harris on one

count of rape in violation of R.C. 2907.02(A)(1)(b). The case proceeded to trial and a jury found

Harris guilty of rape. On September 5, 2000, Harris was sentenced to nine years in prison and

classified as a sexual predator. Harris filed a direct appeal to this Court and his conviction and

sentence were affirmed. State v. Harris (Aug. 1, 2001), 9th Dist. No. 00CA007691 (“Harris I”).

        {¶3}     Following his direct appeal, Harris filed a motion in the trial court for disclosure

of testimony taken before the grand jury. When the trial court denied his motion, Harris filed a

motion demanding findings of fact and conclusions of law as to the trial court’s denial of the

motion for disclosure of grand jury testimony. This motion was also denied. On appeal, the
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denials of both motions were affirmed by this Court. State v. Harris, 9th Dist. No. 03CA008305,

2003-Ohio-7180 (“Harris II”). Harris subsequently filed a variety of motions in the trial court,

including a motion to correct his sentence on the basis that he should have been given the

statutory minimum prison sentence, as well as a petition for post-conviction relief. These

motions were denied by the trial court. On February 16, 2007, Harris filed a motion seeking to

vacate his sexual predator classification. The trial court denied the motion on February 22, 2007.

The denial of Harris’s motion was affirmed by this Court. State v. Harris, 9th Dist. No.

07CA009130, 2007-Ohio-4915 (“Harris III”).

       {¶4}    On May 13, 2009, the trial court issued a journal entry directing the Sheriff to

return Harris to the courthouse for resentencing due to an error in his post-release control

notification. The trial court held a resentencing hearing on Friday, August 24, 2009. At the

hearing, the State stated on the record that Harris was “due to be released on Wednesday.” The

trial court then sentenced Harris to a term of eight years of incarceration and notified him that he

would be placed under post-release control for a period of five years. On the same day as the

sentencing hearing, the trial court’s sentencing entry was journalized. Also on August 24, 2009,

the trial court issued an order stating, “Credit for time served awarded. Defendant ordered

released forthwith.”

       {¶5}    Harris filed a notice of appeal on October 5, 2009. On appeal, he raises one

assignment of error.

                                                II.

                                  ASSIGNMENT OF ERROR

       “THE COURT ERRED WHEN IT REQUIRED DEFENDANT TO REPAY
       COURT APPOINTED ATTORNEY FEES WITHOUT A FINDING THAT
       DEFENDANT WAS ABLE TO DO SO.”
                                                 3


         {¶6}   In his sole assignment of error, Harris argues that the trial court erred when it

required him to repay court appointed attorney fees without making a finding that he was able to

do so.

         {¶7}   The Supreme Court of Ohio has held that an error in post-release control

notification does not result in a void sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238.    In Fischer, the Supreme Court held that “when a judge fails to impose statutorily

mandated postrelease control as part of a defendant’s sentence, that part of the sentence is void

and must be set aside.” Id. at ¶26. The Court reasoned that “[n]either the Constitution nor

common sense commands anything more.” Id. The new sentencing hearing that a defendant is

entitled to “is limited to proper imposition of postrelease control.” Id. at ¶29. The Court also

held that res judicata “applies to other aspects of the merits of a conviction, including the

determination of guilt and the lawful elements of the ensuing sentence.” Id. at paragraph three of

the syllabus.

         {¶8}   As noted above, Harris filed a direct appeal in 2000. This Court affirmed the trial

court’s judgment in Harris I. In the following years, Harris challenged his conviction and

sentence by frequently filing motions in the trial court and appeals to this Court. On May 13,

2009, the trial court ordered Harris to be returned to the courthouse for resentencing due to an

error in post-release control notification. The trial court conducted a resentencing hearing on

August 24, 2009, and issued a new sentencing entry. Harris received a prison sentence of eight

years, which was one year shorter than the prison sentence he received at his original sentencing

hearing, and he was notified that he would be subject to a five-year term of post-release control.

In accordance with Fischer, the scope of the new sentencing hearing to which Harris was entitled

was limited to the proper imposition of post-release control. Fischer, at paragraph two of the
                                                  4


syllabus. Likewise, the scope of Harris’s appeal from that hearing is limited solely to issues

relating to the imposition of post-release control. Id. at paragraph four of the syllabus. It follows

that the trial court had authority to impose the proper term of post-release control on Harris at the

August 24, 2009 hearing. As the lawful portion of Harris’s original sentence remained in place

pursuant to Fischer, the trial court did not have authority to conduct a de novo sentencing

hearing and reissue a sentence. To the extent the trial court properly imposed a mandatory five-

year period of post-release control upon Harris at the resentencing hearing, its judgment is

affirmed. To the extent the trial court conducted a de novo sentencing hearing and reissued a

sentence to Harris, its judgment in that respect is vacated.

                                                 III.

       {¶9}    The judgment of the Lorain County Court of Common Pleas is vacated to the

extent the court exceeded its authority and resentenced Harris. The trial court’s decision to

notify Harris that he is subject to a mandatory five-year term of post-release control is affirmed.

The remainder of Harris’s original sentence remains in place.

                                                                          Judgment affirmed, in part,
                                                                                and vacated in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                5


period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT



WHITMORE, J.
DICKINSON, J.
CONCUR


APPEARANCES:

ERIN A. DOWNS, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
