[Cite as State v. Hausen, 2011-Ohio-5573.]


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

STATE OF OHIO                                        C.A. No.      10CA009840

          Appellant

          v.                                         APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ALAN HAUSEN                                          COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
          Appellee                                   CASE No.   06CR069967

                                 DECISION AND JOURNAL ENTRY

Dated: October 31, 2011



          BELFANCE, P.J.

          {¶1}   The State of Ohio appeals from the judgment of the Lorain County Court of

Common Pleas resentencing Defendant-Appellee Alan Hausen. For the reasons set forth below,

we vacate the resentencing entry and reinstate Mr. Hausen’s original sentence.

                                                I.

          {¶2}   In March 2006, Mr. Hausen was indicted on one count of importuning in violation

of R.C. 2907.07(D)(2), listed in the indictment as a felony of the fourth degree and one count of

possession of criminal tools in violation of R.C. 2923.24(A), a felony of the fifth degree. Mr.

Hausen pleaded guilty to the indictment and was sentenced in May 2006 to a total prison term of

eighteen months and mandatory post-release control of up to five years. Mr. Hausen did not

appeal.

          {¶3}   In 2010, after Mr. Hausen had finished his prison sentence and while he was on

post-release control, he filed a motion to withdraw his plea. In his motion, he essentially
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asserted that the indictment was insufficient to charge a felony of the fourth degree, as a

violation of R.C. 2907.07(D)(2) was only a fourth degree felony if there was a prior violation of

the statute and such was not alleged in the indictment; thus, he argued his plea was not

knowingly and intelligently entered. The trial court denied his motion, but sua sponte vacated

the judgment of conviction and sentence and scheduled a resentencing hearing. The trial court

resentenced Mr. Hausen for a fifth degree felony violation of R.C. 2907.07(D)(2) and a fifth

degree felony violation of R.C. 2923.24(A). Mr. Hausen was sentenced to a concurrent term of

one year in prison. The trial court refused to impose any post-release control obligations as Mr.

Hausen had completed his prison sentence. The State filed a motion for leave to appeal, which

this Court granted.

                                                II.

                                   ASSIGNMENT OF ERROR

       “THE TRIAL COURT ACTED WITHOUT JURISDICTION WHEN IT
       VACATED   HAUSEN’S   CONVICTION   AND    SENTENCE      AND
       CONDUCTED THE RE-SENTENCING HEARING OF JUNE 17, 2010.”

       {¶4}    The State asserts in its sole assignment of error that the trial court lacked

jurisdiction to vacate Mr. Hausen’s convictions and sentence and to resentence him.

       {¶5}    This Court can locate no authority that would permit the trial court to sua sponte

vacate in toto Mr. Hausen’s judgment of conviction and sentence and resentence him after he had

served his entire prison term. The trial court noted that Mr. Hausen was convicted of a fourth

degree felony when the indictment recited a fifth degree felony. The trial court appears to have

concluded that it had authority to sua sponte vacate Mr. Hausen’s convictions and sentence

because the original sentencing court had no jurisdiction to enter the sentence.
                                                3


         {¶6}   Mr. Hausen pleaded guilty to a fifth degree felony violation of R.C. 2923.24(A)

and a fourth degree felony violation of R.C. 2907.07(D)(2). As Mr. Hausen did not object to the

indictment and pleaded guilty to the two offenses, he waived any deficiencies in the indictment.

See State v. Neal, 9th Dist. Nos. 24392, 24398, 2009-Ohio-3170, at ¶3, quoting State v. Barton,

108 Ohio St.3d 402, 2006-Ohio-1324, at ¶73 (“[A] defendant ‘waive[s] any deficiency in the

indictment by failing to object to the indictment and by pleading guilty to the offense.’”).

Further, Mr. Hausen was originally sentenced to twelve months in prison for a fifth degree

felony violation of R.C. 2923.24(A) and eighteen months for a fourth degree felony violation of

R.C. 2907.07(D)(2). Both sentences are within the range permitted by the sentencing statute.

See R.C. 2929.14(A)(4)-(5). Thus, we see no basis for the trial court to sua sponte vacate Mr.

Hausen’s convictions and sentences in their entirety. Accordingly, the State’s argument has

merit.

         {¶7}   Nonetheless, a review of the 2006 judgment entry reveals that the post-release

control notification was erroneous and the trial court may have recognized this error. Mr.

Hausen was subject to a mandatory term of five years of post-release control, as he was

convicted of a felony sex offense, see R.C. 2967.28(B)(1); however, the 2006 judgment entry

states that Mr. Hausen was subject to a mandatory term of post-release control of “up to a

maximum of [5] years[.]” In addition, the trial court failed to include in the 2006 judgment entry

the consequences Mr. Hausen faced if he violated post-release control. The Supreme Court has

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.” (Emphasis in

original.) State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, at ¶26; see, also, State v.

Mundy, 9th Dist. No. 08CA0047-M, 2009-Ohio-6373, at ¶¶4-5 (concluding that the use of “up
                                                 4


to” rendered the sentence void). However, as Mr. Hausen has completed his original prison

term, he cannot be subjected to another sentencing to correct the error.   See State v. Bloomer,

122 Ohio St.3d 200, 2009-Ohio-2462, at ¶70.            “Furthermore, in the absence of a proper

sentencing entry imposing postrelease control, the parole board’s imposition of postrelease

control cannot be enforced.” Id. at ¶71. Thus, as Mr. Hausen completed his prison term prior to

the proper imposition of post-release control, Mr. Hausen cannot now be subject to post-release

control.

                                                III.

       {¶8}    In light of the foregoing, we sustain the State’s assignment of error, vacate the

trial court’s 2010 resentencing entry and reinstate Mr. Hausen’s original judgment entry of

conviction and sentence. Mr. Hausen, however, cannot be subject to post-release control for the

reasons discussed above.

                                                                              Judgment vacated
                                                                            and cause remanded.




       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

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




                                                    EVE V. BELFANCE
                                                    FOR THE COURT



CARR, J.
DICKINSON, J.
CONCUR

APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting
Attorney, for Appellant.

EDWIN VARGAS, Attorney at Law, for Appellee.

DAVID H. BROWN, Attorney at Law, for Appellee.
