[Cite as State v. Henderson, 2012-Ohio-2709.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 11-COA-045
TERRANCE C. HENDERSON

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Ashland County Common
                                                Pleas, Trial Court Number 06-CRI-130


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                         June 14, 2012


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


RAMONA FRANCESCONI ROGERS                       ERIN N. POPLAR
Ashland County Prosecutor                       Erin Poplar Law, LLC
110 Cottage Street, Third Floor                 1636 Eagle Way
Ashland, Ohio 44805                             Ashland, Ohio 44805

PAUL T. LANGE
Assistant Prosecuting Attorney
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 11-COA-045                                                    2

Hoffman, J.


      {¶1}    Defendant-appellant Terrance C. Henderson appeals his sentence

entered by the Ashland County Court of Common Pleas. Plaintiff-appellee is the state

of Ohio.

                                 STATEMENT OF THE CASE1

      {¶2}    On December 18, 2006, the Ashland County Grand Jury indicted

Appellant on one count of possession of marijuana, in violation of R.C. 2925.11(A). On

May 2, 2007, Appellant filed a motion to dismiss based on speedy trial grounds. By

Judgment Entry filed May 7, 2007, the trial court denied the motion.

      {¶3}    On May 8, 2007, a jury trial commenced. The jury found Appellant guilty

as charged. By Judgment Entry filed June 8, 2007, the trial court sentenced Appellant to

five years in prison, revoked his post-release control, and ordered Appellant to serve an

additional six hundred fifty-nine days consecutive to the five year sentence.

      {¶4}    Appellant filed a direct appeal in State v. Henderson, Licking App. No.

07C0A031, 2008-Ohio-5007. This Court affirmed Appellant's conviction and sentence

holding:

      {¶5}    "At the time of his arrest on the indictment sub judice, December 27, 2006,

appellant was under the supervision of the Adult Parole Authority, and a holder was

placed on him. On January 23, 2007, appellant was sent to prison for violating the terms

of his post-release control. He remained in prison on the violation until March 16, 2007.

Thereafter, he was returned to the Ashland County Jail.



1
 A recitation of the statement of facts is unnecessary to our disposition of Appellant's
appeal.
Ashland County, Case No. 11-COA-045                                                       3


       {¶6}    "We note the trial court did not hold a hearing on the motion to dismiss.

The trial court stated it had 'fully reviewed the pleadings and Ohio Revised Code

Section 2945.71.' The trial court made the following calculations in fn. 1:

       {¶7}    "'March 14, 2006 to March 16, 2006 (3 days in jail counted as 3 days each

for 9 days); December 27, 2006 to March 15, 2007 (79 days in jail or prison on post-

release control violation counted at actual time of 79 days); and March 16, 2007 through

May 8, 2007 (54 days in jail counted as 3 days each for a total of 162 days); less

February 20, 2007 through March 27, 2007 during which the Defendant's Motion to

Suppress Evidence was pending (36 days).'

       {¶8}    "We find the times of incarceration to be established by the record of

transport in the file, and the trial court was correct in its calculations."

       {¶9}    On November 10, 2009, Appellant filed a motion to correct a void

sentence, arguing the 659 day post-release control sanction imposed by the trial court

stemmed from a previous conviction in Lorain County.              Appellant argued the post-

release control was never properly imposed in the Lorain County case; therefore, the

sentence was void. The trial court denied the motion to vacate sentence. Appellant filed

an appeal to this Court, arguing the trial court had no jurisdiction because, in the cases

in which he was on post-release control, he was not properly advised of post-release

control. Appellant further maintained, “his current sentencing order is a nullity and void,

since the trial court lacked jurisdiction to imposed (sic) the 659 days of post-release

control sanction time from an order that previously never existed.”
Ashland County, Case No. 11-COA-045                                                       4


          {¶10} As set forth previously, this Court reversed the trial court's decision, and

remanded the matter for resentencing. State v. Henderson, Ashland App. No. 10-COA-

012, 2011-Ohio-1791.

          {¶11} On September 30, 2011, the trial court conducted a resentencing hearing.

Via Judgment Entry of October 6, 2011, the trial court resentenced Appellant to five

years in prison, and ordered Appellant pay court costs.

          {¶12} On November 30, 2011, Appellant filed a motion for additional jail time

credit, and the State filed a response on December 13, 2011.            The trial court, via

Judgment Entry of December 21, 2011, indicated Appellant had filed a notice of appeal

with this Court from the September 30, 2011 resentencing. Therefore, the trial court

correctly held it lacked jurisdiction to address Appellant's motion for additional jail time

credit.

          {¶13} Appellant now appeals, assigning as error:

          {¶14} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

MOTION TO DISMISS BECAUSE HIS RIGHT TO A SPEEDY TRIAL WAS VIOLATED.

          {¶15} “II. IN THE ALTERNATIVE, THE TRIAL COURT ERRED WHEN IT

DENIED APPELLANT’S MOTION FOR ADDITIONAL JAIL-TIME CREDIT.

          {¶16} “III. IN THE ALTERNATIVE, THE TRIAL COURT ERRED WHEN IT

FAILED TO SENTENCE APPELLANT PURSUANT TO AND CONSISTENT WITH

HOUSE BILL 86.

          {¶17} “IV. IN THE ALTERNATIVE, THE TRIAL COURT ERRED AND ABUSED

ITS DISCRETION WHEN IT DENIED APPELLANT’S MOTION TO WAIVE COURT

COSTS.”
Ashland County, Case No. 11-COA-045                                                        5


                                                I.& II.

       {¶18} Appellant's first and second assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

       {¶19} Appellant maintains he was denied his right to a speedy trial as the time

he spent in jail between December 27, 2006, and March 15, 2007, should count three

per one as he was being held on a post-release control violation subsequently found to

be void. As a result, Appellant argues he was brought to trial in violation of his right to a

speedy trial.

       {¶20} In the alternative, Appellant argues the time period he was held on the

post-release control violations in the unrelated cases, which were later found to be void,

should be credited to the time served in the sentence at bar.

       {¶21} R.C. 2945.71 provides,

       {¶22} "(A) Subject to division (D) of this section, a person against whom a

charge is pending in a court not of record, or against whom a charge of minor

misdemeanor is pending in a court of record, shall be brought to trial within thirty days

after the person's arrest or the service of summons.

       {¶23} "(B) Subject to division (D) of this section, a person against whom a

charge of misdemeanor, other than a minor misdemeanor, is pending in a court of

record, shall be brought to trial as follows:

       {¶24} "(1) Within forty-five days after the person's arrest or the service of

summons, if the offense charged is a misdemeanor of the third or fourth degree, or

other misdemeanor for which the maximum penalty is imprisonment for not more than

sixty days;
Ashland County, Case No. 11-COA-045                                                        6


        {¶25} "(2) Within ninety days after the person's arrest or the service of

summons, if the offense charged is a misdemeanor of the first or second degree, or

other misdemeanor for which the maximum penalty is imprisonment for more than sixty

days.

        {¶26} "(C) A person against whom a charge of felony is pending:

        {¶27} "(1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B),

shall be accorded a preliminary hearing within fifteen consecutive days after the

person's arrest if the accused is not held in jail in lieu of bail on the pending charge or

within ten consecutive days after the person's arrest if the accused is held in jail in lieu

of bail on the pending charge;

        {¶28} "(2) Shall be brought to trial within two hundred seventy days after the

person's arrest.

        {¶29} "(D) A person against whom one or more charges of different degrees,

whether felonies, misdemeanors, or combinations of felonies and misdemeanors, all of

which arose out of the same act or transaction, are pending shall be brought to trial on

all of the charges within the time period required for the highest degree of offense

charged, as determined under divisions (A), (B), and (C) of this section.

        {¶30} "(E) For purposes of computing time under divisions (A), (B), (C)(2), and

(D) of this section, each day during which the accused is held in jail in lieu of bail on the

pending charge shall be counted as three days. This division does not apply for

purposes of computing time under division (C)(1) of this section.

        {¶31} "(F) This section shall not be construed to modify in any way section

2941.401 or sections 2963.30 to 2963.35 of the Revised Code."
Ashland County, Case No. 11-COA-045                                                      7


      {¶32} This Court held in Appellant's previous appeal of the trial court's imposition

of post-release control, State v. Henderson, Ashland Co. 11-COA-012, 2011-Ohio-1791,

      {¶33} "In State v. Fischer, 942 N.E.2d 332, 2010–Ohio–6238, syllabus, the

Supreme Court of Ohio limited the nature of the de novo hearing as follows: '2. The new

sentencing hearing to which an offender is entitled under State v. Bezak is limited to

proper imposition of postrelease control. (State v. Bezak, 114 Ohio St.3d 94, 2007–

Ohio–3250, 868 N.E.2d 961, syllabus, modified).' Thus, as stated by the Fischer court in

paragraph two of the syllabus, the new sentencing hearing is limited to the proper

imposition of postrelease control.

      {¶34} "In the case sub judice, appellant was on post-release control in cases out

of Richland, Crawford and Lorain Counties at the time he was sentenced in the case

sub judice. Appellant now contends that the entries in such cases mistakenly advised

him of post-release control and, therefore, such entries were void. Appellant further

maintains that, therefore, the trial court in the case sub judice lacked jurisdiction to

impose the 659 days of post-release control as additional prison time.

      {¶35} "In the case sub judice, appellant was sentenced in July of 2002, in

Richland County Case No. 01 CR 018OH after being convicted of illegal conveyance of

drugs in violation of R.C. 2921.36(A)(2), a felony of the fourth degree. The Court's

Sentencing Entry in such case indicated that appellant was subject to 'up to 5 years

post-release control (PRC).' The parties, and the trial court in the case sub judice, agree

that a fourth degree felony pursuant to R.C. 2967.28 is subject to post-release control of

up to three years rather than five. Because appellant was improperly advised of post-
Ashland County, Case No. 11-COA-045                                                       8


release control in such case, his sentence in such case was void as it related to post-

release control.

       {¶36} "Appellant also was sentenced in April of 2002, in Crawford County Case

No. 01–CR–0075 after being convicted of assault of a police officer in violation of R.C.

2903.13, a felony of the fourth degree, and attempted failure to comply in violation of

R.C. 2923.02/2921.331, a felony of the fourth degree. The trial court's entry in such

case indicates that appellant was notified that ‘post-release control is optional in this

case up to a maximum of eighteen months on each count.’ As is stated above, pursuant

to R.C. 2967.28, fourth degree felonies are subject to up to three years of post-release

control. Appellant, therefore, was improperly advised of post-release control in such

case. His sentence in Crawford County Case No. 01–CR–0075 was, therefore, void as

it relates to post-release control.

       {¶37} "In Lorain County Case No. 01 CR057450, appellant, in June of 2002, was

sentenced for possession of cocaine in violation of R.C. 2925.11(A), a felony of the fifth

degree, and possession of drug paraphernalia in violation of 2925.14(C)(1), a

misdemeanor of the fourth degree. The trial court's Judgment Entry in such case states

that appellant was notified 'that post-release control is (mandatory optional) in this case

up to a maximum of (3/5) years ...' R.C. 2967.28(C) states that, for a conviction of a fifth

degree felony an offender may be subject to a period of post-release control of up to

three years. Appellant, therefore, was not properly advised about post-release control in

such case.

       {¶38} "Finally, appellant was sentenced in 2002, in Lorain County Case No. 01

CR058029 for domestic violence in violation of R.C. 2919.25(A), a felony of the fifth
Ashland County, Case No. 11-COA-045                                                       9


degree. The trial court, in its Judgment Entry in such case, stated that if it had notified

appellant that post-release was '(mandatory/optional) in this case up to a maximum of

(3/5) year ...' R.C. 2967.28(C) states that with respect to a fifth degree felony, an

offender is subject to up to three years of post-release control. Appellant, therefore, was

improperly advised of post-release control in such case.

       {¶39} "In short, we find that the trial courts' entries in the above cases out of

Richland, Lorain and Crawford Counties did not properly advise appellant regarding

post-release control. The sentences in such cases were void as they relate to post-

release control. The trial court, in the case sub judice, therefore, erred in imposing the

remaining 659 days of post-release control time as additional prison time on appellant.

       {¶40} "Because the trial court in the case sub judice, therefore, erred in

overruling appellants Motion to Correct Void Sentence, appellant's sole assignment of

error is sustained."

       {¶41} As set forth in the Statement of the Case, supra, in the previous appeal of

the calculation of Appellant’s sentence, this Court specifically recognized the time

period Appellant spent in prison between December 27, 2006 and March 15, 2007 was

correctly counted by the trial court as time spent in prison on a post-release control

violation.

       {¶42} To reiterate as set forth above, subsection (E) of R.C. 2945.71 states,

"each day during which the accused is held in jail in lieu of bail on the pending charge

shall be counted as three days." (Emphasis added.)

       {¶43} Here, although it was later determined the post-release control violations

for which Appellant was held in the unrelated cases were void, at the time Appellant
Ashland County, Case No. 11-COA-045                                                     10


was imprisoned during the time period between December 27, 2006, and March 15,

2007, he nonetheless was not being held on the “pending” charges. Therefore, we find

the trial court did not err in sentencing Appellant.

       {¶44} The first and second assignments of error are overruled.

                                                 III.

       {¶45} In the third assignment of error, Appellant maintains the trial court erred in

not applying the provisions of the recently enacted H.B. 86 at Appellant's resentencing.

H.B. 86 became effective September 30, 2011.

       {¶46} As set forth above, this Court previously remanded this matter to the trial

court for resentencing on the limited issue of post-release control. Pursuant to State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,

       {¶47} "In this situation, the postrelease-control component of the sentence is

fully capable of being separated from the rest of the sentence as an independent

component, and the limited resentencing must cover only the postrelease control. It is

only the postrelease-control aspect of the sentence that is void and that must be

rectified. The remainder of the sentence, which the defendant did not successfully

challenge, remains valid under the principles of res judicata."

       {¶48} Accordingly, we find the remainder of Appellant's sentence remained valid,

and the resentencing was limited to the proper imposition of PRC on remand.

       {¶49} R.C. Section 1.58(B) states,

       {¶50} “If the penalty, forfeiture, or punishment for any offense is reduced by a

reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not

already imposed, shall be imposed according to the statute as amended.”
Ashland County, Case No. 11-COA-045                                                     11


       {¶51} Here, Appellant's sentence had already been imposed prior to the

enactment of H.B. 86; therefore, the trial court did not err in not applying the

amendments therein. See, State v. Fields, Muskingum App. No. CT11-0037, 2011-

Ohio-6044

       {¶52} The third assignment of error is overruled.

                                               IV.

       {¶53} In the fourth assignment of error, Appellant argues the trial court erred in

denying Appellant's motion to waive court costs.

       {¶54} As set forth in our analysis and disposition of Appellant's third assignment

of error, this Court previously remanded this matter to the trial court for resentencing on

the limited issue of post-release control application. Accordingly, pursuant to Fischer,

supra, the arguments raised in the fourth assignment of error are barred by the doctrine

of res judicata.

       {¶55} The fourth assignment of error is overruled.

       {¶56} Appellant's sentence in the Ashland County Court of Common Pleas is

affirmed.

By: Hoffman, J.

Delaney, P.J. and

Wise, J. concur                              s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ Patricia A. Delaney _________________
                                             HON. PATRICIA A. DELANEY


                                             s/ John W. Wise _____________________
                                             HON. JOHN W. WISE
Ashland County, Case No. 11-COA-045                                             12


            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
TERRANCE C. HENDERSON                     :
                                          :
       Defendant-Appellant                :        Case No. 11-COA-045


       For the reasons stated in our accompanying Opinion, the judgment entered by

the Ashland County Court of Common Pleas is affirmed. Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE
