[Cite as State v. Williams, 2011-Ohio-1979.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellee    :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case No. 2010-CA-0090
STEVEN WILLIAMS                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No. 2008-
                                                   CR-608D

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            April 21, 2011

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JAMES J. MAYER, JR.                                RYAN M. HOOVLER
PROSECUTING ATTORNEY                               13 Park Avenue West
BY: KIRSTEN PSCHOLKA-GARTNER                       Suite 300
38 South Park Street                               Mansfield, OH 44902
Mansfield, OH 44902
[Cite as State v. Williams, 2011-Ohio-1979.]


Gwin, P.J.

        {¶1}     Defendant-Appellant, Steven J. Williams appeals the June 21, 2010 felony

 resentencing in the Court of Common Pleas, Richland County. The relevant facts

 leading to this appeal are as follows.

        {¶2}     Appellant was initially indicted by the Richland County Grand Jury on one

 count of aggravated burglary, a felony of the first degree, and one count of felonious

 assault, a felony of the second degree.

        {¶3}     Appellant entered into a negotiated plea agreement with the State of Ohio

 in which the State agreed to dismiss Count I, the aggravated burglary charge, in

 exchange for a plea to Count II, the felonious assault charge. The parties jointly

 recommended a two year prison sentence and restitution for the victim’s injuries and

 damage to his property. This sentence was imposed by the trial court at a sentencing

 hearing held on October 28, 2008. However, the sentencing entry issued by the trial

 court at that time incorrectly stated that appellant's sentence included five years of post

 release control.

        {¶4}     Appellant was transported to prison to begin serving his sentence on

 October 29, 2008. On April 5, 2010, appellant was transferred to the Oriana House in

 Cleveland, Ohio under transitional control.

        {¶5}     As the result of appellant’s original sentencing entry stating that post

 release control was 5 years, he was returned to the trial court for a clarification of post

 release control on June 21, 2010. At that hearing, the trial court purported to “re-

 sentence” appellant to the same sentences that he had previously received, and to
Richland County, Case No. 2010-CA-0090                                                  3


correct appellant’s post-release control to include a mandatory period of three (3)

years.

      {¶6}   Appellant has timely appealed raising two assignments of error for our

consideration:

      {¶7}   “I. THE COURT ERRED TO DEFENDANT/APPELLANT'S PREJUDICE

BY FAILING TO CONSIDER THE FACTORS OF ORC 2929.11 AND 2929.12 IN RE-

SENTENCING THE DEFENDANT.

      {¶8}   “II. THE COURT ERRED TO DEFENDANT/APPELLANT'S PREJUDICE

BY FAILING TO HAVE AUTHORITY TO ISSUE A CORRECTIVE RE-SENTENCE

ONCE AN OFFENDER HAS COMPLETED HIS SENTENCE.”

                                               I.

      {¶9}   In his First Assignment of Error, appellant contends that the trial court

erred in failing to consider the purposes and principles of felony sentencing set forth in

R.C. 2929.11, the felony sentencing factors set forth in R.C. 2929.12, and any relevant

information such as pre-sentence reports or victim impact statements during the June

21, 2010 re-sentencing hearing.

      {¶10} R.C. 2929.191 sets forth the mechanism for correcting a sentence that

fails to properly impose post-release control. Said provision applies prospectively to

sentences entered on or after July 11, 2006. State v. Pearson, Montgomery App. No.

23974, 2011-Ohio-245, f.n. 3, citing State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-

6434, ¶¶ 35-36. See, also, State v. Nesser, Licking App. No. 10CA61, 2011-Ohio-94,

f.n.1; State v. Samples, Stark App.No. 2010CA00122, 2011-Ohio-179, ¶ 27.
Richland County, Case No. 2010-CA-0090                                                  4


      {¶11} R.C. 2929.191 provides that trial courts may, after conducting a hearing

with notice to the offender, the prosecuting attorney, and the Department of

Rehabilitation and Correction, correct an original judgment of conviction by placing on

the journal of the court a nunc pro tunc entry that includes a statement that the offender

will be supervised under R.C. 2967.28 after the offender leaves prison and that the

parole board may impose a prison term of up to one-half of the stated prison term

originally imposed if the offender violates post release control.” State v. Singleton, 124

Ohio St.3d 173, 179, 920 N.E.2d 958, 963, 2009-Ohio-6434 at ¶ 23.

      {¶12} The Supreme Court further noted, “R.C. 2929.191(C) prescribes the type

of hearing that must occur to make such a correction to a judgment entry “[o]n and

after the effective date of this section.” The hearing contemplated by R.C. 2929.191(C)

and the correction contemplated by R.C. 2929.191(A) and (B) pertain only to the

flawed imposition of post release control. R.C. 2929.191 does not address the

remainder of an offender's sentence. Thus, the General Assembly appears to have

intended to leave undisturbed the sanctions imposed upon the offender that are

unaffected by the court's failure to properly impose post-release control at the original

sentencing.” State v. Singleton, supra 124 Ohio St.3d at 179-180, 920 N.E.2d at 964,

2009-Ohio-6434 at ¶ 24.

      {¶13} Appellant was given a R.C. 2929.191 hearing by the trial court on June 21,

2010. Therefore, appellant's First Assignment of Error is overruled.

                                               II.

      {¶14} In his Second Assignment of Error, appellant maintains that the trial court

incorrectly resentenced him to correct his void sentence. He has argued that the trial
Richland County, Case No. 2010-CA-0090                                                    5


court did not have the power to re-sentence him because he had been released from

prison and was in transitional control at the Oriana House at the time the re-sentencing

occurred. We disagree.

      {¶15} In State v. Singleton, 124 Ohio St.3d 173, 920 N.E.2d 958, 2009-Ohio-

6434, the Ohio Supreme Court       recognized that a trial court lacks authority to re-

sentence an offender if the sentencing error was discovered “after the offender ha[s]

been released from prison.” Id. at ¶ 15, 920 N.E.2d 958; see also State v. Bloomer, 122

Ohio St.3d 200, 909 N.E.2d 1254, 2009-Ohio-2462, at ¶ 70 (noting that a defendant

cannot be subjected to another sentencing hearing after he “has completed the prison

term imposed in his original sentence”); State v. Bezak, 114 Ohio St.3d 94, 868 N.E.2d

961, 2007-Ohio-3250, at ¶ 18 (concluding that defendant could not be re-sentenced

because he had “already served the prison term ordered by the trial court.”).State v.

Bodiford, Lorain App. No. 10CA009770, 2010-Ohio-5923 at ¶3.

      {¶16} Although the word “imprisonment” is not defined in R.C. 2929.19 et seq.,

R.C. 1.05(C) defines “imprisoned,”      “‘imprisoned’ or ‘imprisonment’ means being

imprisoned under a sentence imposed for an offense or serving a term of

imprisonment, prison term, jail term, term of local incarceration, or other term under a

sentence imposed for an offense in an institution under the control of the department of

rehabilitation and correction, a county, multicounty, municipal, municipal-county, or

multicounty-municipal jail or workhouse, a minimum security jail, a community-based

correctional facility, a halfway house, an alternative residential facility, or another

facility described or referred to in section 2929.34 of the Revised Code for the type of

criminal offense and under the circumstances specified or referred to in that section.”
Richland County, Case No. 2010-CA-0090                                                  6


        {¶17} Under Section 2967.26(A), a prisoner placed in a transitional control

program is “confined” to a halfway house or “confined” to an approved residence and is

monitored electronically. In the case at bar that place is the Oriana House in Cleveland,

Ohio.

        {¶18} We conclude that because appellant had been placed in a transitional

control program in “a halfway house, [or] an alternative residential facility,” he had not

been released from prison or completed his prison term at the time of the re-sentencing

hearing on June 21, 2010. State v. Bodiford, supra; State v. Harris, Cuyahoga App. No.

95097, 2011-Ohio-1072.      The trial court, therefore, correctly concluded that it had

authority to re-sentence him to properly impose post-release control.

        {¶19} Appellant’s Second Assignment of Error is overruled.

        {¶20} The judgment of the Richland County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur

                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. JOHN W. WISE

                                             _________________________________
                                             HON. JULIE A. EDWARDS



WSG:clw 0411
[Cite as State v. Williams, 2011-Ohio-1979.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
STEVEN WILLIAMS                                   :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2010-CA-0090




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Richland County Court of Common Pleas is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. JOHN W. WISE

                                                      _________________________________
                                                      HON. JULIE A. EDWARDS
