[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Christian, Slip Opinion No. 2020-Ohio-828.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                           SLIP OPINION NO. 2020-OHIO-828
           THE STATE OF OHIO, APPELLANT, v. CHRISTIAN, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Christian, Slip Opinion No. 2020-Ohio-828.]
Criminal law—Resentencing—When a portion of a defendant’s sentence has been
        vacated on direct appeal, the trial court has the authority to resentence the
        defendant de novo on any of the vacated sentences—Court of appeals’
        judgment reversed and cause remanded.
    (No. 2017-1691—Submitted March 26, 2019—Decided March 10, 2020.)
      APPEAL from the Court of Appeals for Montgomery County No. 27236,
                                      2017-Ohio-8249.
                                    ________________
        FISCHER, J.
        {¶ 1} In this appeal, we consider whether a trial court may resentence a
defendant on a specific count after the sentence related to that count has been
vacated on direct appeal and the defendant has been confined for the length of the
original prison term that had been attached to that count. We hold that because a
                             SUPREME COURT OF OHIO




defendant in these circumstances has no expectation of finality in the original
sentence once it has been vacated on direct appeal, the trial court has the ability to
resentence the defendant de novo.
            I. FACTUAL AND PROCEDURAL BACKGROUND
       {¶ 2} Appellee, Eva Christian, was found guilty of five charges related to
an insurance-fraud scheme. In June 2012, Christian was sentenced as follows:
      Count One—insurance fraud, a violation of R.C. 2913.47(B)(1) and a
       fourth-degree felony: 18 months;
      Count Two—insurance fraud, a violation of R.C. 2913.47(B)(1) and a third-
       degree felony: 36 months;
      Count Three—making false alarms, a violation of R.C. 2917.32(A)(3) and
       a fourth-degree felony: 18 months;
      Count Four—making false alarms, a violation of R.C. 2917.32(A)(3) and a
       fifth-degree felony: 12 months;
      Count Five—engaging in a pattern of corrupt activity, a violation of R.C.
       2923.32(A)(1) and a first-degree felony: 9 years.
The trial court ordered Count One through Count Four to run consecutively to each
other and concurrently to Count Five, for an aggregate prison term of nine years.
                                   A. Christian I
       {¶ 3} On appeal, the Second District Court of Appeals reversed Christian’s
conviction for engaging in a pattern of corrupt activity after concluding that the
state presented insufficient evidence of an “enterprise” to sustain that conviction.
State v. Christian, 2d Dist. Montgomery No. 25256, 2014-Ohio-2672, ¶ 80
(“Christian I”). The court also modified Christian’s convictions for Count Two
and Count Three to reflect lower degrees of the offenses pursuant to 2011
Am.Sub.H.B. No. 86, effective September 30, 2011 (“H.B. 86”). Id. at ¶ 178. (H.B.
86, which took effect after Christian was indicted but before she was sentenced,




                                          2
                                January Term, 2020




made changes to the manner in which the degrees of certain criminal offenses are
to be determined.)
       {¶ 4} The Second District certified a conflict between its decision in
Christian I and a Ninth District decision regarding what evidence the state must
present in order to prove the existence of an “enterprise” in a trial for engaging in
a pattern of corrupt activity. 2d Dist. Montgomery No. 25256 (Aug. 26, 2014).
This court determined that a conflict existed, 140 Ohio St.3d 1465, 2014-Ohio-
4629, 18 N.E.3d 445, accepted the state’s discretionary appeal on that same issue,
140 Ohio St.3d 1466, 2014-Ohio-4629, 18 N.E.3d 445, and consolidated those
causes and held them for this court’s decision in State v. Beverly, 143 Ohio St.3d
258, 2015-Ohio-219, 37 N.E.3d 116. After the announcement of the decision in
Beverly, this court vacated the judgment of the Second District and remanded the
cause to that court to consider whether sufficient evidence of an enterprise existed
in light of Beverly. 143 Ohio St.3d 417, 2015-Ohio-3374, 38 N.E.3d 888, ¶ 1.
                                   B. Christian II
       {¶ 5} On remand, the Second District held that in light of this court’s
interpretation of the statutory definition of “enterprise” in Beverly, Christian’s
conviction for engaging in a pattern of corrupt activity was supported by sufficient
evidence. 2016-Ohio-516, 56 N.E.3d 391, ¶ 16, 22 (2d Dist.) (“Christian II”). The
Second District accordingly reinstated Christian’s conviction for that offense, but
it also reduced the degree level of the offense from a first-degree felony to a second-
degree felony because the degree level of the underlying predicate offense was
reduced in Christian I in accordance with H.B. 86. Id. at ¶ 24. The court then
remanded the case to the trial court for resentencing on Counts Two, Three, and
Five. Id. at ¶ 37.
       {¶ 6} On remand from Christian II, the trial court resentenced Christian as
follows:
•      Count Two: 12 months (24 months shorter than the original sentence);




                                          3
                            SUPREME COURT OF OHIO




•      Count Three: 180 days (12 months shorter than the original sentence);
•      Count Five: 8 years (1 year shorter than the original sentence).
While the concurrent and consecutive nature of the majority of Christian’s
sentences remained the same, the trial court did modify Count Two from being
served concurrently to Count Five to being served consecutively to Count Five.
Thus, with Counts Two and Five running consecutively to each other, Christian’s
aggregate sentence after the remand was the same as her original aggregate
sentence: nine years.
                                 C. Christian III
       {¶ 7} Christian appealed and raised one assignment of error—that the trial
court abused its discretion during resentencing when, without any new facts having
been presented, it made the R.C. 2929.14(C)(4) findings pertaining to the
imposition of consecutive sentences, which had not been made during Christian’s
original sentencing hearing. In other words, Christian asserted that the trial court
erred when it ordered Count Two to run consecutively to Count Five because no
new facts had been presented at Christian’s resentencing hearing that would have
warranted the trial court to diverge from its initial order, which imposed Count Two
concurrently with Count Five. The Second District sua sponte asked the parties to
be prepared to discuss at oral argument the issue whether Christian had completed
her sentence on Count Two prior to the trial court’s resentencing.
       {¶ 8} The court ultimately declined to address Christian’s assignment of
error and instead reversed the case based upon its holding that, by the time that
Christian was resentenced in 2016, she had already served the original prison terms
that had been imposed for Count One through Count Four. 2017-Ohio-8249, 99
N.E.3d 887, ¶ 15, 28-30 (2d Dist.). Applying this court’s holding in State v.
Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, and expressing
double-jeopardy concerns, the court of appeals concluded that because a trial court
may not resentence a defendant for an offense once that defendant has completed




                                         4
                                 January Term, 2020




the sanction that had been attached to that finding of guilt, Christian could not be
resentenced on Count Two, regardless of the fact that she still had not completed
her sentence for Count Five. Id. at ¶ 15-16, 28.
        {¶ 9} We accepted jurisdiction over the state’s proposition of law: “After a
state appellate court voids a defendant’s sentence, the original sentence is a nullity
and re-sentencing is de novo as to the affected charge.” See 152 Ohio St.3d 1442,
2018-Ohio-1600, 96 N.E.3d 298.
                                   II. ANALYSIS
        {¶ 10} The state argues that when Christian’s sentences were vacated on
direct appeal in Christian II, those sentences were rendered nullities, and the trial
court had the ability to resentence her de novo for those counts. It adds that
Holdcroft does not apply to this case because that decision involved the direct
review of a postrelease-control hearing that occurred pursuant to R.C. 2929.191.
Christian’s case involves a resentencing hearing that was ordered as a consequence
of the direct review of her convictions. The state continues, arguing that because
there is no expectation of finality in a sentence until either the appeal involving that
sentence has concluded or the time to appeal that sentence has expired, Christian
could not have completed her sentence for Count Two by the time of her
resentencing hearing. Finally, the state argues that there are no double-jeopardy
implications in this case because the guarantee against double jeopardy imposes no
restrictions on the length of a sentence that is imposed after a defendant has been
reconvicted or resentenced due to the de novo nature of the resentencing hearing.
        {¶ 11} Christian responds that Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-
5014, 1 N.E.3d 382, stands for the proposition that when a defendant serves the
entirety of his or her prison sentence, the defendant’s interest in the finality of that
sentence prevails, and the trial court may no longer modify that sentence.
Therefore, she concludes that she could not be resentenced on Count Two because
she had served that sentence in its entirety before the resentencing hearing occurred.




                                           5
                              SUPREME COURT OF OHIO




                                A. State v. Holdcroft
       {¶ 12} In considering the issues before us in this case, we first review our
decision in Holdcroft. In that case, the defendant was convicted of aggravated arson
and arson. The trial court imposed a ten-year prison term for the aggravated-arson
offense and a consecutive, five-year prison term for the arson offense. Holdcroft
at ¶ 2. The trial court failed to properly impose postrelease control for either
offense. After the defendant had completed his prison term for aggravated arson,
the trial court held a new sentencing hearing to correct its errors in imposing
postrelease control. Id. at ¶ 3. The trial court reimposed both prison terms and then
imposed a mandatory, five-year postrelease-control term for the aggravated-arson
offense and a discretionary postrelease-control term of up to three years for the
arson offense. Id.
       {¶ 13} We held that “[a] trial court does not have the authority to resentence
a defendant for the purpose of adding a term of postrelease control as a sanction for
a particular offense after the defendant has already served the prison term for that
offense.” Id. at paragraph three of the syllabus. In applying that holding to the
case, we explained that, because the defendant had completed his prison term for
the aggravated-arson offense, the trial court was not authorized to impose a
postrelease-control term for that offense, despite the fact that the defendant was still
serving a prison term for another offense. Id. at ¶ 19.
       {¶ 14} We further explained that “so long as a timely appeal is filed from
the sentence imposed, the defendant and the state may challenge any aspect of the
sentence and sentencing hearing, and the appellate court is authorized to modify the
sentence or remand for resentencing to fix whatever has been successfully
challenged.” Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, at
¶ 9. However, “absent a timely appeal, res judicata generally allows only [for] the
correction of a void sanction.” Id. We added that “we have consistently held that
once an offender has been released from prison, he cannot be subjected to another




                                           6
                                January Term, 2020




sentencing to correct the trial court’s flawed imposition of postrelease control.” Id.
at ¶ 11. Because the defendant in Holdcroft had served the entirety of his prison
sanction for aggravated arson at the time he was resentenced, we concluded that he
“had a legitimate expectation of finality in the sentence that he had fully served.”
Id. at ¶ 12.
        {¶ 15} Of particular significance to this case, we set forth the following
three principles in Holdcroft to provide a framework for future cases:


        First, when a sentence is subject to direct review, it may be
        modified; second, when the prison-sanction portion of a sentence
        that also includes a void sanction has not been completely served,
        the void sanction may be modified; and third, when the entirety of a
        prison sanction has been served, the defendant’s expectation in
        finality in his sentence becomes paramount, and his sentence for that
        crime may no longer be modified.


Id. at ¶ 18. We also emphasized that “either the defendant or the state may
challenge any aspect of a sentence so long as a timely appeal is filed” and noted
that “once the time for filing an appeal has run, Ohio courts are limited to correcting
a void sanction.” Id.
   B. Pursuant to Holdcroft, the trial court had the authority to resentence
           Christian after portions of her original sentence had been
                             vacated on direct appeal
        {¶ 16} In its decision below, the Second District failed to apply this court’s
repeated statements in Holdcroft that, on a direct appeal of a criminal conviction,
any aspect of a defendant’s sentence may be challenged, and any part of that
sentence that has been successfully challenged may be corrected.              Because
Christian successfully challenged her sentence in the direct appeal from her




                                          7
                             SUPREME COURT OF OHIO




criminal convictions in Christian II, 2016-Ohio-516, 56 N.E.3d 391, the court of
appeals properly remanded her case for resentencing and the trial court had the
authority to properly sentence Christian on that remand.
       {¶ 17} The United States Supreme Court has made it clear that a defendant
“has no expectation of finality in his sentence until the appeal is concluded or the
time to appeal has expired.” United States v. DiFrancesco, 449 U.S. 117, 136, 101
S.Ct. 426, 66 L.Ed.2d 328 (1980). In applying DiFrancesco, this court has stated
that “when the legislature has provided the government with a statutory right of
appeal, ‘[t]he defendant * * * is charged with knowledge of the statute and its
appeal provisions, and has no expectation of finality in his sentence until the appeal
is concluded or the time to appeal has expired.’ ” (Brackets and ellipsis sic.) State
v. Roberts, 119 Ohio St.3d 294, 2008-Ohio-3835, 893 N.E.2d 818, ¶ 16, quoting
DiFrancesco at 136.
       {¶ 18} In this case, the relevant portions of Christian’s sentence were
vacated on direct appeal and ultimately the case was remanded to the trial court
with the specific instruction to resentence Christian on Counts Two, Three, and
Five. Because Christian’s sentences on those counts were subject to correction
pursuant to DiFrancesco and Roberts, Christian had no expectation of finality in
those portions of her original sentence, and the trial court had the ability and
obligation to resentence her on those counts on remand.
          C. Christian’s resentencing did not violate her protections
                              from double jeopardy
       {¶ 19} The Second District raised a concern that nullifying Christian’s
original sentence could violate her double-jeopardy protections.
       {¶ 20} The Fifth Amendment to the United States Constitution provides that
no person shall “be subject for the same offence to be twice put in jeopardy of life
or limb.” Article I, Section 10 of the Ohio Constitution provides that “[n]o person
shall be twice put in jeopardy for the same offense.”




                                          8
                                 January Term, 2020




       {¶ 21} This court has explained that “[t]he Double Jeopardy Clause protects
persons from (1) ‘a second prosecution for the same offense after acquittal,’ (2) ‘a
second prosecution for the same offense after conviction,’ and (3) ‘multiple
punishments for the same offense.’ ” Roberts, 119 Ohio St.3d 294, 2008-Ohio-
3835, 893 N.E.2d 818, at ¶ 11, quoting North Carolina v. Pearce, 395 U.S. 711,
717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Relevant to this case is whether
resentencing constitutes multiple punishments for the same offense. This court has
stated that jeopardy does not attach to a sentence that has been invalidated and,
therefore, a trial court’s imposition of a new sentence does not constitute double
jeopardy. See State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984).
       {¶ 22} This appeal stems from Christian’s direct appeal, in which the
appellate court properly invalidated portions of Christian’s sentence. As we have
explained, Christian had no expectation of finality in her original sentence. It is
also notable that it was Christian who, when she appealed her sentence, opened the
door for the trial court’s revisiting of her sentence on remand. The fact that
Christian actively sought to have her sentence altered supports the conclusion that
she had no expectation of finality in that sentence. See United States v. Harrison,
237 Fed.Appx. 911, 913 (5th Cir.2005). This is not a situation in which Christian
is being punished twice. Instead, her resentencing represents a correction or
clarification of her first, and only, sentence, and she is being punished only once.
Accordingly, there is no double-jeopardy concern here.
   D. Christian is entitled to credit for the time she was confined while her
                                appeals were pending
       {¶ 23} The Second District also raised a concern that if Christian’s original
sentences are treated as having been vacated rather than completed, then the time
she served on those counts would be subject to “being twice served.” 2017-Ohio-
8249, 99 N.E.3d 887, at ¶ 27.




                                         9
                              SUPREME COURT OF OHIO




          {¶ 24} Under Pearce, 395 U.S. at 718, 89 S.Ct. 2072, 23 L.Ed.2d 656, when
imposing a new sentence for an offense on remand, a trial court must order that a
defendant receive full credit for any punishment that the defendant previously
served for that offense. This is because “the constitutional guarantee against
multiple punishments for the same offense absolutely requires that punishment
already exacted must be fully ‘credited’ in imposing sentence upon a new
conviction for the same offense.” Id. at 718-719. In this case, the trial court
originally ordered Christian to serve the sentences for Counts Two and Three
concurrently to the sentence for Count Five. On remand, the trial court ordered
Christian to serve the sentence for Count Two consecutively to the sentence for
Count Five. Because Christian served prison time on those counts simultaneously,
she is entitled to have that time credited toward both of her new sentences on those
counts.
E. Allowing resentencing on counts for which a sentence has been vacated on
                direct appeal does not violate any fairness concerns
          {¶ 25} Christian also raises a fairness argument involving general concepts
of due process.
          {¶ 26} This court has made it clear that all sentences are subject to
correction on direct appeal. Both this court and the United States Supreme Court
have emphasized that there is no expectation of finality in a sentence until the
appeals process has run. See Agee v. Russell, 92 Ohio St.3d 540, 543, 751 N.E.2d
1043 (2001), citing Teague v. Lane, 489 U.S. 288, 295, 109 S.Ct. 1060, 103 L.Ed.2d
334 (1989). There is no compelling reason to depart from that rule.
          {¶ 27} Significantly, many of the due-process concerns raised by Christian
about resentencing hearings should be addressed in an appeal from the resentencing
hearing. For example, if a defendant’s sentence is increased, the defendant is free
to challenge the new sentence on the ground that the trial court vindictively
increased the defendant’s sentence or that the increased sentence was the result of




                                          10
                                 January Term, 2020




improper sentence packaging.        Indeed, in her appeal from her resentencing,
Christian challenged the trial court’s decision to impose her sentence for Count
Two consecutively to her sentence for Count Five. She argued that the trial court
improperly reconsidered its initial decision to run those sentences concurrently
without any new factual basis for doing so. This argument—which the court of
appeals declined to address below—may be analyzed on remand. Whenever a
defendant is resentenced in a case like this, that new sentence is subject to
correction on direct appeal if it is contrary to Ohio’s sentencing statutes or if it
violates the federal or state constitutions.
        {¶ 28} Accordingly, we conclude that the trial court had the authority to
resentence Christian de novo on Count Two. We therefore reverse the decision of
the Second District Court of Appeals and remand this cause to that court to consider
the assignment of error raised by Christian in her appeal from her resentencing.
                                III. CONCLUSION
        {¶ 29} We hold that when a portion of a defendant’s sentence has been
vacated on direct appeal, the trial court has the authority to resentence the defendant
de novo on any counts for which the original sentence was vacated. We further
note that because Christian served prison time simultaneously on Count Two and
Count Five before her original sentence was vacated, she is entitled to have that
time credited toward both of her new sentences on those counts. We reverse the
decision of the Second District Court of Appeals and remand the cause to that court
for consideration of Christian’s assignment of error.
                                                                   Judgment reversed
                                                                and cause remanded.
        O’CONNOR, C.J., and KENNEDY, FRENCH, and DEWINE, JJ., concur.
        DONNELLY, J., dissents, with an opinion.
        STEWART, J., dissents, with an opinion.
                                _________________




                                           11
                               SUPREME COURT OF OHIO




        DONNELLY, J., dissenting.
        {¶ 30} Respectfully, I concur with Justice Stewart’s dissenting opinion.
Personally, I have doubts that State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245,
846 N.E.2d 824, provides a full picture of Ohio’s statutory scheme governing
felony sentencing in Ohio or the policies behind it. I believe that Saxon’s rejection
of the sentencing-package doctrine fails to account for “real-world considerations,”
id. at ¶ 31 (Pfeifer, J., dissenting), such as the reality that sentencing courts routinely
incorporate elements of sentence packaging when assembling an aggregate prison
term for a criminal defendant. But regardless, unless the majority is prepared to
overturn or modify Saxon, it should share Justice Stewart’s view that jeopardy
attached to Christian’s individual “sentence” on Count Two when she finished
serving the maximum prison term that could have been imposed for that offense.
Even if the majority is correct that it is proper to resentence a defendant de novo on
prison terms for sentences that have been completely served but were vacated on
direct appeal, the record indicates that appellee, Eva Christian, did not receive a
true de novo resentencing hearing. Instead, the trial court recreated the sentence
that was previously imposed under the old, defunct law.
        {¶ 31} The main charge against Christian was engaging in a pattern of
corrupt activity in violation of R.C. 2923.32(A)(1), charged in Count Five of her
indictment. Her lower-level predicate offenses charged in Counts One through
Four of her indictment were two counts of insurance fraud in violation of R.C.
2913.47(B)(1), and two counts of making false alarms in violation of R.C.
2917.32(A)(3).     Pursuant to the law in effect at the time that Christian was
indicted—which was prior to the legislature’s enactment of 2011 Am.Sub.H.B. No.
86, effective September 30, 2011 (“H.B. 86”)—Count Five was a first-degree
felony, allowing a trial court to impose a prison sentence of up to ten years, see
former R.C. 2929.14(A)(1), Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136,
7464 (providing for a maximum prison term of ten years for a first-degree felony).




                                            12
                                January Term, 2020




Prior to Christian’s original sentencing hearing, H.B. 86 went into effect. The new
law reduced the felony levels and resulting sanctions for various offenses, including
the offenses identified in Counts Two, Three, and Five in Christian’s indictment.
Most pertinently, Count Five became a second-degree felony, which allowed for
the imposition of a prison sentence of no more than eight years.                 R.C.
2923.32(B)(1); former R.C. 2929.14(A)(2).
       {¶ 32} At Christian’s original sentencing hearing, the trial court applied the
law that was in effect when Christian had been indicted, imposing a nine-year
prison term on Count Five. The trial court determined that the sentence for Count
Five should run concurrently with all the sentences for the predicate offenses in
Counts One through Four, resulting in a total sentence of nine years. Among the
Second District’s reasons for reversing Christian’s original sentence was the trial
court’s failure to apply the lesser felony levels and sanctions required by the
amendments in H.B. 86. State v. Christian, 2d Dist. Montgomery No. 25256, 2014-
Ohio-2672, ¶ 149-151, vacated on other grounds by State v. Christian, 143 Ohio
St.3d 417, 2015-Ohio-3374, 38 N.E.3d 888.
       {¶ 33} During Christian’s resentencing hearing, the court indicated that its
original sentencing decision had little to do with the considerations for running each
of the sentences concurrently or consecutively pursuant to R.C. 2929.14(C)(4), and
instead was based upon the court’s goal of once again imposing a nine-year
aggregate sentence:


       [Y]ou [defense counsel] mentioned something about when I
       sentenced Ms. Christian approximately four years ago, finding
       concurrent sentences were appropriate. Actually, what I decided
       four years ago, what I determined four years ago, is that nine years
       was an appropriate sentence under the facts of this case.




                                         13
                            SUPREME COURT OF OHIO




               And in looking at it again and calling back memories of the
       case, I believe nine years is the appropriate number and it’s a number
       I can come to within the ranges of what is before me.


       {¶ 34} The trial court stated that it was going to configure Christian’s
sentences so that it could “get to nine years.” In other words, the trial court
determined that Christian should receive a package sentence of nine years no matter
what changes the legislature made, and the court adjusted its previous decision and
imposed Count Two consecutively with Count Five for the stated purpose of
recreating that sentence.
       {¶ 35} The trial court also dismissed Christian’s claims that she had
bettered herself since the original sentencing hearing, and concluded: “I’m going
to impose the sentence I imposed back then.” After explaining the same factors
that led to the trial court’s original sentencing decision, the trial court stated:
“That’s why I gave you the nine-year sentence then. * * * That’s why I’m giving
you the nine-year sentence again.”
       {¶ 36} Despite being faced with identical facts and providing an identical
analysis, the trial court changed its previous decision to impose less than the
maximum sentence for Count Five and instead decided that Christian should
receive the maximum possible punishment allowable under former R.C.
2929.14(A)(2). The trial court also decided that concurrent sentences were no
longer appropriate for Counts Two and Five, and instead imposed those sentences
consecutively to each other. The foregoing new determinations resulted in an
aggregate sentence of nine years.
       {¶ 37} In a true de novo resentencing hearing, a trial court should certainly
be able to reconsider the concurrent and consecutive nature of a defendant’s
sentences based upon any new factual circumstances that have developed since the
prior sentencing hearing. The only change that was relevant to Christian’s prison




                                        14
                                 January Term, 2020




terms, however, was that the legislature decided that lesser punishments should
apply to her offenses.
        {¶ 38} “It has long been recognized in this state that the General Assembly
has the plenary power to prescribe crimes and fix penalties.” State v. Morris, 55
Ohio St.2d 101, 112, 378 N.E.2d 708 (1978). A trial court has no inherent power
to sentence, and instead must impose penalties that the legislature has provided.
State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 10. It
is well within the legislature’s purview to exercise its power by reducing felony
levels and prison terms. See Morris at 112. To say that a change in law constitutes
a change in circumstances in the context of Christian’s case would be to say that
the legislature has chosen a punishment that is disproportionate to the forbidden
conduct or does not adequately protect the public. Such a finding would be
antithetical to the proper constitutional roles of the legislature and judiciary in Ohio.
        {¶ 39} In order to justify the conclusion that Christian’s convictions for
Counts Two and Five require consecutive rather than concurrent sentences pursuant
to R.C. 2929.14(C)(4), there needs to be something other than the legislature’s
choice to assign a lesser sanction to Christian’s offenses. But the only new evidence
at the resentencing hearing was Christian’s explanation of her efforts to better
herself and her expression of remorse.          The trial court doubted Christian’s
credibility and found her statements to have no mitigating effect, which was well
within the trial court’s discretion. But more importantly, the trial court concluded
that nothing in Christian’s factual circumstances had changed.
        {¶ 40} If the “record does not support the sentencing court’s findings under
* * * division (B)(2)(e) or (C)(4) of section 2929.14 * * * of the Revised Code,”
R.C. 2953.08(G)(2)(a), then an appellate court must take corrective action by either
modifying or vacating and remanding the matter for resentencing, R.C.
2953.08(G)(2). With an admission by the trial court that there were no new facts
to support its decision to impose the sentence from Count Two consecutively with




                                           15
                               SUPREME COURT OF OHIO




the sentence from Count Five under R.C. 2929.14(C)(4), the court’s findings are
unsupported by the record. Reversal is manifestly necessary under the statutory
standard, rendering it unnecessary to tangle with the felony-sentencing metaphysics
presented in the sole proposition of law before this court.
       {¶ 41} The true problem in this case is that the trial court failed to heed the
mandate of the legislature and misapplied R.C. 2929.14(C)(4) to justify its decision.
I hope that the Second District will correct this clear error on remand when
addressing the merits of Christian’s previously mooted assignment of error.
                                _________________
       STEWART, J., dissenting.
       {¶ 42} Appellee, Eva Christian, had her first sentencing hearing on June 6,
2012. By the time she had her resentencing hearing on July 27, 2016, four years
had passed. Within that time frame, Christian had served the entirety of her 18-
month sentence for Count One and had served 31 months of the originally imposed,
36-month prison term for Count Two. However, when Christian was resentenced,
the maximum prison term that she could have received for Count Two was 18
months. Because Christian had already served in excess of those 18 months on
Count Two by the time she was resentenced, I would find that the trial court violated
Christian’s constitutional right to be free from double jeopardy when the court
ordered the newly imposed 12-month prison term on that count to be served
consecutively to Count Five. By doing this, the court effectively ordered a prison
term, which had been fully served, to be served once again after she finished serving
another term. Therefore, I dissent from the majority’s conclusion that no double-
jeopardy violation occurred.
                   Double Jeopardy and Credit for Time Served
       {¶ 43} “The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution protects against the imposition of multiple criminal
punishments for the same offense in successive proceedings.” State v. Raber, 134




                                         16
                               January Term, 2020




Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, paragraph two of the syllabus,
citing Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997).
Relying on United States Supreme Court opinions, this court has interpreted the
prohibition against multiple punishments to essentially mean two things: (1) that a
court may not modify a sentence in a way that increases the severity of the sentence
once the defendant has a legitimate expectation of finality in her sentence, id. at
¶ 24, and (2) that even when a defendant has no legitimate expectation of finality,
he may not receive a total punishment that is greater than what has been authorized
by the legislature, State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884
N.E.2d 568, ¶ 33, superseded by statute as stated in State v. Singleton, 124 Ohio
St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 23, citing United States v. Halper,
490 U.S. 435, 450, 109 S.Ct. 1892, 104 L.Ed.2d. 487 (1989). Although both
principles require this court’s consideration when determining the double-jeopardy
issue before this court, the majority opinion focuses on the first principle—even
though it is the second principle on which the Second District’s decision ultimately
turned.
          {¶ 44} At the heart of the second principle lies the fundamental
understanding that the Double Jeopardy Clause “absolutely requires that
punishment already exacted * * * be fully ‘credited’ in imposing [a] sentence upon
a new conviction for the same offense.” (Emphasis added.) North Carolina v.
Pearce, 395 U.S. 711, 718-719, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled
on other grounds, Alabama v. Smith, 490 U.S. 794, 801, 109 S.Ct. 2201, 104
L.Ed.2d 865 (1989); see also United States v. Lominac, 144 F.3d 308, 317 (4th
Cir.1998) (explaining that “[b]ecause the interest protected by the Double Jeopardy
Clause’s prohibition against multiple punishments for the same offense ‘ensur[es]
that the total punishment d[oes] not exceed that authorized by the legislature,’
Jones v. Thomas, 491 U.S. 376, 381, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989), credit
must be given not only when a defendant is resentenced following a new conviction




                                        17
                             SUPREME COURT OF OHIO




but also when he is resentenced after a successful challenge to his original
sentence”), abrogated by Johnson v. United States, 529 U.S. 694, 702-703, 120
S.Ct. 1795, 146 L.Ed.2d 727 (2000).
                          The Second District’s Decision
       {¶ 45} In her supplemental brief to the Second District Court of Appeals,
Christian argued that, by the time of her resentencing hearing, she had already
served 31 months in prison on Count Two, which exceeded both the 18-month
maximum prison term she could have received on Count Two at the resentencing
hearing and the actual sentence of 12 months that was imposed at the resentencing
hearing. Consequently, as Christian argued in her brief, the trial court could not
modify the nature of that sentence by ordering that it be served consecutively to
another count, because she had already served any amount of time that could have
been imposed as punishment for that offense. In contrast, the state argued that
Christian had not completed her prison term on Count Two by the time she was
resentenced because her sentence on Count Two was vacated by the court of
appeals along with her sentences for Counts Three and Five. According to the state,
Christian could not have served a prison term on a vacated sentence because no
sentence or term was in place to be served.
       {¶ 46} Ultimately agreeing with Christian, the appellate court concluded
that “the trial court could not order that Count [Two]’s twelve month sentence,
which had already been served, be served after completion of the modified eight
year term in Count [Five].” 2017-Ohio-8249, 99 N.E.3d 887, ¶ 28. In doing so,
the court rejected the state’s argument that Christian did not serve any time on the
vacated sentences. Specifically, the court stated:


               The voiding of an original conviction does not render time
       served under that conviction a nullity. We reject the conceptual
       fiction that a complete but voided sentence has no legal existence.




                                         18
                                 January Term, 2020




        Otherwise, years served on such counts would be subject to being
        twice served. Furthermore, we cannot embrace a sentence nullity
        argument which offends the double jeopardy clause. See generally
        North Carolina v. Pearce, 395 U.S. 711, 716-717, 89 S.Ct. 2072, 23
        L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith,
        490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). The U.S.
        and Ohio Constitutions require that punishment already exacted
        must be fully credited in imposing [a] sentence upon reversal and
        remand.


Id. at ¶ 27.
        {¶ 47} This is the relevant issue before this court today—whether jeopardy
attached to the sentence on Count Two once Christian served the maximum
punishment allowable for that count. That the appellate court mistakenly relied on
State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, to support
its decision is of little importance when it is clear that the appellate court otherwise
correctly applied fundamental double-jeopardy principles to reach its conclusion.
In short, what the appellate court concluded was that once credited with the time
she previously served as punishment for Count Two, there was nothing left for
Christian to serve on Count Two consecutively to another count. Thus, the trial
court’s order of consecutive sentences served to impose a second punishment when
Christian had already served the maximum punishment allowable by statute.
        {¶ 48} The majority’s reliance on State v. Beasley, 14 Ohio St.3d 74, 471
N.E.2d 774 (1984), is inapposite because that opinion does not address the specific
double-jeopardy concern at issue in this case. In Beasley, this court held that a void
sentence may be corrected on remand without violating double-jeopardy
protections. Id. at 76. Here, it is evident from the appellate court’s remand orders




                                          19
                                   SUPREME COURT OF OHIO




that it understood that Christian would be resentenced on her vacated sentences.1
What concerned the appellate court was that instead of simply imposing a prison
term on Count Two that fell within the allowable range for a fourth-degree felony,
the trial court entered a term of imprisonment within the new range but then ordered
that sentence—which, after applying time served, would have been fully satisfied—
to be served consecutively with Count Five. 2017-Ohio-8249, 99 N.E.2d 887 at
¶ 26. This was not, as the majority characterizes, a mere “correction” of Christian’s
original sentence. Majority opinion at ¶ 18. Had the trial court merely corrected
the defects in Christian’s original sentence, it would have imposed terms of
imprisonment for Counts Two, Three, and Five within the ranges for the reduced
classifications and stopped there. Instead, by ordering Count Two to be served
consecutively, the court also changed the nature of Christian’s sentences, resulting
in Christian serving additional time on a count for which she had already served the
maximum punishment allowed.
         {¶ 49} Noticeably, the majority avoids any discussion of whether Christian
had fully served the maximum punishment she could have received on Count Two.
Instead, it focuses on an aspect of double jeopardy that is immaterial to this case,
cites to Beasley, and proclaims that “[t]his is not a situation in which Christian is
being punished twice.” Majority opinion at ¶ 22. But to hold that Christian has not
been punished twice without taking a critical look at the time she has already served
in prison for Count Two, runs contrary to Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23
L.Ed.2d 656, and fails to recognize that once Christian is credited for the time she



1. The proposition of law, as accepted by this court, refers to the Second District’s judgment as
having the effect of “voiding” Christian’s sentences on Counts Two, Three, and Five. Further, in
the parties’ briefs and at oral argument, both the state and Christian refer to her original sentences
as either “void” or having been “voided.” At this juncture, it is not necessary to decide whether
Christian’s original sentences on these counts were in fact void, as there is no dispute that the
sentences were properly vacated on appeal because they fell outside the applicable sentence ranges
for the offense classifications.




                                                 20
                                January Term, 2020




has served, there is nothing left for her to serve—consecutively or concurrently—
to another count, id. at 721.
       {¶ 50} In Pearce, a habeas petitioner who had succeeded in having his
conviction set aside after serving over two years on a ten-year sentence was retried
and reconvicted. When he was sentenced for the second time, he was not given
credit for the time he spent in prison on the original, vacated conviction. In
reversing the trial court’s sentencing order that failed to apply time served, the
Supreme Court stated:


               We think it is clear that this basic constitutional guarantee
       [against being put in jeopardy of life or limb twice or more] is
       violated when punishment already exacted for an offense is not fully
       “credited” in imposing [a] sentence upon a new conviction for the
       same offense. The constitutional violation is flagrantly apparent in
       a case involving the imposition of a maximum sentence after
       reconviction. Suppose, for example, in a jurisdiction where the
       maximum allowable sentence for larceny is 10 years’ imprisonment,
       a man succeeds in getting his larceny conviction set aside after
       serving three years in prison. If, upon reconviction, he is given a
       10-year sentence, then, quite clearly, he will have received multiple
       punishments for the same offense. For he will have been compelled
       to serve separate prison terms of three years and 10 years, although
       the maximum single punishment for the offense is 10 years’
       imprisonment.      Though not so dramatically evident, the same
       principle obviously holds true whenever punishment already
       endured is not fully subtracted from any new sentence imposed.
               We hold that the constitutional guarantee against multiple
       punishments for the same offense absolutely requires that




                                        21
                                    SUPREME COURT OF OHIO




         punishment already exacted must be fully “credited” in imposing [a]
         sentence upon a new conviction for the same offense. If, upon a
         new trial, the defendant is acquitted, there is no way the years he
         spent in prison can be returned to him. But if he is reconvicted, those
         years can and must be returned—by subtracting them from whatever
         new sentence is imposed.


(Emphasis added.) Id. at 718-19.
         {¶ 51} Here, Christian never completed a valid sentence on Count Two and
because of this, she could not have had an expectation of finality in her sentence.
Accordingly, the trial court could resentence her on that count without violating the
first principle of double jeopardy. And in having the ability to resentence Christian
on Count Two, the court could have even increased her sentence on that count
without violating the prohibition against double jeopardy had there been any
additional punishment available that the court could have imposed. See Pearce at
720.
         {¶ 52} The problem here is that there was no additional punishment that
could have been imposed. Christian endured a punishment on Count Two, as
reflected by the 31 months she spent in prison on that count before being
resentenced.2 And that amount of time exceeded the maximum prison term she


2. The state contends that the time Christian spent in prison before being resentenced should be
categorized as presentence confinement and not as time served for her vacated sentences. This
argument is not supported by the facts or our precedent. Following the Second District’s decision
in State v. Christian, 2d Dist. Montgomery No. 25256, 2014-Ohio-2672, we granted the state’s
request to stay the appellate court’s reversal of the original sentencing order while the state perfected
its appeal to this court. See State v. Christian, 140 Ohio St.3d 1437, 2014-Ohio-4160, 16 N.E.3d
681. When a stay is in place, it “ ‘preserves the status quo of the litigation pending appellate review
and suspends the power of the lower court to issue execution of the judgment or sentence.’ ”
(Emphasis added in Roberts.) State v. Roberts, 119 Ohio St.3d 294, 2008-Ohio-3835, 893 N.E.2d
818, ¶ 24, quoting Loeb v. State, 387 So.2d 433, 435-436 (Fla.App. 1980). During that stay,
Christian’s original sentence remained in effect and she continued to serve it. See id. Consequently,
and despite the state’s protestations otherwise, Christian did continue to serve her original prison




                                                   22
                                     January Term, 2020




could have received—18 months. See R.C. 2929.14(A)(4). Pursuant to Pearce,
395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, Christian was entitled to have the
time she served on Count Two credited back to that count. Had the trial court
properly credited Christian with time served when it had imposed the corrected 12-
month term, it would have been evident that the individual term had been fully
satisfied. See State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d
824, ¶ 9 (when sentencing an offender on multiple offenses, trial courts must
“consider each offense individually and impose a separate sentence for each
offense,” only after imposing specific prison terms for each offense, may a court,
in its discretion, order some or all of those terms to be served consecutively). A
trial court cannot order a prison term that has already been fully served to be served
again—this time consecutively to another count—without violating the prohibition
against double jeopardy. See Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 105
L.Ed.2d 322 (1989), syllabus (“In the multiple punishments context, the Double
Jeopardy Clause does no more than prevent the sentencing court from prescribing
greater punishment than the legislature intended”).
                                   Credit for Time Served
         {¶ 53} The state argues that the trial court’s order of consecutive sentences
was not a double-jeopardy violation because, once applied, Ohio’s jail-time-credit
statute, R.C. 2967.191, prevents the time that Christian already served as
punishment for Count Two under the original invalid sentence from being served
again. Although it may technically be true that Christian will receive credit against
her aggregate sentence for the time she spent in confinement prior to her
resentencing, applying R.C. 2967.191 does not remedy a double-jeopardy violation
on these facts.


terms during the pendency of her original direct appeal and the state’s subsequent appeal from that
decision to this court.




                                                23
                            SUPREME COURT OF OHIO




       {¶ 54} The crediting principle announced in Pearce requires sentencing
courts to credit an offender with any time she had served from an original, vacated
sentence against any new sentence imposed for the same offense. See id. at 718-
719; see also State v. Larson, 56 Wash.App. 323, 332-333, 783 P.2d 1093 (1989)
(“The guaranty against double jeopardy requires * * * that time served on the
previous * * * sentence be fully credited toward the revised * * * sentence”).
However, R.C. 2967.191 does not apply credit for time served for one offense back
to that same offense. Rather, R.C. 2967.191 applies confinement time to the
aggregate sentence when a court orders a combination of consecutive and
concurrent service on multiple prison terms. See R.C. 2967.191(A) (mandating that
the Ohio Department of Rehabilitation and Correction reduce an offender’s stated
prison term by the amount of time she previously spent in confinement); see also
R.C. 2929.01(FF)(1) (defining a “ ‘[s]tated prison term’ ” as the “combination of
all prison terms * * * imposed”); R.C. 5145.01 (“If sentenced consecutively, * * *
the prisoner shall be held to be serving one continuous term of imprisonment”);
Ohio Adm.Code 5120-2-03.1(F) (“When consecutive stated prison terms are
imposed, the term to be served is the aggregate of all of the stated prison terms so
imposed”).
       {¶ 55} Despite the Supreme Court’s clear directive in Pearce, 395 U.S. 711,
89 S.Ct. 2072, 23 L.Ed.2d 656, that a trial court must credit the time that a person
has served under a vacated sentence to any new sentence for that same offense, in
some instances, courts have found that the spirit of Pearce permits the application
of time served against an overall aggregate prison term. Courts that have reached
this conclusion have done so because the particular jurisdiction in which the court
sits adheres to the sentencing-package doctrine. See United States v. Rozier, 485
Fed.Appx. 352, 359 (11th Cir.2012) (“even though Rozier is correct in that time
already served under an old sentence must be credited against a new sentence, under
a ‘sentencing package’ approach, any time served would be credited against the




                                        24
                                      January Term, 2020




new total sentence, not the individual sentences on each count of conviction”); State
v. Martin, 185 Vt. 286, 291, 973 A.2d 56 (2009) (“It is the aggregate sentence that
is of constitutional import in sentencing-package cases” [emphasis sic]).
         {¶ 56} Unlike the federal system and certain other states, Ohio’s sentencing
statutes do not permit sentencing packages. State v. Paige, 153 Ohio St.3d 214,
2018-Ohio-813, 103 N.E.3d 800, ¶ 8 (“We have been clear that the ‘sentencing
package’ doctrine, by which federal courts may consider multiple offenses as a
whole and impose an overarching sentence, is not applicable in Ohio’s state
courts”); see also Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, at
¶ 8 (“Ohio’s felony-sentencing scheme is clearly designed to focus the judge’s
attention on one offense at a time”). Accordingly, because Ohio’s sentencing laws
require that time served on a vacated sentence be credited back to the specific prison
term for the individual offense rather than the aggregate term, applying Ohio’s jail-
time-credit statute to situations like this one does not prevent a double-jeopardy
violation from occurring.3
         {¶ 57} For unknown reasons, the majority’s opinion does not discuss the
state’s argument that applying Ohio’s jail-time-credit statute prevents a double-
jeopardy violation. It does, however, agree that Christian is entitled to have the
time she previously spent incarcerated on Counts Two and Five credited toward the
new sentences on those counts. See majority opinion at ¶ 24. But Christian did not


3. This is not to say that time served on a vacated sentence for one charge may never be applied as
credit for another sentence on a different charge. See McNary v. Green, 12 Ohio St.2d 10, 12, 230
N.E.2d 649 (1967) (concluding that “time served under a conviction which is subsequently vacated
and not reimposed should be credited to a prior existing sentence which was not running during the
period the accused was in custody under the vacated sentence”); see also State ex rel. Moon v. Ohio
Adult Parole Auth., 22 Ohio St.2d 29, 31, 257 N.E.2d 740 (1970) (noting that this state is disinclined
“to permit a [person] to be incarcerated for a period of time for which he receives no credit”). In
this context, double jeopardy protects only a person’s right not to be punished in excess of what is
authorized by the legislature. See Saxon at ¶ 9 (“a judge sentencing a defendant pursuant to Ohio
law must consider each offense individually and impose a separate sentence for each offense”). Due
process and other fairness principles may still require that time served on one offense be credited
against another.




                                                 25
                              SUPREME COURT OF OHIO




actually receive credit for time served for Count Two. Had the trial court properly
credited Christian with time served, her aggregate sentence would total eight years.
This is because, when crediting back to Count Two the 31 months that Christian
spent in prison under her original sentence for that count, the newly imposed,
consecutive 12-month prison term for that count is fully served. What is left is the
newly imposed, concurrent eight-year term on Count Five. Thus, her overall
aggregate term should be eight years, and she would still be entitled to have Count
Five credited with the time she previously spent in prison on that count under the
original sentence.
         {¶ 58} Accordingly, to the extent that the majority agrees that Christian is
entitled to have the time she previously spent incarcerated on Counts Two and Five
credited back to the newly imposed sentences on those counts, there is no reason to
order that this case be remanded to the court of appeals for further consideration of
Christian’s original assignment of error.      Instead, this case should either be
remanded to the trial court with instructions to properly apply the credit or, pursuant
to R.C. 2953.08(G)(2), this court itself should modify Christian’s sentence to eight
years.
                                     Conclusion
         {¶ 59} For the foregoing reasons, I find that the trial court violated
Christian’s constitutional right to be free from double jeopardy when it ordered her
to serve the 12-month prison term for Count Two consecutively to the eight-year
prison term for Count Five after she had already served the maximum punishment
allowed for Count Two. Further, I find that Ohio’s jail-time-credit statute does not
remedy the double-jeopardy violation because, in a situation like this one, the
statute credits Christian’s new sentence with the time she spent in prison on Count
Two in a manner consistent with the sentencing-package doctrine, and fails to
remedy the fact that the court imposed another prison term after the maximum term
allowed had been fully served.




                                          26
                                January Term, 2020




       {¶ 60} In order to remedy the double-jeopardy violation, the trial court must
credit the time Christian previously served on Counts Two and Five back to the
new sentences imposed on those counts. Had the trial court done this, Christian’s
aggregate sentence would amount to no more than eight years in prison.
Accordingly, I would affirm the Second District’s judgment and remand this cause
to the trial court with instructions to properly credit Christian with time served.
                                _________________
       Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Heather N. Jans and Andrew T. French, Assistant Prosecuting Attorneys, for
appellant.
       Brock A. Schoenlein, for appellee.
                                _________________




                                          27
