[Cite as State v. Bankston, 2026-Ohio-580.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : C.A. No. 2025-CA-43 Appellant : : Trial Court Case No. 2025CR0046 v. : : (Criminal Appeal from Common Pleas MACKINZEE A. BANKSTON : Court) : Appellee : FINAL JUDGMENT ENTRY & : OPINION
...........
Pursuant to the opinion of this court rendered on February 20, 2026, the judgment of
the trial court is reversed in part, the sentence is vacated, and the matter is remanded for
further proceedings consistent with the opinion.
Costs to be paid as follows: 50% by appellant and 50% by appellee.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
MICHAEL L. TUCKER, JUDGE
EPLEY, J., and HANSEMAN, J., concur. OPINION GREENE C.A. No. 2025-CA-43
MEGAN A. HAMMOND, Attorney for Appellant HOLLY M. SIMPSON, Attorney for Appellee
TUCKER, J.
{¶ 1} The State of Ohio appeals from the trial court’s judgment entry sentencing
appellee Mackinzee A. Bankston to four months in jail for aggravated drug possession, a
fifth-degree felony. The State contends the sentence is contrary to law because it falls
outside the statutory range for Bankston’s offense.
{¶ 2} In response, Bankston concedes that his four-month sentence is two months
short of the minimum sentence authorized by law. He nevertheless asserts that the trial court
lacks jurisdiction to resentence him because his sentence expired on or about December 21,
2025.
{¶ 3} We conclude that Bankston’s four-month sentence is contrary to law and that
the trial court possesses jurisdiction to resentence him to an authorized term of
incarceration. Accordingly, we reverse the trial court’s judgment, vacate the four-month
sentence, and remand the case for resentencing.
I. Background
{¶ 4} A grand jury indicted Bankston on the above-referenced charge and a forfeiture
specification. He pled guilty in exchange for the State’s recommendation of a community
control sanction. The State’s recommendation was contingent on Bankston not committing
any bond violations or new offenses. Although Bankston later violated his bond by
consuming alcohol, the State adhered to its recommendation. At sentencing, the State
suggested community control sanctions with “a period of incarceration, or, alternatively,
2 some sort of community-based correctional facility.” The trial court then explicitly found
Bankston not amenable to community control, noting that it would demean the seriousness
of his conduct. The trial court orally sentenced him to serve four months in jail. The trial
court’s judgment entry also imposed a four-month jail sentence. The entry stated that he
was not amenable to community control and that “a combination of community control
sanctions would demean the seriousness of the defendant’s conduct and its impact on the
victim.”
II. Analysis
{¶ 5} The State advances the following assignment of error:
The trial court’s sentence is clearly and convincingly contrary to law
because it falls outside the statutory range for a felony of the fifth degree.
{¶ 6} The State does not dispute the trial court’s ability to order Bankston to serve a
term of incarceration in the county jail rather than a prison. See R.C. 2929.34(B)(3)(c)(i)
(requiring certain offenders sentenced for fifth-degree felonies to serve a term of
incarceration in a local facility). The State nevertheless contends Bankston’s four-month
sentence is contrary to law because it falls outside the authorized statutory range for a fifth-
degree felony. For his part, Bankston concedes the State’s argument. He asserts only that
his four-month sentence expired on or about December 21, 2025, depriving the trial court of
jurisdiction to resentence him.
{¶ 7} Upon review, we find Bankston’s four-month sentence to be clearly and
convincingly contrary to law. The trial court did not impose the term of incarceration as part
of a broader community control sanction. Indeed, the trial court explicitly found Bankston not
amenable to community control. It also found that any combination of community control
sanctions would demean the seriousness of his offense. The trial court instead directly
3 imposed a four-month term of incarceration for a fifth-degree felony conviction. Under
R.C. 2929.14(A)(5), however, the authorized range was six, seven, eight, nine, ten, eleven,
or twelve months. Therefore, Bankston’s sentence is contrary to law and subject to being
vacated under R.C. 2953.08(G)(2).
{¶ 8} Notwithstanding Bankston’s argument to the contrary, the trial court also
possesses jurisdiction to impose an authorized sentence on remand. “An inmate’s release
from prison does not necessarily vest him or her with an expectation of finality regarding his
or her sentence if the length of the sentence is currently an issue on appeal.” State v.
Roberts, 2008-Ohio-3835, ¶ 20. When a statute grants the State the right to appeal, as
R.C. 2953.08(B) does here, a defendant cannot have an expectation of finality in his
sentence until the appeal is concluded or the time to appeal has expired. Id. at ¶ 16, quoting
United States v. DiFrancesco, 449 U.S. 117, 136 (1980). Moreover, when the State raises
a sentencing issue on direct appeal, resentencing is allowed even if the defendant has been
released from prison. Id. at ¶ 20-23. Roberts involved a direct appeal by the State and a stay
by the court of appeals. The Ohio Supreme Court noted that either event was sufficient to
place the defendant on notice that his sentence was subject to being overturned, negating
any expectation of finality as well as any double-jeopardy issues, and allowing the defendant
to be reincarcerated after his two-year sentence was increased to eight years on remand.
Id. at ¶ 27-30.
{¶ 9} In State v. Christian, 2020-Ohio-828, ¶ 26, the Ohio Supreme Court recognized
that “all sentences are subject to correction on direct appeal.” Any aspect of a defendant’s
sentence may be challenged on direct appeal, and any erroneous part of a sentence may
be corrected. Id. at ¶ 16. The majority in Christian held that the defendant could be
resentenced on a specific count after the sentence was vacated on direct appeal. Noting the
4 absence of an expectation of finality, the majority reached this conclusion despite the
defendant already having been “confined for the length of the original prison term that had
been attached to that count.” Id. at ¶ 1.
{¶ 10} In support of his contrary view, Bankston cites State v. Brasher, 2022-Ohio-
4703. Brasher was a plurality decision that involved an attempt by crime victims to use a writ
of mandamus to obtain a restitution order from the trial court after the defendant had
completed his sentence. The lead opinion concluded that the victims should have taken a
direct appeal from the trial court’s failure to award restitution at sentencing. Absent a direct
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[Cite as State v. Bankston, 2026-Ohio-580.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : C.A. No. 2025-CA-43 Appellant : : Trial Court Case No. 2025CR0046 v. : : (Criminal Appeal from Common Pleas MACKINZEE A. BANKSTON : Court) : Appellee : FINAL JUDGMENT ENTRY & : OPINION
...........
Pursuant to the opinion of this court rendered on February 20, 2026, the judgment of
the trial court is reversed in part, the sentence is vacated, and the matter is remanded for
further proceedings consistent with the opinion.
Costs to be paid as follows: 50% by appellant and 50% by appellee.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
MICHAEL L. TUCKER, JUDGE
EPLEY, J., and HANSEMAN, J., concur. OPINION GREENE C.A. No. 2025-CA-43
MEGAN A. HAMMOND, Attorney for Appellant HOLLY M. SIMPSON, Attorney for Appellee
TUCKER, J.
{¶ 1} The State of Ohio appeals from the trial court’s judgment entry sentencing
appellee Mackinzee A. Bankston to four months in jail for aggravated drug possession, a
fifth-degree felony. The State contends the sentence is contrary to law because it falls
outside the statutory range for Bankston’s offense.
{¶ 2} In response, Bankston concedes that his four-month sentence is two months
short of the minimum sentence authorized by law. He nevertheless asserts that the trial court
lacks jurisdiction to resentence him because his sentence expired on or about December 21,
2025.
{¶ 3} We conclude that Bankston’s four-month sentence is contrary to law and that
the trial court possesses jurisdiction to resentence him to an authorized term of
incarceration. Accordingly, we reverse the trial court’s judgment, vacate the four-month
sentence, and remand the case for resentencing.
I. Background
{¶ 4} A grand jury indicted Bankston on the above-referenced charge and a forfeiture
specification. He pled guilty in exchange for the State’s recommendation of a community
control sanction. The State’s recommendation was contingent on Bankston not committing
any bond violations or new offenses. Although Bankston later violated his bond by
consuming alcohol, the State adhered to its recommendation. At sentencing, the State
suggested community control sanctions with “a period of incarceration, or, alternatively,
2 some sort of community-based correctional facility.” The trial court then explicitly found
Bankston not amenable to community control, noting that it would demean the seriousness
of his conduct. The trial court orally sentenced him to serve four months in jail. The trial
court’s judgment entry also imposed a four-month jail sentence. The entry stated that he
was not amenable to community control and that “a combination of community control
sanctions would demean the seriousness of the defendant’s conduct and its impact on the
victim.”
II. Analysis
{¶ 5} The State advances the following assignment of error:
The trial court’s sentence is clearly and convincingly contrary to law
because it falls outside the statutory range for a felony of the fifth degree.
{¶ 6} The State does not dispute the trial court’s ability to order Bankston to serve a
term of incarceration in the county jail rather than a prison. See R.C. 2929.34(B)(3)(c)(i)
(requiring certain offenders sentenced for fifth-degree felonies to serve a term of
incarceration in a local facility). The State nevertheless contends Bankston’s four-month
sentence is contrary to law because it falls outside the authorized statutory range for a fifth-
degree felony. For his part, Bankston concedes the State’s argument. He asserts only that
his four-month sentence expired on or about December 21, 2025, depriving the trial court of
jurisdiction to resentence him.
{¶ 7} Upon review, we find Bankston’s four-month sentence to be clearly and
convincingly contrary to law. The trial court did not impose the term of incarceration as part
of a broader community control sanction. Indeed, the trial court explicitly found Bankston not
amenable to community control. It also found that any combination of community control
sanctions would demean the seriousness of his offense. The trial court instead directly
3 imposed a four-month term of incarceration for a fifth-degree felony conviction. Under
R.C. 2929.14(A)(5), however, the authorized range was six, seven, eight, nine, ten, eleven,
or twelve months. Therefore, Bankston’s sentence is contrary to law and subject to being
vacated under R.C. 2953.08(G)(2).
{¶ 8} Notwithstanding Bankston’s argument to the contrary, the trial court also
possesses jurisdiction to impose an authorized sentence on remand. “An inmate’s release
from prison does not necessarily vest him or her with an expectation of finality regarding his
or her sentence if the length of the sentence is currently an issue on appeal.” State v.
Roberts, 2008-Ohio-3835, ¶ 20. When a statute grants the State the right to appeal, as
R.C. 2953.08(B) does here, a defendant cannot have an expectation of finality in his
sentence until the appeal is concluded or the time to appeal has expired. Id. at ¶ 16, quoting
United States v. DiFrancesco, 449 U.S. 117, 136 (1980). Moreover, when the State raises
a sentencing issue on direct appeal, resentencing is allowed even if the defendant has been
released from prison. Id. at ¶ 20-23. Roberts involved a direct appeal by the State and a stay
by the court of appeals. The Ohio Supreme Court noted that either event was sufficient to
place the defendant on notice that his sentence was subject to being overturned, negating
any expectation of finality as well as any double-jeopardy issues, and allowing the defendant
to be reincarcerated after his two-year sentence was increased to eight years on remand.
Id. at ¶ 27-30.
{¶ 9} In State v. Christian, 2020-Ohio-828, ¶ 26, the Ohio Supreme Court recognized
that “all sentences are subject to correction on direct appeal.” Any aspect of a defendant’s
sentence may be challenged on direct appeal, and any erroneous part of a sentence may
be corrected. Id. at ¶ 16. The majority in Christian held that the defendant could be
resentenced on a specific count after the sentence was vacated on direct appeal. Noting the
4 absence of an expectation of finality, the majority reached this conclusion despite the
defendant already having been “confined for the length of the original prison term that had
been attached to that count.” Id. at ¶ 1.
{¶ 10} In support of his contrary view, Bankston cites State v. Brasher, 2022-Ohio-
4703. Brasher was a plurality decision that involved an attempt by crime victims to use a writ
of mandamus to obtain a restitution order from the trial court after the defendant had
completed his sentence. The lead opinion concluded that the victims should have taken a
direct appeal from the trial court’s failure to award restitution at sentencing. Absent a direct
appeal, the lead opinion held that the trial court’s judgment became final, res judicata
applied, and the trial court lacked jurisdiction to award restitution after the defendant
completed his sentence. Id. at ¶ 23. Significantly, the lead opinion recognized that “had the
victims pursued restitution in a direct appeal, the trial court’s judgment would not have
become final, avoiding the timing and jurisdictional issues created by the absence of a timely
appeal and Brasher’s completion of his sentence.” Id.
{¶ 11} We recognize that Brasher cited State v. Holdcroft, 2013-Ohio-5014, overruled
on other grounds by State v. Harper, 2020-Ohio-2913, for the proposition that “[o]nce an
offender has completed his or her sentence, the trial court loses jurisdiction to modify it.”
Brasher at ¶ 15, citing Holdcroft at ¶ 14-18. But neither Brasher nor Holdcroft involved a
direct appeal from a defendant’s conviction raising a sentencing issue. As noted above,
Brasher involved a mandamus action to obtain restitution after a defendant had completed
his sentence. Holdcroft involved an attempt to add post-release control to a defendant’s 10-
year sentence for aggravated arson after he had completed the term. The Holdcroft court
observed that “a defendant’s legitimate expectation of finality plays [a role] in constraining
the court’s authority to review a sentence.” Holdcroft at ¶ 18. When the State has filed a
5 direct appeal from a conviction and challenges the lawfulness of a sentence, however, a
defendant has no expectation of finality in the sentence. Roberts, 2008-Ohio-3835, at ¶ 16.
“[T]he expectation of finality in a sentence that prevents resentencing for the same offense
does not mature until the direct appeal is concluded or the time to appeal has expired.” State
v. Armengau, 2020-Ohio-3552, ¶ 17 (10th Dist.). “Thus, only after direct appeal is concluded
or the time to appeal has expired does it become true that ‘[a] trial court does not have the
authority to resentence a defendant . . . after the defendant has already served the prison
term for that offense.’” Id., quoting Holdcroft at ¶ 14, 18, paragraph three of the syllabus.
{¶ 12} Here, unlike Brasher and Holdcroft, the State raised its sentencing-related
argument in a direct appeal from Bankston’s conviction. As a result, the trial court’s judgment
did not become final, res judicata did not apply, and Bankston lacked an expectation of
finality in his unauthorized sentence. This court may correct the sentence on direct appeal,
and the trial court possesses jurisdiction on remand to impose a sentence authorized by law.
Accordingly, we sustain the State’s assignment of error.
III. Conclusion
{¶ 13} The judgment of the Greene County Common Pleas Court is reversed in part,
Bankston’s four-month jail sentence is vacated under R.C. 2953.08(G)(2), and the case is
remanded for resentencing.
.............
EPLEY, J., and HANSEMAN, J., concur.