State v. Griffin
Opinion
[Cite as State v. Griffin, 2013-Ohio-2667.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25729
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE WILLIAM D. GRIFFIN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE Nos. CR 04 08 2840 CR 05 01 0306
DECISION AND JOURNAL ENTRY
Dated: June 26, 2013
HENSAL, Judge.
{¶1} William Griffin appeals two judgments of the Summit County Common Pleas
Court sentencing him to a combined nine-and-a-half years in prison. For the following reasons,
this Court affirms.
I.
{¶2} In 2005, Mr. Griffin pled guilty in two separate cases to possession of cocaine,
trafficking in cocaine, and receiving stolen property. The trial court sentenced him to five-and-a-
half years imprisonment in case number CR 05 01 0306 and four years imprisonment in case
number CR 04 08 2840, and ordered the sentences to run consecutively. In 2009, Mr. Griffin
moved to correct his sentences, arguing that they were void because the trial court had not
correctly imposed post-release control. In 2010, the court held a re-sentencing hearing, re-
imposed the same prison terms and imposed post-release control. Mr. Griffin has appealed,
assigning three errors. 2
II.
ASSIGNMENT OF ERROR I
POSTRELEASE CONTROL WAS IMPROPERLY IMPOSED AND NEVER LAWFULLY INCLUDED IN MR. GRIFFIN’S SENTENCE. THUS, THE TRIAL COURT ERRED WHEN IT IMPOSED POSTRELEASE CONTROL AT MR. GRIFFIN’S RESENTENCING HEARING. NOVEMBER 15, 2010 JOURNAL ENTRY, CASE NO. CR 05 01 0306; NOVEMBER 15, 2010 JOURNAL ENTRY, CASE NO. CR 04 08 2840.
{¶3} In his first assignment of error, Mr. Griffin argues that the trial court incorrectly
imposed post-release control when it resentenced him in case number CR 04 08 2840 because, at
the time that he was resentenced, he had already served more than four years in prison. He notes
that in State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, the Ohio Supreme Court explained
that, once a defendant “has already served the prison term ordered by the trial court * * * he
cannot be subject to resentencing in order to correct the trial court’s failure to impose postrelease
control * * *.” Id. at ¶ 18.
{¶4} In Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, the Ohio Supreme
Court explained that the reason a trial court cannot impose post-release control on someone who
has served the prison term previously imposed is because a court cannot correct a sentencing
entry that has expired. Id. at ¶ 32. The problem with Mr. Griffin’s argument is that his sentence
in case number CR 04 08 2840 did not expire after he had served four years in prison. Revised
Code Section 2929.41(B)(3) provides that, “[w]hen consecutive jail terms or sentences of
imprisonment and prison terms are imposed for one or more * * * felonies under this division,
the term to be served is the aggregate of the consecutive terms imposed * * *.” For purposes of
applying Bezak, therefore, Mr. Griffin’s prison “term” was nine-and-a-half years. Because Mr.
Griffin had not served nine-and-a-half years at the time the trial court resentenced him, we 3
conclude that it had authority to impose post-release control in both cases. Mr. Griffin’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AND IMPOSED A SENTENCE THAT IS CONTRARY TO LAW WHEN IT STATED ON THE RECORD AT MR. GRIFFIN’S DE NOVO RESENTENCING HEARING THAT IT WAS REQUIRED TO IMPOSE THE SAME SENTENCE THAT WAS IMPOSED AT THE ORIGINAL SENTENCING HEARING. R.C. 2953.08(A)(4); CRIM. R. 52(B).
ASSIGNMENT OF ERROR III
THE PERFORMANCE OF TRIAL COUNSEL WAS DEFICIENT, AND DEPRIVED MR. GRIFFIN OF THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.
{¶5} In his second assignment of error, Mr. Griffin argues that, at his resentencing
hearing, the trial court incorrectly refused to consider imposing prison terms other than the ones
it had originally imposed. In his third assignment of error, he argues that his lawyer should have
objected when the trial court stated at the resentencing hearing that it believed it had no
discretion to alter the length of his sentences.
{¶6} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Ohio Supreme
Court held that, “[f]or criminal sentences imposed prior to July 11, 2006, in which a trial court
failed to properly impose postrelease control, trial courts shall conduct a de novo sentencing
hearing in accordance with the decisions of the Supreme Court of Ohio.” Id. at paragraph one of
the syllabus. After the trial court resentenced Mr. Griffin, however, the Supreme Court clarified
that “[t]he new hearing to which an offender is entitled * * * is limited to proper imposition of
postrelease control.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, paragraph two of the
syllabus. Accordingly, under Fischer, “the trial court only had the authority to hold a 4
resentencing hearing on the void part of Mr. [Griffin’s] sentence, which was the part regarding
post-release control.” State v. Gibson, 9th Dist. No. 25085, 2011-Ohio-566, ¶ 8. “[It] did not
have authority to change the length of Mr. [Griffin’s] sentence, or modify any other aspects of
the sentence except post-release control.” Id.
{¶7} Because the trial court only had authority to impose the correct term of post-
release control when it resentenced him for his crimes, Mr. Griffin’s arguments that the court
should have reconsidered the length of his sentences and that his lawyer should have objected to
the trial court’s statements are without merit. Mr. Griffin’s second and third assignments of error
are overruled. Nevertheless, “[b]ecause the trial court exceeded its authority when it attempted
to resentence Mr. [Griffin] on aspects of his sentence that were not void, those parts of the
resentencing entry that addressed anything other than post-release control must be vacated.” Id.
at ¶ 9.
III.
{¶8} The trial court had authority to impose post-release control for each of Mr.
Griffin’s convictions, even though he had already served more than four years in prison. It
incorrectly reconsidered aspects of Mr. Griffin’s sentence that were not void. The judgment of
the Summit County Common Pleas Court is affirmed in part and vacated in part.
Judgment affirmed in part and vacated in part.
There were reasonable grounds for this appeal. 5
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL FOR THE COURT
MOORE, P. J. WHITMORE, J. CONCUR.
APPEARANCES:
MELISSA M. PRENDERGAST, Assistant State Public Defender, for Appellant.
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