State v. Hanna

2011 Ohio 4650

Opinion

[Cite as State v. Hanna, 2011-Ohio-4650.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 11-CA-2 BRIAN P. HANNA

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Common Pleas Court, Case No. 00CR110077

JUDGMENT: Vacated

DATE OF JUDGMENT ENTRY: September 13, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN C. THATCHER BRUCE J. MALEK Knox County Prosecutor Knox County Public Defender

CHARLES T. MCCONVILLE MARK A. ZANGHI Assistant Prosecuting Attorney Assistant Knox County Public Defender Knox County Prosecutor’s Office One Public Square 117 East High Street, Suite 234 Mount Vernon, Ohio 43050 Mount Vernon, Ohio 43050 Knox County, Case No. 11-CA-2 2

Hoffman, J.

{¶1} Defendant-appellant Brian P. Hanna appeals the February 6, 2007

Amended Sentencing Entry of the Knox County Court of Common Pleas. Plaintiff-

appellee is the State of Ohio.

STATEMENT OF THE CASE

{¶2} On June 26, 2001, Appellant was convicted of one count of rape, in

violation of R.C. 2907.02(A)(1)(b). On July 20, 2001, the trial court sentenced Appellant

to a definite term of imprisonment of ten years. At the sentencing hearing, the trial court

advised Appellant “a term of post-release control may be imposed for up to five years.”

However, the judgment entry of sentencing did not include any term of post-release

control.

{¶3} On February 6, 2007, via Amended Sentencing Entry, the trial court

amended Appellant’s sentence to include a five year term of post-release control.

{¶4} Appellant now appeals with leave of this Court, assigning as error:

{¶5} “I. THE TRIAL COURT ERRED WHEN IT JOURNALIZED AN AMENDED

SENTENCING ENTRY IMPOSING A POST-RELEASE CONTROL SANCTION

WITHOUT THE BENEFIT OF A DE NOVO SENTENCING HEARING AND

THEREFORE THE SENTENCE IS VOID.”

{¶6} R.C. 2929.191, enacted as part of H.B. 137, provides a statutory remedy

to correct the failure of the trial court to properly impose post release control. Singleton,

¶ 23. The statute became effective on July 11, 2006.

{¶7} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Ohio

Supreme Court cited to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d Knox County, Case No. 11-CA-2 3

961, as one of the progeny of cases confirming the requirement of conducting a de novo

sentencing hearing to correct a sentence which fails to properly impose post release

control. Id. at ¶ 17. The Supreme Court recently examined State v. Bezak and limited its

application in State v. Fischer, 128 Ohio.St.3d 93, 2010-Ohio-6238.

{¶8} In Fischer, the defendant was sentenced in 2002 and the sentencing entry

failed to properly advise the defendant of his post release control obligations. The

defendant appealed his conviction and sentence, which were affirmed by the court of

appeals. The defendant moved for a resentencing hearing several years later based on

the authority of Bezak. At the resentencing hearing, the trial court properly notified the

defendant of his post release control obligations and reimposed the remainder of the

sentence. The defendant appealed, asserting his original sentence was “void,” so his

first appeal was not valid and the appeal of his resentencing was his “first appeal”;

therefore, he could raise all issues relating to his conviction. The issue before the Court

then was whether the defendant's direct appeal of a resentencing ordered pursuant to

State v. Bezak was a first appeal as of right. The Court found that it was not. Id. at ¶ 2-

5.

{¶9} The Fischer Court stated the majority in Bezak found when a court of

appeals remanded the case for resentencing due to the failure to inform the defendant

of post release control, the trial court was required to conduct a new sentencing hearing

in its entirety, rather than a hearing limited to reimposing the original sentence with

proper notice of post release control. (Emphasis added). Fischer at ¶ 12. Fischer

overrules the Bezak requirement of a de novo sentencing hearing in paragraph two of Knox County, Case No. 11-CA-2 4

the syllabus: “The new sentencing hearing to which an offender is entitled under State

v. Bezak is limited to proper imposition of post release control.” Id.

{¶10} Accordingly, pursuant to Fischer Appellant was entitled to a new

sentencing hearing for the limited purpose of properly imposing post-release control

prior to the trial court amending his sentence. No such hearing took place. However,

as the State concedes herein, Appellant completed his prison term on July 20, 2011;

therefore, the trial court is without jurisdiction to now impose a corrective entry.

{¶11} The February 6, 2007 Amended Sentencing Entry of the Knox County

Court of Common Pleas is vacated.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur

___________________________________ HON. WILLIAM B. HOFFMAN

___________________________________ HON. W. SCOTT GWIN

___________________________________ HON. PATRICIA A. DELANEY Knox County, Case No. 11-CA-2 5

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

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : BRIAN P. HANNA : : Defendant-Appellant : Case No. 11-CA-2

For the reason stated in our accompanying Opinion, the February 6, 2007

Amended Sentencing Entry of the Knox County Court of Common Pleas is vacated.

Costs to Appellee State of Ohio.

___________________________________ HON. PATRICIA A. DELANEY