State v. Holdcroft

2012 Ohio 3066

• Court: Ohio Court of Appeals
• Decided: July 2, 2012
• Docket: 16-10-13
• Status: Published

Opinion

[Cite as State v. Holdcroft, 2012-Ohio-3066.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 16-10-13

v.

HENRY ALLEN HOLDCROFT, OPINION

DEFENDANT-APPELLANT.

Appeal from Wyandot County Common Pleas Court Trial Court No. 98 CR 0044

Judgment Affirmed

Date of Decision: July 2, 2012

APPEARANCES:

Kristopher A. Haines for Appellant

Jonathan K. Miller for Appellee Case No. 16-10-13

PRESTON, J.

{¶1} Defendant-appellant, Henry Allen Holdcroft (hereinafter “Holdcroft”),

appeals the November 16, 2010 judgment of the Wyandot County Court of

Common Pleas resentencing him to include post-release control (“PRC”) for a

mandatory period of five years for aggravated arson and a discretionary period of

up to three years for arson to be run concurrently to one another.

{¶2} On November 13, 1998, the Wyandot County Grand Jury indicted

Holdcroft on three counts: Count One, aggravated arson in violation of R.C.

2909.02(A)(3), a first degree felony; Count Two, complicity to commit aggravated

arson in violation of R.C. 2923.03(A)(1), a first degree felony; and Count Three,

arson in violation of R.C. 2909.03(A)(4), a third degree felony. (Doc. No. 1). The

charges stemmed from an incident where Holdcroft hired a third party to set fire to

his then-wife’s automobile and home.

{¶3} On June 9, 1999, the State filed a motion to dismiss Count Two of the

indictment on the basis that the charge was an allied offense of similar import to

Count One, aggravated arson. (Doc. No. 58). The trial court granted the State’s

motion to dismiss Count Two on June 25, 1999. (Doc. No. 79). On July 6-9,

1999, a jury trial was held on the remaining two counts of the indictment against

Holdcroft. The jury returned guilty verdicts on both counts. (Doc. Nos. 106-07).

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On July 29, 1999, the trial court filed a judgment entry of conviction. (Doc. No.

114).

{¶4} On September 10, 1999, the trial court sentenced Holdcroft to ten

years imprisonment on Count One, aggravated arson, and five years imprisonment

on Count Three, arson. The trial court ordered “that the sentence imposed for

Count Three shall be served consecutively to the sentence imposed in Count One.”

(Sept. 13, 1999 JE, Doc. No. 116). Holdcroft was ordered to make restitution to

the victim, Kathy Hurst, or the insurance carrier, in the sum of $5,775.00, and

$400.00 to Eric Goodman. The trial court also notified Holdcroft “that a period of

post-release control shall be imposed,” and that if he violated his post-release

control further restrictions upon his liberty could follow as a consequence. (Id.)

Holdcroft was also taxed with the costs of prosecution and all other fees permitted

under R.C. 2929.18(A)(4). This entry was journalized on September 13, 1999.

(Id.)

{¶5} On September 14, 1999, Holdcroft, pro se, filed a notice of appeal.

(Doc. No. 117). The trial court appointed appellate counsel, and the appeal was

assigned case no. 16-99-04. (Doc. No. 124). On appeal, Holdcroft asserted one

assignment of error, arguing that his convictions were against the manifest weight

of the evidence. State v. Holdcroft (Mar. 31, 2000), 3d Dist. No. 16-99-04. The

State also appealed the judgment of the trial court regarding “other acts” evidence

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that was excluded from trial. This Court subsequently overruled Holdcroft’s

assignment of error, sustained the State’s assignment of error, and upheld the

convictions. Id.

{¶6} While his direct appeal was pending before this Court, Holdcroft filed

a motion for the appointment of counsel in order to pursue post-conviction relief.

(Doc. No. 131). The trial court granted the motion and appointed counsel on

February 3, 2000. (Doc. No. 132).

{¶7} On May 5, 2000, Holdcroft, pro se, filed a notice of appeal to the Ohio

Supreme Court from this Court’s March 31, 2000 decision. (Doc. No. 134). The

Ohio Supreme Court, however, declined review. State v. Holdcroft, 89 Ohio St.3d

1464 (2000).

{¶8} On June 9, 2000, Holdcroft, through appointed appellate counsel, filed

a motion for a new trial, along with a motion to withdraw as appellate counsel.

(Doc. No. 135-136). The trial court granted the motion to withdraw but denied the

motion for a new trial. (Doc. Nos. 138, 141). On June 26, 2000, Holdcroft filed a

motion for judicial release, which the trial court also denied. (Doc. Nos. 137, 139).

{¶9} On July 13, 2006, Holdcroft filed a “motion to vacate or set aside and

modify sentence pursuant to R.C. 2945.25(A) & Crim.R. 52(B).” (Doc. No. 161.)

On July 20, 2006, the trial court overruled this motion, finding it was untimely and

lacked substantive merit “as the Defendant was not convicted of allied offenses of

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similar import. There were separate and distinct felonies committed by the

Defendant, one involving a dwelling and the other involving an automobile.”

(Doc. No. 163.)

{¶10} On August 16, 2006, Holdcroft, pro se, filed a notice of appeal from

the trial court’s denial of his motion. (Doc. No. 165). On appeal, Holdcroft argued

that his sentence was void because he was sentenced on two offenses that were

allied offenses of similar import. This Court overruled Holdcroft’s assignment of

error, finding that his motion was an untimely post-conviction motion, and, under

a plain error analysis, that the offenses were not allied offenses of similar import.

State v. Holdcroft, 3d Dist. No. 16-06-07, 2007-Ohio-586.

{¶11} On December 11, 2009, the State filed a motion to correct

Holdcroft’s sentence pursuant to R.C. 2929.191. (Doc. No. 186). On December

30, 2009, the State filed a motion for a de novo sentencing hearing to correct

Holdcroft’s sentence pursuant to State v. Singleton, 124 Ohio St.3d 173, 2009-

Ohio-6434. (Doc. No. 195). The trial court granted this motion and conducted a

de novo sentencing on January 26, 2010. (Doc. No. 198). Once again, the trial

court sentenced Holdcroft to ten years on Count One and five years on Count

Three. The trial court further ordered that Count Three be served consecutively to

Count One for an aggregate term of fifteen years. The trial court notified

Holdcroft that he would be subject to five years of mandatory post-release control

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as to Count One and three years of discretionary post-release control as to Count

Three. The trial court also noted that the terms of post-release control would not

be served consecutively to each other. The trial court further ordered that

Holdcroft “pay restitution to Kathy Hurst, or the insurance carrier, in the sum of

$5,775.00; and make restitution to Eric Goodman in the amount of $400.00.”

(Feb. 2, 2010 JE, Doc. No. 205)

{¶12} On February 12, 2010, Holdcroft filed a notice of appeal from the

trial court’s judgment entry of sentence. (Doc. No. 210). On May 26, 2010, while

the appeal was pending, Holdcroft, pro se, filed a petition for post-conviction

relief and various motions relating to that petition. (Doc. Nos. 223-26). The trial

court noted that Holdcroft was appointed counsel to handle the direct appeal of his

conviction, which was pending before this Court. (Doc. No. 227). The trial court

subsequently dismissed Holdcroft’s petition, concluding that it lacked jurisdiction

to rule because his appeal was pending before this Court. (Id.).

{¶13} However, on September 13, 2010, this Court dismissed Holdcroft’s

direct appeal from the trial court’s de novo resentencing in January of 2010. State

v. Holdcroft, 3d Dist. No. 16-10-01, 2010-Ohio-4290. As the basis for dismissing

the case, we determined that the judgment entry imposing Holdcroft’s sentence

and conviction did not constitute a final appealable order. Id. at ¶ 19. More

specifically, we found that the trial court’s de novo sentencing entry failed to

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allocate the amount of restitution between the victim, Kathy Hurst, and the

insurance company and that an order of restitution must set forth the amount or

method of payment as to each victim receiving restitution in order to be a final

appealable order. Id., citing State v. Kuhn, 3d Dist. No. 4-05-23, 2006-Ohio-1145,

¶ 8; State v. Hartley, 3d Dist. No. 14-09-42, 2010-Ohio-2018, ¶ 5. Because

Section 3(B)(2), Article IV of the Ohio Constitution limits our jurisdiction to

reviewing “final appealable orders,” we remanded Holdcroft’s appeal of his de

novo sentence to the trial court to resolve the restitution issue.1

{¶14} Subsequently, on November 16, 2010, the trial court issued a new

judgment entry pursuant to our decision. (Doc. No. 238). In this entry, the trial

court ordered Holdcroft to pay $5,775.00 to Kathy Hurst and also noted that

certain portions of the record supported this sum and that “Ms. Hurst will be

obligated to reimburse her insurance carrier for any money paid to her by it over

and above that which she spent for repairing the vehicle.” (Id.) The trial court

further noted that “[t]he defense interposed no objection to the restitution figures

offered.” (Id.)

1 As a result of this dismissal, on December 20, 2010, we found that the trial court incorrectly concluded that it lacked jurisdiction to rule on Holdcroft’s petition for post-conviction relief. Nevertheless, we found that the trial court correctly dismissed the petition and the motions related to it because a final order of conviction and sentence had not been filed in the case. State v. Holdcroft, 3d Dist. No. 16-10-04, 2010- Ohio-6262, ¶ 21.

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{¶15} On November 29, 2010, Holdcroft filed a notice of appeal. (Doc. No.

240). Holdcroft asserts nine assignments of error for our review. We elect to

address Holdcroft’s first assignment of error last and to combine his other eight

assignments of error for discussion.

SECOND ASSIGNMENT OF ERROR

THE CONSECUTIVE, MAXIMUM SENTENCES VIOLATED THE 6TH AMENDMENT TO THE U.S. CONSTITUTION, AND THE DUE PROCESS CLAUSES CONTAINED IN THE OHIO AND U.S. CONSTITUTIONS.

THIRD ASSIGNMENT OF ERROR

THE MAXIMUM, CONSECUTIVE SENTENCES AND THE RESTITUTION ORDER WERE CONTRARY TO LAW ANDABUSIVE.

FOURTH ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN CONVICTING AND SENTENCING THE APPELLANT ON AGGRAVATED ARSON AND ARSON COUNTS IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE 5TH AMENDMENT OF THE U.S. CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND OHIO’S MULTIPLE- COUNT STATUTE.

FIFTH ASSIGNMENT OF ERROR

THE SENTENCE SHOULD BE REVERSED AS IT VIOLATES CRIMINAL RULE 32, AND THE 5TH, 6TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, BECAUSE IT WAS IMPOSED OVER TEN YEARS AFTER THE GUILTY VERDICT.

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SIXTH ASSIGNMENT OF ERROR

THE COURT ERRED WHEN IT FAILED TO CHANGE THE VENUE OR GRANT A MISTRIAL DUE TO JURY TAINT AND JURY MISCONDUCT THAT VIOLATED THE 6TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.

SEVENTH ASSIGNMENT OF ERROR

THE COURT ERRED IN ADMITTING OTHER ACTS EVIDENCE IN VIOLATION OF EVID.R. 403 AND 404, THUS DEPRIVING APPELLANT OF A FAIR TRIAL UNDER THE 6TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.

EIGHTH ASSIGNMENT OF ERROR

APPELLANT’S CONVICTION WAS NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, SECTIONS 1 & 16 OF THE OHIO CONSTITUTION, AND THE CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

NINTH ASSIGNMENT OF ERROR

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE 6TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 10, 16 OF THE OHIO CONSTITUTION.

{¶16} Initially, we must determine the scope of our review of these

assignments of error and whether they are properly before this Court. The State

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asserts that the only issues Holdcroft may now raise on appeal are those related to

PRC pursuant to State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. Thus, the

State contends that Holdcroft is precluded from challenging the merits of his

conviction, including the determination of guilt and the lawful elements of his

sentence. In response, Holdcroft argues that unlike the facts at issue in Fischer,

which addressed sentences that were void for lacking proper PRC notification, his

case involves a sentencing entry that did not constitute a final, appealable order

because of the trial court’s restitution order. As such, he maintains that our prior

decisions are nullities because we did not have jurisdiction until a final appealable

order was rendered, i.e. on November 16, 2010, and that each of his assignments

of error is properly before this Court as if this were his first direct appeal.

{¶17} After reviewing the convoluted procedural history of this case, we

conclude that addressing Holdcroft’s assignments of error furthers the interests of

justice here. That being said, this Court is very familiar with this case and our

analysis of Holdcroft’s assignments of error will be done summarily.

{¶18} In his eighth assignment of error, Holdcroft argues that his

conviction was not supported by sufficient evidence and against the manifest

weight of the evidence. We disagree. After reviewing the record herein under the

applicable standards, we conclude that the State presented sufficient evidence and

that Holdcroft’s convictions were not against the manifest weight of the evidence.

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{¶19} In his second assignment of error, Holdcroft argues that Oregon v.

Ice, 555 U.S. 160, 129 S.Ct. 711 (2009) abrogated State v. Foster, 109 Ohio St.3d

1, 2006-Ohio-856; and therefore, the trial court was required to make factual

findings before imposing consecutive sentences. This Court has rejected this

argument before, and we reject it again. State v. Taylor, 3d Dist. No. 9-10-44,

2011-Ohio-1866, ¶ 90. We also reject Holdcroft’s argument that the trial court’s

application of Foster operated as an ex post facto law in violation of the Due

Process Clause. State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, paragraph

one of the syllabus.

{¶20} In his third assignment of error, Holdcroft first argues that the trial

court erred in taking judicial notice of the same factual findings it had made at the

original sentencing hearing (pre-Foster) for the resentencing hearing (post-

Foster). We disagree. Foster simply stated that the trial courts were no longer

required to make factual findings; Foster did not forbid trial courts from

considering the relevant factors when sentencing. State v. Smith, 11th Dist. No.

2006-A-0082, 2007-Ohio-4772, ¶ 24. We also reject Holdcroft’s argument that

his sentence was not consistent with other sentences for similar arson convictions.

Finally, we reject his argument relative to the trial court’s restitution figure since

Holdcroft did not object to the same at the resentencing hearing. We cannot

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conclude that the trial court’s restitution order amounted to plain error when the

record supported its order herein.

{¶21} In his fourth assignment of error, Holdcroft argues that the trial court

erred by imposing sentences upon both his aggravated arson and arson convictions

since they constituted allied offenses of similar import. We disagree. The

evidence presented demonstrated that Holdcroft set two separate fires (one upon

the vehicle and one upon the porch); and therefore, separate animus exists for each

separate conviction. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 49.

{¶22} In his fifth assignment of error, Holdcroft argues that the

unreasonable delay between his conviction in 1999 and his final sentence in 2010

violated Crim.R. 32 and the 5th, 6th, and 14th Amendments to the U.S. Constitution.

We reject this argument as well. The trial court here did not simply refuse to

sentence Holdcroft; rather, it was subsequently determined upon appeal (almost

ten years later) that Holdcroft’s sentencing entry was non-final. Holdcroft was

also resentenced to correct a PRC notification issue. Consequently, we must reject

his arguments of unreasonable delay. See e.g. State v. Spears, 9th Dist. No. 24953,

2010-Ohio-1965.

{¶23} In his sixth assignment of error, Holdcroft argues that the trial court

erred when it failed to change the venue or grant a mistrial due to jury misconduct.

Since the record fails to indicate that any of the jurors who read the pretrial

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newspaper article were actually biased in this case, Holdcroft’s arguments lack

merit. State v. Wegmann, 3d Dist. No. 1-06-98, 2008-Ohio-622, ¶ 34-35.

{¶24} In his seventh assignment of error, Holdcroft argues that the trial

court erred by admitting other acts evidence in violation of Evid.R. 403 and 404,

and thereby, depriving him of a fair trial. We disagree. The evidence of

Holdcroft’s previous threat to his wife, Kathy Hurst, that he would burn her house

down if she ever left, and Holdcroft’s solicitation of Joshua Shula to burn his

wife’s car and trailer were admissible to show Holdcroft’s motive, intent, plan,

and identity under Evid.R. 404(B) and R.C. 2945.59. Furthermore, the trial

court’s admission of this evidence would be harmless error at most in light of the

other evidence presented.

{¶25} In his ninth assignment of error, Holdcroft argues that trial counsel

was ineffective for various reasons. A defendant asserting a claim of ineffective

assistance of counsel must establish: (1) the counsel’s performance was deficient

or unreasonable under the circumstances; and (2) the deficient performance

prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Prejudice

results when “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

State v. Bradley, 42 Ohio St. 3d 136, 142 (1989), citing Strickland at 691. “A

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reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Bradley at 142; Strickland at 694. Even if we assume that trial counsel

was ineffective as Holdcroft argues, he has failed to demonstrate prejudice.

{¶26} Holdcroft’s eighth, second, third, fourth, fifth, sixth, seventh, and

ninth assignments of error are, therefore, overruled.

FIRST ASSIGNMENT OF ERROR

THE COURT LACKED JURISDICTION TO IMPOSE MANDATORY POST-RELEASE CONTROL UPON THE APPELLANT.

{¶27} In his first assignment of error, Holdcroft asserts that the trial court

lacked jurisdiction to impose the mandatory, five-year term of PRC for his

aggravated arson conviction (Count One) because, by the time of the resentencing

hearing, he had already completed his ten-year-sentence on that conviction and

was serving the remainder of his five-year-sentence for his arson conviction

(Count Two). In response, the State contends that, at the time of the resentencing

hearing, Holdcroft was still serving his aggregate fifteen-year sentence in the case;

and therefore, the trial court has jurisdiction to impose PRC on both convictions.

{¶28} The relevant procedural history in this case is undisputed. On

September 13, 1999, the trial court ordered that Holdcroft serve ten years on

Count One, aggravated arson, and five years on Count Three, arson. The trial

court further ordered that the term of imprisonment for Count Three be served

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consecutively to the term for Count One, for an aggregate term of fifteen years.

The trial court resentenced Holdcroft to impose the proper terms of PRC in

January of 2010,2 imposing five years of mandatory PRC for Count One and up to

three years of discretionary PRC for Count Three. Thus, over ten years but less

than fifteen years transpired between the time of the sentencing and the

resentencing hearings.

{¶29} “‘When sentencing a felony offender to a term of imprisonment, a

trial court is required to notify the offender at the sentencing hearing about

postrelease control and is further required to incorporate that notice into its journal

entry imposing sentence.’” Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-

126, ¶ 15, quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, paragraph

one of the syllabus. A trial court’s failure to incorporate the proper notice of post-

release control—whether PRC is mandatory or discretionary, the duration of PRC,

and the possible consequences for violating PRC—renders the trial court’s

sentencing entry partially void. Fischer, 2010-Ohio-6238, at ¶ 27-29. Generally

speaking, the appropriate remedy to correct the trial court’s partially void

sentencing entry is to resentence the offender. Jordan, 2004-Ohio-6085, at ¶ 23;

2 The resentencing hearing was held on January 26, 2010, but the resentencing entry was not filed until February 2, 2010.

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State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, ¶ 16-17.3 However, an

offender that “has already served the prison term ordered by the trial court * * *

cannot be subject to resentencing in order to correct the trial court’s failure to

impose postrelease control.” Bezak, 2007-Ohio-3250, at ¶ 18. See also Hernandez,

2006-Ohio-126, at ¶ 32 (“In that his journalized sentence has expired, Hernandez

is entitled to the writ and release from prison and from further postrelease

control.”); State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795,

¶ 28 (“Because Cruzado’s sentence had not yet been completed when he was

resentenced, Judge Zaleski was authorized to correct the invalid sentence to

include the appropriate, mandatory postrelease-control term.”); State v. Simpkins,

117 Ohio St.3d 420, 2008-Ohio-1197, syllabus (“In cases in which a defendant is

convicted of, or pleads guilty to, an offense for which postrelease control is

required but not properly included in the sentence, the sentence is void, and the

state is entitled to a new sentencing hearing to have postrelease control imposed

on the defendant unless the defendant has completed his sentence.”); State v.

Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, ¶ 70 (“[O]nce an offender has 3 The nature of the resentencing hearing depends upon when the partially void sentence was entered. For sentences entered on or after July 11, 2006, R.C. 2929.191 prescribes the resentencing hearing and remedial mechanism to correct such sentencing entries. State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio- 6434, paragraph two of the syllabus. For sentences entered prior to July 11, 2006, the proper remedy is a resentencing hearing “limited to [the] proper imposition of postrelease control.” Fischer, 2010-Ohio-6238, at ¶ 29. Although the majority in Fischer did not explicitly state that this limited resentencing hearing is an R.C. 2929.191 hearing, it appears that an R.C. 2929.191 hearing would meet the majority’s requirements. See Fischer, 2010-Ohio-6238, at ¶ 43, Fn. 3 (Lanzinger, J., dissenting) (noting that the majority’s opinion effectively overruled paragraph one of the syllabus in Singleton, 2009-Ohio-6434, requiring a de novo resentencing hearing).

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completed the prison term imposed in his original sentence, he cannot be subjected

to another sentencing to correct the trial court’s flawed imposition of postrelease

control.”).

{¶30} The issue sub judice is whether the trial court was without

jurisdiction to impose five years of mandatory PRC on Holdcroft’s aggravated

arson conviction (Count One) at the resentencing hearing because Holdcroft had

already served “the prison term ordered by the trial court.” Specifically, the issue

concerns whether the words “prison term” and “sentence” used by the Ohio

Supreme Court in Bezak, Hernandez, Cruzado, Simpkins, and Bloomer mean the

prison term the trial court ordered for each conviction (Count) or whether these

words refer to the entire term of imprisonment for all convictions (Counts) in the

case, i.e. the aggregate sentence imposed for the entire case. If the words have the

former meaning, the trial court was without jurisdiction to impose five years of

mandatory PRC on Holdcroft’s aggravated arson conviction (Count One) since

Holdcroft had already served his ten-year sentence on that conviction (Count). If

the words have the latter meaning, the trial court had jurisdiction to impose the

five years of mandatory PRC on Holdcroft’s aggravated arson conviction (Count

One) since Holdcroft was still incarcerated on his total aggregate sentence at the

time of the resentencing hearing. For the reasons that follow, we conclude that the

words “prison term” and “sentence” as used by the Ohio Supreme Court in

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Hernandez and the cases that follow it mean the entire journalized sentence for all

convictions (Counts) in the case, i.e. the aggregate sentence; and therefore, the

trial court sub judice had jurisdiction to impose the mandatory five-year term of

PRC on Holdcroft’s aggravated arson conviction (Count One).

{¶31} The answer to our inquiry is not directly revealed by the Ohio

Supreme Court’s decisions in Hernandez, Bezak, or Bloomer because the

defendants in those cases were serving terms of imprisonment stemming from

single-count indictments. 2006-Ohio-126, at ¶ 4; 2007-Ohio-3250, at ¶ 1; 2009-

Ohio-2462, at ¶ 22. Comparison to the Court’s decision in Cruzado is also

inapposite since the offender was sentenced on two counts from two separate

indictments; the trial court ordered that the sentences be served concurrently; and,

the offender was resentenced prior to the expiration of the concurrent terms of

imprisonment. 2006-Ohio-5795, at ¶ 2, 8-9. Similarly, the offender in Simpkins

was sentenced to three concurrent terms of imprisonment stemming from a single

indictment, and the offender was resentenced prior to the expiration of the

concurrent terms of imprisonment. 2008-Ohio-1197, at ¶ 1-3.

{¶32} While the aforementioned cases do not directly answer the specific

question presented here, they do provide the policy lens through which similar

cases ought to be viewed. The Court in Hernandez explained that notifying an

offender of his post-release control obligations after he has already served the term

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of imprisonment “would circumvent the objective behind R.C. 2929.14(F) and

2967.28 to notify defendants of the imposition of postrelease control at the time of

their sentencing.” 2006-Ohio-126, at ¶ 28. Significant to the Court’s decision in

Hernandez was the fact that the offender had already been released from his

original term of imprisonment and had unknowingly violated his PRC. Id. at ¶ 5-6.

See also Simpkins, 2008-Ohio-1197, at ¶ 17. When the prison warden argued that

the trial court’s failure to properly notify the offender of PRC could be corrected

by simply holding a resentencing hearing, the Court rejected that argument—

comparing an after-the-fact PRC notification to an after-the-fact community

control notification. Hernandez, 2006-Ohio-126, at ¶ 31, citing State v. Brooks,

103 Ohio St.3d 134, 2004-Ohio-4746; Simpkins, 2008-Ohio-1197, at ¶ 17. The

Court in Hernandez observed that the purpose of R.C. 2929.19(B)(5), which

requires that the trial court provide offenders sentenced to community control with

notice of the possible consequences for violating their community control, is to

provide offenders with the notice before a violation of their community control.

2006-Ohio-126, at ¶ 31, citing Brooks, 2004-Ohio-4746, at ¶ 33. Similarly, the

purpose of R.C. 2929.19(B)(2)(c)-(e), formerly R.C. 2929.19(B)(3)(c)-(e), is to

provide the offender with notice of the possible consequences if he violates the

terms of post-release control before a violation of his post-release control has

actually occurred. Interpreting the terms “prison term” and “sentence” used in the

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aforementioned cases as the aggregate sentence on all convictions (Counts) in the

case is consistent with the purpose behind R.C. 2929.19(B)(2)(c)-(e), because the

offender would be notified about his PRC before his release from prison and,

consequently, before a violation of PRC could ever occur.

{¶33} Interpreting “prison term” and “sentence” used in the aforementioned

cases as the aggregate sentence on all convictions in the case is also consistent

with Ohio Revised Code Chapter 2929. For purposes of Chapter 2929, “prison

term” includes “[a] stated prison term,” and the “stated prison term” includes the

“combination of all prison terms and mandatory prison terms imposed by the

sentencing court.” R.C. 2929.01(BB), (FF). Similarly, the term “sentence”

includes the “combination of sanctions imposed by the sentencing court on an

offender who is convicted of or pleads guilty to an offense.” R.C. 2929.01(EE)

(emphasis added). Possible “sanction[s]” include terms of imprisonment imposed

under 2929.14. R.C. 2929.01(DD). Moreover, R.C. 2929.14(C)(6) provides that

“[w]hen consecutive prison terms are imposed pursuant to * * * [R.C. 2929.14],

the term to be served is the aggregate of all of the terms so imposed.” See also

Ohio Adm. Code § 5120-2-03.1 (“When consecutive stated prison terms are

imposed, the term to be served is the aggregate of all of the stated prison terms so

imposed.”). Consequently, throughout Chapter 2929, the words “prison term” and

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“sentence” can refer to multiple terms of imprisonment (sanctions under R.C.

2929.14) imposed by the sentencing court, i.e. the aggregate sentence.

{¶34} Interpreting the words “prison term” and “sentence” used in the

aforementioned cases as the aggregate sentence imposed on all convictions

(Counts) in the case is also consistent with R.C. 2929.191. In response to Jordan

and Hernandez, the General Assembly enacted H.B. 137, which provided, in

relevant part:

(A)(1) If, prior to the effective date of this section, a court imposed a sentence including a prison term of a type described in division (B)(3)(c) of section 2929.19 of the Revised Code and failed to notify the offender pursuant to that division that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison or to include a statement to that effect in the judgment of conviction entered on the journal or in the sentence pursuant to division (F)(1) of section 2929.14 of the Revised Code, at any time before the offender is released from imprisonment under that term * * *

(2) If a court prepares and issues a correction to a judgment of conviction as described in division (A)(1) of this section before the offender is released from imprisonment under the prison term the court imposed prior to the effective date of this section, the court shall place upon the journal of the court an entry nunc pro tunc to record the correction to the judgment of conviction and shall provide a copy of the entry to the offender or, if the offender is not physically present at the hearing, shall send a copy of the entry to the department of rehabilitation and correction for delivery to the offender. * * *

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R.C. 2929.191(A)(1), (2) (emphasis added) (eff. 7-11-06).4 As we alluded to

above, the words “prison term” and “sentence” in R.C. 2929.191 have been

expressly defined in R.C. 2929.01 to include the combination of prison terms, i.e.

the aggregate sentence, imposed upon an offender by the sentencing court.

{¶35} Moreover, R.C. 2929.191’s language must be interpreted in light of

the history in which it was enacted, the General Assembly’s response to Jordan

and Hernandez, and in light of its remedial purpose. Singleton, 2009-Ohio-6434,

at ¶ 48 (Pfeifer, J., dissenting) (R.C. 2929.191 was enacted in response to Jordan

and Hernandez); Id. at ¶ 65 (Lanzinger and Stratton, J.J., concurring in part,

dissenting in part) (same); Id. at ¶ 23 (describing R.C. 2929.191 as remedial);

(H.B. 137 Final Bill Analysis) (“amendments made in the act concerning post-

release control are non-substantive and merely clarify the prior law and thus are

remedial in nature”). Remedial laws are to be liberally construed to give effect to

their legislative purpose and to promote justice. R.C. 1.11. See also Clark v.

Scarpelli, 91 Ohio St.3d 271, 275 (2001), citing Curran v. State Auto. Mut. Ins.

Co., 25 Ohio St.2d 33, 38 (1971). The General Assembly’s purpose in enacting

R.C. 2929.191 was, in part, “to reaffirm that, prior to [the statute’s] effective date,

an offender subject to post-release control sanctions was always subject to the

post-release control sanctions after the offender’s release from imprisonment 4 R.C. 2929.191 was recently amended by H.B. 86 (eff. 9-30-11) to reflect changes in the sentencing statutes, however, the changes to R.C. 2929.191 were not substantive and do not affect the analysis herein.

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without the need for any prior notification or warning * * *.” (H.B. 137 Final Bill

Analysis). The General Assembly also declared that it intended R.C. 2929.191 to

apply “regardless of whether [the offenders] were sentenced prior to, or are

sentenced on or after, the act’s effective date * * *.” (Id.). See also Singleton,

2009-Ohio-6434, at ¶ 65 (Lanzinger and Stratton, J.J., concurring in part,

dissenting in part). In light of the foregoing, we conclude that interpreting the

words “prison term” and “sentence” as the aggregate sentence for all convictions

(Counts) in the case better effectuates the legislative purpose of R.C. 2929.191 by

ensuring that offenders are serving post-release control upon their release from

prison as required under R.C. 2967.28(B).

{¶36} The Court of Appeals, for its part, has taken different positions on

this precise issue. The Eighth District has held that it is the expiration of the

sentence on the specific conviction (Count) for which post-release control is

applicable, and not the offender’s ultimate release from prison, that determines

whether a court may correct a sentencing error and impose post-release control at

resentencing. State v. Dresser, 8th Dist. No. 92105, 2009-Ohio-2888, ¶ 11,

reversed on other grounds in State ex rel. Carnail v. McCormick, 126 Ohio St.3d

124, 2010-Ohio-2671. The defendant in Dresser pled guilty to two counts of rape

and two counts of pandering sexually-oriented material involving a minor in 2000.

2009-Ohio-2888, at ¶ 3. The trial court imposed an indefinite concurrent sentence

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of ten years to life on the rape charges and a concurrent sentence of five years on

the pandering charges. Id. The trial court further ordered that the concurrent rape

sentence was to run consecutive to the five-year concurrent sentence for

pandering; however, the trial court failed to impose post-release control on the

pandering counts. Id. In July 2007, the trial court held a hearing and advised the

defendant of his mandatory five-year term of PRC on the pandering convictions.

Id. at ¶ 4. The defendant appealed and argued that he could not be given PRC on

the pandering convictions since he had already served his five year concurrent

terms on those convictions by the time of the hearing. Id. at ¶ 5. The Eighth

District determined that, because the defendant had failed to file the original

sentencing transcript, there was no evidence as to which order the offenses were to

be served, and, in the absence of evidence to the contrary, the sentence for the rape

charges was to be served first. Id., citing State v. Dresser, 8th Dist. No. 90305,

2008-Ohio-3541 (Dresser I). Nevertheless, the Eighth District concluded the trial

court erred by failing to conduct a de novo hearing and remanded the matter for a

new sentencing hearing. Id.

{¶37} On remand, the trial court conducted a de novo sentencing hearing

and ordered the concurrent five-year sentence on the pandering charges be served

prior to the indefinite rape sentences. Id. at ¶ 6. The trial court then concluded

that post-release control could not be imposed on the pandering convictions,

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because the defendant had already served the five-year sentence on those

convictions. Id. Thereafter, the State appealed and argued that the trial court erred

by failing to impose the mandatory term of PRC. Id. at ¶ 7. The Eighth District

rejected the State’s argument, however, and concluded that the trial court could

not retroactively impose the mandatory PRC upon the defendant for his pandering

convictions since he had already served the sentence for those convictions by the

time of the resentencing hearing. Id. at ¶ 8.

{¶38} In reaching its decision in Dresser, the Eighth District stated that

“other districts have also considered this issue and have concluded that it is the

expiration of the prisoner’s journalized sentence, rather than the offender’s

ultimate release from prison that is determinative of the trial court’s authority to

resentence.” Id. at ¶ 11, citing State v. Bristow, 6th Dist. No. L-06-1230, 2007-

Ohio-1864; State v. Turner, 10th Dist. No. 06AP-491, 2007-Ohio-2187; and State

v. Ferrell, 1st Dist. No. C-070799, 2008-Ohio-5280. Although the Eighth District

correctly stated the general proposition of law from those cases, the appellate court

failed to apply the proposition of law correctly in Dresser. The facts of Dresser

are easily distinguishable from the facts in Bristow, Turner, and Ferrell. All of the

defendants in those cases, unlike Dresser, were sentenced to consecutive sentences

for convictions in separate cases stemming from separate indictments. Bristow,

2007-Ohio-1863, at ¶ 2; Turner, 2007-Ohio-2187, at ¶ 4; Ferrell, 2008-Ohio-

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5280, at ¶ 1. In fact, the defendants’ convictions in Turner and Ferrell were from

different counties. 2007-Ohio-2187, at ¶ 4; 2008-Ohio-5280, at ¶ 1.

Consequently, the “journalized sentence” to which the Courts in Bristow, Turner,

and Ferrell were referring to was the journalized sentence for an entire case—not

the sentence for a single conviction (Count) in a single case. Therefore, the

specific rule of law from Bristow, Turner, and Ferrell was that a trial court lacks

jurisdiction to impose PRC upon an offender when the sentence for the entire case

has been already served, even though the offender is still incarcerated on a

different case and the sentence in the second case was ordered to be served

consecutive to the first (now finished) case. This rule has been followed by

several other districts besides the first, sixth,5 and tenth, including this district.

State v. Arnold, 189 Ohio App.3d 238, 2009-Ohio-3636 (2nd Dist.); State v. Ables,

3d Dist. No. 10-11-03, 2011-Ohio-5873; State v. Henry, 5th Dist. No. 2006-CA-

00245, 2007-Ohio-5702; State v. Rollins, 5th Dist. No. 10CA74, 2011-Ohio-2652.

Despite the obvious differences between the facts and procedural history in

Bristow, Turner, Ferrell, and the facts and procedural history in Dresser, the

Eighth District still follows Dresser and continues to examine sentences on

5 The Sixth District does have one case not following this rule. State v. Lathan, 6th Dist. No. L-10-1359, 2011-Ohio-4136. This appears to be the only case that has held that consecutive sentences in separate cases constitute one aggregate sentence for purposes of resentencing for proper imposition of PRC. The Sixth District has other cases following the rule it previously set forth in Bristow, supra. State v. Larkins, 6th Dist. No. H-10-010, 2011-Ohio-2573; State v. Helms, 6th Dist. No. L-10-1079, 2010-Ohio-6520.

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specific convictions (Counts) for purposes of determining whether a trial court has

jurisdiction to impose PRC at a resentencing hearing. State v. Cobb, 8th Dist. No.

93404, 2010-Ohio-5118; State v. O’Hara, 8th Dist. No. 95575, 2011-Ohio-3060.

{¶39} The Ninth District, on the other hand, has concluded that, for

purposes of determining whether a trial court has jurisdiction to resentence an

offender to properly impose PRC under Hernandez and its progeny, a “journalized

sentence that includes consecutive sentences does not expire until the aggregate

time of the consecutive sentences expires.” State v. Deskins, 9th Dist. No.

10CA009875, 2011-Ohio-2605, ¶ 19. The defendant in that case pled guilty to

five counts of rape, and, in September 2003, the trial court sentenced him to serve

five years imprisonment on each count and further order that the terms be served

consecutively for an aggregate term of twenty-five years. Id. at ¶ 2-3.6 In April

2010, the trial court held a resentencing hearing and resentenced the defendant to

the same twenty-five-year aggregate prison term, but this time properly imposed

the mandatory five-year term of PRC. Id. at ¶ 4. Like Holdcroft herein, the

defendant in Deskins argued that the trial court lacked jurisdiction to impose PRC

on at least one of his convictions since he had already served seven years by the

6 It is not clear from the appellate court’s decision whether or not the trial court specified the order in which the defendant was to serve the consecutive prison terms, i.e. count one first, count two second, etc. Deskins, 2011-Ohio-2605, at ¶ 2-3.

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time of the resentencing hearing, but the Ninth District rejected this argument and

found that the defendant’s journalized sentence had not expired. Id. at ¶ 19.

{¶40} To reach its decision, the Ninth District relied upon the Fifth

District’s decision in State v. Tharp, 5th Dist. No. 07-CA-9, 2008-Ohio-3995. The

defendant in Tharp pled no contest and was found guilty of two counts of

burglary, second degree felonies; one count of theft of a motor vehicle, a fourth

degree felony; two counts of theft of a firearm, fourth degree felonies; one count

of breaking and entering, a fifth degree felony; and two counts of theft in

violation, fifth degree felonies. Id. at ¶ 2. On November 1, 2000, the trial court

sentenced the defendant to two years on each of the two burglary convictions, one

year on the theft of a motor vehicle conviction, one year on the breaking and

entering conviction, six months on each of the two theft of a firearm convictions,

and six months on each of the two theft convictions. Id. at ¶ 3. The trial court

ordered that the terms of imprisonment be served consecutively for an aggregate

eight years imprisonment, but the trial court did not specify which term of

imprisonment was to be served first. Id. at ¶ 3, 11. On October 16, 2006, the trial

court held a resentencing hearing to properly impose PRC. Id. at ¶ 4. On appeal,

the defendant argued that the trial court lacked jurisdiction to impose PRC upon

his burglary convictions (Counts One and Two) since the termination judgment

entry listed the burglary convictions first, and he had already served the four years

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for those convictions by the time of the resentencing hearing. Id. at ¶ 12. The

Fifth District rejected the defendant’s argument, reasoning as follows:

The charges for which Appellant was found guilty and sentenced to arise from a single indictment issued on February 24, 2000. The trial court’s sentencing entry stated that each term was to be served consecutively, but the trial court generally stated as to each count that, “said period of incarceration to be served consecutive to the time herein imposed.” The trial court did not specify that certain counts were to be served consecutively to another. Accordingly, we find Appellant’s journalized sentence for an aggregate term of eight years does not expire until November 2008. The trial court did not lack jurisdiction to correct Appellant’s invalid sentence to include post release control because Appellant’s journalized sentence had not yet expired when he was resentenced.

Id. at ¶ 14.

{¶41} While the trial court sub judice did specify that Holdcroft’s ten-year

aggravated arson sentence be served first, we do not think this fact, alone,

sufficiently distinguishes our case from Deskins and Tharp, supra. Although the

Fifth District did rely upon this fact, in part, when it reached its decision, it also

specifically noted that the defendant’s sentence arose from a single indictment. Id.

Since its decision in Tharp, the Fifth District has distinguished Turner, Ferrell,

and Arnold, at least in part, on the basis that the defendants in those cases were

sentenced in separate cases. State v. Booth, 5th Dist. No. 2010CA00155, 2011-

Ohio-2557, ¶ 12-13. The Fifth District has also more recently clarified the

applicable rule to be gleaned from Bristow, Turner, Ferrell, and Arnold as

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follows: “where an offender has completed his sentence on the case for which the

court has resentenced him under R.C. 2929.191, the resentencing entry is void for

lack of jurisdiction even if the offender remains incarcerated on another case at the

time of the resentencing.” Id., at ¶ 12, citing State v. Henry, 5th Dist. No. 2006-

CA-00245, 2007-Ohio-5702. See also Rollins, 2011-Ohio-2652, at ¶ 10 (“the

language of R.C. 2929.191(A)(1) which permits resentencing “at any time before

the offender is released from prison on that term” refers to the Richland County

sentence. The sentence from Paulding County is a completely separate term of

imprisonment, imposed by a different court under a separate indictment and case,

and imposed roughly ten months after appellant began to serve his term of

imprisonment from Richland County.”).

{¶42} After reviewing the aforementioned cases, we agree with the Fifth

District that the rule in Bristow, Turner, Ferrell, and Arnold applies where the

offender has been sentenced in separate cases and the separate cases have been

ordered to be served consecutively. We do not agree with the Eighth District’s

expansion of this rule to include convictions (Counts) in a single case arising from

a single indictment like the case herein. Therefore, we hold that, for purposes of

determining whether a trial court has jurisdiction to resentence a defendant to

properly include PRC, a journalized sentence for a single case that includes

consecutive sentences on separate convictions (Counts) does not expire until the

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aggregate time of the consecutive sentences for all the convictions (Counts)

expires. Deskins, 2011-Ohio-2605, at ¶ 19.

{¶43} Our holding here is not only consistent with the Ohio Revised Code

and the applicable case law but is also consistent with public policy. As we

previously mentioned, our conclusion here is consistent with the policy of

notifying the offender of his PRC prior to a possible violation of the same.

Moreover, our conclusion here ensures that offenders are actually serving their

PRC—PRC, which was determined to be appropriate as a matter of public policy

as evidenced in R.C. 2967.28. This strong public policy of ensuring that offenders

are serving post-release control was further expressed when the General Assembly

promptly passed of H.B. 137 (enacting R.C. 2929.191) in response to the Ohio

Supreme Court’s decisions in Jordan and Hernandez. The Ohio Supreme Court

has also recognized this same public policy in its post-release control cases. See

Simpkins, 2010-Ohio-1197, at ¶ 26 (“Although res judicata is an important

doctrine, it is not so vital that it can override ‘society’s interest in enforcing the

law, and in meting out the punishment the legislature has deemed just.’”) (quoting

State v. Beasley, 14 Ohio St.3d 74, 75 (1984)); Fischer, 2010-Ohio-6238, at ¶ 21-

23. Finally, our decision encourages multi-count indictments (a single case) rather

than separate indictments (separate cases), which enhances judicial economy,

diminishes inconvenience to witnesses, and minimizes the possibility of

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incongruous results for the defendant. See State v. Schaim, 65 Ohio St.3d 51, 58

(1992) (joinder under Crim.R. 8(A)).

{¶44} Since Holdcroft had not yet completed his aggregate fifteen-year

sentence before the resentencing hearing was held, the trial court had jurisdiction

to sentence him to five years of mandatory PRC on his aggravated arson

conviction (Count One).

{¶45} Holdcroft’s first assignment of error is, therefore, overruled.

{¶46} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

ROGERS, P.J. concurs.

/jlr

SHAW, P.J., Concurs in Part and Dissents in Part.

{¶47} In its decision to overrule the first assignment of error, the majority

acknowledges that the Supreme Court of Ohio has not resolved the issue presented

of whether a trial court has the authority to impose postrelease control on a

defendant who has already completed his or her prison term for a particular

offense, but remains imprisoned on another offense arising from the same case. In

proposing its resolution of this issue, the majority sets forth a statutory and case

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analysis that the majority believes precludes the reviewing court from considering

the specific sentence ordered by the trial court directed to each individual offense

charged within an indictment. Instead the majority would require the reviewing

court to base its decision only upon a "lump-sum," aggregate analysis which

essentially forges the entire "indictment," or "indictments" and the aggregate

"sentence" or "sentences" into a single, overall "prison term."

{¶48} According to the majority, the multiple or consecutive sentences

contained within this single "prison term" are then always capable of later being

parsed and interpreted in favor of the state, for purposes of interpreting prison time

served and cleaning up PRC errors, (or perhaps even for interpreting double

jeopardy implications), without regard to how many different individual offenses

are involved, without regard to the specific terms of any individual sentencing

orders contained within each judgment entry and without regard to how many of

these individual sentences, according to the specific terms of the judgment entry,

have in fact been completely served at the time any of these other issues are raised.

As a consequence, the majority effectively rules in the case before us that where

there are multiple sentences within a single case, the trial court does not have the

authority to specify which individual sentence is to be served first, regardless of

what it states in the judgment entry.

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{¶49} Because I believe the majority's proposal to shift our analysis of

these cases from the specific sentence imposed by the trial court pertaining to each

individual offense in any given indictment, toward an analysis based only upon the

overall aggregate sentence and aggregate prison term is problematic in general and

unwarranted in this particular case, I respectfully dissent from the disposition of

the first assignment of error. I concur in the disposition of the remaining

assignments of error.

{¶50} My first concern is that the majority decision disregards the specific

terms of the judgment entry of sentence in this case, which, as even the majority

concedes, clearly indicates that the ten year prison term for count one would be

served prior to the remaining prison terms, and hence the sentence for count one

would have been completed at the time the PRC issue regarding count one arose. I

see no sound reason for disregarding the specific language of a trial court's own

judgment entry of sentence in interpreting matters pertaining to that sentence.

{¶51} Thus, even if the majority rationale were to be considered as a viable

"default" alternative employed to determine the order of sentences in those cases

where the sentencing entry is silent on the nature of the consecutive sentences,

there is no reason to apply it in the present case where the trial court itself has

given us all the information we need to decide the question. And as noted above, it

seems to me that by disregarding the trial court's specific sentencing language in

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this case, we are effectively ruling that trial courts in general do not have the

authority to specify the order of consecutive sentences in a judgment entry of

sentence; something that I question whether we have the authority to do.

{¶52} Second, and perhaps more importantly, beyond merely deviating

from what I believe to be the sounder appellate approach of addressing each

specific offense, conviction and sentence for each count in the indictment, I

believe the position taken by the majority runs counter to fundamental sentencing

principles in Ohio jurisprudence which require courts to separately analyze the

specific sentence imposed for each offense. The Supreme Court of Ohio has stated

the following with regard to the purpose underpinning Ohio felony-sentencing

statutes.

Ohio’s felony-sentencing scheme is clearly designed to focus the judge’s attention on one offense at a time. Under R.C. 2929.14(A), the range of available penalties depends on the degree of each offense. For instance, R.C. 2929.14(A)(1) provides that “[f]or a felony of the first degree, the prison term shall be three, four, five, six, seven, eight, nine, or ten years.”7 (Emphasis added.) R.C. 2929.14(A)(2) provides a different range for second-degree felonies. In a case in which a defendant is convicted of two first-degree felonies and one second-degree felony, the statute leaves the sentencing judge no option but to assign a particular sentence to each of the three offenses, separately. The statute makes no provision for grouping offenses

7 We note that the legislature has since amended the felony-sentencing statutes to include new ranges of available penalties for some offenses. For example, R.C. 2929.14(A)(1) now provides, “[f]or a felony of the first degree, the prison term shall be three, four, five, six, seven, eight, nine, ten, or eleven years.” However, the overriding offense-specific approach to the felony-sentencing scheme remains the same.

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together and imposing a single, “lump” sentence for multiple felonies.

Although imposition of concurrent sentences in Ohio may appear to involve a “lump” sentence approach, the opposite is actually true. Instead of considering multiple offenses as a whole and imposing one, overarching sentence to encompass the entirety of the offenses as in the federal sentencing regime, a judge sentencing a defendant pursuant to Ohio law must consider each offense individually and impose a separate sentence for each offense. See R.C. 2929.11 through 2929.19. * * * Only after the judge has imposed a separate prison term for each offense may the judge then consider in his discretion whether the offender should serve those terms concurrently or consecutively. * * * Under the Ohio sentencing statutes, the judge lacks the authority to consider the offenses as a group and to impose only an omnibus sentence for the group of offenses.

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶¶ 8-9. (Internal Citations

Omitted) (Emphasis added).

{¶53} In addition, the Supreme Court in Saxon specifically addressed the

term “sentence” as defined in R.C. 2929.01(E)(E), the former R.C. 2929.01(F)(F),

and reached a conclusion that appears to be inconsistent with majority’s regarding

how the term “sentence” is applicable to Ohio’s felony-sentencing scheme.

[Revised Code Section] 2929.01(FF) defines a sentence as “the sanction or combination of sanctions imposed by the sentencing court on an offender who is convicted of or pleads guilty to an offense.”8 [The State] in the case at bar points to the “combination of sanctions” language in this definition and urges us to find that that [sic] language necessarily indicates that a “sentence” includes all sanctions given for all offenses and is not 8 The term sentence is now codified under R.C. 2929.01(FF) which provides the same definition stated above.

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limited to the sanction given for just one offense. But a trial court may impose a combination of sanctions on a single offense, for example, a fine and incarceration. See R.C. 2929.15 to 2929.18 * * *. Therefore, [the State’s] insistence that the “combination of sanctions” language supports [it’s] contentions is misplaced. This language merely recognizes the availability of multiple sanctions for a single offense.

Further, the statute explicitly defines “a sentence” as those sanctions imposed for “an offense.” The use of the articles “a” and “an” modifying “sentence” and “offense” denotes the singular and does not allow for the position urged by [the State]. A finding that the statute intended to package the sanctions for all sentences into one, appealable bundle would ignore the plain meaning of the statutory language: a sentence is the sanction or combination of sanctions imposed on each separate offense. If the legislature had intended to package sentencing together, it easily could have defined “sentence” as the sanction or combination of sanctions imposed for all offenses.

Saxon at ¶¶ 12-13. (Emphasis in original).

{¶54} Notably, the Supreme Court also appears to apply this offense-

specific approach to sentencing in the context of postrelease control. In Bezak¸ the

Supreme Court expressly stated in its syllabus that “[w]hen a defendant is

convicted of or pleads guilty to one or more offenses and postrelease control is not

properly included in a sentence for a particular offense, the sentence is void. The

offender is entitled to a new sentencing hearing for that particular offense.”

Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, syllabus.

{¶55} It is also notable that the Supreme Court in Fischer limited its

decision to only overrule a specific portion of Bezak. The Supreme Court made it

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clear that it revisited “only one component of the holding in Bezak, and we

overrule only that portion of the syllabus that requires a complete resentencing

hearing rather than a hearing restricted to the void portion of the sentence.”

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 36. Thus, the Supreme Court left

intact its approach to analyze a sentence for a particular offense when reviewing

whether a defendant is entitled to be resentenced for purposes of the trial court

properly imposing postrelease control.

{¶56} In addition, the statutory scheme for imposing postrelease control in

R.C. 2967.28 appears to mimic the felony-sentencing statute analyzed by the

Supreme Court in Saxon. In particular, the terms “sentence” and “prison term” are

used to refer to the individual sanction imposed by the trial court for a particular

offense. Like the felony-sentencing scheme, the statute governing postrelease

control assigns specific terms of postrelease control according to the degree of

felony or category of offense—i.e., felony sex offense. For instance, R.C.

2967.28(B) provides that

Each sentence to a prison term for a felony of the first degree, for a felony of the second degree, for a felony sex offense, or for a felony of the third degree that is not a felony sex offense and in the commission of which the offender caused or threatened to cause physical harm to a person shall include a requirement that the offender be subject to a period of post-release control imposed by the parole board after the offender’s release from imprisonment. * * * Unless reduced by the parole board pursuant to division (D) of this section when authorized under

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that division, a period of post-release control required by this division for an offender shall be of one of the following periods:

(1) For a felony of the first degree or for a felony sex offense, five years;

(2) For a felony of the second degree that is not a felony sex offense, three years;

(3) For a felony of the third degree that is not a felony sex offense and in the commission of which the offender caused or threatened physical harm to a person, three years.

(C) Any sentence to a prison term for a felony of the third, fourth, or fifth degree that is not subject to division (B)(1) or (3) of this section shall include a requirement that the offender be subject to a period of post-release control of up to three years after the offender’s release from imprisonment, if the parole board, in accordance with division (D) of this section, determines that a period of post-release control is necessary for that offender * * *.

{¶57} Nowhere in R.C. 2967.28 does the legislature direct a court to treat a

“sentence” or a “prison term” as the aggregate sentence arising from the case for

purposes of imposing postrelease control. In fact, the statute makes no provisions

for grouping offenses together and imposing a single aggregate term of postrelease

control for multiple felonies, despite the fact that one or more periods of

postrelease control are to be served concurrently. See R.C. 2967.28(F)(4)(c).9

Rather, the legislature in R.C. 2967.28 chose to consistently use the terms

9 Revised Code Section R.C. 2967.28(F)(4)(c) states, “[i]f an offender is subject to more than one period of post-release control, the period of post-release control for all of the sentences shall be the period of post- release control that expires last, as determined by the parole board or court. Periods of post-release control shall be served concurrently and shall not be imposed consecutively to each other.”

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“sentence” and “prison term” to refer to a sentence for a particular offense for

purposes of imposing postrelease control.

{¶58} Finally, as noted earlier, I find it significant in this case that the trial

court specifically ordered Holdcroft to serve the ten-year sentence for the

aggravated arson conviction first, with the five-year sentence for the arson

conviction to be served consecutive to the aggravated arson sentence. The Eighth

District in State v. Dresser also found this fact persuasive in resolving the precise

issue before us. See State v. Dresser, 8th Dist. No. 92105, 2009-Ohio-2888, ¶ 11,

reversed on other grounds in State ex re. Carnail v. McCormick, 126 Ohio St.3d

124-2010-Ohio-2671. The court in Dresser found dispositive the fact that the trial

court had ordered the defendant to serve his five-year sentence for pandering prior

to his indefinite ten-year to life sentence for rape. Id. The court relied on Bezak

and concluded the following:

Once an offender has served the prison term ordered by the trial court, he or she cannot be subject to resentencing in order to correct the trial court’s failure to impose postrelease control at the original hearing. State v. Bezak, 114 Ohio St.3d 420, 2008- Ohio-3250. Here, Dresser had completed his [five-year pandering] sentence; consequently, the trial court could not impose postrelease control, after the fact, on the pandering charges.

Dresser at ¶ 8.

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{¶59} The majority cites decisions from two other appellate districts in

support of its position that the “aggregate sentence,” and not the sentence imposed

for a particular offense, is to be considered when a defendant is resentenced to

properly impose postrelease control. Supra at ¶¶ 39-42. However, as noted by the

majority, the trial courts in both of those cases did not specify the order in which

the consecutive sentences were to be served.

{¶60} For all of these reasons, I would sustain the first assignment of error

and find that the trial court was without the authority to impose the mandatory

five-year term of postrelease control required for the aggravated arson conviction

due to the fact that Holdcroft had already served his sentence for that offense.

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