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State of Ohio v. Alan Hausen

October 31, 2011

STATE OF OHIO APPELLANT
v.
ALAN HAUSEN APPELLEE



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 06CR069967

The opinion of the court was delivered by: Belfance, P.J.

ss:

DECISION AND JOURNAL ENTRY

{¶1} The State of Ohio appeals from the judgment of the Lorain County Court of Common Pleas resentencing Defendant-Appellee Alan Hausen. For the reasons set forth below, we vacate the resentencing entry and reinstate Mr. Hausen's original sentence.

I.

{¶2} In March 2006, Mr. Hausen was indicted on one count of importuning in violation of R.C. 2907.07(D)(2), listed in the indictment as a felony of the fourth degree and one count of possession of criminal tools in violation of R.C. 2923.24(A), a felony of the fifth degree. Mr. Hausen pleaded guilty to the indictment and was sentenced in May 2006 to a total prison term of eighteen months and mandatory post-release control of up to five years. Mr. Hausen did not appeal.

{¶3} In 2010, after Mr. Hausen had finished his prison sentence and while he was on post-release control, he filed a motion to withdraw his plea. In his motion, he essentially asserted that the indictment was insufficient to charge a felony of the fourth degree, as a violation of R.C. 2907.07(D)(2) was only a fourth degree felony if there was a prior violation of the statute and such was not alleged in the indictment; thus, he argued his plea was not knowingly and intelligently entered. The trial court denied his motion, but sua sponte vacated the judgment of conviction and sentence and scheduled a resentencing hearing. The trial court resentenced Mr. Hausen for a fifth degree felony violation of R.C. 2907.07(D)(2) and a fifth degree felony violation of R.C. 2923.24(A). Mr. Hausen was sentenced to a concurrent term of one year in prison. The trial court refused to impose any post-release control obligations as Mr. Hausen had completed his prison sentence. The State filed a motion for leave to appeal, which this Court granted.

II. ASSIGNMENT OF ERROR

"THE TRIAL COURT ACTED WITHOUT JURISDICTION WHEN IT VACATED HAUSEN'S CONVICTION AND SENTENCE AND CONDUCTED THE RE-SENTENCING HEARING OF JUNE 17, 2010."

{¶4} The State asserts in its sole assignment of error that the trial court lacked jurisdiction to vacate Mr. Hausen's convictions and sentence and to resentence him.

{¶5} This Court can locate no authority that would permit the trial court to sua sponte vacate in toto Mr. Hausen's judgment of conviction and sentence and resentence him after he had served his entire prison term. The trial court noted that Mr. Hausen was convicted of a fourth degree felony when the indictment recited a fifth degree felony. The trial court appears to have concluded that it had authority to sua sponte vacate Mr. Hausen's convictions and sentence because the original sentencing court had no jurisdiction to enter the sentence.

{¶6} Mr. Hausen pleaded guilty to a fifth degree felony violation of R.C. 2923.24(A) and a fourth degree felony violation of R.C. 2907.07(D)(2). As Mr. Hausen did not object to the indictment and pleaded guilty to the two offenses, he waived any deficiencies in the indictment. See State v. Neal, 9th Dist. Nos. 24392, 24398, 2009-Ohio-3170, at ¶3, quoting State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, at ¶73 ("[A] defendant 'waive[s] any deficiency in the indictment by failing to object to the indictment and by pleading guilty to the offense.'"). Further, Mr. Hausen was originally sentenced to twelve months in prison for a fifth degree felony violation of R.C. 2923.24(A) and eighteen months for a fourth degree felony violation of R.C. 2907.07(D)(2). Both sentences are within the range permitted by the sentencing statute. See R.C. 2929.14(A)(4)-(5). Thus, we see no basis for the trial court to sua sponte vacate Mr. Hausen's convictions and sentences in their entirety. Accordingly, the State's argument has merit.

{¶7} Nonetheless, a review of the 2006 judgment entry reveals that the post-release control notification was erroneous and the trial court may have recognized this error. Mr. Hausen was subject to a mandatory term of five years of post-release control, as he was convicted of a felony sex offense, see R.C. 2967.28(B)(1); however, the 2006 judgment entry states that Mr. Hausen was subject to a mandatory term of post-release control of "up to a maximum of [5] years[.]" In addition, the trial court failed to include in the 2006 judgment entry the consequences Mr. Hausen faced if he violated post-release control. The Supreme Court has held that "when a judge fails to impose statutorily mandated postrelease control as part of a defendant's sentence, that part of the sentence is void and must be set aside." (Emphasis in original.) State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, at ¶26; see, also, State v. Mundy, 9th Dist. No. 08CA0047-M, 2009-Ohio-6373, at ¶¶4-5 (concluding that the use of "up to" rendered the sentence void). However, as Mr. Hausen has completed his original prison term, he cannot be subjected to another sentencing to correct the error. See State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, at ¶70. "Furthermore, in ...


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