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State v. Griffin

Court of Appeals of Ohio, Ninth District

June 26, 2013

STATE OF OHIO Appellee
v.
WILLIAM D. GRIFFIN Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. CR 04 08 2840 CR 05 01 0306

MELISSA M. PRENDERGAST, Assistant State Public Defender, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

JENNIFER 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.

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 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 ...

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