COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78170 STATE OF OHIO : : ACCELERATED DOCKET PLAINTIFF-APPELLEE : : JOURNAL ENTRY vs. : : AND PAUL HART : : OPINION DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: MAY 31, 2001 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-357444. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiff-appellee: WILLIAM D. MASON, Esq. Cuyahoga County Prosecutor CHRISTOPHER L. FREY, Esq. Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: JOHN L. REULBACH, Jr., Esq. 14701 Detroit Avenue, Suite 575 Lakewood, Ohio 44107 -2- SWEENEY, JAMES D. P.J.: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 11.1. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983) 11 Ohio App.3d 158. The defendant-appellant Paul Hart appeals from his plea for aggravated assault with a firearm specification in violation of R.C. 2903.12. The appellant was sentenced to a term of incarceration of eighteen months for aggravated assault plus an additional year for the firearm specification, to be served prior to and consecutively with the eighteen-month sentence. The appellant asserts only one assignment of error: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO ADVISE THE APPELLANT (DEFENDANT) AT EITHER THE TIME OF PLEA OR SENTENCING, THAT POST-RELEASE CONTROL WAS A PART OF APPELLANT'S (DEFENDANT'S) SENTENCE, THEREBY PRECLUDING IMPOSITION OF THE SAME BY THE ADULT PAROLE AUTHORITY. The appellant asserts that the trial court erred in failing to follow the dictates of Woods v. Telb (2000), 89 Ohio St.3d 504 when it neglected to inform him that he would be subject to post-release control pursuant to R.C. 2967.28. While not properly delineated in his brief, at oral argument the appellant asserted that he was not informed of post-release control until after he had served his term of incarceration. The appellant posits that subsequently informing him that he is subject to post-release control is not sufficient notice and that the Adult Parole Authority should be precluded from exercising control over him. The appellee concedes that the trial -3- court failed to inform the appellant regarding the Adult Parole Authority's ability to impose post-release control, but urges that the appellant be re-sentenced. The failure to inform a defendant, during either the plea or sentencing hearing he/she is, or may be, subject to post-release control pursuant to R.C. 2967.28, warrants a reversal and remand for re-sentencing. See State v. Williams (Dec. 7, 2000), Cuyahoga App. No. 76816, unreported; State v. Dillon (Nov. 3, 2000), Cuyahoga App. No. 77847, unreported; State v. Wright (Sept. 28, 2000), Cuyahoga App. Nos. 77748, unreported. However, in the case sub judice, the appellant had served his prison term prior to the attempt to impose post-release control. This court has previously held that such an attempt is a violation of the separation of powers doctrine. See State v. Morrissey (Dec. 18, 2000), Cuyahoga App. No. 77179, unreported. The appellant's assignment of error is well taken. Judgment reversed and post-release control is ordered discharged. -4- This cause is reversed and post-release control is ordered discharged. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. TERRENCE O'DONNELL, J., CONCURS WITH SEPARATE CONCURRING OPINION; ANNE L. KILBANE, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE CONCURRING OPINION. ______________________________ JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22 (E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78170 STATE OF OHIO : : PLAINTIFF-APPELLEE : : -vs- : CONCURRING OPINION : PAUL HART : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: May 31, 2001 JUDGE TERRENCE O'DONNELL, CONCURRING: I concur with the with the majority's conclusion, but for different reasons. I write separately because I believe the imposition of post-release control in this case violates the multiple sentence protections of the double jeopardy clause. In this case, the trial court failed to inform Hart that he would be subject to post-release control during his plea or sentencing hearings. The state urges that we should remand the matter for a re-sentencing to fulfill these statutory requirements. As a general rule, such a case could be reversed and remanded for re-sentencing, but here, the state never filed a direct appeal from the imposition of the original sentence. The state could have filed a timely appeal if it wanted post-release control to be included in Hart's sentence. However, Hart has now already served and completed his prison term. As this court stated in State v. Burnside (Dec. 16, 1999), Cuyahoga App. No. 76035, unreported: Courts may resentence a defendant who has not begun to serve his or her sentence to a more severe sentence without violating the multiple-sentence protections of the Double Jeopardy Clause because, before its execution, a sentence lacks the constitutional finality of a verdict of acquittal. State v. Meister (1991), 76 Ohio App.3d 15, 17; State v. Vaughn (1983), 10 Ohio App.3d 314, 316; Columbus v. Messer (1982), 7 Ohio App.3d 266, 268. It is -2- well established, however, that once a valid sentence has been executed, a trial court no longer has the power to modify the sentence except as provided by the General Assembly. State v. Hayes (1993), 86 Ohio App.3d 100, 112, citing State v. Addison (1987), 40 Ohio App.3d 7; Meister, supra. For these reasons, I have concluded that re-sentencing Hart would violate the constitutional prohibitions against double jeopardy, and therefore I concur with the conclusion reached by the majority. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78170 STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : : C O N C U R R I N G : PAUL HART : O P I N I O N : Defendant-Appellant : : : DATE: MAY 31, 2001 ANNE L. KILBANE, J., CONCURRING IN JUDGMENT ONLY: On this appeal from a conviction and sentence imposed by Judge Thomas Patrick Curran, I concur in the result, but write separately to clarify my partial agreement with both of my fellow jurist's opinions. Hart pleaded guilty to aggravated assault with a firearm specificationin exchange for an agreed sentence of 2/ years. The possibility of the imposition of post-release control was not part of his sentence and I agree with the conclusions that he cannot be subjected to such control and that he cannot now be resentenced to impose it. The majority author is correct that Hart cannot be subject to post-release control because he has completed his prison term, and an imposition of any control after such time violates Ohio's separation of powers doctrine, citing State v. Morrissey (Dec. 18, -2- 2000), Cuyahoga App. No. 77179, unreported. He gratuitously comments, however, that, had Hart not completed his sentence, he would be subject to resentencing through which the potential for post-release control would then be imposed. The concurring opinion agrees that the sentencing error could have been corrected, but points out that the State did not appeal Hart's sentence, and avers that resentencing Hart after he has served his prison term would violate constitutional protections against double jeopardy. I agree that Hart's sentence could have been reviewed if the State had appealed, but disagree with the suggestion that the State could have appealed at any time prior to the completion of Hart's prison term. The State did not take an appeal as of right within the time allowed by App.R. 4, and has no right to take a delayed appeal. App.R. 5; State v. Hartikainen (2000), 137 Ohio App.3d 421, 423, 738 N.E.2d 881, 882-83. Moreover, it would be manifestly unfair to grant relief to the State in response to Hart's appeal, because such a result would punish offenders who have the temerity to appeal their sentences, chilling all defendants' rights of appeal. State v. Dawson (1990), 164 Ariz. 278, 792 P.2d 741; State v. Fraser (La.1986), 484 So.2d 122; see, also, 4 American Bar Association Standards for Criminal Justice (2 Ed.1980) 20-30, Standard 20-3.3(b). Hart cannot be remanded for resentencing because the State failed to appeal, a conclusion that has nothing to do with the completion of his prison sentence. -3- Finally, although I would be proud to concur in an opinion holding that constitutional double jeopardy protections prohibit resentencing in this case, in order to do so I would feel constrained to provide a lengthy explication of the matter, which I find unnecessary here. We can resolve this case on narrower grounds -- namely, that the State did not appeal Hart's sentence and therefore waived any error in its imposition. .