Robbery and Attempted Escape: 2003 Common Pleas Court Proceedings
{¶ 2} In February 2003, in separate indictments, relator, Brandon Cruzado, was charged with one count of robbery, a felony of the second degree, with an accompanying firearm specification, and one count of attempted escape, a felony of the third degree. On April 7, 2003, Cruzado entered guilty pleas to the robbery and attempted-escape charges. In the written pleas that Cruzado signed, he was notified about postrelease control:
{¶ 3} “If you are sentenced to prison for a 2nd or a 3rd degree felony where the 3rd degree felony involves causing or threatening physical harm, you will have mandatory post-release control of three (3) years. If you receive prison for a non-violent 3rd, 4th, or 5th degree felony, you may be given up to three (3) years of post-release control.”
{¶ 4} At the plea hearing, respondent, Lorain County Common Pleas Court Judge Edward M. Zaleski, accepted Cruzado’s guilty pleas after determining that the pleas were knowingly, intelligently, and voluntarily made. At this hearing, Cruzado responded affirmatively to Judge Zaleski’s asking, “Do you understand that upon your release from the institution, you will have five years of post-release control with the Adult Parole Authority and the Adult Parole Authority could return you to prison for up to nine months if you violate their conditions to a maximum of 50 percent additional time?”
{¶ 5} On July 7, 2003, Judge Zaleski again notified Cruzado that after he finished serving his prison sentence, he would be placed on postrelease control:
{¶ 6} “Now, upon your release from the institution, you will have five years of post-release control with the Adult Parole Authority. And if you violate their terms, they may impose a nine month prison term for each violation up to a maximum of 50 percent of the stated term originally imposed. Fifty percent of three years is 1-1/2 years.”
{¶ 7} Judge Zaleski’s specification of a postrelease-control period of five years at both the plea and sentencing hearings was incorrect because Cruzado’s second-degree-felony conviction for robbery required a postrelease-control period of only three years. R.C. 2967.28(B)(2). There was no objection made to the erroneous statements at either hearing.
Resentencing: 2006 Common Pleas Court Proceeding
{¶ 9} On May 24, 2006, before the expiration of Cruzado’s three-year sentence for his robbery conviction, Judge Zaleski held a resentencing hearing at which he informed Cruzado of his mandatory three-year period of postrelease control:
{¶ 10} “[U]pon your release from the institution, you will be placed on post-release control for a period of a mandatory three years. For violating post-release control conditions, the Adult Parole Authority or Parole Board may impose a more restrictive or longer controlled sanction, including a nine month prison term, for each violation up to a maximum of 50 percent of the stated term originally] imposed.”
{¶ 11} Judge Zaleski also issued a judgment entry reflecting his resentencing of Cruzado to a three-year term for his robbery conviction and a mandatory three-year period of postrelease control. Upon the expiration of his robbery sentence, Cruzado was released from prison and was placed on a three-year term of postrelease control, as ordered by Judge Zaleski’s resentencing order.
Prohibition Case
{¶ 12} Cruzado filed this action for a writ of prohibition two days before his resentencing to prevent Judge Zaleski from conducting the hearing. At the time, Cruzado’s sentence for his attempted-escape conviction had expired, and his sentence for his robbery conviction was set to expire on June 6, 2006. On June 2, we granted an alternative writ and ordered the parties to submit evidence and briefs. The Ohio Public Defender submitted amicus curiae briefs in support of Cruzado.
{¶ 13} This cause is now before us for our consideration of the merits.
{¶ 14} Because the resentencing hearing has already occurred, Cruzado now requests a writ of prohibition to vacate the resentencing and void his postrelease control. Judge Zaleski counters that this case is now moot because prohibition will not issue to review an accomplished act.
{¶ 15} Judge Zaleski’s contention lacks merit. A “prohibition action is not necessarily rendered moot when the act sought to be prevented occurs before a
{¶ 16} Nevertheless, if the lower court does not patently and unambiguously lack jurisdiction to proceed, that court has general subject-matter jurisdiction to determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal. Dzina v. Celebrezze,
{¶ 17} Cruzado asserts that he is entitled to the writ because Judge Zaleski patently and unambiguously lacked jurisdiction to modify his 2003 sentencing entry to include postrelease control.
{¶ 18} It is true, as Cruzado asserts, that “trial courts lack authority to reconsider their own valid final judgments in criminal cases.” State ex rel. White v. Junkin (1997),
{¶ 19} It is equally true, however, that this general rule is subject to two exceptions under which the trial court retains continuing jurisdiction. State v. Garretson (2000),
{¶ 21} In Jordan at ¶ 27, we held that “when a trial court fails to notify an offender about postrelease control at the sentencing hearing but incorporates that notice into its journal entry imposing sentence, it fails to comply with the mandatory provisions of R.C. 2929.19(B)(3)(c) and (d), and, therefore, the sentence must be vacated and the matter remanded to the trial court for resentencing.”
{¶ 22} Subsequently, in Hernandez v. Kelly,
{¶ 23} We reasoned that the trial court’s noncompliance with the truth-in-sentencing provisions could not be cured by resentencing after the journalized prison term had expired:
{¶ 24} “When the General Assembly adopted Am.Sub.S.B. No. 2, in 1996, it created major changes in the premise of felony sentencing in Ohio. 146 Ohio Laws, Part IV, 7136. As part of the General Assembly’s goal of achieving ‘truth in sentencing,’ the new felony-sentencing law was intended to ensure that all persons with an interest in a sentencing decision would know precisely the sentence a defendant is to receive upon conviction for committing a felony. The goal is that when the prosecutor, the defendant, and victims leave the courtroom following a sentencing hearing, they know precisely the nature and duration of the restrictions that have been imposed by the trial court on the defendant’s personal liberty. Confidence in and respect for the criminal-justice system flow*358 from a belief that courts and officers of the courts perform their duties pursuant to established law. In this case, neither the trial judge, the prosecutor, nor the defense counsel advised the defendant at the hearing, or in a journal entry, that his liberty would continue to be restrained after he served his sentence. That omission violated not only the statute, but the spirit of the changes in criminal sentencing underlying Senate Bill 2.
{¶ 25} “The Adult Parole Authority was not authorized to put Hernandez on postrelease control and sanction him for violating the terms of that control in the absence of appropriate notification of postrelease control by the trial court and incorporation of postrelease control in its sentencing entry. In that his journalized sentence has expired, Hernandez is entitled to the writ and release from prison and from further postrelease control. Based on the foregoing, we grant the writ and order Hernandez’s release from prison and postrelease control.” (Emphasis added.) Hernandez,108 Ohio St.3d 395 ,2006-Ohio-126 ,844 N.E.2d 301 , ¶ 31-32.
{¶ 26} Cruzado’s reliance on Hernandez to support his entitlement to extraordinary relief is misplaced. This case is distinguishable from Hernandez in two important respects. First, Judge Zaleski did advise Cruzado at both his plea hearing and his sentencing hearing that he would be subject to a mandatory period of postrelease control after he had served his three-year prison sentence. Although Judge Zaleski misstated Cruzado’s postrelease-control term as five years, which is a longer term than the three-year period actually required by R.C. 2967.28(B)(2), Judge Zaleski did provide some notice — which Cruzado specifically acknowledged — -that Cruzado would be subject to a multiyear term of postrelease control. In Hernandez, the petitioner never received any such notice and never acknowledged that he would be subject to a mandatory period of postrelease control.
{¶ 27} Second, Cruzado’s sentence had not yet expired when Judge Zaleski resentenced him. By contrast, in Hernandez,
{¶ 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. The Franklin County Court of Common Pleas, Criminal Division, reached a similar conclusion in resentencing a criminal defendant to include the mandatory postrelease-control period that the court had failed to include in an earlier sentencing entry, when the defendant had not yet completed his original sentence. State v. Ramey,
{¶ 29} Following our decision in Hernandez,
{¶ 30} Furthermore, Cruzado’s claim that Judge Zaleski violated the law of the case by not adhering to his previous sentencing entry lacks merit. Judge Zaleski did not disregard any mandate of a superior court in a prior appeal in the same case. State ex rel. Sharif v. McDonnell (2001),
{¶ 31} Finally, Cruzado’s and amicus curiae’s argument that prohibition is warranted based on double jeopardy is not meritorious. Double-jeopardy claims are not cognizable in prohibition. State ex rel. Whiteside v. Fais (2001),
{¶ 32} Based on the foregoing, Judge Zaleski did not lack jurisdiction, much less patently and unambiguously lack jurisdiction, to correct Cruzado’s sentencing entry before his journalized sentence had expired. Therefore, Cruzado has or had an adequate remedy in the ordinary course of law by appealing the resentencing entry to raise his claim. Accordingly, we deny the writ of prohibition.
Writ denied.
Notes
. Notwithstanding the judge’s argument to the contrary, it appears that the error was not corrected as a “clerical mistake” because Judge Zaleski also held a sentencing hearing before entering the new order.