2007 Ohio 3388 | Ohio Ct. App. | 2007
{¶ 2} Substantive and Procedural History
{¶ 3} On February 4, 2002, appellant pled guilty to one count of aggravated robbery with a firearm specification, a first degree felony in violation of R.C.
{¶ 4} On December 1, 2006, the trial court held a sentencing hearing to resentence appellant and on December 4, 2006, the trial court issued a nunc pro tunc judgment entry to correct the sentence. The judgment entry again imposed the same sentence, albeit with a notice of the post-release control. Appellant asserts that the trial court was without authority to resentence him, raising the following single assignment of error:
{¶ 5} "The trial court erred when it re-sentenced appellant following the decision of Hernandez v. Kelly."
{¶ 6} In this assignment of error, appellant is relying on the decision from the Supreme Court of Ohio in the case of Hernandez v.Kelly,
{¶ 7} Appellant argues that a trial court only has the authority to correct a sentence on direct appeal and that permitting the trial court to correct a sentence in the absence of a direct appeal undermines the sentencing statutes. Further, appellant contends that res judicata bars the trial court from correcting a previous judgment entry; *3 and that a sentence, newly imposed so close to the expiration of his stated prison term, violates his "expectation of finality" and triggers double jeopardy and due process concerns.
{¶ 8} This court recently addressed these identical issues inState v. Leonard, supra, where we held: "the enactment of R.C.
{¶ 9} Thus, "the above statutory enactments supersede the decision inHernandez v. Kelly. After July 11, 2006, a trial court may now resentence an offender prior to the expiration of his original stated prison term in order to notify him regarding postrelease control."Leonard at ¶ 18, McKay at ¶ 10; see, also, State ex rel. Cruzado v.Zaleski,
{¶ 10} Based upon the authority of State v. Leonard, appellant's assignment of error is without merit.
{¶ ll} The judgment of the Ashtabula County Court of Common Pleas is affirmed.
*1CYNTHIA WESTCOTT RICE, P.J., DIANE V. GRENDELL, J., concur.