State v. Streeter, 1-06-75 (6-18-2007)State v. Streeter, 1-06-75 (6-18-2007)
{¶ 1} The defendant-appellant, Curtis B. Streeter (“Curtis“), appeals the August 1, 2006 Judgment of conviction and sentencing entered in the Court of Common Pleas of Allen County, Ohio.
{¶ 2} Trooper Gerald Gibson (“Gibson“) оf the Ohio State Highway Patrol, who was assigned as an investigator at Allen Correctional Institution, conducted an investigation of inmates involved in drug activity. In December of 2004, Curtis was an inmate at Allen Correctional Institution and was one of several inmates under investigation by Gibson. As part of Gibson‘s investigation, he randomly listened to Curtis’ telephone conversations. From one such cаll, Gibson learned that Curtis was to be released on January 15, 2005 and that another inmate, i.e. Peanut, wanted to take over the operation after Curtis’ release.
{¶ 3} Based upon this information, Gibson began listening to telephone calls made by Peanut and another inmate, Harvey Townsend (“Townsend“). As Gibson learned that Townsend was calling Curtis, he obtained the telephone numbеr which was called to learn which inmates were calling Curtis. Gibson listened to various phone calls between one of the inmates, Graves, and Curtis from January through June of 2005. From a call on May 20, 2005, Gibson learned that drugs concealed inside a VCR/DVD player would be mailed on June 10, 2005. On June 10, 2005, while Gibson was monitoring Graves’ phone calls, a call
{¶ 4} On September 15, 2005, Curtis was indicted by the Allen County Grand Jury for one count of illegal conveyance of drugs оf abuse onto the grounds of a detention facility, in violation of
{¶ 5} On August 29, 2006, Curtis filed a notice of appeal raising the following assignment of errоr:
THE TRIAL COURT COMMITTED AN ERROR OF LAW BY IMPOSING AN ADDITIONAL PRISON SENTENCE PURSUANT TO
R.C. 2929.141(B)(1) .
{¶ 6} In Curtis’ sole assignment of error, he argues that the trial court erred in imposing the additional three year prison term relating to his commission
{¶ 7} In Hernandez v. Kelly (2006), 108 Ohio St.3d 395, the Supreme Court of Ohio held that an offender may not be placed on post release control or be subject to sanctions for violating the terms of that control unless the trial court who sentenced the offender advised the offender about post release control at the sentencing and also incorporated the same notice intо the judgment entry of sentencing. See also, State v. Jordan (2004), 104 Ohio St.3d 21.
{¶ 8}
If, prior to the effective date of this section [July 11, 2006], a court imposed a sentence including a prison term of a type described in division (B)(3)(d) оf section
2929.19 of the Revised Code and failed to notify the offender pursuant to that division that the offender may be supervised under section2967.28 of the Revised Code after the offender leaves prison or to include a statement to that effect in the judgment of conviction entered on the journal or in the sentence pursuant to division (F)(2) of section2929.14 , at any time before the offender is released from imprisonment under that term and at a hearing conducted in accordance with division (C) of this section, the court may prepare and issue a сorrection to the judgment of conviction thatincludes in the judgment of conviction the statement that the offender may be supervised under section 2967.28 of the Revised Code after the offender leaves prison.
This section was created to еnsure compliance with changes in sentencing statutes. Hernandez, supra at ¶ 31-32. “`The goal [of truth-in-sentencing statutes] 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. * * *‘” State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, ¶ 24, quoting Hernandez, 108 Ohio St.3d 395, 2006-Ohio-126, ¶ 31-32.
{¶ 9} Following the decision in Hernandez, the General Assembly amended
{¶ 10} The language in recent cases and statutes, along with that in Hernandez, establishes that once an offender has been released after serving the prison term stated in the original sentencing entry, a trial court no longer possesses jurisdiction to re-sentence the offender in order to impose an erroneously omitted period of mandatory post-release control. Therefore, trial courts retain the authority to correct void sentencing orders, State v. Garretson (2000), 140 Ohio App.3d 554, 559, provided that the defendant has not served out the term of his sentence. Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, ¶ 28, 30, 32. Once a defendant‘s journalized sentence has expired, however, re-sentencing is no longer an option. Id.
{¶ 11} In January of 2001, Curtis was sentenced to a total prison term of four years mandatory in the Lucas County Court of Common Pleas for possession of crack cocaine, illegal manufacture of drugs, and possession of cocaine. He was given notice under
{¶ 12} Based on these facts, we find that the original judgment entry contained no specific statement indicating that Curtis would be subject to post release control. Curtis served his entire four year mandatory term and was released from prison on January 15, 2005. Pursuant to
{¶ 13} Accordingly, Curtis’ sole assignment of error is sustained and the August 1, 2006 Judgment of conviction and sentencing entered in the Court of Common Pleas of Allen County, Ohio is reversed and vacated as to the three year prison term that the trial court imposed regarding the violation of post-release control. The remainder of the August 1, 2006 Judgment of conviction and sentencing is affirmed. The matter is remanded to the trial court for re-sentencing in accordance with this opinion.
Judgment reversed in part, affirmed in part.
ROGERS, P.J., and PRESTON, J., concur.