State v. Holdcroft

[Cite as State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014.]

THE STATE OF OHIO, APPELLEE, v. HOLDCROFT, APPELLANT.
[Cite as State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014.]
Trial court does not have authority to resentence a defendant for purpose of
adding postrelease control as sanction for a particular offense after the
defendant has already served the prison term for that offense.
(Nos. 2012-1325 and 2012-1441—Submitted June 4, 2013—Decided
November 20, 2013.)
APPEAL from and CERTIFIED by the Court of Appeals for Wyandot County,
No. 16-10-13, 2012-Ohio-3066.
_______________________
SYLLABUS OF THE COURT
1. A sentence is a sanction or combination of sanctions imposed for an individual
offense. (State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846
N.E.2d 824, applied.)
2. When a judge fails to properly impose statutorily mandated postrelease control
as part of a defendant’s sentence, the postrelease-control sanction is void.
(State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,
applied.)
3. A trial court does not have the authority to resentence a defendant for the
purpose of adding a term of postrelease control as a sanction for a
particular offense after the defendant has already served the prison term
for that offense.
____________________
O’NEILL, J.
{¶ 1} In this case, we must again consider when a trial court has the
authority to correct a sentence when one of the sanctions originally imposed by
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the trial court is void. We hold that a trial court cannot add a term of postrelease
control as a sanction for a particular offense after the defendant has already served
the prison term for that offense, even if the defendant remains in prison for other
offenses.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 29, 1999, the Wyandot County Court of Common Pleas
entered a judgment finding appellant, Henry Allen Holdcroft, guilty of aggravated
arson and arson, pursuant to a jury verdict. In September 1999, the trial court
imposed a prison term of ten years for Holdcroft’s aggravated-arson offense and a
prison term of five years for Holdcroft’s arson offense. The trial court ordered
that the prison terms be served consecutively. The trial court notified Holdcroft
that a postrelease-control sanction would be imposed, but it failed to state the
duration of the sanction and did not state whether it was part of the sentence for
aggravated arson, arson, or both offenses. The judgment entry of sentence
reflected the same defects.
{¶ 3} Holdcroft completed his prison term for aggravated arson in 2009
and began serving the term of imprisonment for arson at that time. On January
26, 2010, the trial court held a new sentencing hearing to correct its errors related
to postrelease control. Holdcroft argued in part that he had served 10½ years in
prison and that his aggravated-arson term of incarceration had expired. But the
trial court reimposed a prison term of ten years for aggravated arson and a prison
term of five years for arson, and it ordered the arson prison term to be served
consecutively to the aggravated-arson prison term. The trial court also imposed a
mandatory term of five years of postrelease control for the aggravated-arson
offense and a discretionary postrelease-control term of up to three years for the
arson offense.
{¶ 4} Holdcroft appealed the sentencing judgment, asserting that the trial
court lacked jurisdiction to impose postrelease control related to his aggravated-

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arson offense because he had already served the prison sentence for that offense.
In a divided decision, the Third District Court of Appeals disagreed. The
appellate court held that a trial court may resentence a defendant for the purpose
of correctly imposing postrelease control, so long as the defendant is still serving
a prison term for any of the other offenses included in the same judgment entry of
sentence. The court certified that its judgment conflicted with the judgment in
State v. Dresser, 8th Dist. Cuyahoga No. 92105, 2009-Ohio-2888, abrogated in
part on other grounds by State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124,
2010-Ohio-2671, 931 N.E.2d 110, on the following question:

Does a trial court have jurisdiction to resentence a
defendant for the purpose of imposing mandatory post-release
control regarding a particular conviction, when the defendant has
served the stated prison term regarding that conviction, but has yet
to serve the entirety of his aggregate prison sentence, when all of
the convictions which led to the aggregate sentence resulted from a
single indictment?

Holdcroft filed a notice of certified conflict and a discretionary appeal in this
court. We determined that a conflict exists and accepted the discretionary appeal,
and we consolidated the cases. 133 Ohio St.3d 1409, 2012-Ohio-4650, 975
N.E.2d 1028; 133 Ohio St.3d 1410, 2012-Ohio-4650, 975 N.E.2d 1029. For the
reasons that follow, we reverse the judgment of the Third District and hold that
when Holdcroft completed his prison term for aggravated arson, the trial court
lost the authority to impose a postrelease-control sanction for that offense.
ANALYSIS
{¶ 5} This court has consistently and repeatedly held that a trial court
loses jurisdiction to resentence a defendant for the purpose of imposing

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postrelease control once the defendant has served his entire sentence of
incarceration. Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844
N.E.2d 301, ¶ 32; State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909
N.E.2d 1254, ¶ 70; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884
N.E.2d 568, syllabus, superseded on other grounds by statute as stated in State v.
Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958; State v. Bezak,
114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 18, overruled on other
grounds by State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d
332. Thus far, we have had the opportunity to examine the imposition of
postrelease control in three situations: (1) cases in which the defendant or the state
filed a timely direct appeal, (2) cases in which the defendant remained in prison
with no completed sentences, and (3) cases in which the defendant had already
been released from prison. But we have not yet addressed the situation presented
here, in which the trial court has resentenced the defendant to impose postrelease
control for an offense, but the defendant had already served the entire prison term
for that offense and remained in prison for other offenses.
{¶ 6} Resolution of this issue is helped significantly by examining the
definitions of the words “sentence,” “sanction,” and “conviction” and by
reviewing State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824,
which offers insight into Ohio’s felony-sentencing structure. In Saxon, this court
addressed and rejected the use of the “sentencing package” doctrine by Ohio’s
appellate courts. Under that doctrine, a defendant’s sentences in a multiple-
conviction judgment entry are viewed in the aggregate, and if one of the sentences
is vacated on appeal, the trial court has the authority to review the entire
“sentencing package” on remand. Id. at ¶ 5. In Saxon, we concluded that the
doctrine did not apply in Ohio, because “Ohio’s felony-sentencing scheme is
clearly designed to focus the judge’s attention on one offense at a time.” Id. at
¶ 8. In so holding, we observed that R.C. 2929.01(EE) (formerly numbered R.C.

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2929.01(FF)) defines “sentence” as “ ‘the sanction or combination of sanctions
imposed by the sentencing court on an offender who is convicted of or pleads
guilty to an offense.’ ” (Emphasis added.) Id. at ¶ 12. Further support for the
Saxon rule can be found in R.C. 2929.01(DD), which states that “ ‘[s]anction’
means any penalty imposed upon an offender who is convicted of or pleads guilty
to an offense, as punishment for the offense” (emphasis added) and in State v.
Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 135, which
recognizes that a criminal “conviction” consists of both a finding of guilt and the
imposition of a sentence. See also State v. Whitfield, 124 Ohio St.3d 319, 2010-
Ohio-2, 922 N.E.2d 182, ¶ 12, and State v. Poindexter, 36 Ohio St.3d 1, 5, 520
N.E.2d 568 (1988). In sum, under both the Revised Code and this court’s
decisions, a conviction is composed of a finding of guilt and a sentence, a
sentence is a sanction or combination of sanctions imposed for an individual
offense, and incarceration and postrelease control are types of sanctions that may
be imposed and combined to form a sentence.
{¶ 7} Although we have not previously so stated, generally speaking, our
recent cases in this area have dealt with void sanctions, rather than sentences that
were void ab initio. For example, in Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, 942 N.E.2d 332, we held that “when a judge fails to impose statutorily
mandated postrelease control as part of a defendant’s sentence, that part of the
sentence is void and must be set aside.” (Emphasis added in part.) Id. at ¶ 26.
We further recognized that in most cases, the prison sanction is not void and
therefore “only the offending portion of the sentence is subject to review and
correction.” Id. at ¶ 27. Accordingly, when a judge fails to properly impose
statutorily mandated postrelease control as part of a defendant’s sentence, the
postrelease-control sanction is void. In such situations, the void sanction “may be
reviewed at any time, on direct appeal or by collateral attack,” id., but “res
judicata still applies to other aspects of the merits of a conviction, including the

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determination of guilt and the lawful elements of the ensuing sentence,” id. at
¶ 40.
{¶ 8} The Fischer rule does not apply to most sentencing challenges.
For example, challenges to a trial court’s compliance with R.C. 2929.11 and
2929.12, which may be brought by either the defendant or the state, must still be
presented in a timely direct appeal under R.C. 2953.08. R.C. 2953.08(E); see
generally State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
This is also true with regard to challenges to a sentencing court’s determination
whether offenses are allied and its judgment as to whether sentences must be
served concurrently or consecutively. See generally State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061; State v. Hodge, 128 Ohio St.3d 1,
2010-Ohio-6320, 941 N.E.2d 768. The Fischer rule applies only in a limited
class of cases—all three cases to which we have applied the Fischer rule have in
common the crucial feature of a void sanction. See Fischer at ¶ 27; State v.
Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 18 (failure to
include mandatory driver’s license suspension as part of sentence); and State v.
Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, ¶ 12 and 17
(failure to include mandatory fine as part of sentence; noting that a mandatory
fine “is a criminal sanction”).
{¶ 9} Therefore, so long as a timely appeal is filed from the sentence
imposed, the defendant and the state may challenge any aspect of the sentence and
sentencing hearing, and the appellate court is authorized to modify the sentence or
remand for resentencing to fix whatever has been successfully challenged. R.C.
2953.08; see also Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824,
at ¶ 30. But absent a timely appeal, res judicata generally allows only the
correction of a void sanction. Fischer at ¶ 40.
{¶ 10} Given the posture of this case, it is clear that if the trial court was
able to correct anything related to Holdcroft’s aggravated-arson sentence, it was

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able to correct the void postrelease-control sanction that was part of that sentence.
But the broader question remains: what effect, if any, does the fact that Holdcroft
had completed the valid prison sanction for his aggravated-arson sentence have on
the trial court’s ability to impose a postrelease-control sanction for that offense?
We conclude that once Holdcroft completed his prison term for aggravated arson,
the trial court lost the authority to resentence him for that offense.
{¶ 11} As we noted above, we have consistently held that once an
offender has been released from prison, he cannot be subjected to another
sentencing to correct the trial court’s flawed imposition of postrelease control.
E.g., Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, at ¶ 70;
and Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at syllabus
and ¶ 38. In Simpkins, we noted that “ ‘the power of a sentencing court to correct
even a statutorily invalid sentence must be subject to some temporal limit,’ ” id. at
¶ 34, quoting Breest v. Helgemoe (1st Cir.1978), 579 F.2d 95, 101, but we
contrasted Simpkins’s situation—he had completed the vast majority of his
sentence—with that of defendants who had already been released from prison.
Because Simpkins was still serving time for a crime requiring the imposition of a
mandatory postrelease-control sanction at the time he was resentenced, we
concluded that Simpkins had no legitimate expectation of finality in his sentence
and that therefore his resentencing was not barred by double-jeopardy or due-
process concerns. Id. at ¶ 31-38. See also State ex rel. Cruzado v. Zaleski, 111
Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 9, 28 (defendant was
resentenced to add postrelease control as a sanction for a crime before he had
fully served his prison sanction for that crime).
{¶ 12} Although both Simpkins and Holdcroft were incarcerated when
they were resentenced, Holdcroft had served the entirety of his prison sanction for
aggravated arson at the time he was resentenced. We conclude that Holdcroft had

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a legitimate expectation of finality in the sentence that he had fully served and
that his situation is therefore more analogous to Hernandez than to Simpkins.
{¶ 13} The reason that the line of finality and modification authority must
be drawn at the sentence level, rather than at the incarceration level, lies in the
fact that “Ohio’s felony-sentencing scheme is clearly designed to focus the
judge’s attention on one offense at a time.” Saxon, 109 Ohio St.3d 176, 2006-
Ohio-1245, 846 N.E.2d 824, at ¶ 8. The role of the trial judge in Ohio felony
sentencing is offense-specific, not incarceration-specific, and a prison sanction
that forms a sentence for one offense cannot be packaged with a prison sanction
for another offense. See id. at ¶ 8-9.
{¶ 14} To be consistent in sentencing, there must be a distinction between
the rule of Fischer and the rule of Hernandez. Fischer’s sanction-correction rule
is based on principles of res judicata—while a void sanction may be modified, a
valid sanction generally cannot. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,
942 N.E.2d 332, at ¶ 17. But once a valid prison sanction has been served, it is no
longer res judicata that acts as a bar to modification; rather, the court has lost
jurisdiction to modify the sentence. Hernandez, 108 Ohio St.3d 395, 2006-Ohio-
126, 844 N.E.2d 301, at ¶ 28-30.
{¶ 15} A defendant’s expectation of the finality of his sentence increases
as time passes. The defendants in Fischer and Simpkins, whose appeal time had
passed, had a greater expectation of the finality of their sentences than the
defendant in Saxon, whose case remained on direct review. And the defendants in
Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, and Hernandez,
who had completed all of the prison sanctions that comprised their sentences, had
a greater expectation of the finality of their sentences than the Saxon, Fischer, or
Simpkins defendants.
{¶ 16} This court has examined the effect that a defendant’s legitimate
expectation of finality has on the court’s authority to modify a sentence, and those

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cases lend further support to our conclusion here. In State v. Roberts, 119 Ohio
St.3d 294, 2008-Ohio-3835, 893 N.E.2d 818, we concluded that “[w]hen a
defendant’s sentence is stayed on appeal, but the defendant is released from
prison under the assumption that the sentence has been served, the defendant has
no expectation of finality in that sentence for purposes of the Double Jeopardy
Clause.” Id. at the syllabus. Roberts rests on the accepted general principle that a
defendant has no legitimate expectation of finality in a sentence that remains
subject to direct review. Id. at ¶ 16, quoting United States v. DiFrancesco, 449
U.S. 117, 136, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (recognizing that “when the
legislature has provided the government with a statutory right of appeal, ‘[t]he
defendant * * * is charged with knowledge of the statute and its appeal
provisions, and has no expectation of finality in his sentence until the appeal is
concluded or the time to appeal has expired’ ”). By contrast, in State v. Raber,
134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, we held that a trial court
could not add to the defendant’s punishment by classifying him as a registered sex
offender some 14 months after he was originally sentenced. In Raber, we noted
that “[t]he Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution protects against the imposition of multiple criminal punishments for
the same offense in successive proceedings,” and that “ ‘[i]f a defendant has a
legitimate expectation of finality, then an increase in that sentence is prohibited
by the double jeopardy clause.’ ” Id. at ¶ 24, quoting United States v. Fogel, 829
F.2d 77, 87 (D.C.Cir.1987). Directly pertinent to the issue here, we held that
Raber—who had served the imposed sentence of incarceration—had a legitimate
expectation of finality in his sentence and the trial court was precluded from
imposing additional punishment upon him.
{¶ 17} Finally, in Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884
N.E.2d 568, ¶ 1, 24, 37, we held that the resentencing of a defendant who had
served seven years of an eight-year prison sanction to add a mandatory term of

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postrelease control to his sentence was not barred by res judicata and did not
violate the defendant’s right to due process. We held that there “was no unfair
surprise or prejudice” to the defendant and that because he “did not have a
legitimate expectation of finality” in his sentence, he could be resentenced
“without offending the Double Jeopardy or Due Process Clauses.”
{¶ 18} Together, all of these cases provide a clear demonstration of the
role that a defendant’s legitimate expectation of finality plays in constraining a
court’s authority to review a sentence, and three principles provide a framework
for future reference. First, when a sentence is subject to direct review, it may be
modified; second, when the prison-sanction portion of a sentence that also
includes a void sanction has not been completely served, the void sanction may be
modified; and third, when the entirety of a prison sanction has been served, the
defendant’s interest in finality in his sentence becomes paramount, and his
sentence for that crime may no longer be modified. Put another way, either the
defendant or the state may challenge any aspect of a sentence so long as a timely
appeal is filed. See, e.g., R.C. 2953.08 and DiFrancesco at 132. But once the
time for filing an appeal has run, Ohio courts are limited to correcting a void
sanction. Fischer at ¶ 27. And once the prison-sanction portion of a sentence for
a crime has been fully served, the structure of Ohio felony-sentencing law and the
defendant’s legitimate expectation in finality in his sentence prevent a court from
further modifying the sentence for that crime in any way. A trial court does not
have the authority to resentence a defendant for the purpose of adding a term of
postrelease control as a sanction for a particular offense after the defendant has
already served the prison term for that offense. Although it is true that some other
sanctions (such as restitution) may yet be outstanding, a sentence served is a
sentence completed.

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CONCLUSION
{¶ 19} Neither this court’s jurisprudence nor Ohio’s criminal-sentencing
statutes allow a trial court to resentence a defendant for an offense when the
defendant has already completed the prison sanction for that offense. It is
irrelevant whether the defendant is still in prison for other offenses. Because
Holdcroft was no longer serving a prison sanction for the offense of aggravated
arson, the trial court was not authorized to impose a mandatory five years of
postrelease control for that offense. We therefore reverse the judgment of the
court of appeals and remand this cause to the trial court with instructions to vacate
the imposition of postrelease control for Holdcroft’s aggravated-arson offense.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and PFEIFER and FRENCH, JJ., concur.
LANZINGER, J., concurs in judgment and concurs separately.
O’DONNELL and KENNEDY, JJ., dissent and would affirm the judgment of
the court of appeals.
____________________
LANZINGER, J., concurring in judgment only.
{¶ 20} Unfortunately, the majority’s discussion of “void sanctions”
continues the confusion resulting from this court’s opinions regarding errors in
the imposition of postrelease control, precedent that I have advocated against
consistently, most recently in my dissent in In re J.S., 136 Ohio St.3d 8, 2013-
Ohio-1721, 989 N.E.2d 978. Rather than continue the void/voidable dichotomy
with its attendant complications, I would merely focus on R.C. 2929.191, the
statute that allows the trial court to correct “a judgment of conviction * * * before
the offender is released from imprisonment under the prison term the court
imposed.” (Emphasis added.)

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Enactment of R.C. 2929.191
{¶ 21} To put this case in context, it is helpful to look back to a case that
was decided when this court was of one mind with regard to postrelease-control
sentencing errors. Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844
N.E.2d 301. In Hernandez, we explained the General Assembly’s purpose in
enacting Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, in 1996:

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 from a belief that
courts and officers of the courts perform their duties pursuant to
established law.

Id. at ¶ 31.
{¶ 22} Hernandez was not properly notified of mandatory postrelease
control at his initial sentencing hearing, although he had been told that “he was
‘being sent to prison and placed on post-release control by the Parole Board for a
period of up to five years.’ ” Id. at ¶ 2. He appealed and was resentenced, but
postrelease control was not mentioned during his resentencing hearing, nor was it
included in the judgment of conviction. Id. at ¶ 4. Nevertheless, upon
Hernandez’s release from prison, the Adult Parole Authority determined that he

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was subject to five years of postrelease control, and after he violated several
postrelease conditions, it returned him to prison. Id. at ¶ 5-6. Hernandez filed a
writ of habeas corpus, seeking release from prison and from postrelease control.
Id. at 7. We granted the writ, unanimously holding:

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.

(Emphasis added.) Id. at ¶ 32.
{¶ 23} After our decision in Hernandez, the General Assembly enacted
R.C. 2929.191, which authorizes a trial court to correct a sentencing error related
to the imposition of postrelease control, provided that the correction is made after
the offender is given a hearing and while the offender is still serving the prison
term for the relevant offense. 2006 Am.Sub.H.B. No. 137 (“H.B. 137”). Before
the enactment of H.B. 137, a trial court had no special statutory power to correct a
sentence that contained a postrelease-control error.1 Furthermore, in passing H.B.
137, the General Assembly clearly intended to abrogate this court’s decisions on
postrelease-control sentencing error. Section 5(B) of H.B. 137 plainly states that
the enactment provides a method of correction for all sentences and is intended to

1. H.B. 137 also amended R.C. 2929.19 and 2967.28. Language added to these two sections
provides that on or after July 11, 2006, a trial court’s failure to include postrelease control at
sentencing or in the judgment entry of conviction will not “negate, limit, or otherwise affect the
mandatory period of supervision that is required” to be imposed on an offender. Because
Holdcroft was sentenced in 1999, these provisions are not applicable and are not at issue in this
case.

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“apply to all convicted offenders * * * regardless of whether they were sentenced
prior to, or are sentenced on or after, the effective date of this act.”
Refusal to Apply R.C. 2929.191 Retroactively
{¶ 24} Despite the clear intent of the General Assembly that R.C.
2929.191 was to apply retroactively, a majority of this court initially refused to so
apply it. State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d
958. The offender in Singleton was sentenced to prison for rape and felonious
assault in 2000. Id. at ¶ 4. Although the trial court notified Singleton of five
years of postrelease control at the sentencing hearing, it failed to notify him of the
consequences of violating postrelease control and improperly referred to only the
possibility of five years of postrelease control in its sentencing entry. Id. In 2006,
Singleton filed a motion to vacate his guilty pleas due to the error in imposing
postrelease control. Id. at ¶ 6. The trial court denied the motion, and Singleton
appealed. The court of appeals affirmed the denial of the motion but vacated the
sentence and remanded for a de novo sentencing. Id. The state appealed, arguing
that the trial court should follow the procedures set forth in R.C. 2929.191 to
correct the error in the imposition of postrelease control and that a de novo
sentencing hearing was not necessary. Id. at ¶ 8.
{¶ 25} In discussing the retrospective application of R.C. 2929.191, the
court stated:

R.C. 2929.191 purports to authorize application of the
remedial procedure set forth therein to add postrelease control to
sentences imposed before its effective date. We recognize the
General Assembly’s authority to alter our caselaw’s
characterization of a sentence lacking postrelease control as a
nullity and to provide a mechanism to correct the procedural defect
by adding postrelease control at any time before the defendant is

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released from prison. However, for sentences imposed prior to the
effective date of the statute, there is no existing judgment for a
sentencing court to correct. H.B. 137 cannot retrospectively alter
the character of sentencing entries issued prior to its effective date
that were nullities at their inception, in order to render them valid
judgments subject to correction. Therefore, for criminal sentences
imposed prior to July 11, 2006, in which a trial court failed to
properly impose postrelease control, the de novo sentencing
procedure detailed in decisions of the Supreme Court of Ohio
should be followed to properly sentence an offender.

Id. at ¶ 26.
{¶ 26} The court did hold, however, that “[f]or criminal sentences
imposed on and after July 11, 2006, in which a trial court failed to properly
impose postrelease control, trial courts shall apply the procedures set forth in R.C.
2929.191.” Id. at paragraph two of the syllabus.
Revival of R.C. 2929.191’s Retrospective Application
{¶ 27} In Singleton, this court refused to apply R.C. 2929.191
retrospectively by stating that a sentencing entry omitting postrelease control was
a void judgment and was thus a nullity incapable of being corrected. A year later,
however, this court retreated from Singleton’s holding that a de novo sentencing
hearing was required for postrelease-control sentencing errors in sentences
imposed before July 11, 2006. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, 942 N.E.2d 332. Fischer declared that this court’s requiring a new
sentencing hearing had been “ill-considered.” Id. at ¶ 28. Instead of a de novo
sentencing hearing, Fischer held that the new hearing should be “limited to proper
imposition of postrelease control.” Id. at ¶ 29. Essentially, Fischer adopted the
procedure required in R.C. 2929.191 without so stating and without explicitly

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overruling the first syllabus paragraph of Singleton (holding that de novo
sentencing hearings are required for criminal sentences imposed prior to July 11,
2006, that failed to properly impose postrelease control).
{¶ 28} Therefore, I believe that the resolution of this case lies in the
retroactive application of R.C. 2929.191.
Application of R.C. 2929.191
{¶ 29} R.C. 2929.191(A)(1) states:

If, prior to July 11, 2006, a court imposed a sentence
including a prison term of a type described in division (B)(2)(c) of
section 2929.19 of the Revised Code and failed to notify the
offender pursuant to that division that the offender will be
supervised under section 2967.28 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 (D)(1) of section 2929.14 of the Revised
Code, 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 correction to the judgment of conviction that includes
in the judgment of conviction the statement that the offender will
be supervised under section 2967.28 of the Revised Code after the
offender leaves prison.

(Emphasis added.)
{¶ 30} R.C. 2929.191(A)(2) discusses the method and effect of a
correction:

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If a court prepares and issues a correction to a judgment of
conviction as described in division (A)(1) of this section before the
offender is released from imprisonment under the prison term the
court imposed prior to July 11, 2006, the court shall place upon the
journal of the court an entry nunc pro tunc to record the correction
to the judgment of conviction and shall provide a copy of the entry
to the offender * * *. * * * The court’s placement upon the journal
of the entry nunc pro tunc before the offender is released from
imprisonment under the term shall be considered, and shall have
the same effect, as if the court at the time of original sentencing
had included the statement in the sentence and the judgment of
conviction entered on the journal and had notified the offender that
the offender will be so supervised * * *.

(Emphasis added.)
{¶ 31} In other words, the General Assembly has enacted a procedure
whereby postrelease control may be properly authorized and given effect, even
though initial notification was inadequate, if the offender has not been released
from prison “under the prison term the court imposed.” The statute refers to
completion of the “prison term the court imposed” as a time limitation for the
correction to be made.
Sentencing Error Is Not Jurisdictional
{¶ 32} The statutory definitions of “sentence” as “the sanction or
combination of sanctions imposed * * * on an offender who is convicted of or
pleads guilty to an offense” (R.C. 2929.01(EE)) and “sanction” as “any penalty
imposed upon an offender who is convicted of or pleads guilty to an offense, as
punishment for the offense” (R.C. 2929.01(DD)) make clear that these words
relate to a specific offense, rather than all counts within an indictment. I agree

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with the majority’s analysis in regard to these definitions and its references to
State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824.
{¶ 33} But the majority is incorrect in saying that this court has been
consistent in holding that a trial court “loses jurisdiction” to impose postrelease
control after an “entire sentence of incarceration” has been served. Majority
opinion at ¶ 5. All cases cited for that point hold that the defendant is not subject
to an increased penalty after the prison term has expired, but not one holds that
the trial court lacks jurisdiction to act. A court’s mistake in imposing postrelease
control does not mean that initially the court had no jurisdiction to act. There is
no question that the trial court had the authority to sentence Holdcroft, and
therefore was not lacking subject-matter jurisdiction. Rather, the trial court erred
in the exercise of its authority to sentence by failing to properly impose the
mandatory five-year postrelease control that should have been added as a sanction
for aggravated arson in the original sentencing entry.
{¶ 34} Holdcroft’s incorrect sentence could have been corrected on direct
appeal. Both Holdcroft and the state did in fact appeal from the trial court’s
judgment, but neither party raised the postrelease-control issue on appeal.
Nevertheless, by statute, the General Assembly has extended the time for
correcting this type of sentencing error pursuant to R.C. 2929.191, which allows a
court to correct the error provided that it is done before the prisoner is released
from the prison term for the offense. The state’s argument that all of an
offender’s prison terms that resulted from a single indictment should be
aggregated to allow a longer period for sentence modification is not persuasive.
The Expectation of Finality
{¶ 35} I agree with the majority that Holdcroft had a legitimate
expectation in the finality of his sentence for aggravated arson, but for different
reasons. This court has previously stated that “there can be no reasonable,
legitimate expectation of finality in [a void sentence].” State v. Simpkins, 117

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Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 36, citing United States v.
Crawford, 769 F.2d 253, 257-258 (5th Cir.1985). But Simpkins misconstrued
Crawford by suggesting that it held that a defective sentence could be attacked
forever. Rather, the Crawford court determined that there was no expectation of
finality because former Fed.R.Crim.P. 35(a)2 allowed an “illegal” sentence to be
corrected at any time and the defendant was charged with knowledge of the rule.
Id. at 257-258. Crawford’s holding was based on United States v. DiFrancesco,
449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). In DiFrancesco, the United
States Supreme Court concluded that a statute that granted the United States the
right, under specified conditions, to appeal a sentence did not violate the Double
Jeopardy Clause, because a defendant “has no expectation of finality in his
sentence until the appeal is concluded or the time to appeal has expired.”
(Emphasis added.) Id. at 136.
{¶ 36} We have incorporated DiFrancesco’s reasoning, stating, “[W]hen
the legislature has provided the government with a statutory right of appeal, ‘[t]he
defendant * * * is charged with knowledge of the statute and its appeal
provisions, and has no expectation of finality in his sentence until the appeal is
concluded or the time to appeal has expired.’ ” (Emphasis added.) State v.
Roberts, 119 Ohio St.3d 294, 2008-Ohio-3835, 893 N.E.2d 818, ¶ 16, quoting
DiFrancesco at 136. Thus, a defendant normally has a legitimate expectation of
finality in a sentence after any appeal is concluded or the time to appeal has
expired. The expectation of finality for postrelease-control sentencing errors is
delayed by R.C. 2929.191, however, because that statute authorizes a trial court to
correct any such error as long as the offender is still serving the prison term for
the pertinent offense.

2. The language allowing the correction of an illegal sentence at any time was eliminated from
Fed.R.Crim.P. 35(a) by Pub.L. No. 98-473, 98 Stat.2015, eff. Nov. 1, 1987.

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{¶ 37} More than ten years after Holdcroft was originally sentenced, the
state filed a motion under R.C. 2929.191 for the court to modify his sentence for
aggravated arson to include the postrelease-control sanctions that had been
omitted by the court. Holdcroft’s appeal time had run, and moreover, he had
completed his ten-year prison term for aggravated arson. He therefore had a
legitimate expectation in the finality of that sentence, and no additional
punishment could be imposed without running afoul of the Double Jeopardy
Clause as well as R.C. 2929.191.
Conclusion
{¶ 38} Postrelease-control sentencing errors may be corrected on direct
appeal just as any other sentencing error may be corrected. In addition, the
General Assembly has provided an alternative procedure under R.C. 2929.191
that expands the time for correction of errors in imposition of postrelease control
until a prison term has been completed for the relevant offense. In this case, the
error in imposing postrelease control was not appealed by the state. The state also
did not seek to have the postrelease-control error corrected pursuant to R.C.
2929.191 until after Holdcroft had completed his prison term for aggravated
arson. Because I disagree with the reasoning expressed in the majority opinion
and would rely solely on R.C. 2929.191, I concur only in the judgment that
vacates the imposition of five-years’ postrelease control on Holdcroft for his
offense of aggravated arson.
____________________
Jonathan K. Miller, Wyandot County Prosecuting Attorney, for appellee.
Kristopher A. Haines, Assistant Ohio Public Defender, for appellant.
________________________

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