State v. Harrison

[Cite as State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547.]

THE STATE OF OHIO, APPELLEE, v. HARRISON, APPELLANT.
[Cite as State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547.]
Criminal law — Trial court has no authority to resentence defendant to correct a
sentencing error once defendant has served term previously imposed —
Failure of trial court to impose mandatory postrelease control — Court
lacks jurisdiction to correct error and impose mandatory postrelease
control on defendant who has completed prison term.
(No. 2008-0331 — Submitted November 19, 2008 — Decided July 28, 2009.)
APPEAL from the Court of Appeals for Madison County,
No. CA2006-08-028, 2007-Ohio-7078.
__________________
PFEIFER, J.
{¶ 1} On May 2, 2002, dispatcher Denise Kohler of the Wapakoneta
Police Department discovered a running tape recorder placed behind a trash can in
the restroom of the police department’s ladies’ locker room. The tape recorder
belonged to appellant David Harrison, who was then Wapakoneta’s chief of
police. Later on that same day, Harrison submitted a letter of retirement to the
Wapakoneta safety services director.
{¶ 2} Within one week, the safety services director requested that the
Ohio Bureau of Criminal Identification and Investigation (“BCI”) initiate an
investigation into Harrison's activities. During the investigation, law enforcement
seized a floppy disk located in Harrison’s office; the disk contained child
pornography. The investigation also revealed pornographic images on Harrison’s
city-owned computer and transfer logs that showed file transfers between
Harrison's office computer and his laptop computer. On June 17, 2002,
investigators executed a search warrant on Harrison’s house, seizing electronic
storage media containing images of suspected child pornography. The
 SUPREME COURT OF OHIO

investigation also revealed Internet searches for websites containing sexual
content involving children.
{¶ 3} On June 17, 2003, Harrison, his counsel, and Special Prosecutor
Lawrence S. Huffman signed a negotiated plea agreement. In the agreement, the
state agreed not to object to a presentence investigation or to the setting of bond
and agreed to make no recommendation on sentencing. Harrison waived his right
to be prosecuted by indictment and consented to be prosecuted through a bill of
information. He agreed to plead guilty to the six counts in the bill of information.
Count One alleged obstruction of official business, in violation of R.C.
2921.31(A), a misdemeanor of the second degree; Counts Two, Three, and Four
alleged unauthorized use of a computer, computer system, or computer network,
in violation of R.C. 2913.04(B), a felony of the fifth degree; Count Five alleged
pandering obscenity involving a minor, in violation of R.C. 2907.321(A)(5), a
felony of the fourth degree; and Count Six alleged pandering obscenity, in
violation of R.C. 2907.32(A)(5), a felony of the fifth degree. Only Counts One
and Two in the bill of information alleged a specific date on which the offense
occurred. As for the other counts, the prosecutor told the judge at the plea
hearing, “[T]here was no use I felt, to make a separate count for each photograph
or separate count for each date.” The bill of information alleged instead that all
the charged crimes took place during a certain range of dates.
{¶ 4} On the same day that Harrison and the special prosecutor signed
the negotiated plea agreement, the bill of information was filed with the court,
Harrison pleaded guilty at the hearing, and the trial court found Harrison guilty of
all counts. On July 31, 2003, Harrison was sentenced to one year in prison. The
court incorrectly informed Harrison in its journal entry that he was additionally
subject to an optional three-year period of postrelease control. The court’s
journal entry reads:

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{¶ 5} “The Court has further notified the Defendant that Post Release
Control is OPTIONAL in this case for THREE (3) years, as well as the
consequences for violating conditions of Post Release Control imposed by the
Parole Board under Ohio Revised Code §2967.28. The Defendant is ORDERED
to serve as part of this sentence any term of Post Release Control imposed by the
Parole Board, and any prison term for violation of that Post Release Control.”
(Capitalization sic.)
{¶ 6} The parties agree that the trial court’s entry was incorrect. They
further agree that pursuant to R.C. 2967.28(B), which requires a felony sex
offender’s sentence to include five years of postrelease control, the court should
have imposed a mandatory five years of postrelease control on Harrison. Neither
the special prosecutor nor defense counsel, however, sought to correct the journal
entry at the time of sentencing.
{¶ 7} Harrison filed a motion for early judicial release pursuant to R.C.
2929.20 on September 4, 2003. In a November 12, 2003 entry, the court denied
Harrison’s motion for judicial release but did modify Harrison’s sentence to allow
him to complete his incarceration in a county jail instead of at the state facility in
Orient. The Adult Parole Authority did not impose any postrelease control upon
Harrison’s release from the county jail. The state has argued that “due to the
defendant serving the balance of his term in the Auglaize County Correctional
Center instead of the Ohio Department of Rehabilitation and Corrections, officials
of the Ohio Department of Rehabilitation and Corrections, including the Parole
Board, had no ability to place the defendant on post release control for either the
optional term as ordered by the Court or for the mandatory five year term as is
mandated by statute.”
{¶ 8} Harrison was released from the county jail in July 2004, having
served his entire sentence. Over six months later, on February 18, 2005, the
Auglaize County Prosecutor moved to resentence Harrison to impose the

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mandatory five-year postrelease control. On March 23, 2005, the court essentially
granted the state’s motion to resentence Harrison. Its entry read:
{¶ 9} “R.C. 2967.28(B)(1) states that each sentence for a felony sex
offense shall contain a five-year period of post release control. Because the court,
and the Parole Authority for that matter, has no discretion to avoid the imposition
of post release control in this case, any order other than a resentencing would
constitute an attempt to render the statutory mandatory term of five years of post
release control a nullity. See (State v. Harris, 2003 WL 760156 (Ohio App. 8
Dist.) 2003-Ohio-1003).” (Emphasis sic.)
{¶ 10} The court made clear in its entry that it would be resentencing
Harrison, but it also offered Harrison the opportunity to withdraw his plea:
{¶ 11} “The court, therefore, orders this matter set for resentencing in
accordance with the requirements of R.C. 2967.28(B).
{¶ 12} “The court further will grant the defendant leave prior to the
resentencing hearing to withdraw his pleas of guilty to Counts V and VI since the
court erroneously informed the defendant of the terms of post release control for
those counts during the guilty plea dialogue.”
{¶ 13} On March 25, 2005, Harrison filed a petition for a writ of
prohibition in the Third District Court of Appeals to prevent the trial court from
proceeding with the resentencing. On March 28, 2005, Harrison filed a motion to
stay the resentencing hearing until the appellate court ruled upon his prohibition
petition. In an entry signed that same day, the trial court denied the motion for
stay. The appellate court thus had not ruled upon Harrison’s prohibition petition
at the time of the March 29, 2005 resentencing hearing.
{¶ 14} At the resentencing hearing, the court engaged in a direct
conversation with Harrison and his attorney regarding the withdrawal of
Harrison’s guilty pleas:

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{¶ 15} “THE COURT: This matter comes on today for resentencing
pursuant to the Court's entry and order of March 22nd of 2005 and filed on March
23rd of 2005, finding that the Court had erred at the original sentencing hearing
by failing to sentence the Defendant to a mandatory five (5) years of Post Release
Control for violations of Ohio Revised Code Section 2907.321(A)(5) and Revised
Code Section 2907.32(A)(5). The Court has further granted the Defendant leave
to withdraw his guilty pleas in this case due to the fact that at the arraignment and
guilty plea, the Court had advised the Defendant that his sentence for these
offenses to which he was pleading may result in three (3) years of Post Release
Control rather than the mandatory five (5) years of Post Release Control. At this
time, does the Defendant wish to withdraw his pleas of guilty in this case?
{¶ 16} “MR. SIRAK: Your Honor, on behalf of my client, he wishes to
WITHDRAW his guilty pleas.
{¶ 17} “THE COURT: Mr. Harrison, is that your wish?
{¶ 18} “DAVID HARRISON: Yes Sir, Your Honor, it is my wish.
{¶ 19} “THE COURT: Do you understand that the sole purpose of this
sentencing only deals with the issue of the five (5) years of mandatory Post
Release Control and your prison sentence wouldn't be changed. Do you
understand that?
{¶ 20} “DAVID HARRISON: I understand, Your Honor.
{¶ 21} “THE COURT: And that your attorney has indicated that if the
five (5) years of Post Release Control are imposed that he would, of course, take
that to the Court of Appeals and it's this Court's opinion that his argument is not
without merit. Do you understand that?
{¶ 22} “DAVID HARRISON: Yes Sir, Your Honor.
{¶ 23} “THE COURT: And knowing all that, is it still your desire to
withdraw your pleas of guilty in this case?
{¶ 24} “DAVID HARRISON: Yes, Sir.”

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{¶ 25} Thus, the court alerted Harrison that the resentencing would
pertain only to the mandatory postrelease-control period of five years and that his
prison sentence would not be changed. The court further established that
Harrison could appeal any resentencing and even suggested that defense counsel's
argument was “not without merit.”
{¶ 26} Later, Special Prosecutor Scott A. Longo revealed that he, the
judge, and Harrison’s counsel had discussed the plea withdrawal before the
resentencing hearing. During that discussion, Longo announced that if Harrison
withdrew his guilty plea, Longo would present the same case to the grand jury for
an indictment and reprosecution.
{¶ 27} Still, Harrison sought to withdraw his former guilty plea; the court
granted the plea withdrawal by entry of March 29, 2005.
{¶ 28} After the hearing, on March 31, 2005, the Third District Court of
Appeals dismissed Harrison's petition for a writ of prohibition. [State ex rel.]
Harrison v. Steele, Auglaize App. No. 2-05-14, 2005-Ohio-1608, 2005 WL
742691. The court of appeals held that “[p]rohibition will not lie to prevent an
anticipated erroneous judgment.” Id. at ¶ 5. It further held that there was an
adequate remedy in the law to address his cause by way of an appeal. Id. at ¶ 8.
The court stated that Harrison, if resentenced, could “seek to stay execution of the
judgment and raise any error or irregularity in the re-sentencing order on appeal.”
Id.
{¶ 29} Harrison’s plea having been withdrawn, the trial court could not
resentence him. The court set bond, and Harrison registered a continuing
objection as to the court’s jurisdiction. On May 5, 2005, the special prosecutor
dismissed the original case against Harrison, State v. Harrison, Auglaize C.P. No.
2003-CR-0083. But this did not end the prosecution of Harrison.
{¶ 30} On June 23, 2005, the Auglaize County Grand Jury indicted
Harrison in a 23-count indictment, based upon the same general set of

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circumstances as the original complaint against him. State v. Harrison, Auglaize
C.P. No. 2005-CR-10-099. On October 6, 2005, at Harrison's request, the
Auglaize County court transferred his case to the Madison County Common Pleas
Court. The matter proceeded to jury trial on March 6, 2006, and the jury returned
its verdict on March 13, 2006, finding Harrison guilty on 18 counts, including two
counts of unauthorized use of a computer pursuant to R.C. 2913.04(B), one count
of theft in office pursuant to R.C. 2921.41(A)(1), and 15 counts of illegal use of a
minor in nudity-oriented material pursuant to R.C. 2907.323(A)(1). In the second
prosecution, the prosecutor had charged Harrison with a violation of R.C.
2907.323(A)(1) for each individual image of a child.
{¶ 31} On April 7, 2006, Harrison filed a petition for a writ of prohibition
in the Twelfth District Court of Appeals asking for an order preventing the trial
court from proceeding with sentencing; the Twelfth District Court of Appeals
eventually denied Harrison's petition for a writ of prohibition on June 9, 2006.
{¶ 32} On May 5, 2006, Harrison filed a motion to dismiss in the trial
court. In the motion, Harrison argued that he had withdrawn his guilty plea in the
first action because he had relied upon the trial court’s assertion of authority to
resentence him. He argued that the trial court never had that authority based upon
this court’s holding in Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126,
844 N.E.2d 301, which established that a trial court has no authority to resentence
a defendant once the defendant has served the term the court had previously
imposed. Harrison argued that “in light of Hernandez, his plea withdrawal is a
nullity as his case was over and there was no active or pending case from which to
withdraw a plea. * * * Since his plea withdrawal is a nullity, case no. 2005-CR-
10-099 was unconstitutionally filed in violation of [his] right against Double
Jeopardy.” The trial court denied the motion to dismiss on June 26, 2006. The
parties agree that the trial court’s sentencing entry imposed an aggregate term of
six years’ incarceration, with credit for the one year already served. Harrison was

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also designated a sexually oriented offender. Harrison appealed the verdicts, and
the Twelfth District affirmed the convictions on December 28, 2007.
{¶ 33} The cause is before this court upon the acceptance of a
discretionary appeal.
Law and Analysis
{¶ 34} The journey this case has taken is lamentable. We hope it will
never be repeated. This case lands here today because after Harrison completed
his sentence following a guilty plea, the state sought a resentencing that the trial
court lacked the jurisdiction to impose. The trial court, however, moved forward
as if it did have such jurisdiction. Harrison fought the resentencing at the
appellate court through a writ of prohibition, but the trial court acted before the
appellate court had issued its opinion that the matter was not yet ripe. Faced with
a resentencing, Harrison sought to withdraw his original guilty plea. The trial
court accepted the plea withdrawal, which meant that the court could not
resentence him. Thus, Harrison is not appealing an unauthorized resentencing.
Instead, he is appealing the entirety of the state’s prosecution redux. We agree
that the second prosecution emanated from the trial court’s improper assertion of
jurisdiction and that the plea agreement, guilty plea, and completed sentence in
the first prosecution ended the state’s case against Harrison.
{¶ 35} There is no dispute that the trial court should have imposed
mandatory postrelease control on Harrison at his original sentencing. But the trial
court’s authority to repair that omission ended when Harrison completed his
original one-year incarceration. This court’s recent jurisprudence is unmistakable
on that point. Before Harrison completed his incarceration, the state could have
sought a correction of that error, and the trial court could have resentenced
Harrison to include mandatory postrelease control, but that power ended once
Harrison was released: “[I]n cases in which a defendant is convicted of, or pleads
guilty to, an offense for which postrelease control is required but not properly

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included in the sentence, the sentence is void, and the state is entitled to a new
sentencing hearing to have postrelease control imposed on the defendant unless
the defendant has completed his sentence.” (Emphasis added.) State v. Simpkins,
117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 6.
{¶ 36} In State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d
961, ¶ 18, this court held that since the defendant had already served the prison
term ordered by the trial court, he could not be resentenced in order to correct the
trial court’s failure to impose postrelease control at the defendant’s original
sentencing hearing. Further, in Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-
Ohio-126, 844 N.E.2d 301, ¶ 32, this court held that resentencing to impose
postrelease control is not an option once the defendant had completed his prison
term.
{¶ 37} Again, the trial court in the first case did not resentence Harrison;
it instead allowed Harrison to withdraw his guilty plea. In a vacuum, the trial
court could have accepted the withdrawal of Harrison’s plea even after he had
completed his sentence, had he shown the “manifest injustice” required by
Crim.R. 32.1. But Crim.R. 32.1 applies in instances where defendants seek a plea
withdrawal of their own volition. Here, the defendant was hauled into court and
informed that he would be resentenced unless he withdrew his plea. The trial
judge presented Harrison with a Morton’s Fork; whether Harrison chose the
correct tine upon which to be impaled is not the question. The question is
whether the trial court had the authority to require Harrison to make a choice at
all. Clearly, it did not. Harrison had served his sentence, and the case was over.
The entire attempt at resentencing and the related plea withdrawal were nullities.
Thus, the plea agreement, guilty plea, and sentence as served survived as though
the court’s attempt at resentencing had never occurred.
{¶ 38} With the plea agreement in place, could the state have pursued
further charges against Harrison? In State v. Carpenter (1993), 68 Ohio St.3d 59,

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61, 623 N.E.2d 66, this court discussed the role of plea agreements in the
administration of justice and in declaring a matter closed:
{¶ 39} “Plea agreements are an essential and necessary part of the
administration of justice. Santobello v. New York (1971), 404 U.S. 257, 261, 92
S.Ct. 495, 498, 30 L.Ed.2d 427, 432. ‘Disposition of charges after plea
discussions is not only an essential part of the process but a highly desirable part
for many reasons.’ Id. at 261, 92 S.Ct. at 498, 30 L.Ed.2d at 432. ‘This phase of
the process of criminal justice, and the adjudicative element inherent in accepting
a plea of guilty, must be attended by safeguards to insure the defendant what is
reasonably due in the circumstances.’ Id. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at
433.”
{¶ 40} In Carpenter, after plea negotiations with the state, the defendant
entered a guilty plea to attempted felonious assault. At the time of the
negotiations, the state was aware that the defendant’s victim was likely to die of
the injuries inflicted by the defendant, but the plea agreement contained no
reference to additional prosecution in the event of the alleged victim's death. The
defendant was sentenced to a term of two to ten years' imprisonment, and while
the defendant was serving his sentence, the victim died. After serving almost
three years of his sentence, the defendant was released from prison. Several
months later, he was indicted for the murder of the victim.
{¶ 41} This court discussed the expectation of both the defendant and the
prosecution in arriving at a plea agreement and noted that each side bargains away
its desired outcome for the benefit of certainty:
{¶ 42} “By accepting a plea to a lesser included charge, the state obtained
a definite prison term for the defendant and avoided the uncertainties of trial. In
exchange, the appellant anticipated that by pleading guilty to attempted felonious
assault, and giving up rights which may have resulted in his acquittal, he was
terminating the incident and could not be called on to account further on any

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charges regarding this incident.” Carpenter, 68 Ohio St.3d at 61-62, 623 N.E.2d
66.
{¶ 43} The key to the continued validity of the plea agreement in
Carpenter was the reasonableness of the defendant’s expectation that the
prosecution would end:
{¶ 44} “We think this expectation was entirely reasonable and justified
and that the prosecutor was aware of this expectation. Therefore, if the state
wanted to reserve its right to bring further charges later, should the victim die, the
state should have made such a reservation a part of the record.” Id. at 62, 623
N.E.2d 66.
{¶ 45} The focus in Carpenter was on the reasonableness of the
defendant’s belief that the plea agreement would terminate any future charges
based upon the same incident. In State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-
1807, 806 N.E.2d 542, this court again considered the impact of plea agreements
on subsequent prosecutions arising out of the same events and the reasonableness
of the expectation of termination of the charges. In Zima, the defendant drove her
vehicle left of center and collided with a motorcyclist. On July 6, 2001, three
days after the incident, the city of Cleveland filed a complaint in the Cleveland
Municipal Court charging Zima with driving under the influence in violation of
Cleveland Codified Ordinances 433.01(a)(1), driving under suspension, failure to
yield, and failure to wear a seatbelt. On August 23, 2001, a Cuyahoga County
grand jury returned a three-count indictment against Zima, charging her with
aggravated vehicular assault in violation of R.C. 2903.08 on the basis that she was
driving under the influence, aggravated vehicular assault in violation of R.C.
2903.08 on the basis that she was driving recklessly, and driving under the
influence in violation of R.C. 4511.19.
{¶ 46} On August 27, 2001, unaware of the charges pending against her in
the common pleas court, the defendant, after plea negotiations with the city,

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entered a no-contest plea in municipal court to the charge of driving under the
influence, for which she was found guilty. As part of the plea agreement, the city
nolled the three remaining municipal charges. After her sentencing in municipal
court, Zima moved to dismiss the state charges in common pleas court on the
ground that double jeopardy prohibited the additional charges.
{¶ 47} The Zima court wrote that the Carpenter court, in order to enforce
the expectation that a plea agreement resolves all possible charges arising out of
an incident, “found it necessary to recognize what is basically an implied promise
on the part of the state not to prosecute the defendant for any further offenses that
may arise out of the same incident.” Zima, 102 Ohio St.3d 61, 2004-Ohio-1807,
806 N.E.2d 542, ¶ 11. The court found that in Carpenter and in the New Jersey
case upon which Carpenter relied, State v. Thomas (1972), 61 N.J. 314, 294 A.2d
57, “the defendant's expectation that his guilty plea would terminate the incident
was inherently justified because the prosecutor and the court had jurisdiction over
all the charges, both actual and potential, and because the negotiated guilty plea
included the dismissal of all pending charges.” Zima at ¶ 12. The court noted the
importance of those factors in determining the reasonableness of a defendant’s
expectation of closure: “In the absence of these or equivalent circumstances,
however, it would be exceedingly difficult to sustain a defendant's belief that no
further charges will be brought or prosecuted.” Id. In Carpenter, the victim’s
death occurred after the plea agreement, but in Zima, the court stated that “[t]he
same inquiry into the reasonableness of the defendant's expectation would also be
required in cases where, in Zima's phrase, ‘all of the facts underlying the greater
offense [are] known at the time of the plea.’ ” Id. at ¶ 13.
{¶ 48} In Zima, this court found that the defendant did not qualify for
dismissal of the state charge, because the defendant had already been indicted for
aggravated vehicular assault in the common pleas court by the time she had
entered her plea in municipal court, and “[n]either the municipal court nor the city

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prosecutor had the authority to dismiss those pending felony charges.” Id. at ¶ 14.
Thus, any expectation she had that she would be free from further charges was not
reasonable. The court agreed with the statement by a member of the appellate
panel that “ ‘[a] defendant should be aware that a plea taken before a municipal
judge with limited criminal jurisdiction might not dispose of the matter fully.
Therefore, Zima cannot simply rely on an implied representation that no further
charges would be brought but must articulate the circumstances showing why her
belief was reasonable in this case, which she has failed to do.’ 2002-Ohio-6327,
2002 WL 31618556, ¶ 44 (Kilbane, J., concurring in part and dissenting in part).”
Zima at ¶ 14.
{¶ 49} This court in Zima pointed to State v. Lordan (1976), 116 N.H.
479, 363 A.2d 201, as an appropriate example of a plea agreement closing the
door on any further action against the defendant arising from the same events.
The court wrote in Lordan:
{¶ 50} “The prosecutor knew the facts on which the present charges are
based at the time that the defendant pleaded guilty to the first three indictments.
Nothing prevented the prosecutor from seeking the present indictments then. The
submission and acceptance of the defendant's pleas to the first three indictments
must have contemplated that no further charges would be brought, for the
defendant by his pleas deprived himself of any meaningful defense to the present
charges.” Id. at 481, 363 A.2d 201.
{¶ 51} In Lordan, the defendant pleaded guilty to three charges. Later,
the prosecutor recharged the defendant, adding the additional element to each
charge that the defendant had used a pistol in committing the offenses. The court
concluded: “Where the defendant commits several offenses in a single transaction
and the prosecutor has knowledge of and jurisdiction over all these offenses and
the defendant disposes of all charges then pending by a guilty plea to one or more
of the charges, the prosecutor may not prefer additional charges arising from the

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same transaction unless either he has given notice on the record at the time of the
plea of the possibility that he may prefer further charges or the defendant
otherwise knows or ought reasonably to expect that further charges may be
brought.” Lordan, 116 N.H. at 482, 363 A.2d 201.
{¶ 52} This case is more akin to Lordan than to Zima. Here, following a
year-long BCI investigation, the prosecutor prepared a bill of information that was
filed on June 17, 2003. On that same date, both the prosecutor and Harrison
signed a negotiated plea agreement, wherein Harrison waived prosecution by
indictment and consented to be prosecuted by the bill of information. He agreed
to plead guilty to all the counts set forth in the bill of information. The prosecutor
and the court, unlike in Zima, had jurisdiction over all of the actual and potential
charges.
{¶ 53} Harrison was sentenced and served his jail term. The record
reveals no further investigation of Harrison and no new information that would
justify additional charges being brought against him. Instead, the special
prosecutor stated in the hearing on Harrison’s motion to dismiss that the second
prosecution is purely the result of Harrison’s withdrawal of his guilty plea in the
first case. The special prosecutor told the judge:
{¶ 54} “There was a conversation that occurred between myself, Judge
Steele, and Mr. Harrison’s attorney on the telephone prior to the withdrawal.
{¶ 55} “* * *
{¶ 56} “The defendant was aware, counsel was aware, what the intentions
were.
{¶ 57} “I was asked to come in as special prosecutor. I indicated to the
court, that since he had not been before the grand jury, had not been indicted, * *
* it was a bill of information that was crafted by the special prosecutor, that if he
withdrew his plea that I was going to dismiss the case and take it to the grand jury
and let the grand jury consider it.

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{¶ 58} “Mr. Harrison knew what could happen.
{¶ 59} “He was aware that the court thought he had an appellate issue,
and he voluntarily, intelligently, with counsel, * * * withdrew his guilty plea.”
{¶ 60} The second prosecution occurred only because Harrison withdrew
the guilty plea. The prosecutor believed that Harrison’s plea withdrawal
authorized the prosecution to essentially reboot its case against Harrison.
However, since Harrison’s plea withdrawal was the result of the trial court’s
wrongful assertion of jurisdiction, that plea withdrawal was invalid. The second
prosecution as a whole was invalid because Harrison had a reasonable expectation
that he could not be called on to account further on any charges arising out of the
investigation that led to the original prosecution. As in Carpenter, this
expectation was entirely reasonable and justified, and the prosecutor was aware of
this expectation at the time of the plea agreement.
{¶ 61} The state urges that Harrison’s failure to raise issues arising out of
the forced plea withdrawal in a motion to dismiss before trial constituted a waiver
of those rights. Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention
of the court.” Plain error exists only if “but for the error, the outcome of the trial
clearly would have been otherwise,” and is applied “under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v.
Long (1978), 53 Ohio St.2d 91, 97, 7 O.O.3d 178, 372 N.E.2d 804. The facts in
this case satisfy the criteria for plain error: there should never have been a second
prosecution.
{¶ 62} Accordingly, we reverse the judgment of the court of appeals.
Judgment reversed.
MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, and TRAPP, JJ.,
concur.
O’DONNELL and LANZINGER, JJ., concur in judgment only.

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MARY JANE TRAPP, J., of the Eleventh Appellate District, sitting for CUPP,
J.
__________________
LANZINGER, J., concurring in judgment only.
{¶ 63} I concur in judgment only. I do not agree that when mandatory
postrelease control is not imposed a sentence is “void,” meaning that the court
lacked jurisdiction to impose it. Such an erroneous sentence is voidable, making
the person subject to resentencing only if the original sentence has been properly
appealed or if the court follows the procedure set forth in R.C. 2929.191.1 See
State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 74-
76 (Lanzinger, J., concurring in part and dissenting in part).
__________________
Scott A. Longo, Special Prosecuting Attorney for Auglaize County, for
appellee.
Dean Boland, for appellant.
______________________

1. The effect of R.C. 2929.191 is currently being questioned in case No. 2008-1255, State v.
Singleton, Cuyahoga App. No. 90042, 2008-Ohio-2351, 2008 WL 2058571.

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