[Cite as State v. Norman, 2011-Ohio-5969.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24445
vs. : T.C. CASE NO. 02CR1470
JIMMY R. NORMAN : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 18th day of November, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros.
Attorney, Atty. Reg. No. 0069384, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Robert Alan Brenner, Atty. Reg. No. 0067714, P.O. Box 341021,
Beavercreek, OH 45434-1021
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Jimmy Norman, appeals from his resentencing
pursuant to R.C. 2929.191 and the trial court’s imposition of
post-release control.
{¶ 2} In 2003, as part of a negotiated plea agreement,
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Defendant entered pleas of guilty to aggravated robbery,
kidnapping, rape, and corrupting another with drugs. The trial
court sentenced Defendant to consecutive prison terms of eight
years for aggravated robbery, five years for kidnapping, five years
for rape, and two years for corrupting another with drugs, for
a total sentence of twenty years. On direct appeal we affirmed
Defendant’s convictions. State v. Norman, Montgomery App. No.
19811, 2004-Ohio-75.
{¶ 3} On January 10, 2011, Defendant was brought before the
trial court for resentencing pursuant to R.C. 2929.191 because
of a defect in imposing post-release control. At resentencing,
Defendant objected to the trial court imposing post-release control
on all of the charges, and particularly the aggravated robbery
charge, because Defendant claimed that he had already completed
his eight year sentence for that offense. Therefore, the trial
court lacked authority to impose post-release control on that
offense.
{¶ 4} The trial court overruled Defendant’s objection and
imposed mandatory five year terms of post-release control on the
aggravated robbery, kidnapping and rape convictions, and a three
year mandatory term of post-release control on the corrupting
another with drugs conviction.
{¶ 5} From his resentencing, Defendant has appealed to this
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court.
FIRST ASSIGNMENT OF ERROR
{¶ 6} “THE TRIAL COURT ERRED WHEN IT IMPOSED POST-RELEASE
CONTROL ON ALL COUNTS AT THE DEFENDANT’S POST-RELEASE CONTROL
RESENTENCING.”
{¶ 7} Defendant pled guilty to four offenses and was sentenced
to consecutive prison terms totaling twenty years, which included
an eight year sentence for aggravated robbery. Defendant was
delivered to prison to begin serving his sentence on March 6, 2003,
and was given 317 days of jail time credit. Defendant argues in
this assignment of error that when he was resentenced on January
10, 2011, solely for the purpose of correcting a defect in the
post-release control portion of his sentence pursuant to R.C.
2929.191, he had already completed his eight year sentence for
aggravated robbery, and therefore the trial court had no authority
to impose post-release control on that offense.
{¶ 8} Pursuant to R.C. 2929.191(A)(1), if a trial court imposes
a prison term upon an offender prior to July 11, 2006, and fails
to notify the offender about post-release control, the trial court
may resentence the offender and impose the omitted terms of
post-release control. However, that resentencing must occur
“before the offender is released from imprisonment under that
term.” Id. Once the offender completes serving his sentence,
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the trial court’s authority to correct the omission of post-release
control ends. State v. Harrison, 122 Ohio St.3d 512,
2009-Ohio-3547 at ¶35; State v. Simpkins, 117 Ohio St.3d 420,
2008-Ohio-1197 at ¶6; Hernandez v. Kelly, 108 Ohio St.3d 395,
2006-Ohio-126.
{¶ 9} R.C. 2929.01(BB)(1) defines “prison term” to include
a stated prison term. R.C. 2929.01(FF) defines “stated prison
term” as, among other things, the combination of all prison terms
imposed by the sentencing court pursuant to R.C. 2929.14. We have
previously construed the definition of “stated prison term,” albeit
in conjunction with the R.C. 2929.20(B)(1) provision for judicial
release, as expressly providing that a combination of prison terms,
such as a series of consecutive sentences, be treated as one stated
prison term, not as multiple terms. State v. Anderson-Melton (Nov.
9, 2001), Montgomery App. No. 18703. That same interpretation
applies here, and means that Defendant’s stated prison term is
twenty years, not multiple, separate prison terms consisting of
eight years, five years, five years, and two years. Defendant
will not complete serving his sentence in this case until he has
served all twenty years.
{¶ 10} In State v. Lewis, Summit App. No. 25080, 2011-Ohio-2014,
the Ninth District Court of Appeals addressed this very issue in
a similar case. Lewis was sentenced to consecutive prison terms
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of four years on each of five counts of aggravated robbery, for
an aggregate sentence of twenty years. Ten years later, Lewis
was resentenced in accordance with R.C. 2929.191 to correct an
error in the imposition of post-release control. In rejecting
Lewis’ claim that by the time of re-sentencing he had already served
the first two of his four-year prison terms and therefore the trial
court lacked the authority to impose a term of post-release control
on those offenses, the Court of Appeals stated:
{¶ 11} “{¶19} Here, Lewis may have served some portion of the
sentence imposed, but he has not completed his prison term of twenty
years or been released from prison. Thus, the trial court had
jurisdiction to resentence him to impose post-release control.”
{¶ 12} That same conclusion applies here. Defendant may have
served some portion of the sentence imposed, but he has not
completed his twenty year stated prison term, nor has he been
released from imprisonment under that term. Accordingly, R.C.
2929.191(A)(1) authorized the trial court to impose post-release
control on the four offenses for which Defendant was convicted
and sentenced.
{¶ 13} Defendant’s assignment of error is overruled. The
judgment of the trial court will be affirmed.
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DONOVAN, J., And HALL, J., concur.
Copies mailed to:
Andrew T. French, Esq.
Robert Alan Brenner, Esq.
Hon. Timothy N. O’Connell