[Cite as State v. Hanna, 2011-Ohio-4650.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 11-CA-2
BRIAN P. HANNA
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Common
Pleas Court, Case No. 00CR110077
JUDGMENT: Vacated
DATE OF JUDGMENT ENTRY: September 13, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN C. THATCHER BRUCE J. MALEK
Knox County Prosecutor Knox County Public Defender
CHARLES T. MCCONVILLE MARK A. ZANGHI
Assistant Prosecuting Attorney Assistant Knox County Public Defender
Knox County Prosecutor’s Office One Public Square
117 East High Street, Suite 234 Mount Vernon, Ohio 43050
Mount Vernon, Ohio 43050
Knox County, Case No. 11-CA-2 2
Hoffman, J.
{¶1} Defendant-appellant Brian P. Hanna appeals the February 6, 2007
Amended Sentencing Entry of the Knox County Court of Common Pleas. Plaintiff-
appellee is the State of Ohio.
STATEMENT OF THE CASE
{¶2} On June 26, 2001, Appellant was convicted of one count of rape, in
violation of R.C. 2907.02(A)(1)(b). On July 20, 2001, the trial court sentenced Appellant
to a definite term of imprisonment of ten years. At the sentencing hearing, the trial court
advised Appellant “a term of post-release control may be imposed for up to five years.”
However, the judgment entry of sentencing did not include any term of post-release
control.
{¶3} On February 6, 2007, via Amended Sentencing Entry, the trial court
amended Appellant’s sentence to include a five year term of post-release control.
{¶4} Appellant now appeals with leave of this Court, assigning as error:
{¶5} “I. THE TRIAL COURT ERRED WHEN IT JOURNALIZED AN AMENDED
SENTENCING ENTRY IMPOSING A POST-RELEASE CONTROL SANCTION
WITHOUT THE BENEFIT OF A DE NOVO SENTENCING HEARING AND
THEREFORE THE SENTENCE IS VOID.”
{¶6} R.C. 2929.191, enacted as part of H.B. 137, provides a statutory remedy
to correct the failure of the trial court to properly impose post release control. Singleton,
¶ 23. The statute became effective on July 11, 2006.
{¶7} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, the Ohio
Supreme Court cited to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d
Knox County, Case No. 11-CA-2 3
961, as one of the progeny of cases confirming the requirement of conducting a de novo
sentencing hearing to correct a sentence which fails to properly impose post release
control. Id. at ¶ 17. The Supreme Court recently examined State v. Bezak and limited its
application in State v. Fischer, 128 Ohio.St.3d 93, 2010-Ohio-6238.
{¶8} In Fischer, the defendant was sentenced in 2002 and the sentencing entry
failed to properly advise the defendant of his post release control obligations. The
defendant appealed his conviction and sentence, which were affirmed by the court of
appeals. The defendant moved for a resentencing hearing several years later based on
the authority of Bezak. At the resentencing hearing, the trial court properly notified the
defendant of his post release control obligations and reimposed the remainder of the
sentence. The defendant appealed, asserting his original sentence was “void,” so his
first appeal was not valid and the appeal of his resentencing was his “first appeal”;
therefore, he could raise all issues relating to his conviction. The issue before the Court
then was whether the defendant's direct appeal of a resentencing ordered pursuant to
State v. Bezak was a first appeal as of right. The Court found that it was not. Id. at ¶ 2-
5.
{¶9} The Fischer Court stated the majority in Bezak found when a court of
appeals remanded the case for resentencing due to the failure to inform the defendant
of post release control, the trial court was required to conduct a new sentencing hearing
in its entirety, rather than a hearing limited to reimposing the original sentence with
proper notice of post release control. (Emphasis added). Fischer at ¶ 12. Fischer
overrules the Bezak requirement of a de novo sentencing hearing in paragraph two of
Knox County, Case No. 11-CA-2 4
the syllabus: “The new sentencing hearing to which an offender is entitled under State
v. Bezak is limited to proper imposition of post release control.” Id.
{¶10} Accordingly, pursuant to Fischer Appellant was entitled to a new
sentencing hearing for the limited purpose of properly imposing post-release control
prior to the trial court amending his sentence. No such hearing took place. However,
as the State concedes herein, Appellant completed his prison term on July 20, 2011;
therefore, the trial court is without jurisdiction to now impose a corrective entry.
{¶11} The February 6, 2007 Amended Sentencing Entry of the Knox County
Court of Common Pleas is vacated.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. PATRICIA A. DELANEY
Knox County, Case No. 11-CA-2 5
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
BRIAN P. HANNA :
:
Defendant-Appellant : Case No. 11-CA-2
For the reason stated in our accompanying Opinion, the February 6, 2007
Amended Sentencing Entry of the Knox County Court of Common Pleas is vacated.
Costs to Appellee State of Ohio.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. PATRICIA A. DELANEY
State v. Hanna
Combined Opinion