[Cite as State v. Booth,
2011-Ohio-2557.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : William B. Hoffman, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2010CA00155
:
:
WALLACE BOOTH : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
1998-CR-0956
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 23, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO KENNETH W. FRAME
Prosecuting Attorney Stark County Public Defender’s Office
Stark County, Ohio 200 West Tuscarawas Street
Suite #200
BY: RONALD MARK CALDWELL Canton, Ohio 44702
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South, Ste. 510
Canton, Ohio 44702-1413
[Cite as State v. Booth, 2011-Ohio-2557.]
Edwards, J.
{¶1} Appellant, Wallace Eugene Booth, Jr., appeals a judgment of the Stark
County Common Pleas Court resentencing him to an aggregate term of incarceration of
10 to 25 years and notifying him that he would be subject to five years postrelease
control for rape upon his release. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} In 1998, the Stark County Grand Jury indicted appellant with two counts of
felonious sexual penetration, two counts of gross sexual imposition and two counts of
statutory rape. The indictment was later amended to one count each of felonious
sexual penetration and statutory rape, and two counts of gross sexual imposition.
Appellant entered a plea of guilty and was sentenced as follows:
{¶3} Felonious Sexual Penetration, 1 count – 8 to 25 years;
{¶4} Rape, 1 count – 8 years, concurrent;
{¶5} Gross Sexual Imposition, 1 count – 2 years, consecutive;
{¶6} Gross Sexual Imposition, 1 count – 1.5 years, concurrent.
{¶7} Appellant’s aggregate prison term was therefore 10 to 25 years. In 2010,
the trial court ordered a resentencing hearing to notify appellant of the term of
postrelease control. Appellant filed a motion not to proceed with the resentencing
hearing, arguing that postrelease control was applicable only to the charge of rape, and
he had completed his eight year sentence on this charge although he remained
incarcerated on the aggregate prison term. The trial court proceeded with resentencing
and notified appellant of the five year term of postrelease control. Appellant assigns a
single error:
Stark County App. Case No. 2010CA00155 3
{¶8} “THE TRIAL COURT ERRORED (SIC) WHEN IT RESENTENCED
DEFENDANT-APPELLANT PURSUANT TO STATE V. SINGLETON AFTER
DEFENDANT-APPELLANT HAD FINISHED THE SENTENCE FOR WHICH POST
RELEASE CONTROL WAS APPLICABLE.”
{¶9} Appellant argues that the court lost jurisdiction to resentence him because
the only charge to which postrelease control was applicable was rape, and he had
served the 8 year sentence for rape prior to resentencing. Appellant states that
according to the Department of Rehabilitation and Corrections, he completed this
portion of his sentence on December 3, 2007. In support of this assertion, he has
attached a print out of his record sheet from the Department’s web site. However, this
attachment was not attached to his motion opposing resentencing and was not admitted
into evidence at the resentencing hearing. This attachment is therefore not a part of the
record before this court on appeal.
{¶10} R.C. 2929.191(A)(1) provides in pertinent part:
{¶11} “(A)(1) If, prior to the effective date of this section, a court imposed a
sentence including a prison term of a type described in division (B)(3)(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 (F)(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
Stark County App. Case No. 2010CA00155 4
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).
{¶12} This Court has previously held that where an offender has completed his
sentence on the case for which the court has resentenced him under R.C. 2929.191,
the resentencing entry is void for lack of jurisdiction even if the offender remains
incarcerated on another case at the time of the resentencing. State v. Henry, Stark
App. No. 2006-CA-00245, 2007-Ohio-5702. See also State v. Bristow, Lucas App. No.
L-06-1230,
2007-Ohio-1864 (court lacked jurisdiction to resentence where offender
completed his term of incarceration on the instant case but remained incarcerated on a
separate charge); State v. Turner, Franklin App. No. 06AP-491,
2007-Ohio-2187 (the
expiration of the offender's journalized prison sentence, rather than the offender's
ultimate release from prison, is determinative of the trial court's authority to resentence);
State v. Ferrell, Hamilton App. No. C0707-99,
2008-Ohio-5280 (two separate sentences
from two different counties, entered months apart and ordered to run consecutively, are
not tantamount to one aggregate sentence and the court lost jurisdiction to resentence
when the term was completed on the instant sentence); State v. Arnold,
189 Ohio
App.3d 238,
938 N.E.2d 45,
2009-Ohio-3636 (it is the expiration of the prisoner's
journalized sentence, rather than the offender's ultimate release from prison that is
determinative of the trial court's authority to resentence to impose an erroneously
omitted postrelease control term).
{¶13} In the instant case, appellant’s eight-year sentence for rape was ordered
to be served concurrently with the 8-25 year sentence for felonious sexual penetration.
Stark County App. Case No. 2010CA00155 5
Because the sentence was served concurrently rather than consecutively and the
sentences were imposed under the same case number from the same indictment, we
find that appellant had not yet been “released from imprisonment under that term” within
the meaning of R.C. 2929.191(A)(1) when the court resentenced him to add the term of
postrelease control. The two sentences in the instant case were tantamount to one
aggregate sentence and the court did not lose jurisdiction to resentence at the end of
eight years.
{¶14} The assignment of error is overruled.
{¶15} The judgment of the Stark County Common Pleas Court is affirmed.
By: Edwards, J.
Hoffman, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0126
[Cite as State v. Booth, 2011-Ohio-2557.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
WALLACE BOOTH :
:
Defendant-Appellant : CASE NO. 2010CA00155
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellant.
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_________________________________
_________________________________
JUDGES
