State v. Gresham

[Cite as State v. Gresham, 

.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                   No. 95992



                                    STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                           CLEVELAND GRESHAM
                                                    DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-472990

        BEFORE:               Boyle, P.J., Cooney, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                          September 1, 2011
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ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building
Suite 940
526 Superior Avenue
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, P.J.:

       {¶ 1} Defendant-appellant, Cleveland Gresham, appeals the trial court’s imposition of

postrelease control following his resentencing hearing.   He raises a single assignment of error

for our review:

       {¶ 2} “The trial court violated Crim.R. 32 when there was an unnecessary delay in

sentencing appellant.”
                                               3

       {¶ 3} We find no merit to his appeal and affirm.

       {¶ 4} In March 2006, Gresham was sentenced to five years in prison for felonious

assault and the attendant firearm specifications.    At the time of sentencing, the trial court,

however, failed to properly impose the proper period of postrelease control.      Consequently,

on October 13, 2010, the trial court held a resentencing hearing, imposed the exact same

sentence of five years in prison, and also properly imposed a mandatory term of three years of

postrelease control.

       {¶ 5} Gresham now appeals, arguing that the mandatory period of postrelease control

should be vacated because there was an unreasonable delay between his conviction and

sentence.    Specifically, he argues that, because the original imposition of postrelease control

was void, he was not properly sentenced to a period of postrelease control until more than four

years after his conviction.   According to Gresham, this lengthy delay is clearly unreasonable

and directly contravenes Crim.R. 32(A), which mandates that “[s]entence shall be imposed

without unnecessary delay.”

       {¶ 6} This court, however, has addressed and rejected this very argument on several

occasions.    See, e.g., State v. Hunter, 8th Dist. Nos. 95111-95113, 

, ¶20;

State v. Zganjer, 8th Dist. No. 94724, 

, ¶5; State v. Lucas, 8th Dist. No. 90545,

 (no legitimate expectation of finality in a void sentence); State v. Huber, 8th

Dist. No. 85082, 

 (Crim.R.32(A) does not apply to resentencing); Smith
                                              4

v. Cuyahoga Cty. Sheriff’s Dept., 8th Dist. No. 94626, 

, ¶11 (court did not

lose jurisdiction to resentence for postrelease control when there was a ten-year delay between

original sentence and resentencing).       Accordingly, consistent with our precedent, we

summarily overrule Gresham’s assignment of error.

       Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.         The defendant’s conviction having been

affirmed, any bail pending appeal is terminated.        Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR