Opinion
Nos. 23924, 23925.
Rendered on the October 29, 2010.
Criminal Appeal from (Common Pleas Court, Trial Court Case Nos. 99-CR-3516, 99-CR-2575.
Mathias H. Heck, Jr., by Carley J. Ingram, Atty. Reg. #0020084, Montgomery County Prosecutor's Office, Attorney for Plaintiff-Appellee.
Candi S. Rambo, Atty. Reg. #0076627, Attorney for Defendant-Appellant.
OPINION
{¶ 1} In these two appeals, defendant-appellant Mark D. Ball appeals from re-sentencing orders imposed in 2010 in two felony cases for which Ball was sentenced in 1999. Because Ball had already completed his sentences in those two cases, and been released from prison, the trial court erred in re-sentencing him. Consequently, the re-sentencing orders in Montgomery County Common Pleas Court Case Nos. 99-CR-3516 and 99-CR-2575, from which these two appeals are taken, are Reversed and Vacated.
{¶ 2} In November, 1999, Ball was charged by bill of information with Receiving Stolen Property in Case No. 99-CR-2575, and with two counts of Burglary in Case No. 99-CR-3516. He pled guilty to all counts the next day, and was sentenced to five years on each of the Burglary convictions and to twelve months on the Receiving Stolen Property conviction, with all sentences to be served concurrently.
{¶ 3} According to the State, "[h]e was released from prison probably sometime in the fall of 2004, but definitely prior to February 18, 2005 * * * ." On February 18, 2005, Ball committed another Burglary, for which he was indicted, and to which he pled guilty. That is Montgomery County Common Pleas Court Case No. 05-CR-726. In May, 2005, Ball was sentenced to five years in prison for that offense.
{¶ 4} On February 11, 2010, just days before Ball's scheduled release from prison, he was brought back before the Montgomery County Common Pleas Court for re-sentencing on all three cases, to correct "an error in telling you about the duration of your post-release control or * * * an error in telling you that post-release control was discretionary on the part of the parole board when, in fact, it was mandatory." Ball was re-sentenced in all three cases, and has appealed from all of the orders re-sentencing him. His appeal from his re-sentencing in Montgomery County Common Pleas Court Case No. 05-CR-726 is Case No. 29323 in this court, and will be the subject of a separate opinion.
{¶ 5} Ball's sole assignment of error is as follows:
{¶ 6} "THE TRIAL COURT ERRED BY RESENTENCING THE APPELLANT ON CASES, IN WHICH THE TERM OF IMPRISONMENT HAD ALREADY BEEN COMPLETED, THUS LACKING JURISDICTION."
{¶ 7} With respect to the five-year sentences imposed in 1999, which he had already completed, and with respect to which he had already been released from prison, before his 2010 re-sentencing, the State confesses error, citing Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, and State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, for the proposition that the trial court lacked authority to correct the sentences in those cases once those sentences had been completely served. We agree.
{¶ 8} The orders in Montgomery County Common Pleas Court Case Nos. 99-CR-3516 and 99-CR-2575 re-sentencing Ball are Reversed and Vacated.
GRADY and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck, Jr. Carley J. Ingram Candi S. Rambo Hon. Mary L. Wiseman