[Cite as State v. Jackson,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100519

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MICHAEL JACKSON DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-07-505342

BEFORE: McCormack, J., Jones, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: June 19, 2014 ATTORNEY FOR APPELLANT

Mark Gallagher Towards Employment, Inc. 1255 Euclid Avenue Suite 300 Cleveland, OH 44115

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Katherine Mullin Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} This case came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. Michael Jackson appeals from the trial court’s judgment

that imposed postrelease control at a resentencing hearing after he already completed

his sentence. The law is well settled that once the sentence for the offense that carries

postrelease control has been served, the court can no longer correct the errors regarding

postrelease control by resentencing. The state concedes the error.

Procedural History

{¶2} This case has a lengthy procedural history, unrelated to the postrelease

control issue before us in this appeal. In 2008, Jackson was indicted for four counts of

rape and four counts of unlawful sexual conduct with a minor; the latter counts carried a

“furthermore” clause alleging that Jackson was at least ten years older than the victim.

The case was tried to a jury. The jury found him guilty of one count of rape and one

count of unlawful sexual conduct with a minor. At sentencing, the trial court heard

mitigation testimony and sentenced Jackson to four years on each count, to run

concurrently.

{¶3} In his direct appeal, this court affirmed Jackson’s conviction but vacated the

“furthermore” finding in connection with his offense of unlawful sexual conduct with a

minor. This court also concluded that the offenses of rape and unlawful sexual conduct with a minor were allied offenses, and remanded for resentencing. State v. Jackson, 8th

Dist. Cuyahoga No. 92531,

(“Jackson I”).

{¶4} The state appealed our decision to the Supreme Court of Ohio on the issue

of allied offenses. The Supreme Court accepted review and remanded the case for

further consideration in light of its decision in State v. Johnson,

,

,

. Upon remand from the Supreme Court of Ohio, this

court applied Johnson and, again, found the offenses to be allied. This court therefore

remanded the case to the trial court for a new sentencing hearing, where the state would

be allowed to elect which offense to pursue. State v. Jackson, 8th Dist. Cuyahoga No.

92531,

(“Jackson II”).

{¶5} Jackson II was issued on November 23, 2011. Before the trial court

conducted the resentencing hearing, however, Jackson completed his sentence and was

released from prison.

{¶6} Subsequently, on September 16, 2013, the resentencing hearing took place.

The state elected to proceed on the rape count, and the trial court reimposed the original

four-year sentence. The court also reimposed five years of postrelease control.

{¶7} Jackson appeals from the court’s judgment. In this appeal, he claims the

trial court erred in imposing the five-year postrelease control at his resentencing. We

agree.

This Appeal: Postrelease Control {¶8} In his original sentencing, the trial court notified Jackson that his sentence

included a mandatory period of five years of postrelease control. The trial court, however,

failed to notify him, as it should have, of the consequences he would face if he violated

the terms of his postrelease control. In his direct appeal, Jackson I, Jackson assigned as

an error the trial court’s failure to properly impose postrelease control. This court

acknowledged the error.

{¶9} However, Jackson’s resentencing did not take place until he had already

completed his prison term. It is well settled that once the sentence for the offense that

carries postrelease control has been served, the defendant cannot be resentenced to correct

the trial court’s flawed imposition of postrelease control. State v. Douse, 8th Dist.

Cuyahoga No. 98249,

, citing State v. Bloomer,

,

,

. See also State v. Peterson, 8th Dist.

Cuyahoga No. 96958,

; State v. Cobb, 8th Dist. Cuyahoga No. 93404,

.

{¶10} Appropriately, the state concedes the error. Accordingly, we sustain

Jackson’s sole assignment of error and vacate the trial court’s imposition of postrelease

control. This matter is remanded for the trial court to note on its record that Jackson is

not subject to postrelease control.

{¶11} Judgment reversed, and case remanded to the lower court for further

proceedings consistent with this opinion.

It is ordered that appellant recover of said appellee 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.

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

the Rules of Appellate Procedure.

______________________________________________ TIM McCORMACK, JUDGE

LARRY A. JONES, SR., P.J., and KENNETH A. ROCCO, J., CONCUR