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1 IN THE OHIO SUPREME COURT STATE OF OHIO CASE NO Appellant V. JIMMY L. HARMON Appellee ON APPEAL FROM THE SUMMIT COUNTY COURT OF APPEALS, NINTH APPELLATE DISTRICT COURT OF APPEALS CASE NO MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT, STATE OF OHIO SHERRI BEVAN WALSH Summit County Prosecutor RICHARD S. KA.SAY. (Counsel ofrecord) Assistant Prosecuting Attorney Appellate Division Summit County Safety Building 53 University Avenue, 6th Floor Akron, Ohio 443o8 (33o) oo Reg. No COUNSEL FOR APPELLANT, STATE OF OHIO ^^^D OGT 1,5 m9 CLERK OF COURT SUPREME COURTOFOy10 NEIL P. AGARWAL (Counsel ofrecord) Attorney at Law 3766 Fishcreek Rd. #289 Stow, Ohio (330) Reg. No. o COUNSEL FOR APPELLEE, JIMMY L. HARMON

2 TABLE OF CONTENTS EXPLANATION OF WHY LEAVE TO APPEAL SHOULD BE GRANTED... STATEMENT OF THE CASE AND FACTS... PAGE S 1 2 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW... Proposition of Law: WHERE A DEFENDANT IN A CRIMINAL CASE IS RESENTENCED BECAUSE THE SENTENCE IS VOID AND WHERE THERE HAS BEEN A PRIOR DIRECT APPEAL THE DEFENDANT IS BARRED FROM ARGUING IN A NEW APPEAL ISSUES THAT WERE RAISED OR COULD HAVE BEEN RAISED IN THE FIRST APPEAL CONCLUSION... 8 PROOF OF SERVICE... 9 APPENDIX Appx. Paee Journal Entry of the Summit County Court of Appeals, Ninth Judicial District (Sept. 2, 2009)... A-i Reconsideration Entry of The Ohio Supreme Court (Sept.30, 2009)... A-u Entrp of The Ohio Supreme Court (May 6, 2009)...:... A-12 Entry of The Ohio Supreme Court (Aug. 26, 2009)... A-i3 II

3 EXPLANATION OF WHY LEAVE TO APPEAL SHOULD BE GRANTED This case presents the question whether when a sentence is void, here because of improper imposition of post-release control, an appeal after resentencing to properly impose post-release control is the first appeal as of right even though there has been a prior direct appeal from the initial judgment. This Court has indicated that it wishes to decide this issue. An appeal was taken in State v. Fischer, Case Number 20o9-o897. Jurisdiction was not allowed. Then a motion for reconsideration was granted but limited to the issue stated above. Reconsideration Entry, dated September 30, 2oo9. The Ninth District overruled its decision in Fischer in this case. Decision and Journal Entry, 449. Therefore the appeal in this Court in 20o9-o897 is not a good vehicle to decide the issue. This appeal is that vehicle.

4 STATEMENT OF THE CASE AND FACTS Appellee Jimmy L. Harmon was convicted of engaging in a pattern of corrupt activity a felony of the first degree and other offenses. The Ninth District affirmed the convictions on appeal. Later Harmon moved to be resentenced arguing that the sentence was void because the correct term of post-release control was not imposed as part of the sentence. The State agreed the sentence was void. The State moved for resentencing under State v. Simpkins, 117 Ohio St.3d 420, 2oo8-Ohio Harmon then did an about face and moved to dismiss the resentencing hearing arguing that he could not be resentenced to add post-release control. Harmon was still in prison. Harmon was resentenced. He appealed. On appeal and as relevant to this appeal Harmon argued in his first assignment of error that at his trial the court erred in limiting his cross-examination of a witness. This was an argument that could have been raised in Harmon's direct appeal. In response to that assignment of error the State argued that under State v. Fischer, 9th Dist. App. No. 244o6, 20o9-Ohio-1491 and State v. Ortega, 9th Dist. App. No. o8caoo93i6, 2oo8-Ohio-6o53 Harmon could not appeal anew with issues that could have been.raised in his prior direct appeal. Ortega involved a defendant who had a direct appeal and was later resentenced because of post-release control problems. On appeal after resentencing the defendant attempted to raise claims concerning his initial trial. The Ninth District held that the law of the case doctrine applied even though the initial sentence was void. Ortega, 2oo8-Ohio-6o53, 6. Fischer involved the same basic facts. There had been an appeal and a resentencing because of post-release control problems. On appeal the defendant argued that since the initial sentence was void he was now taking his first appeal as of right. 2

5 The Ninth District followed Ortega and rejected that argument. Fischer, 20o9-Ohio- 1491, 7-8. This Court recently granted a motion for reconsideration in Fischer and allowed an appeal on the issue stated above, that following a resentencing to correct a void sentence, any appeal is the first appeal as of right. Reconsideration Entry dated September 30, 2009, supra. The Ninth District overruled Fischer however. Fischer and Ortega were overruled in this case. In response to the State's argument that those cases dictated that Harmon's first assignment of error had to be overruled the Ninth District discerned an implication in State ex rel. Culgan v. Medina Cty. Court of Common Pleas, ii9 Ohio St.3d 535, 20o8-Ohio-46og that where the sentencing entry is not final under Crim.R. 32(C) when a final order is journalized that order can be appealed. Decision and Journal Entry, 6. The Ninth District also considered its decision in State v. Bedford, gttl Dist. App. No , 20o9-Ohio In Bedford the Ninth District held that a sentence that is void (the sentence in that case was void because of post-release control problems) is not a final order even though the sentencing entry complies with Crim.R. 32(C). Bedford, 2oo9-Ohio-3972, io- ii. The end result in Bedford was that the void sentencing entry was vacated, the merits of the appeal were not reached, and the matter was remanded for a new sentencing hearing. Id The Ninth District now examines sua sponte sentences in all appeals and if the sentence is void the sentence is vacated and the matter remanded without addressing the merits of the appeal. See State v. Harville, gth Dist. App. No. o8caoo95o1, Ohio-5420; State v. Wesemann, 9th Dist. App. No , 20o9-Ohio

6 In Harmon's appeal the Ninth District held that it was compelled, however reluctantly, to address the first assignment of error. Decision and Journal Entry, 9. That result flowed from the fact that a void sentence is something that never existed. Id. 8. To all extent then, Fischer and Ortega were overruled; revisited in the word of the Ninth District. Decision and Journal Entry, 4. 4

7 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW PROPOSITION OF I.AW WHERE A DEFENDANT IN A CRIMINAL CASE IS RESENTENCED BECAUSE THE SENTENCE IS VOID AND WHERE THERE HAS BEEN A PRIOR DIRECT APPEAL THE DEFENDANT IS BARRED FROM ARGUING IN A NEW APPEAL ISSUES THAT WERE RAISED OR COULD HAVE BEEN RAISED IN THE FIRST APPEAL. A recent case presenting the basic issue here is State v. Turner, 8th Dist. App. No , 2oo8-Ohio-6648, appeal dismissed May 6, Under that case the Ninth District erred in Harmon's case. In Turner the defendant took a direct appeal. The court of appeals affirmed the conviction for robbery but remanded for resentencing because the sentence did not include post-release control. After resentencing the defendant appealed and argued that the indictment was fatally defective under State v. Colon, 118 Ohio St.3d 26, 2oo8-Ohio-i624. A majority of the panel held that the claim was barred by res judicata since the defendant could have raised it on direct appeal. Turner, 2oo8-Ohio-91695, 6-9. The dissenting judge foreshadowed the Ninth District's holding in Harmon's case and stated that since the initial sentence was void there was no final order and res judicata could not apply. Id Another case on point and adverse to the decision of the Ninth District is State v. Smith, 8th Dist. App. No , 20o9-Ohio-i6io, appeal dismissed August 26, There the defendant was resentenced upon his motion to vacate the sentence due to post release control issues. Id After resentencing defendant appealed and argued two issues that were unrelated to the resentencing. The court of appeals held that the defendant was precluded from making arguments unrelated to the resentencing based on the law of the case doctrine and res judicata. Id

8 Res judicata consists of claim preclusion and issue preclusion. FIA Card Services. N.A. v. Wood, 7th Dist. App. No. o8-je-i3, 20o9-Ohio-1513, 22, citing Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, *381. This Court likened the law of the case doctrine to issue preclusion. Wood, 20o9-Ohio-1513, 24, citing Hubbard ex rel. Creed v. Sauline (1996), 74 Ohio St.3d 402, *404-*405. Issue preclusion signifies "that a fact or a point that was actually and directly at issue in a previous action, and was passed upon and determined by a court of competent jurisdiction, may not be drawn into question in a subsequent action between the same parties or their privies, whether the cause of action in the two actions be identical or different." Wood, 2oo9-Ohio-1513, 22, citing Ft. Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd. (1998), 81 Ohio St.3d 392, *395 The law of the case doctrine bars new arguments. State ex re. Cordray v. Marshall, Slip Opinion 2oo9-Ohio-4986, 35, citing Creed, 74 Ohio St.3d at *405. The law of the case doctrine "provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels." Nolan v. Nolan (1984), 11 Ohio St.3d 1, *3. The doctrine, a rule of practice, is designed to ensure consistency of results, to avoid endless litigation, and to preserve the structure of the superior and inferior courts. Id. Crim.R. 32(C) is not at issue here. There was never any claim that Harmon's initial sentence did not comply with the rule as interpreted in State v. Baker, i19 Ohio St.3d 197, 20o8-Ohio-333o. Had Harmon been entitled to a new sentencing entry under State ex rel. Culgan v. Medina Cty. Court of Common Pleas, ii9 Ohio St.3d 535, 6

9 2oo8-Ohio-46o9 that does not mean that Harmon would then have the right to raise new or the same issues in a new appeal. There is no question that under cases such as State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio Harmon was entitled to a new sentencing hearing. Id. syllabus. The State specifically requested that Harmon be resentenced under State v. Simpkins, 117 Ohio St.3d 420, 2oo8-Ohio But once again that does not mean that Harmon should be allowed to raise new or the same issues in an appeal from the resentencing entry. Regardless whether the initial sentence was void the determinations made or that could have been made by the court of appeal in the first appeal should not disappear or be treated like a void sentence, something that never occurred. The Ninth District reached the correct result in State v. Ortega, 2oo8-Ohio-6o53 When the Ninth District affirmed Harmon's convictions in the first appeal the propriety of the convictions became the law of the case. Id. 7, citing State v. Harrison, 8th Dist. App. No ,2008-Ohio-921, 9 7

10 CONCLUSION Based upon the foregoing argument, the State respectfully submits that the Ninth District Court of Appeals erred in considering new assigned errors on the second appeal. The State requests that this Court take jurisdiction and reverse that part of the judgment of the Ninth District Court of Appeals. Respectfully submitted, SHERRI BEVAN WALSH Summit County Prosecutor ^ ^( 'z? RICHARD S. KA..SAY Assistant Prosecuting Attorney Appellate Division Summit County Safety Building 53 University Avenue, 6th Floor Akron, Ohio 443o8 (33o) oo Reg. No COUNSEL FOR APPELLANT, STATE OF OHIO 8

11 PROOF OF SERVICE I hereby certify that a copy of the foregoing Memorandum In Support of Jurisdiction was forwarded by regular U.S. First Class mail to Attorney Neil P. Agarwal, 3766 Fishcreek Road, #289, Stow, Ohio , and to 'nmothy Young, State Public Defender, The Midland Building, 25o E. Broad St. - 14th Floor, Columbus, Ohio 43215, on this i4th day of October, RICHARD S. KASAY Assistant Prosecuting Attorriey Appellate Division 9

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13 ICite as State v. Harmon, 2009-Ohio STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) STATE OF OHIO C.A. No Appellee V. APPEAL FROM JUDGMENT ENTERED IN THE JIMMY L. HARMON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR (C) DECISION AND JOURNAL ENTRY Dated: September 2, 2009 MOORE, Presiding Judge. { 1} Appellant, Jimmy L. Harmon, appeals the judgment of the Summit County Court of Common Pleas. This Court affirms. 1. {12} In 2004, a jury found Harmon guilty of engaging in a pattern of corrupt activity, a first-degree felony, and two counts of trafficking in cocaine, a third-degree felony. The trial court sentenced him to an aggregate prison term of nine years. During sentencing, the trial court did not inform Harmon of his obligations regarding postrelease control, and the trial court's sentencing entry provided that Harmon would be "subject to post-release control to the extent the parole board may determine as provided by law." Harmon appealed to this Court, and we affirmed his convictions on July 20, State v. Harmon, 9th Dist. No , 2005-Ohio

14 2 { 3} Later, both Harmon and the State filed motions for resentencing based on the trial court's failure to inform Harmon of his postrelease control obligations. On November 4, 2008, however, Hannon moved to "dismiss" the resentencing hearing, arguing that the trial court lacked jurisdiction to resentence him with the addition of postrelease control. The trial court conducted a second sentencing hearing on November 7, 2008, then denied Harmon's motion to dismiss, permitted him to withdraw his own motion for resentencing, and resentenced him to the same sentence previously imposed. The trial court informed Harmon of his postrelease control obligations during the sentencing hearing and included postrelease control notification in the new sentencing entry. Harmon timely appealed. He has, raised seven assignments of error for this Court's review, some of which have been rearranged for ease of disposition. II. ASSIGNMENT OF ERROR I "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENDANT'S RIGHT TO FULLY CROSS-EXAMINE AND IMPEACH A STATE'S WITNESS ABOUT HIS PREVIOUS CONVICTIONS WHEN IT REFUSED TO PERMIT DEFENDANT TO QUESTION THE WITNESS ABOUT THE CIRCUMSTANCES OF HIS PREVIOUS CONVICTIONS." { 4} As an initial matter, this Court must determine whether Harmon's first assignment of error can be considered in the context of this appeal. The State argues that prior decisions of this Court limit our review to errors arising out of the resentencing. See State v. Fischer, 9th Dist. No , 2009-Ohio-1491; State v. Ortega, 9th Dist. No. 08CA009316, 2008-Ohio This Court must revisit this issue, however, in light of State ex rel. Culgan v. Medina Cty. Court of Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609, and State v. Bedford, 9th Dist. No , 2009-Ohio-3972.

15 3 Finality and Crim.R. 32(C) { 5} In Culgan, the Supreme Court of Ohio considered whether Culgan, whose convictions in 2002 had been affirmed by this Court in a direct appeal, was entitled to writs of mandamus and procedendo compelling the Medina County Court of Common Pleas to enter a judgment on his convictions that complied with Crim.R. 32(C). Despite Culgan's direct appeal from that conviction, the Court observed: "[I]f Culgan is correct that appellees' sentencing entry violated Crim.R. 32(C), which would render the entry nonappealable, his claims for writs of mandamus and procedendo would have merit, and the court of appeals erred in sua sponte dismissing his complaint." (Emphasis added.) Culgan, 2008-Ohio-4609, at 9. The Court concluded that Culgan's sentencing entry did not, in fact, comply with Crim.R. 32(C) and granted a writ compelling the court of common pleas to issue a final appealable order. Id. at Two justices dissented, emphasizing that Culgan had already appealed and, therefore, obtained the relief that he requested. Id. at 16. { 6} The implication of the Supreme Court's opinion in Culgan is that regardless of whether a defendant has already appealed his conviction, if the order from which the first appeal was taken is not final and appealable, he is entitled to a new sentencing entry which can itself be appealed. Although the connection between Culgan and cases involving postrelease control has not yet been explicitly stated, the logic inherent in recent Supreme Court cases regarding postrelease control leads to a similar result. See Fischer, 2009-Ohio-1491, at 15 (Dickinson, J., concurring) (observing that two of the appellant's assignments of error, which challenged his underlying conviction and the continuing viability of this Court's earlier opinion in his direct appeal, were "the logical extension of the Ohio Supreme Court's decisions in State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, and State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio ").

16 4 Finality and Postrelease Control { 7} In Bedford, this Court considered the implications of the Supreme Court's holdings that failure to notify a defendant of postrelease control renders a sentence void rather than voidable. Bedford was misinformed regarding his postrelease control obligations and assigned the trial court's error on direct appeal. This Court concluded that, while Bedford's sentencing order complied with Crim.R. 32(C), both the sentence and the journal entry in which the trial court attempted to impose the sentence were void. Bedford, 2009-Ohio-3972, at 8. We then considered our jurisdiction in light of the void sentencing entry: "The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment" State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, at 27 (quoting State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, at 12). Taking the Supreme Court at its word, this Court must act as if the journal entry containing Mr. Bedford's void sentence `had never occurred' and `as if there had been no judgment.' Id. (quoting Bezak, 2007-Ohio-3250, at 12). "*** While a judgment of conviction qualifies as a final order if it contains the requirements idenfified in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, if there has been no judgment then there is no final order." Bedford at Because the order from which Bedford had appealed was void, this Court exercised its inherent powef to vacate the order despite the fact that we lacked jurisdiction to review the merits of his appeal. Id. at { 8} In this case, the trial court failed to infonn Hannon of his postrelease control obligations in its 2004 sentencing entry. Although he appealed that entry, Bezak and Simpkins require the conclusion that his original sentence - and the journal entry in which the trial court attempted to impose that sentence - are void. See Bedford at 8. "Taking the Supreme Court at its word," as this Court did in Bedford, the joumal entry that purported to impose sentence upon

17 5 Hannon in 2004 must be considered as if no judgment had been entered. Id. at 10. "[I]f there has been no judgment then there is no final order." Id. at 11. Final, Appealable Order { 9} Harmon was entitled to be resentenced to correct the error in notification of postrelease control and to a final order that, once issued, could be appealed notwithstanding his direct appeal in See Culgan at In light of Culgan and Bedford, therefore, this Court is reluctantly compelled to address Hannon's first assignment of error. Merits of the Appeal { 10} Harmon's first assignment of error is that the trial court erred by limiting his cross-examination of a witness against him at trial. Specifically, Harmon argues that Evid.R. 609(A)(1) pennitted him to inquire into the facts surrounding the prior criminal convictions of Kevin Reynolds, who testified that he purchased drugs from Hannon twice as part of an undercover operation. { l1} Evid.R. 609(A)(1) permits evidence that a witness has been convicted of a crime punishable by death or more than one year of imprisonment for purposes of attacking the witness's credibility, subject to Evid.R Evid.R. 609 does not require unlimited crossexamination with respect to facts surrounding a prior conviction. See State v. Robb (2000), 88 Ohio St.3d 59, 71. Instead, "[u]nder Evid.R. 609, a trial court has broad discretion to limit any questioning of a witness on cross-examination which asks more than the name of the crime, the time and place of conviction and the punishment imposed, when the conviction is admissible solely to impeach general credibility." State v. Amburgey (1987), 33 Ohio St.3d 115, syllabus. Because "Evid.R. 609 must be read in conjunction with Evid.R. 403," trial courts consider all of the factors set forth in Evid.R. 403 to determine the extent to which cross-examination should be

18 6 permitted. State v. Wright (1990), 48 Ohio St.3d 5, 7. A trial court's decision to limit the scope of cross-examination in light of Evid.R. 609(A)(1) and Evid.R. 403 is reviewed for abuse of discretion. Amburgey at 117. { 12} Evid.R. 403 limits the admissibility of relevant evidence. In this case, we need look no further into the Rule. The State elicited testimony from Reynolds during his direct examination that described his prior convictions. In addition, Reynolds testified about his discussions with police and his agreement to perform controlled drug buys from Harmon, including the reduction in sentence that he hoped to obtain. During cross-examination, Harmon tried to question Reynolds regarding the details of his convictions not to further undermine his credibility as a witness, but to elicit testimony that Reynolds believed he had been "convicted for a crime that he did not commit." As Harrnon's attorney explained during a proffer related to the cross-examination, he hoped to raise the specter of unfair treatment by the police to bolster Harmon's own claim "that the police are trying to pin something on Mr. Harmon that he did not do[.]" Testimony about Reynolds' perception that he was treated unfairly by police in connection with his own convictions does not have "any tendency to make the existence of any fact that is of consequence *** more probable or less probable" with respect to Harmon's case. Evid.R See, also, Robb, 88 Ohio St.3d at 71. Because this testimony was irrelevant, the trial court did not abuse its discretion by limiting the scope of cross-examination under Evid.R. 609(A)(1). Harmon's first assigninent of error is overruled. ASSIGNMENT OF ERROR II "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENDANT'S U.S. CONST. AMEND V RIGHTS WHERE HIS SENTENCE HAS BEEN INCREASED AFTER HE HAD ALREADY COMMENCED SERVICE OF HIS SENTENCE."

19 7 { 13} In his second assignment of error, Harmon argues that the trial court violated his constitutional right to be free from double jeopardy by enhancing his prison sentence through the addition of postrelease control. In Simpkins, however, the Supreme Court of Ohio concluded that when a trial court omits to inform a criminal defendant of his postrelease control obligations, the sentence is issued "without the authority of law" and the defendant does "not have a legitimate expectation of finality in his sentence." Simpkins, 2008-Ohio-1197, at 37. { 14} As in Simpkins, Harmon had no expectation of finality in a void sentence, and the constitutional prohibition against double jeopardy does not apply. "Because jeopardy does not attach to a void sentence, the subsequent imposition of the statutorily required sentence cannot constitute double jeopardy." State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, at 27, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, at 25. Harmon's second assigmnent of error is overruled. ASSIGNMENT OF ERROR IV "DEFENDANT HAS BEEN DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT FAILED TO APPLY THE DOCTRINE OF RES JUDICATA TO CLAIMS WHERE A SENTENCE HAS BEEN INCREASED BY ADDING A TERM.OF POSTRELEASE CONTROL." { 15} Harmon's fourth assignment of error is that the trial court erred by imposing a sentence including postrelease control when the State's motion to resentence was barred by application of res judicata. The Supreme Court of Ohio also considered, and rejected, this argument in Simpkins. Id. at Harmon's fourth assignment of error is oven-uled. ASSIGNMENT OF ERROR III "DEFENDANT HAS BEEN DENIED HIS CONSTITUTIONAL RIGHT WHEN THE TRIAL COURT APPLIED A STATUTE ENACTED IN 2006 IN AN EX POST FACTO AND RETROACTIVE MANNER TO A CONVICTION AND SENTENCE THAT WAS ORIGINALLY IMPOSED IN 2004."

20 8 ASSIGNMENT OF ERROR V "AM SUB. H.B. 137 VIOLATES THE SINGLE SUBJECT RULE UNDER OHIO CONST. ART. II, 15(D)." ASSIGNMENT OF ERROR VI "AM. SUB. H.B. 137 RENDERS POSTRELEASE CONTROL UNCONSTITUTIONAL BECASE IT PERMITS THE EXECUTIVE TO IMPOSE THE SANCTION WITHOUT A COURT ORDER." ASSIGNMENT OF ERROR VII "ORC IS UNCONSTITUTIONAL UNDER THE SEPARATION OF POWERS DOCTRINE CONTAINED IN OHIO CONST. ART. IV, 5(B)." { 16} Hannon's third assignment of error argues that R.C is unconstitutionally retroactive in effect and operates as an ex post facto law because, by its terms, it applies to criminal defendants who were sentenced before the effective date of the statute. Harmon's fifth, sixth, and seventh assignments of error argue that the remedy created by R.C violates the single subject rule and separation of powers provisions of the Ohio Constitution. This Court need not address Harmon's constitutional arguments with respect to R.C , however, because the trial court did not proceed under the statute in this case. { 17} As this Couit recently recognized in State v. Holcomb, 9th Dist. No , Ohio-3187, the Supreme Court of Ohio has created a remedy in cases in which the failure to notify a defendant of his postrelease control obligations is apparent from the record. Id. at 13-14, citing Simpkins. In such cases, the trial court must resentence the defendant, an obligation that arises not by statute but by virtue of the fact that the trial court is both authorized and obligated to correct a void sentence. Holcomb at 14. In Simpkins, the Supreme Court explicitly concluded that when there has been an error in postrelease control notification, "the state is entitled to a new sentencing hearing to have postrelease control imposed on the defendant unless the defendant has completed his sentence." (Emphasis added.) Id. at syllabus. In Holcomb, this

21 9 Court recognized that a defendant may also move the trial court for resentencing under the authority of the Supreme Court's recent cases regarding postrelease control. Holcomb at { 18} In this case, both Hannon and the State moved the trial court for resentencing under the authority of Simpkins without reference to R.C The trial court permitted Hannon to withdraw his motion prior to the resentencing hearing, but the hearing proceeded on the State's motion without amendment. Because Harmon was not resentenced pursuant to R.C , he does not have standing to challenge the constitutionality of the statute. See Bloomer, 2009-Ohio-2462, at 31 (concluding that the defendant lacked standing to challenge the constitutionality of R.C because, in that case, he was resentenced before July 11, 2006). Harmon's third, fifth, sixth, and seventh assignments of error are overruled. III. { 19} Harmon's assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Sununit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this docuinent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

22 10 instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. WHITMORE, J. DICKINSON, J. CONCUR APPEARANCES: NEIL P. AGARWAL, Attorney at Law, for Appellant. CARLA MOORE FOR THE COURT SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

23 `4ke $Uvrrew ^.orurf vrf 041a CLE:1?dt OF CC[I`i"t! ^ ^nn - i=cauritl:i_ State of Ohio Case No V. Londen K. Fischer RECONSII)I;I2AT'ION F:N'I'RY It is ordered by the Courtthat the motion for reconsideration in this case is granted to the following extent: The discretionary appeal is accepted on Proposition of Law No. I. It is further ordered that the Clerk shall issue an order for the transmittal of the record from the Court of Appeals for Summit County, and the parties shall brief this case in accordance with the Rules of I'ractice of the Supreme Court of Ohio. (Summit County Court opappeals; No ) THOMAS J. Iv1DYI3R Chief Justice

24 FdLED MAY 0 B 2009 ^4.t $"rome ^aurt of.041 Aa CLERK OF COURT SUPREME COURT OF OHIO State of Ohio V. Case No ENTRY Donald Turner Upon consideration of the jurisdictional memoranda filed in this casc, the Court declines jurisdiction to hear the case and dismisses the appeal as not involving any substanttal constnutionai questien. (Cuyahoga County Court of Appeals; N^91695)

25 State of Ohio J^4.e $uprent$ ^vaxrt of Case No AUG 2 Ei 2009 C!ER4t DF COURT ;^r i fe rn Gi^Ul^7 Ur O4' ';,,:t V. ENTRY Gregory Smith (Dedonno) Upon consideration of the jurisdictional memoranda filed in this case, the Court denies leave to appeal and dismisses the appeal as not involving any substantial constitutional question. (Cuyahoga County Court of Appeals; No. 913