Supreme Court Rules Retrial, Resentencing of Former Wapakoneta Police Chief Were Improper
2008-0331. State v. Harrison, Slip Opinion No. 2009-Ohio-3547.
Madison App. No. CA2006-08-028, 2007-Ohio-7078. Judgment reversed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, and Trapp, JJ., concur.
O'Donnell and Lanzinger, JJ., concur in judgment only.
Mary Jane Trapp, J., of the Eleventh Appellate District, sitting for Cupp, J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-3547.pdf 
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(July 28, 2009) The Supreme Court of Ohio ruled today that the retrial and resentencing of former Wapakoneta police chief David Harrison on child pornography charges after he had completed a one-year prison sentence for the conduct underlying those charges was contrary to law and therefore void. In a 7-0 decision authored by Justice Paul E. Pfeifer, the Court vacated the convictions and six-year prison term imposed on Harrison at his second trial on the basis that the trial court had no jurisdiction to retry or resentence him.
In 2003, Harrison entered guilty pleas to five charges arising from the discovery of pornographic material on his office and home computers in exchange for the state’s agreement not to prosecute him on any other charges related to the computer search. After accepting his guilty pleas, the Auglaize County Court of Common Pleas sentenced Harrison to one year in prison. Based on the sexual nature of his crimes, the court was legally required to also impose a mandatory five-year term of post-release control. Instead, the judge mistakenly advised Harrison that he could be subject to an optional term of post-release community control of “up to three years.”
Harrison served his prison term and was released from custody. The Adult Parole Authority did not take action to impose a term of post-release control over him. More than six months after his release, the state filed a motion asking the trial court to resentence Harrison to impose a five-year term of post-release control. Harrison sought a writ of prohibition to prevent his resentencing, arguing that the trial court no longer had jurisdiction to resentence him to post-release control because he had already completed the sentence imposed at trial. Before his appeal was heard, the trial court conducted a resentencing hearing, at which it advised Harrison that it would immediately resentence him to add five years of community control to his 2003 sentence unless he withdrew his original guilty plea. Harrison indicated that under those conditions he would withdraw his earlier guilty plea, and the court allowed him to do so.
The state subsequently dismissed its 2003 bill of information and obtained a grand jury indictment charging Harrison with multiple new felony counts arising from the same events that led to his 2003 guilty pleas. A change of venue was granted moving the case from Auglaize County to Madison County. Harrison was subsequently retried and convicted on 18 criminal counts in March 2006. The Madison County court sentenced him to six years in prison, with credit for the year he had already served. He was also designated a sexually oriented offender. Harrison appealed his new convictions and sentence to the 12th District Court of Appeals, which upheld the trial court’s decision. Harrison sought and was granted Supreme Court review of the lower court rulings.
Writing for the Court, Justice Pfeifer described the course of events leading to today’s decision as “lamentable.”
“This case lands here today because after Harrison completed his sentence following a guilty plea, the state sought a resentencing that the trial court lacked the jurisdiction to impose. The trial court, however, moved forward as if it did have such jurisdiction. Harrison fought the resentencing at the appellate court through a writ of prohibition, but the trial court acted before the appellate court issued its opinion that the matter was not yet ripe. ... Harrison is not appealing an unauthorized resentencing. Instead, he is appealing the entirety of the state’s prosecution redux. We agree that the second prosecution emanated from the trial court’s improper assertion of jurisdiction, and that the plea agreement, guilty plea, and completed sentence in the first prosecution ended the state’s case against Harrison.”
While acknowledging that the trial court should have imposed mandatory post-release control on Harrison at his original sentencing, Justice Pfeifer wrote: “(T)he authority to repair that omission ended when Harrison completed his original one-year incarceration. This court’s recent jurisprudence is unmistakable on that point. ... ‘[I]n cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed on the defendant unless the defendant has completed his sentence.’ State v. Simpkins (2008). ... In State v. Bezak (2007) ... this court held that since the defendant had already served the prison term ordered by the trial court, he could not be resentenced in order to correct the trial court’s failure to impose postrelease control at the defendant’s original sentencing hearing. Further, in Hernandez v. Kelly (2006) this court held that resentencing to impose postrelease control is not an option once the defendant had completed his prison term.”
Justice Pfeifer noted that Harrison did not seek to withdraw his original guilty plea of his own volition, but rather “was hauled into court and informed that he would be resentenced unless he withdrew his plea. The trial judge presented Harrison with a Morton’s Fork; whether Harrison chose the correct tine upon which to be impaled is not the question. The question is whether the trial court had the authority to require Harrison to make a choice at all. Clearly, it did not. Harrison had served his sentence, and the case was over. We find that the entire attempt at resentencing and the related plea withdrawal were nullities. Thus, the plea agreement, guilty plea, and sentence as served survived as though the court’s attempt at resentencing had never occurred. ... The facts in this case satisfy the criteria for plain error: there should never have been a second prosecution. Accordingly, we reverse the judgment of the court of appeals.”
Justice Pfeifer’s opinion was joined by Chief Justice Thomas J. Moyer, Justices Evelyn Lundberg Stratton and Maureen O’Connor and Judge Mary Jane Trapp of the 11th District Court of Appeals, who sat by assignment in place of Justice Robert R. Cupp.
Justices Terrence O’Donnell and Judith Ann Lanzinger concurred in judgment only. Justice Lanzinger entered a separate opinion stating: “I do not agree that when mandatory postrelease control is not imposed a sentence is ‘void,’ meaning that the court lacked jurisdiction to impose it. Such an erroneous sentence is voidable, making the person subject to resentencing only if the original sentence has been properly appealed or if the court follows the procedure set forth in R.C. 2929.191.”
Contacts
Scott A. Longo, 614.644.0731, for the state and Auglaize County prosecutor’s office.
Dean Boland, 216.529.9371, for David Harrison.