[Cite as State v. Roberts, 123 Ohio St.3d 465, 2009-Ohio-5800.] 

THE STATE OF OHIO, APPELLEE, v. ROBERTS, APPELLANT. 

[Cite as State v. Roberts, 123 Ohio St.3d 465, 2009-Ohio-5800.] 

Court of appeals’ judgment reversed — Appellant ordered released from custody. 

(No. 2009-0299 — Submitted November 3, 2009 — Decided November 5, 2009.) 

APPEAL from the Court of Appeals for Hamilton County, No. C-080571, 

180 Ohio App.3d 216, 2008-Ohio-6827. 

__________________ 

Per Curiam. 

{¶ 1} Appellant, Lynn Roberts, was convicted of possession of heroin 

and trafficking in heroin. On August 29, 2006, appellant was sentenced to a fiveyear sentence for trafficking and 18 months for possession, the sentences to be 

served concurrently. Appellant appealed to the First District Court of Appeals on 

September 8, 2006. While his appeal was pending, the Department of Corrections 

and Rehabilitation (“department”) determined that appellant was a good candidate 

for placement in an intensive program prison (“IPP”) in lieu of serving the 

sentence ordered by the court. 

{¶ 2} In order to place appellant in IPP, the department was required to 

inform the sentencing court of its recommendation. R.C. 5120.032(B)(1)(a). That 

requirement puts the court on notice and gives the court the opportunity to “veto” 

the placement in IPP. Id. If the court takes no action after ten days, the 

department may proceed with placement in IPP. Id. 

{¶ 3} The department faxed the notice of appellant’s recommended 

placement to the sentencing court. The confirmation of this fax is contained in 

the record. After receiving no response from the court, the department placed 

appellant in the IPP program. Appellant successfully completed IPP on July 18, 

2007, and was released. 
SUPREME COURT OF OHIO

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{¶ 4} On September 21, 2007, the court of appeals sua sponte held that 

the trial court had failed to merge the two convictions for sentencing purposes and 

remanded the case to the trial court for a new sentencing hearing. State v. 

Roberts, Hamilton App. No. C-060756, 2007-Ohio-4882, ¶ 9-10. Accordingly, 

the trial court ordered the department to produce appellant for a new sentencing 

hearing. However, appellant had completed IPP and had been released. 

{¶ 5} Appellant moved to dismiss the resentencing, but the trial court 

denied his motion. The trial court determined that the department had not 

properly given notice of the proposed IPP placement and entered a new sentence 

of five years. The trial court ordered appellant to serve the prison sentence, 

allowing credit for time served. On appeal, the court of appeals affirmed the trial 

court’s sentence. 

{¶ 6} R.C. 5120.032(B)(1)(a) provides: “If the prisoner is suited for an 

intensive program prison, at least three weeks prior to placing the prisoner in the 

prison, the department shall notify the sentencing court of the proposed placement 

of the prisoner in the intensive program prison and shall include with the notice a 

brief description of the placement. The court shall have ten days from receipt of 

the notice to disapprove the placement. If the sentencing court disapproves the 

placement, the department shall not proceed with it. If the sentencing court does 

not timely disapprove of the placement, the department may proceed with plans 

for it.” 

{¶ 7} Following oral argument and our review of the record and the 

briefs, we conclude that the state has failed to prove that the sentencing court 

never received notice of the intended placement of appellant in an intensive 

program prison. Having received no objection from the sentencing court, the 

department was authorized to place appellant in an intensive program prison and 

thereafter to release him consistent with R.C. 5120.032(B)(1)(b). Therefore, we 
January Term, 2009 

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reverse the judgment of the court of appeals and order appellant’s immediate 

release. 

Judgment reversed. 

 MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,

O’DONNELL, LANZINGER, and CUPP, JJ., concur. 

__________________ 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. 

Heenan, Assistant Prosecuting Attorney, for appellee. 

Louis F. Strigari, Hamilton County Public Defender, and Robert R. 

Hastings Jr., Assistant Public Defender, for appellant. 

Timothy Young, Ohio Public Defender, and Katherine A. Szudy, Assistant 

Public Defender, urging reversal for amicus curiae, Ohio Public Defender. 

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