[Cite as State v. Marrero, 2011-Ohio-3587.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95859

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

REINALDO MARRERO

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-417246 

 BEFORE: Blackmon, P.J., Boyle, J., and Celebrezze, J. 

 RELEASED AND JOURNALIZED: July 21, 2011

 
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ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Chief Public Defender 

By: David M. King 

Assistant Public Defender 

310 Lakeside Avenue 

Suite 200 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

By: Thorin O. Freeman 

Assistant County Prosecutor 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

PATRICIA ANN BLACKMON, P.J.: 

{¶ 1} Appellant Reinaldo Marrero (“Marrero”) appeals his conviction for drug 

trafficking and assigns the following four errors for our review: 

“I. The trial court was divested of jurisdiction to impose sentence upon Mr. 

Marrero due to the inexcusable delay between appellant’s plea and finding 

of guilt in February of 2002 and his subsequent sentencing more than eight 

years later.” 

“II. The trial court erred in sentencing Mr. Marrero after he had served 

more than seven years of his prison term despite Mr. Marrero’s expectation 

of finality in violation of the Fifth and Fourteenth Amendments to the 

United States Constitution, and Ohio Constitution Article I, Section 10.” 
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“III. The trial court erred to the prejudice of Mr. Marrero when it 

improperly imposed consecutive sentences in violation of R.C. 2929.14 and 

2929.41, United States Constitution Amendments V and XIV, and Ohio 

Constitution Article I, Sections 10 & 16.” 

“IV. Pursuant to United States Constitution Amendments V and XIV, and 

Ohio Constitution Article I, Section 16, the trial court did not have 

jurisdiction to resentence Mr. Marrero because he had completed serving 

his sentence before his sentence de novo held September 13, 2010.” 

{¶ 2} Having reviewed the record and pertinent law, we affirm Marrero’s 

conviction. The apposite facts follow. 

Facts

{¶ 3} On December 7, 2001, the Cuyahoga County Grand Jury indicted Marrero 

in Case No. 417246, for three counts of drug trafficking, three counts of drug possession, 

and one count of possession of criminal tools. On February 19, 2002, Marrero 

withdrew his previously entered not guilty plea and entered a plea to one count of drug 

trafficking with a juvenile specification. The remaining counts were dismissed. The 

trial court immediately sentenced Marrero to the agreed upon five years in prison. 

Additionally, the court ordered the sentence to run concurrently with the sentence 

imposed in another case, Case No. 417361, but consecutive to the sentences he was 

serving in Case Nos. 403692 and 408714, that were imposed in November 2001, for a 

total of ten years in prison. 

{¶ 4} On August 20, 2010, the state filed a motion for the trial court to resentence 

Marrero because his sentence did not provide an adequate notice of postrelease control. 
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After conducting a de novo resentencing hearing, the trial court resentenced Marrero to 

five years in prison to be served consecutively with the November 2001 sentences and 

also imposed a mandatory term of five years postrelease control. 

Unreasonable Delay in Resentencing

{¶ 5} In his first assigned error, Marrero argues there was an unreasonable delay 

in resentencing him. He contends that although he entered his plea on February 19, 

2002, he did not receive a valid sentence until September 21, 2010 because his original 

sentence was void due to the trial court’s failure to properly impose postrelease control. 

{¶ 6} This court has repeatedly held that Crim.R. 32(A)’s requirement that a 

sentence be imposed without unnecessary delay does not apply to resentencing hearings. 

State v. Wright, Cuyahoga App. No. 95096, 2011-Ohio-733; State v. Harris, Cuyahoga 

App. No. 95010, 2011-Ohio-482; State v. Coleman, Cuyahoga App. No. 94866, 

2011-Ohio-341; State v. McQueen, Cuyahoga App. No. 91370, 2009-Ohio-1085; State v. 

Craddock, Cuyahoga App. No. 94387, 2010-Ohio-5782; State v. Huber, Cuyahoga App. 

No. 85082, 2005-Ohio-2625. In so holding, we rationalized that it is when the original 

sentence is imposed that determines whether there was unreasonable delay. 

{¶ 7} The Ohio Supreme Court’s recent holding in State v. Fischer, 128 Ohio 

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, supports this conclusion. In Fischer, the 

Court modified the holding in State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 

N.E.2d 961, to the extent that Fischer held a “complete de novo resentencing is not 
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required when a defendant prevails only as to the postrelease-control aspect of a 

particular sentence * * * and the limited resentencing must cover only the postrelease 

control.” Fischer at ¶17. In so holding, the Court explained that only the postrelease 

control portion of the sentence is void, not the entire sentence. In the instant case, 

Marrero entered his plea on February 19, 2002, and was sentenced that same day; 

therefore, he was clearly sentenced in a timely manner. 

{¶ 8} Nonetheless, Marrero argues that in consideration of Fischer, we should 

conclude that the postrelease control portion of his sentence was entered with 

unreasonable delay. Given the numerous cases from this district that hold that Crim.R. 

32(A) does not apply to resentencing, some of which predate Fischer, we conclude there 

is no basis to create an exception. See Craddock; Huber; McQueen; State v. Taylor 

(Oct. 29, 1992), Cuyahoga App. No. 63295; State v. Corrigan, Cuyahoga App. No. 

83088, 2004-Ohio-4346. Moreover, the Supreme Court has sanctioned long intervals 

between an original, void sentence and a proper entry resulting from a resentencing 

hearing. See State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 

931 N.E.2d 110,(in which the Supreme Court, in 2010, ordered that a trial court properly 

issue a sentencing entry that includes postrelease control when Carnail was originally 

sentenced in 1999); State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 

2006-Ohio-5795, 856 N.E.2d 263, (defendant resentenced to include postrelease control 
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shortly prior to expiration of a three-year prison sentence). Accordingly, Marrero’s first 

assigned error is overruled. 

Resentencing Violated his Expectation of Finality

{¶ 9} In his second assigned error, Marrero argues that his expectation of finality 

and protection from double jeopardy precludes the trial court from adding postrelease 

control to his sentence. In so arguing, he relies on cases from the federal First and Sixth 

Circuits that hold that at some point an expectation of finality attaches to an illegal 

sentence. 

{¶ 10} Ohio state courts, however, have repeatedly addressed the same due process 

claims Marrero has raised and have consistently held that such resentencing does not 

violate finality or double jeopardy restraints because jeopardy does not attach to a void 

sentence. See State v. Simpkins, 117 Ohio St.3d 420, 2008 -Ohio-1197, 884 N.E.2d 568, 

at ¶37; State v. Powell, 3d Dist. No. 10-07-12, 2008-Ohio-1012; State v. Beasley (1984), 

14 Ohio St.3d 74, 75, 471 N.E.2d 774 (trial court’s correction of a statutorily incorrect 

sentence did not violate appellant’s right to be free from double jeopardy); State v. 

Ramey,10th Dist. No. 06AP-245, 2006-Ohio-6429 (an invalid sentence for which there is 

no statutory authority is a circumstance under which there can be no expectation of 

finality to trigger the protections of the Double Jeopardy Clause.) Thus, to the extent the 

postrelease control portion of the sentence was void, no expectation of finality existed. 

State v. Hunter, Cuyahoga App. Nos. 95111, 95112, and 95113, 2011-Ohio-1682; State v. 
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Zganjer, Cuyahoga App. No. 94724, 2011-Ohio-606. Accordingly, Marrero’s second 

assigned error is overruled. 

Maximum, Consecutive Sentence

{¶ 11} In his third assigned error, Marrero argues that the trial court erred by 

imposing consecutive sentences without making findings under R.C. 2929.14(E)(4) and 

asserts that the holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 

470, that the statute was unconstitutional, is no longer valid in light of Oregon v. Ice 

(2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517. 

{¶ 12} We reject this argument on the authority of State v. Hodge, 128 Ohio St.3d 

1, 2010-Ohio-6320, 941 N.E.2d 768, in which the Ohio Supreme Court held that Ice does 

not revive R.C. 2929.14(E)(4). Id. at paragraph two of the syllabus. Accordingly, 

Marrero’s third assigned error is overruled. 

Trial Court lacked Jurisdiction

{¶ 13} In his fourth assigned error, Marrero argues the trial court lacked 

jurisdiction to impose postrelease control because he had completed his sentence for the 

drug trafficking charge. 

{¶ 14} We agree that once a defendant serves the entire sentence imposed by the 

trial court, the court is without jurisdiction to impose postrelease control. State v. Bezak, 

114 Ohio St.3d 94, 2007-Ohio-325, 868 N.E.2d 961. Marrero argues he was sentenced 

to a total of 10 years in prison and that the five years imposed for the drug conviction had 
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to be served first because it was a mandatory sentence. He, therefore, concludes that 

because he has served his time for the drug conviction, the court cannot impose 

postrelease control for that offense. 

{¶ 15} Marrero’s consecutive sentence did not derive from one case. Instead, the 

sentence he received in the drug trafficking case was ordered to be served consecutive to 

an earlier case he was sentenced upon. The sentence for the earlier case was imposed on 

November 15, 2001, while the sentence for the instant case was imposed on February 8, 

2002. In fact, Marrero was indicted in the instant case on December 7, 2001, after the 

sentence was imposed in the first case. To argue that he served the second case prior to 

the first case is illogical because there is no way to stop the sentence in the first case in 

order that the term in the second case can commence. 

{¶ 16} We acknowledge that O.A.C. 5120-2-021(L) requires that mandatory 

prison terms must be served prior to nonmandatory terms; however, common sense 

dictates that the rule applies when consecutive sentences are imposed regarding offenses 

in a single case. Accordingly, Marrero’s fourth assigned error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover of appellant its costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
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It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. The defendant’s conviction having been affirmed, any bail pending appeal is 

terminated. Case remanded to the trial court for execution of sentence. 

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

the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, PRESIDING JUDGE 

MARY J. BOYLE, J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR