[Cite as State v. Brasher , 2021-Ohio-1688.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

KYLE BRASHER AKA KYLE BRASHEAR, Appellant. :

:

:

:

:

: CASE NO. CA2020-08-094

O P I N I O N

5/17/2021

CRIMINAL APPEAL FROM BUTLER CO UNTY COURT OF COMMON PLEAS Case No. CR2018-08-0933

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45 011, for appellee Engel & Martin, LLC, Mary K. Mart in, 4660 Duke Drive, Suite 101 , Mason, Ohio 45040, for appellant Ohio Crime Victim Justice Center, Morgan Keilholz, 2300 Montana Avenue, Suite 238, Cincinnati, Ohio 45211, for intervenor-appellee

HENDRICKSON, J. {¶1} Appellant, Kyle Brasher, appeals the decision and supplemental sentencing entry of the Butler County Court of Common Pleas ordering him t o pay $1,976.55 in restitution to one of the victims of his crime, Deborah Howery. For the reasons detailed below, we reverse the trial court's decision.Butler CA2020-08-094

- 2 - {¶2} On September 17, 2018, Brasher pled guilty to one count of gran d theft of a motor vehicle in violation of R.C. 2913.02, a fourth-degree fel ony. Finding Brasher had entered his plea knowingly, intelligently, and voluntarily, the trial court found him guilty. The trial court thereafter sentenced Brasher to an 18-month prison term. There is no dispute that the trial court did not impose a restitution order as part of its sentence. {¶3} On March 11, 2019, the victim, Howery, filed a complaint for a writ of mandamus asserting that she was a victim entitled to certain ri ghts under Article I, Section 10a of the Ohio Constitution, commonly referred to as Marsy's L aw. In her complaint, Howery sought an order to compel the trial court to reopen Bras her's sentencing in order to enforce her constitutional right to restitution under Marsy's L aw. {¶4} On May 4, 2020, this court issued a decision in State ex rel. Howery v.

Powers , 12th Dist. Butler CA2019-03-045, 2020-Ohio-2767, granting How ery's complaint

for a writ of mandamus and ordering the trial court to reopen sentencing in Brasher's case, State v. Brasher , Butler C.P. 2018-05-0933. {¶5} On July 27, 2020, the trial court held a restitution hearing in accordance with

our decision in Powers . During this hearing, Howery and another victim, Lawrence Hammon, testified about the economic loss they had sustained as a result of Brasher's

crime. {¶6} On August 18, 2020, the trial court issued a decision and suppl emental sentencing entry ordering Brasher to pay Howery $1,976.55 in re stitution. Prior to the trial court issuing that decision, however, Brasher was released from prison having served his entire 18-month prison sentence. {¶7} Brasher now appeals from the trial court's supplemental sentenc ing entry, raising the following four assignments of error for review. {¶8} Assignment of Error No. 1:Butler CA2020-08-094

- 3 - {¶9} THE TRIAL COURT VIOLATED APPELLANT'S CONSTITUTIONAL DUE

PROCESS RIGHTS. {¶10} Assignment of Error No. 2: {¶11} THE TRIAL COURT ERRED BY VIOLATING APPELLANT'S

CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY. {¶12} Assignment of Error No. 3: {¶13} THE TRIAL COURT ERRED BY GRANTING RESTITUTION THAT THE VICTIM(S) FAILED TO ASSERT. {¶14} Assignment of Error No. 4: {¶15} THE TRIAL COURT ERRED IN ORDERING AND DETERMINING

RESTITUTION. {¶16} Because they are interrelated , we will address Brasher's four a ssignments of error together. In his first assignment of error, Brasher argu es his constitutional due process rights were violated when the trial court imposed restitution a fter he had already completed the entirety of his 18-month prison term. Following review, we agree and find that the trial court did not have authority to amend Brasher's completed sente nce. {¶17} A court has jurisdiction to correct a judgment that is void at any time. State v.

Crawford , 1st Dist. Hamilton No. C-190497, 2020-Ohio-4897, ¶ 6, citing State ex rel.

Cruzado v. Zaleski , 111 Ohio St. 3d 353, 2006-Ohio-5795, ¶ 18-19. Recently, in State v. Harper , 160 Ohio St.3d 480, 2020-Ohio-2913, the Ohio Supreme Court "r ealign[ed]" its void-versus-voidable jurisprudence with the "traditional unders tanding of what constitutes a void judgment." Id. at ¶ 4. That is to say, the Ohio Supreme Court clarified its p rior decisions discussing the void/voidable conundrum and explicitly stated th at "[w]hen a case is within a court's subject-matter jurisdiction and the accused is properly before the court, any error in the exercise of that jurisdiction in imposing postrelease contr ol renders the court's judgmentButler CA2020-08-094

- 4 - voidable," not void. Id. {¶18} We recognize that this matter has had a confusing procedural po sture involving a new constitutional amendment and a subsequent actio n for a writ of mandamus. So, given this unusual case history, we pause to address the ju risdictional implications. In this case, unlike in a void judgment, the trial court plainly h ad jurisdiction in its initial sentencing entry. Brasher appeared before the trial court unde r indictment for one count of grand theft of a motor vehicle. The trial court acted within i ts subject-matter jurisdiction in sentencing Brasher for that offense. Consequently, any error i n the imposition of that sentence rendered the sentence voidable, not void. Id. {¶19} However, that determination is separate from the issue presentl y before this court. As noted above, Brasher was released from prison on Feb ruary 17, 2020, having served his entire prison sentence. 1 At that point, we find the trial court lost jurisdiction to modify Brasher's sentence pursuant to the decision in State v. Holdcroft , 137 Ohio St.3d 526, 2013-Ohio-5014. {¶20} In Holdcroft , the Ohio Supreme Court held that "[a] trial court does not ha ve the authority to resentence a defendant for the purpose of addi ng a term of postrelease control as a sanction for a particular offense after the defend ant has already served the prison term for that offense." Id. at paragraph three of the syllabus. Although Holdcroft involved the imposition of postrelease control, this court, and our sister district, have applied this holding in other contexts. See, e.g., State v. Metcalf , 12th Dist. Warren No. CA2015- 03-022, 2016-Ohio-4923, ¶ 20 and State v. Halsey , 12th Dist. Butler No. CA2016-01-001, 2016-Ohio-7990, ¶ 30 (Tier III sexual offender classification); State v. Rucker , 1st Dist. Hamilton No. C-180606, 2019-Ohio-4490, ¶ 18 (Tier II sexual off ender classification).

1

. We note that Brasher was released into a local treatment progra m prior to February 17, 2020, however for purposes of this appeal we will utilize the February 17, 2020 d ate consistent with the sentencing entry.Butler CA2020-08-094

- 5 - {¶21} The rationale for this holding is to preserve a legitimate expe ctation of finality in sentencing. Holdcroft. at ¶ 16. Put another way, "when the entirety of a prison sanc tion has been served, the defendant's expectation in finality in his sentence becomes paramount, and his sentence for that crime may no longer be mod ified." Id. at ¶ 18. Therefore, in this case, since Brasher had completed his senten ce in full, the trial court lacked jurisdiction to order restitution or issue its supplemen tal sentencing entry. Id . at ¶

19. See, e.g ., State v. Starnes , 9th Dist. Lorain Nos. 19CA011580 thru 19CA011584, 2021- Ohio-885, ¶ 4; State v. Thompson , 3d Dist. Marion No. 9-20-19, 2021-Ohio-642, ¶ 16. Accordingly, applying the Ohio Supreme Court's holdings in Harper and Holdroft , we find the trial court's supplemental sentencing entry is void. {¶22} In so holding, we note that while this court is sympathetic to Howery and all victims of crime, this court cannot ignore the dictates from th e Ohio Supreme Court. Therefore, contrary to the arguments advanced by the state and Howery herein, we find the Ohio Supreme Court's decision in Holdcroft, as well as the new "realignment" in the voidversus-voidable jurisprudence outlined in Harper , compels the result in this case. Applying those principles to the case at bar, we find the trial court di d not have authority to impose restitution after Brasher was released from prison following th e completion of his 18-month prison sentence. Therefore, for the reasons outlined above, th e trial court's supplemental sentencing entry is void and is hereby vacated. Brasher's firs t assignment of error is sustained, thereby rendering Brasher's three remaining assignme nts of error moot. {¶23} Judgment reversed and vacated.

PIPER, P.J., and M. POWELL, J., concur.