[Cite as State v. Hawkins , 2020-Ohio-1357.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. DON NELL HAWKINS Appellant C.A. No. 29397

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 92 12 2896(A)

DECISION AND JOURNAL ENTRY Dated: April 8, 2020

TEODOSIO, Presiding Judge. {¶1} Appellant, Don Nell Hawkins, appeals from the judgment of the S ummit County

Court of Common Pleas. T his Court affirms.

I. {¶2} In 1998, Mr. Hawkins pled guilty to felony-two trafficking in c ocaine, and was sentenced to three years in prison. One year later, the trial court granted his motion for judicial release, placed him on eighteen months of community control, an d ordered him to successfully complete the Community-Based Correctional Facility (“CBCF”) pro gram. A little over two months later, the court issued a capias for his arrest, and he was charged with escape. {¶3} In 2001, Mr. Hawkins pled guilty to both a community control vi olation and an amended felony-five escape charge. The trial court reimposed h is three-year prison sentence for trafficking in cocaine and sentenced him to six months in priso n for escape, to be served consecutively to each other, but concurrently with his sentence in federal case number 1:01 CR2

229. Mr. Hawkins was sent to a federal penitentiary, but was b riefly returned to the Ohio Department of Rehab ilitation and Correction (“ODRC”) in 2004 fo r processing—so he could begin serving his state time concurrently with his federal time —before being returned once again to federal custody. He never filed direct appeals in either of his Summit County cases. {¶4} Mr. Hawkins began filing numerous motions over the years claimi ng his sentence

was void due to deficiencies in the trial court’s notification of post-release control, some of which were denied by the trial court. He was later indicted in 2006 on federal drug charges in case

number 5:06 CR 505 and was senten ced in 2007 to twenty years in prison with ten years of supervised release. Mr. Hawkins continued filing motions in th e Summit County Court of Common Pleas and, on December 27, 2018, the court filed an orde r denying “any and all pending motions filed by [Mr. Hawkins]” for lack of jurisdiction becaus e he already completed his sentence

and his claims were now moot. {¶5} Mr. Hawkins now appeals from the trial court’s j udgment and rai ses one assignment

of error for this Court’s review.

II.

ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN ITS[] 12/27/2018 ORDER WHICH DENIED HAWKINS’ MOTIONS SEEKING TO HAVE HIS DRUG TRAFFICKING CONVICTION DECLARED VOID ON THE GROUND THAT THE TRIAL COURT FAILED TO INCORPRATE (SIC) THE MANDATORY NOTIFICATIONS OF R.C. [] 2929.19(B)(3)(b) & (e), REGARDING PRC INTO ITS SENTENCING JOURNAL ENTRY. {¶6} In his sole assignment of error, Mr. Hawkins argues that the tr ial court erred in denying various motions in whic h he claimed his sentence was vo id due to the improper notification of post-release contro l in his sentencing entry. We disagree.3

{¶7} A trial court has a statutory dut y to provide notice of post-re lease control at a sentencing hearing and is require d to incorporate that notice i nto its sentencing entry. State v.

Grimes , 151 Ohio St.3d 19, 2017-Ohio-2927, ¶ 8. “A sentence that doe s not include the statutorily mandated term of post[-]release control is void, is not preclud ed from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral

attack.” State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, at paragraph one of the sy llabus. However, “when a trial court fails to properly impose post-rele ase control, that portion of its sentence is void and ‘only the offending portion of the sentenc e is subject to review and

correction.’” State v. West , 9th Dist. Summit No. 28051, 2016-Ohio-5694, ¶ 6, quoting Fischer at ¶ 27. The doctrine of res judicata applies to the other aspect s of the conviction, including the determination of guilt and the lawful elements of the original sentence. State v. Singleton , 9th Dist. Summit No. 25681, 2011-Ohio-4939, ¶ 13. {¶8} Once a valid prison sanction has been served, however, the tria l court does not have the authority to resentence a defendant for the purpose of addi ng a term of post-release control as a sanction for a particular offense. State v. Holdcroft , 137 Ohio St.3d 526, 2013-Ohio-5014, at paragraph three of the syllabus. It is no longer res judicata that acts as a bar to modification; rather,

the court has lost jurisdiction to modify the sentence. Id. at ¶ 14. This rule tempers the court’s ability to review and modify a defendant’s sentence with the de fendant’s increasing, legitimate expectation of finality in h is sentence as time passes. See, generally, id. at ¶ 11-18. {¶9} Assuming without deciding that Mr. Hawkins was not correctly in formed of postrelease control in this case at the time of sentencing, the law is clear that only the post-release control portion of his sentence would be void. See Fischer at ¶ 27; Singleton at ¶ 13. Nevertheless, it is undisputed by the parties th at Mr. Hawkins has completely served his prison sentence in the4

underlying case. Mr. Hawkins successfully motioned the trial c ourt in 2004 to be removed from federal prison for ODRC processing to begin serving his state p rison time concurrently with the sentence he was serving in federal prison. He has further conc eded throughout the years in his various motions to the trial court that he has already complete d his imprisonment for this case. The trial court therefore did not err in denying Mr. Hawkins’ m otions, but instead correctly determined that it was without j urisdiction to review or modify the sentence in this case. See Holdcroft at ¶ 18 (“[O]nce the prison-sanction portion of a sentence for a crime has been fully served, the structure of Ohio fe lony-sentencing law and the def endant’s legitimate expectation in finality in his sentence prevent a court from further modifying the sentence for that crime in any way.”). {¶10} Mr. Hawkins’ sole assign ment of error is overruled.

III. {¶11} Mr. Hawkins’ sole assignment of error is overruled. The judgme nt of the Summit County Court of Comm on Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, 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 document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period5

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TE ODOSIO FOR THE COURT

CARR, J. SCHAFER, J. CONCUR.

APPEARANCES: DON NELL HAWKINS, pro se, Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.