Case Number: 2018-Ohio-1155

Judge: William B. Hoffman

Court: COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

Plaintiff's Attorney: D. MICHAEL HADDOX
Prosecuting Attorney

GERALD V. ANDERSON II
Assistant Prosecuting Attorney

Defendant's Attorney: ERIC J. ALLEN

Description: On October 28, 2016, Appellant offered to take a gun and sell it for another
person, knowing the gun was stolen. Appellant had a prior conviction for trafficking in
drugs, a felony of the fourth degree, which resulted in him being placed under disability
from owning or possessing a firearm.
{¶3} Appellant was indicted on one count of receiving stolen property and one
count of attempt to have a weapon under disability by the Muskingum County grand jury
on January 4, 2017. He entered a guilty plea to both charges and was sentenced to
eighteen months incarceration on each conviction, to be served concurrently.
{¶4} At the time of the commission of the offenses, Appellant was on post
release control from Muskingum County Case No. CR2015-0423. During the plea and
sentencing hearing, the trial court stated:

The Court is going to terminate your PRC. The reason being, they
do the administrative to make it look like you did not commit a new offense
because you went in on a rule violation. You did commit a new offense
while on post-release control. Statistically they’re trying to make
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themselves look better, and they use that against other departments who
don’t do that type of thing in regards to funding. It’s not right.
Therefore, the Court is terminating your post-release control and
ordering that the time you have left on it be imposed. You got the credit of
the six months that you would have gotten towards this sentence; therefore,
it’s the same amount of time one way or the other, but I am terminating and
imposing what you have left, which would be to whatever it is in May.
Tr. 15-16.

{¶5} With regards to revocation of post-release control and the accompanying
sanction, the sentencing entry recites:

The Court further finds that the Defendant was on post release
control at the time of the commission of the offenses herein in the
Muskingum County, Ohio, Court of Common Pleas, Case No. CR2015
0243. Pursuant to ORC §2929.141, this Court terminates the Defendant’s
period of post release control and hereby ORDERS that the Defendant
serve the remainder of his post release control; said sentence shall be
served mandatory consecutive to the sentence imposed herein.
Judgment Entry, April 20, 2017.

{¶6} From this judgment Appellant prosecutes the instant appeal, assigning as
error:
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THE TRIAL COURT FAILED TO INFORM THE APPELLANT OF THE
LENGTH OF HIS SANCTION EITHER ON THE RECORD OR IN THE
JUDGMENT ENTRY.

{¶7} Appellant argues the court erred in failing to specify the length of his
sanction for violation of post-release control. The State argues in rebuttal the term will be
calculated by the Adult Parole Authority.
{¶8} R.C. 2929.141(A)(1) provides for the termination of post-release control
upon commission of a new felony as follows:

(A) Upon the conviction of or plea of guilty to a felony by a person on
post-release control at the time of the commission of the felony, the court
may terminate the term of post-release control, and the court may do either
of the following regardless of whether the sentencing court or another court
of this state imposed the original prison term for which the person is on post
release control:
(1) In addition to any prison term for the new felony, impose a prison
term for the post-release control violation. The maximum prison term for the
violation shall be the greater of twelve months or the period of post-release
control for the earlier felony minus any time the person has spent under
post-release control for the earlier felony. In all cases, any prison term
imposed for the violation shall be reduced by any prison term that is
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administratively imposed by the parole board as a post-release control
sanction. A prison term imposed for the violation shall be served
consecutively to any prison term imposed for the new felony. The imposition
of a prison term for the post-release control violation shall terminate the
period of post-release control for the earlier felony.

{¶9} Only the trial court itself may make the decision to sentence for a post
release control violation. State v. Branham, 2d Dist. Clark No. 2013–CA–49, 2014–Ohio–
5067. Once the court decides to impose a sentence for such a violation, it is bound by
R.C. 2929.141 when determining the time to be served. Id.
{¶10} While the statute gives the court discretion to decide whether or not to
sentence for a post-release control violation, once the court has decided to impose a
sentence, that sentence is determined by statute. The trial court specifically stated the
sentence would be the remainder of his post-release control. That specific sentence is
calculable to a certainty from information within the possession of the Adult Parole
Authority, while such information may not be readily available to the sentencing court.
Therefore, we find no error in the trial court’s failure to include the exact sentence in the
sentencing entry, as the sentence may be administratively determined by the Adult Parole
Authority as set forth by R.C. 2929.141(A)(1).
{¶11} The assignment of error is overruled.

Outcome: The judgment of the Muskingum County Common Pleas Court is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: