State v. Holycross , 2022 Ohio 2312 ( 2022 )

[Cite as State v. Holycross, 2022-Ohio-2312.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2022-CA-4
:
v. : Trial Court Case No. 2021-CR-49
:
DONALD E. HOLYCROSS, II : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 1st day of July, 2022.
...........
MEGAN A. HAMMOND, Atty. Reg. No. 0097714, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
FRANK MATTHEW BATZ, Atty. Reg. No. 0093817, 126 North Philadelphia Street,
Dayton, Ohio 45403
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} Donald E. Holycross, II appeals from his conviction following a guilty plea to
two counts of receiving stolen property and one count of forgery.
{¶ 2} Holycross contends the trial court erred in failing to inform him of the details
of post-release control at sentencing. Specifically, he claims the trial court neglected to
tell him that a post-release control violation may subject him to additional prison time of
up to one-half of his original sentence. For its part, the State concedes the trial court’s
failure to advise Holycross of the consequences of violating post-release control. In light
of the trial court’s failure to make this required advisement at sentencing, we reverse the
trial court’s judgment with respect to its imposition of post-release control and remand for
resentencing to impose post-release control properly. In all other respects, the judgment
is affirmed.
I. Background
{¶ 3} Holycross pled guilty to the above-referenced charges as part of a negotiated
plea agreement. The case proceeded to sentencing on May 19, 2021. The trial court
imposed consecutive prison sentences resulting in an aggregate 36-month term. It also
imposed up to three years of discretionary post-release control. Amended Sentencing Tr.
at 14. The trial court did not orally advise Holycross at sentencing that a post-release
control violation could result in the parole board’s imposing an additional prison term of
up to one-half of the stated prison term. The trial court’s written judgment entry did include
language stating that a post-release control violation may result in Holycross’s being
returned to prison for up to one-half of his original sentence. May 19, 2021 Judgment
Entry at 6.
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II. Analysis
{¶ 4} We very recently addressed the issue before us in State v. Heinzen, 2d Dist.
Clark No. 2019-CA-65, 2022-Ohio-1341. In discussing a trial court’s statutory obligation
to notify a defendant about post-release control, we explained:
* * * “It is settled that ‘a trial court has a statutory duty to provide
notice of post[-]release control at the sentencing hearing’ and that ‘any
sentence imposed without such notification is contrary to law.’ ” State v.
Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 8, quoting
State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23,
overruled on other grounds, State v. Harper, 160 Ohio St.3d 480, 2020-
Ohio-2913, 159 N.E.3d 248. Accord State v. Bates, Ohio Slip Opinion No.
2022-Ohio-475, __ N.E.3d __, ¶ 11.
Per its statutory duty, “[t]he trial court must advise the offender at the
sentencing hearing of the term of [post-release control] supervision,
whether postrelease control is discretionary or mandatory, and the
consequences of violating postrelease control.” Bates at ¶ 11, citing Grimes
at ¶ 11. Accord State v. Hall, 2d Dist. Montgomery No. 28882, 2021-Ohio-
1894, ¶ 13. “Among other consequences, an offender’s violation of a
postrelease-control sanction or condition may result in the [Adult Parole
Authority's] imposing a prison term on the offender.” Bates at ¶ 11, citing
R.C. 2967.28(F)(3). “However, the maximum cumulative prison term for all
violations under R.C. 2967.28(F)(3) ‘shall not exceed one-half’ of the stated
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prison term originally imposed.” Id. Therefore, “at the sentencing hearing,
the court must notify the offender that if he or she ‘violates [post-release
control] * * *, the parole board may impose a prison term, as part of the
sentence, of up to one-half of the stated prison term originally imposed upon
the offender.’ ” Grimes at ¶ 9, quoting former R.C. 2929.19(B)(2)(e); R.C.
2929.19(B)(2)(f); State v. Fields, 2d Dist. Clark No. 2020-CA-19, 2021-Ohio-
3845, ¶ 10-11.
Id. at ¶ 24-25.
{¶ 5} In Heinzen, the trial court failed to advise the defendant at sentencing that if
she violated post-release control she could receive an additional prison term of up to one-
half of her stated term. Although that information was included in the sentencing entry, “it
was not discussed at the sentencing hearing as required by R.C. 2929.19(B)(2)(f).” Id. at
¶ 27. As a result, we found the post-release control portion of the defendant’s sentence
contrary to law, reversed the trial court’s judgment with respect to its imposition of post-
release control, and remanded for a new sentencing hearing limited to the proper
imposition of post-release control. Id. at ¶ 28-30.
{¶ 6} Based on Heinzen and the authority cited therein, the trial court erred in
failing to advise Holycross at sentencing that the parole board could impose a prison term
of up to one-half of his stated prison term if he violated post-release control. Accordingly,
his assignment of error is sustained.
III. Conclusion
{¶ 7} The trial court’s judgment is reversed with respect to its imposition of post-
release control, and the matter is remanded for the sole purpose of resentencing to
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impose post-release control in a manner consistent with this opinion. In all other respects,
the trial court’s judgment is affirmed.
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DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
Megan A. Hammond
Frank Matthew Batz
Hon. Michael A. Buckwalter