State v. Johnson

[Cite as State v. Johnson, 2018-Ohio-2387.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JEROME A. JOHNSON : Case No. CT2017-0058
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2017-0149
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 18, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX ERIC J. ALLEN
Prosecuting Attorney The Law Office of Eric J. Allen, Ltd.
4605 Morse Rd., Suite 201
By: GERALD V. ANDERSON II Gahanna, Ohio 43230
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43701
Muskingum County, Case No. CT2017-0058 2
Baldwin, J.
{¶1} Appellant, Jerome A. Johnson, appeals the Muskingum County Court of
Common Pleas Entry of September 15, 2017, specifically that portion of the Entry that
imposed a sentence for violation of the terms of appellant’s post release control. Appellee
is the State of Ohio.
FACTS AND PROCEDURAL POSTURE
{¶2} Appellant was the subject of a controlled buy of cocaine on 5 separate
occasions in September 2016. Appellant was arrested on January 5, 2017 at the Adult
Parole Authority Office in Muskingum County, but he escaped. The grand jury later
indicted him on eleven counts of drug related offenses and a warrant was issued for his
arrest on April 13, 2017. He was apprehended, arrested and incarcerated on April 21,
2017. He initially entered plea of not guilty on April 28, 2017 and a trial was scheduled for
July 18, 2017. On June 28, 2017, appellant entered a plea of guilty and the plea was
accepted on June 29, 2017. Pursuant to plea negotiations, Count I of the complaint was
dismissed.
{¶3} The trial court conducted a sentencing hearing on August 14, 2017 and a
sentencing entry was filed September 6, 2017. A sentencing entry nunc pro tunc was
filed September 15, 2017 imposing a sentence of 23 years for all charges but correcting
the mandatory incarceration time to sixteen years. During the sentencing hearing the trial
court noted that appellant was on post-release control arising out of a charge of trafficking
in cocaine, a felony of the second degree, and tampering with evidence, a felony of the
third degree, from January 2012 and that appellant was still subject to post release control
for those convictions. The trial court notified the appellant that “The Court also has -- the
Muskingum County, Case No. CT2017-0058 3
post-release control you're on currently has not been dealt with. The Court is going to
order that that post-release control be terminated and the time you have left on that be
imposed, which by law must be served consecutive to the time you are currently
serving.”(Sentencing Hearing Transcript, p. 12, lines 22-25 to p. 13, lines 1-3).
{¶4} The trial court included the following in its sentencing entry:
The Court further finds that the Defendant was on post release
control at the time of the commission of the offenses herein in Case No.
CR2011-0198. Pursuant to ORC §2929.141, this Court terminates the
Defendant's period of post release control and hereby ORDERS (sic) that
the Defendant serve the remainder of his post release control; said
sentence shall be served mandatory consecutive (sic) to the sentence
imposed herein.
Sentencing Entry, Sept 15, 2017, p. 3 (Emphasis in original).
{¶5} Appellant filed a notice of appeal and submits one assignment of error:
{¶6} THE TRIAL COURT ERRED WHEN IT FAILED TO NOTIFY THE
APPELLANT AT SENTENCING THE AMOUNT OF TIME HE WOULD BE REQUIRED
TO SERVE FOR THE TERMINATION OF HIS POST RELEASE CONTROL.
{¶7} Appellant contends that the trial court was obligated to notify him of the time
he would be required to serve as a result of the violation of the terms of post release
control, but he relies on cases that address the court’s obligation to notify defendants of
the consequences of violation of post release control and do not include a requirement to
notify the appellant of the precise amount of time that would be imposed as a result of a
violation. State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837 and
Muskingum County, Case No. CT2017-0058 4
State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995. The holdings of
those cases provide no relief to appellant. Instead, we rely on our recent ruling in State
v. Clark, 5th Dist. Muskingum No. CT2017-0032, 2018-Ohio-1155 and, for the reasons
set forth below, overrule the assignment of error and affirm the trial court’s decision.
{¶8} Appellant’s reliance on State v. Brooks, supra is misplaced as the court in
that case held that:
Pursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court sentencing an
offender to a community control sanction must, at the time of the
sentencing, notify the offender of the specific prison term that may be
imposed for a violation of the conditions of the sanction, as a prerequisite
to imposing a prison term on the offender for a subsequent violation.
Brooks at ¶ 29, (Emphasis added).
{¶9} The court in Brooks did not consider an obligation to notify the defendant of
the length of his sentence for violating the terms of post release control at the time of
sentencing for that violation. Likewise, the Supreme Court of Ohio in State v. Fraley,
supra at ¶18 held that:
a trial court sentencing an offender upon a violation of the offender's
community control sanction must, at the time of such sentencing, notify the
offender of the specific prison term that may be imposed for an additional
violation of the conditions of the sanction as a prerequisite to imposing a
prison term on the offender for a subsequent violation
Muskingum County, Case No. CT2017-0058 5
and did not have occasion to address any obligation to notify the appellant
of the length of sentence that would be imposed after a violation of post
relief control.
{¶10} This court has recently considered a case analogous to the appellant’s in
State v. Clark, 5th Dist. Muskingum No. CT2017-0032, 2018-Ohio-1155. In that case the
appellant had committed two felony offenses while on post release control. The trial court
ordered termination of the post release control and “that the time you have left on it be
imposed.” State v. Clark, Id. at ¶ 4. The sentencing entry in that case stated in relevant
part that “this Court terminates the Defendant's period of post release control and hereby
ORDERS (sic) that the Defendant serve the remainder of his post release control; said
sentence shall be served mandatory consecutive to the sentence imposed herein.” State
v. Clark, Id. at ¶ 5. The appellant in Clark argued the court erred in failing to specify the
length of his sanction for violation of post release control, so the facts and the assignment
of error are, for all practical purposes, identical and we find that the outcome should not
change.
{¶11} We began our analysis in Clark with a reference to R.C. 2929.141(A)(1)
which states 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:
Muskingum County, Case No. CT2017-0058 6
(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
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.
{¶12} We noted that only the trial court may make the decision to sentence for a
post release control violation and once the court decides to impose a sentence for such
violation, it is bound by R.C. 2929.141 when determining the time to be served. In that
case and in the case at bar, the trial court specifically stated the sentence would be the
remainder of his post release control. That 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. We hold in this case as we decided in
Clark: “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).” Clark, Id. at ¶ 10.
Muskingum County, Case No. CT2017-0058 7
{¶13} For the forgoing reasons, appellant’s assignment of error is overruled and
the judgment of the Muskingum County Court of Common Pleas is affirmed.
By: Baldwin, J.
John Wise, P.J. and
Hoffman, J. concur.