[Cite as State v. Wells, 2015-Ohio-39.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
SHAWN S. WELLS : Case No. 14-CA-36
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
14 CR 00061
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: January 7, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT WILLIAM T. CRAMER
Licking County Prosecutor 470 Olde Worthington Road, Suite 200
Westerville, OH 43082
By: JUSTIN T. RADIC
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, OH 43055
Licking County, Case No. 14-CA-36 2
Baldwin, J.
{¶1} Appellant Shawn S. Wells appeals a judgment of the Licking County
Common Pleas Court sentencing him to an aggregate term of incarceration of 20 years
and nine months upon a plea of guilty to kidnapping (R.C. 2905.01(A)(4)) and failure of
a sex offender to provide notice of change of address (R.C. 2950.05(B)). Appellee is
the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On January 27, 2014, appellant went to a model home located in
Pataskala, Ohio, where the victim was working as a sales representative. Appellant
pretended to be interested in purchasing a home, and made multiple attempts to lure
the victim into remote areas of the home. The victim was suspicious of appellant’s
behavior, and would not accompany him to those areas of the home. The victim briefly
turned her back on appellant, and he put her in a headlock and pulled her to the ground.
He attempted to pull her shirt down and pulled her hair. She briefly got away from
appellant, but he grabbed her leg in an attempt to pull her back to him. She got away
and fled to another house in the neighborhood.
{¶3} Appellant was on post-release control at the time of the offense. Further,
he was required to register as a sex offender due to a prior rape conviction. Appellant
was charged by indictment with two counts of kidnapping, attempted rape, abduction,
and failure of a sex offender to provide notice of a change of address. Appellant
entered a guilty plea to one count of kidnapping and failure to provide notice of change
of address. On April 28, 2014, the court sentenced appellant to nine years on each
Licking County, Case No. 14-CA-36 3
count, to be served consecutively. The court also sentenced appellant to 33 months
remaining on his post-release control time as of the date of the offense, also to be
served consecutively, for an aggregate term of 20 years and nine months incarceration.
{¶4} Appellant assigns a single error to the sentence:
{¶5} “THE TRIAL COURT VIOLATED DUE PROCESS AND R.C. 2929.141 BY
CALCULATING THE MAXIMUM SANCTION FOR A POST-RELEASE CONTROL
VIOLATION BASED ON THE DATE OF THE NEW OFFENSE RATHER THAN THE
DATE OF THE CONVICTION FOR THE NEW OFFENSE.”
{¶6} R.C. 2929.141(A)(1) allows a sentencing court to impose an additional
sentence for violation of post-release control:
(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 administratively imposed by
Licking County, Case No. 14-CA-36 4
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.
{¶7} In State v. Harris, 1st Dist. Hamilton No. C-130442, 2014-Ohio-4237, the
Court of Appeals for the First District addressed the same issue raised by the instant
case. The court held that the post-release control for the earlier felony did not terminate
until the trial court imposed a prison term for the post-release control violation, and the
trial court therefore should have credited Harris for the entire amount of time he spent
on post-release control for the earlier felony, rather than limiting his credit to the amount
of time he spent on post-release control before committing the new felony. Id. at ¶40.
{¶8} We agree with the reasoning of the First District in the Harris case. In the
instant case, appellant remained on post-release control while awaiting sentencing for
the violation of post-release control; therefore, the time remaining on his post-release
control sanction should have been calculated from the date of sentencing, April 28,
2014, rather than from the date of the offense, January 27, 2014.
Licking County, Case No. 14-CA-36 5
{¶9} The assignment of error is sustained. The judgment of the Licking County
Common Pleas Court is reversed, and this cause is remanded to that court for
resentencing in accordance with this opinion. Costs are assessed to appellee.
By: Baldwin, J.
Wise, P.J. and
Delaney, J. concur.