[Cite as State v. McCallister, 2015-Ohio-3112.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2014CA00195
JOHN LAWRENCE MCCALLISTER :
AKA JOHN LAWRENCE :
MCCALLISTER : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No.
2014CR1212
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 3, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO TAMMI JOHNSON
STARK COUNTY PROSECUTOR Public Defender's Office
BY: RENEE WATSON 201 Cleveland Ave. S.W., Ste. 104
110 Central Plaza S., Ste. 510 Canton, OH 44702
Canton, OH 44702
[Cite as State v. McCallister, 2015-Ohio-3112.]
Gwin, P.J.
{¶1} Appellant John Lawrence McCallister (“McCallister”] appeals the October
2, 2014 Judgment Entry of the Stark County Court of Common Pleas overruling his
motion to dismiss and the October 7, 2014 Judgment Entry of that court finding him
guility of Escape.
Facts and Procedural History
{¶2} A statement of the facts underlying McCallister’s criminal conviction is not
necessary to our resolution of this appeal.
{¶3} On May 25, 2011, McCallister entered a negotiated guilty plea to one
count of Robbery, a felony of the third degree in violation of R.C. 2911.02(A)(3) in Stark
County Court of Common Pleas, Case No. 2011CR0322. A “Plea of Guility(F3) Criminal
Rule 11(C)” entry signed by McCallister, his attorney, the prosecuting attorney and the
trial judge was filed as part of the trial court’s Judgment Entry Change of Plea and
Presentence Investigation, Stark County Court of Common Pleas, Case No.
2011CR0322 on May 9, 2011.
{¶4} McCallister did not appeal or otherwise challenge his conviction and
sentence. Following his release from prison on February 21, 2013, McCallister began
serving his mandatory 3-year term of post-release control.
{¶5} On August 27, 2014, McCallister was indicted by the Stark County Grand
Jury for one count of Escape, a felony of the fifth degree in violation of R.C.
2921.34(A)(3)(c)(3) in Stark County Court of Common Pleas, Case No. 2014CR1212.
The basis for the Escape charge was a violation of the terms and conditions of post-
release control.
Stark County, Case No. 2014CA00195 3
{¶6} On September 5, 2014, McCallister filed a motion to dismiss the
Indictment arguing that because he was improperly advised of post-release control, the
trial court was required to dismiss his escape charge and release him from his post-
release control obligations. The trial court overruled the motion by Judgment Entry filed
October 2, 2014.
{¶7} On October 1, 2014, McCallister entered a plea of “no contest” to the
Escape charge, and the trial court found him guilty. By Judgment Entry filed October 7,
2014, McCallister was sentenced to six months. The trial court advised McCallister of
the non-mandatory three-year post-release control period and the consequences for
violating post-release control.
{¶8} McCallister served his time and was released on January 19, 2015.
Assignment of Error
{¶9} McCallister raises one assignment of error,
{¶10} “I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
MOTION TO DISMISS IN VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS
UNDER THE OHIO AND UNITED STATES CONSTITUTIONS.”
Analysis
{¶11} In his sole assignment of error, McCallister complains that because he
was not properly advised of post-release control in his 2011 case, the Adult Parole
Authority did not have the authority to place him on post-release control and thus he
could not later be prosecuted for escape. Specifically, McCallister contends that the trial
court's use of the word "would" during its oral pronouncement of post-release control
imposes a discretionary period of post-release control and not a mandatory period.
Stark County, Case No. 2014CA00195 4
{¶12} Post-release control is a period of supervision by the adult parole authority
that begins after a prisoner is released from prison. Woods v. Telb, 89 Ohio St.3d 504,
509 (2000); R.C. 2967.01(N). Pursuant to R.C. 2967.28(B),
(B) Each sentence to a prison term for a felony of the first degree,
for a felony of the second degree, for a felony sex offense, or for a felony
of the third degree that is an offense of violence and is not a felony sex
offense shall include a requirement that the offender be subject to a period
of post-release control imposed by the parole board after the offender's
release from imprisonment. This division applies with respect to all prison
terms of a type described in this division, including a term of any such type
that is a risk reduction sentence. If a court imposes a sentence including a
prison term of a type described in this division on or after July 11, 2006,
the failure of a sentencing court to notify the offender pursuant to division
(B)(2)(c) of section 2929.19 of the Revised Code of this requirement or to
include in the judgment of conviction entered on the journal a statement
that the offender's sentence includes this requirement does not negate,
limit, or otherwise affect the mandatory period of supervision that is
required for the offender under this division. Section 2929.191 of the
Revised Code applies if, prior to July 11, 2006, a court imposed a
sentence including a prison term of a type described in this division and
failed to notify the offender pursuant to division (B)(2)(c) of section
2929.19 of the Revised Code regarding post-release control or to include
in the judgment of conviction entered on the journal or in the sentence
Stark County, Case No. 2014CA00195 5
pursuant to division (D)(1) of section 2929.14 of the Revised Code a
statement regarding post-release control. Unless reduced by the parole
board pursuant to division (D) of this section when authorized under that
division, a period of post-release control required by this division for an
offender shall be of one of the following periods:
***
(3) For a felony of the third degree that is an offense of violence
and is not a felony sex offense, three years.
Emphasis added. Pursuant to R.C. 2967.28(B), post-release control is mandatory in
McCallister’s case.
{¶13} In State v. Jordan, 104 Ohio St.3d. 21, 2004-Ohio-6085, 817 N.E.2d 864,
the Ohio Supreme Court reviewed the statutory requirements for the imposition of post-
release control and held that because a trial court has a statutory duty to provide notice
of post-release control at the sentencing hearing, any sentence imposed without that
notification is contrary to law. Jordan at ¶ 23. The court determined that a trial court is
required to notify the offender about post-release control at the sentencing hearing and
is further required to incorporate that notice into its journal entry imposing sentence. Id.
at ¶ 9. The court determined that the proper remedy for any sentencing error was to
remand to the trial court for resentencing. Jordan at ¶ 27.
{¶14} The Supreme Court reiterated this principle in State v. Bezak, 114 Ohio
St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 16, in which the court held that when an
offender is convicted of or pleads guilty to one or more offenses and post-release
control is not properly included in a sentence for a particular offense, the sentence for
Stark County, Case No. 2014CA00195 6
that offense is void. Id. at ¶ 16. In considering the type of resentencing, the court held
that when a court of appeals remands a case for resentencing because of the trial
court’s failure to inform the offender at the sentencing hearing that he or she may be
subject to post-release control, the court must conduct a new sentencing hearing in its
entirety rather than a hearing limited to re-imposing the original sentence with proper
notice of post-release control. Id. at ¶ 13, overruled, Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238, 942 N.E.2d 332, ¶ 36; Accord State v. Harris, 132 Ohio St.3d 318, 2012-
Ohio-1908, 972 N.E.2d 509, ¶10.
{¶15} In State v. Harris, the Supreme Court noted,
The court in Fischer reaffirmed part of the holding in Bezak, finding
that a sentence that fails to include postrelease control is void, but added
the proviso that only the offending portion of the sentence is subject to
review and correction. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, at ¶ 27. The court modified the Bezak holding in respect to
the type of resentencing that an offender is entitled to receive, Fischer at ¶
28, and held that the new sentencing hearing is limited to proper
imposition of postrelease control, id. at ¶ 29.
Harris, 132 Ohio St.3d at ¶12.
{¶16} The Supreme Court of Ohio has further held that “[a] sentence that does
not include the statutorily mandated term of post-release control is void, is not precluded
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, paragraph one of the syllabus. The Supreme Court has explained that “Fischer
Stark County, Case No. 2014CA00195 7
applies to every criminal conviction, including a collateral attack on a void sentence [.]”
State v. Billiter, 134 Ohio St.3d 103, 2012–Ohio–5144, ¶ 11. When a defendant
completes the prison term he was ordered to serve, he can no longer be subject to a
resentencing to correct errors in the imposition of his post-release control. State v.
Bezak, 114 Ohio St.3d 94, 2007–Ohio–3250, ¶ 18, modified in part, State v. Fischer,
128 Ohio St.3d 92, 2010–Ohio–6238. Accord Hernandez v. Kelly, 108 Ohio St.3d 395,
2006–Ohio–126.
{¶17} In the case at bar, prior to the change of plea hearing, McCallister signed
a “Plea of Guility(F3) Criminal Rule 11(C)” form which included a detailed explanation of
post-release control in conformity with R.C. 2967.28(B)(3)and R.C. 12929.19(B)(2)(c):
Upon release from prison, the defendant will be ordered to serve a
mandatory period of three (3) years of post-release control, pursuant to
R.C. 2967.28(B). This period of post-release control will be imposed as
part of defendant's criminal sentence at the sentencing hearing, pursuant
to R.C. 2929.19. If the defendant violates the conditions of post-release
control, the defendant will be subject to an additional prison term of up to
one-half of the stated prison term as otherwise determined by the parole
board according to law.
{¶18} In the Court's sentencing judgment entry, the mandatory three-year term
of post-release control was set forth as,
Upon release from prison, the Defendant is ordered to serve a
mandatory period of three (3) years of post-release control pursuant to
R.C. 2967.28(B). This period of post-release control was imposed as part
Stark County, Case No. 2014CA00195 8
of Defendant's criminal sentence at the sentencing hearing, pursuant to
R.C. 2929.19. If the Defendant violates the conditions of post-release
control, the Defendant will be subject to an additional prison term of up to
one-half of the stated prison term as otherwise determined by the Parole
Board, pursuant to law.
***
{¶19} On the record, during McCallister’s sentencing hearing, the trial court
stated,
On the F3 count, the Defendant will be sentenced to serve a term
of two years imprisonment in an appropriate correctional facility. He will be
given credit for any time served up through today and pending his transfer.
He would be subject to post-release control for a period of three years. In
the event that he would violate any post-release control, he would subject
himself to an additional prison term of up to one half the stated sentence.
T. Stark County Court of Common Pleas, Case No. 2011 CR 0322, Sentencing, May
25, 2011 at 4-5 (emphasis added).
{¶20} We do not find that the trial court’s use of the word “would” transforms the
mandatory nature of McCallister’s post-release control into a discretionary imposition of
post-release control as urged by McCallister in this appeal. Under the totality of the
circumstances, we conclude that the trial court substantially complied with the Supreme
Court mandates and sufficiently notified McCallister about mandatory post-release
control. The statements by the trial court were neither ambiguous nor equivocal with
regard to whether post-release control was mandatory or discretionary. Compare, State
Stark County, Case No. 2014CA00195 9
v. Thompson, Second Dist Montgomery No. 26395, 2015-Ohio-1473 (finding the trial
court’s statements to the defendant “[W]hen you get released from prison, you’re going
to have to serve a period of three years’ post release control or you may have to[.]” (Tr.
at 14–15). It then reiterated, “But with these two [convictions], you’re going to have to * *
* serve that [post-release control], or you may have to.” (Id. at 15) to be ambiguous and
equivocal).
{¶21} Although a sentencing court must comply with statutory requirements, the
Supreme Court has not prescribed a “magic words” test for imposing post-release
control. This is consistent with other areas of criminal sentencing where appellate
courts have held that trial courts need not recite specific magic words in imposing a
sentence. See, State v. Williams, 10th Dist. Franklin No. 10AP-922, 2011-Ohio-4923,
¶19; See also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659,
¶29 (“a word-for-word recitation of the language of the statute [R.C. 2929.14(C)(4)] is
not required, and as long as the reviewing court can discern that the trial court engaged
in the correct analysis and can determine that the record contains evidence to support
the findings, consecutive sentences should be upheld”).
{¶22} A thorough review of the entire record in the case at bar indicates that
post-release control was properly imposed at the original sentencing hearing and in the
original sentencing entry. The trial court did not err in overruling McCallister’s motion to
dismiss or in finding him guilty of Escape.
Stark County, Case No. 2014CA00195 10
{¶23} McCallister’s sole assignment of error is overruled.
{¶24} For the foregoing reasons, the judgment of the Court of Common Pleas,
Stark County, Ohio is affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur