State v. Johnson

[Cite as State v. Johnson, 2016-Ohio-7931.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2016-0035
KENNETH R. JOHNSON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Common Pleas Court, Case No.
CR2015-0048

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: November 28, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX KENNETH R. JOHNSON, PRO SE
Prosecuting Attorney #A715-637
Muskingum County, Ohio Noble Correctional Institution
15708 McConnelseville Road
By: GERALD V. ANDERSON II Caldwell, Ohio 43724
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2016-0035 2

Hoffman, P.J.

{¶1} Defendant-appellant Kenneth R. Johnson appeals the July 20, 2016

Judgment Entry entered by the Muskingum County Court of Common Pleas denying his

motion to vacate judicial sanction. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On October 30, 2013, Appellant was sentenced to an aggregate prison term

of fourteen months as entered by the Perry County Court of Common Pleas, in State v.

Johnson Case No. 13CR0040. The judgment entry of the Perry County Court included

the following language as to post-release control:

The Court has further notified the defendant that post release control

of up to three (3) years is optional in this case, as well as the consequences

of violating conditions of post release control imposed by the Parole Board

under Section 2967.28 Revised Code, which includes reimprisonment for

up to a maximum of one-half of my originally stated term.

{¶3} In the case under review, Appellant entered a plea of guilty to one count of

robbery and two counts of theft in the Muskingum County Court of Common Pleas on

February 15, 2015. Via Entry filed May 11, 2015, the trial court sentenced Appellant to a

stated term of two years on the robbery count, merging both theft counts with the robbery

count for purposes of sentencing. The trial court notified Appellant post-release control

1 A rendition of the underlying facts is unnecessary for resolution of this appeal.
Muskingum County, Case No. CT2016-0035 3

was mandatory and the consequences for violating post-release control. The trial court

further found Appellant was on post-release control in Perry County Common Pleas Court

Case 13CR0040, at the time he committed the offenses. The trial court further ordered:

Defendant is no longer amenable to Post Release Control, and,

pursuant to O.R.C. §2929.141, terminates the same and orders that the

remainder of Defendant’s Post Release Control be served as a prison term.

According to statute, it is mandatory that this prison term be served

consecutively to the two (02) year prison sentence in the instant case.

{¶4} On May 23, 2016, Appellant filed a motion to vacate judicial sanction.

{¶5} Via Entry of July 21, 2016, the trial court denied Appellant’s motion to vacate

judicial sanction, finding Appellant’s post-release control in Perry County Case No. 13 CR

0040 was properly imposed.

{¶6} Appellant appeals, assigning as error:

{¶7} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT DENIED APPELLANT’S MOTION TO VACATE JUDICIAL SANCTION SENTENCE.”

{¶8} Preliminarily, we note this case comes to us on the accelerated calendar.

App.R. 11.1, which governs accelerated calendar cases, and provides in pertinent part:

(E) Determination and judgment on appeal

The appeal will be determined as provided by App. R. 11.1. It shall

be sufficient compliance with App. R. 12(A) for the statement of the reason
Muskingum County, Case No. CT2016-0035 4

for the court's decision as to each error to be in brief and conclusionary

form.

The decision may be by judgment entry in which case it will not be

published in any form.

{¶9} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Association, 11 Ohio App.3d 158 (1983).

{¶10} This appeal shall be considered in accordance with the aforementioned

rules.

{¶11} Appellant maintains the trial court committed error by failing to find his post-

release control imposed by the Perry County Court of Common Pleas, in Case No. 13 CR

0040, was void for failure to notify him of the consequences set forth in R.C. 2929.141.

{¶12} Ohio Revised Code Section 2929.141(A)(1), reads,

(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. CT2016-0035 5

(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.

{¶13} In State v. Wills, Muskingum Co. No. CT2015-0009, 2015-Ohio-4599, this

Court addressed the issue of whether the appellant had been fully advised of the

consequences of violating post-release control under R.C. 2929.141.

{¶14} Wills cited the trial court’s instruction at the plea hearing and at the

sentencing hearing. During both hearings, Appellant was advised, if he committed a new

felony while on post-release control, any sentence received for the new felony would be

“additional prison time [that] could be added to that sentence in the form of time you have

left on post-release control, or one year, whichever is greater.”

{¶15} In Wills, this Court concluded, “[W]e find the trial court advised appellant of

post-release control and the language ‘could be added’ is sufficient and tantamount to

saying ‘consecutive’ to.”
Muskingum County, Case No. CT2016-0035 6

{¶16} Similarly, in State v. Nicholson, Muskingum Co. No. CT2015-0016, 2016-

Ohio 50, the appellant argued the trial court did not properly advise him of post-release

control and its ramifications. Specifically, Nicholson asserted the trial court failed to advise

him, if he committed a new felony while on post-release control, any additional post-

release control time would have to be served consecutively to any term of the new felony

under R.C. 2929.19(B) and R.C. 2929.141.

{¶17} This Court held in Nicholson,

As noted by appellant in this brief, there is a split of appellate

authority as to whether or not that there is a duty to inform an offender of a

possible consecutive sentence under R.C. 2929.141. In State v. Adkins, 4th

Dist. Lawrence No. 14CA29, 2015–Ohio–2830 and State v. McDowell, 9th

Dist. Summit App. No. 26697, 2014–Ohio–3900, both cited by appellant,

the courts held that the trial court was required to notify a defendant that a

prison term imposed for commission of a new felony during a term of post-

release control will be served consecutively to the prison term imposed by

the court for the violation of post-release control.

However, as the court noted in Adkins at paragraph 14:

We are cognizant that a number of other appellate districts have

considered whether the postrelease control notification of R.C. 2929

.19(B)(2)(e) must include notification of the penalty provisions in R .C.

2929.141(A)(1)-(2) and have held that this notification is not required. See

State v. Bybee, 2015–Ohio–878, 28 N.E.3d 149 (8th Dist.) ( ... refusing to
Muskingum County, Case No. CT2016-0035 7

extend the postrelease control notification requirements set forth in State v.

Jordan, 104 Ohio St.3d 21, 2004–Ohio–6085, 817 N.E.2d 864 and codified

in R.C. 2929.19(B) to require additional notification of penalties under R.C.

2929.141 but agreeing with Mullins, infra, that it is a better practice to do

so); State v. Burgett, 3rd Dist. Marion App. No. 9–10–37, 2010–Ohio–5945

(“we find no such requirement contained in the statute mandating the trial

court to notify a defendant of all the possible consequences of his

commission of a felony while on post release control, as set forth under R.C.

2929.141”); State v.. Lane, 3rd Dist. Allen App. No. 1–10–10, 2010–Ohio–

4819 (the possible consequences of the commission of a felony under R.C.

2929.141 are discretionary options of the trial court, and no notice to a

defendant of those options is required); State v. Witherspoon, 8th Dist.

Cuyahoga No. 90498, 2008–Ohio–4092; State v. Mullins, 12th Dist. Butler

App. No. CA2007–01–028, 2008–Ohio–1995, ¶ 14 (holding that there is no

requirement that the trial court at the sentencing hearing notify defendant of

the possible penalties under R.C. 2929.141, though “we do note that the

better practice would be to include notification of the potential implications

of R.C. 2929.141 when notifying defendants of the other potential

implications of postrelease control”); State v. Susany, 7th Dist. Mahoning

App. No. 07MA7, 2008–Ohio1543 (there is no requirement that the

defendant must also be informed of the penalties under R.C. 2929.141 as

part of the notification required under R.C. 2929.19(B)).
Muskingum County, Case No. CT2016-0035 8

In the case sub judice, the trial court stated as follows at the March

2, 2015 sentencing hearing:

THE COURT: It is mandatory upon your release from prison you will

be placed on what is known as post-release control for a period of three

years by the adult parole authority. While on post-release control, you will

be subject to a variety of rules and regulations. Should you fail to follow

those rules and regulations, you could be sent back to prison for a period of

up to nine months for each rule violation you may commit. The total amount

of time you could be sent back to prison would be equal to one-half of your

original prison sentence.

If you commit a new felony while on post-release control, in addition

to any sentence you receive for that new felony, additional prison time could

be added to that sentence in the form of the time you have left on post-

release control, or one year, whichever is the greater. Do you understand

what I just went over?

THE DEFENDANT: Yes.

[Nicholson] Transcript of March 2, 2015 sentencing hearing at 7–8.

(Emphasis added).

Recently, in State v. Wills, 5th Dist. Muskingum No. CT2015–0009,

2015–Ohio–4599, this Court found that the trial court, which used identical

language to the above highlighted language at sentencing, “advised

appellant of post release control and the language ‘could be added’ is

sufficient and tantamount to saying ‘consecutive to.’ ” Wills, at paragraph
Muskingum County, Case No. CT2016-0035 9

13. We found that the appellant, in Wills, had been advised of post-release

control and its ramifications.

Based on Wills, appellant's first assignment of error is overruled.

State v. Nicholson, 2016-Ohio-50.

{¶18} This Court again addressed the same issue in State v. Mercer, Muskingum

Co. No. CT2015-0017, 2016 Ohio 49. Mercer specifically argued the trial court failed to

advise him, if he committed a new felony while on post-release control, any additional

post-release control time would have to be served consecutively to any term for the new

felony under R.C. 2929.19(B) and R.C. 2929.141.

{¶19} Mercer noted the split of authority among districts as set forth in the Fourth

District’s holding in State v. Adkins, 4th Dist. No. 14CA29, 2015-Ohio-2830. The trial court

in Mercer included language at the sentencing hearing similar to R.C. 2929.141. This

Court held,

Recently, in State v. Wills, 5th Dist. Muskingum No. CT2015–0009,

2015–Ohio–4599, this Court found that the trial court, which used identical

language to the above highlighted language at sentencing, “advised

appellant of post release control and the language ‘could be added’ is

sufficient and tantamount to saying ‘consecutive to.’ ” Wills, at paragraph

13. We found that the appellant, in Wills, had been advised of post-release

control and its ramifications.

Based on Wills, appellant's sole assignment of error is denied.

State v. Mercer, 2016-Ohio-49.
Muskingum County, Case No. CT2016-0035 10

{¶20} We recognize this Court did not specifically state in Wills, Nicholson or

Mercer a trial court must advise a defendant of the consequences imposed by R.C.

2929.141. But by addressing the sufficiency of the notification under R.C. 2929.141

concerning the consecutive nature of the sanction, we impliedly did so, and did so in

reliance on the holding in Adkins, and State v. McDowell, 9th Dist. No. 26697, 2014-Ohio-

3900.

{¶21} However, most recently in State v. Brown, Fifth Dist. Richland Co. No.

16CA15, 2016-Ohio-5893, this Court specifically held post release control notification

does not require notification of the penalty provisions in R.C. 2929.141(A). The Brown

opinion does not reference this Court’s earlier decisions in Wills, Nicholson or Mercer.

{¶22} The case Brown does reference on this issue is the Adkins case from the

Fourth District which was referenced in both our Nicholson and Mercer opinions.

However, the Brown court only references that portion of the Adkins’ opinion wherein it

acknowledged those appellate districts which have held the R.C. 2929.141(A) notification

is not required. Brown then finds Adkins “persuasive”. (Brown, Id. at ¶25)

{¶23} But, Adkins specifically holds “…the trial court was required to advise

Adkins that under R.C. 2929.141(A), a violation of postrelease control could result in not

only receiving a prison sentence for the violation of community control, but also that such

a sentence would necessarily be served consecutively to any prison sentence he received

for committing a new crime.” Adkins, at ¶1. Accordingly, it would appear this Court’s

Brown panel meant to find Adkins unpersuasive in accordance with the contrary opinions

of the other districts cited in Adkins.
Muskingum County, Case No. CT2016-0035 11

{¶24} This panel chooses not to follow Brown, but rather adhere to Adkins,

McDowell, Wills, Nicholson and Mercer. We find the failure of the Perry County Common

Pleas Court sentencing entry to advise Appellant of the consequences contained within

R.C. 2929.141(A) prohibits the Muskingum County Common Pleas Court from imposing

the sanctions contained therein.2 Accordingly, we find the trial court erred in failing to

grant Appellant’s motion to vacate sentence.

{¶25} The judgment of the Muskingum County Court of Common Pleas is

reversed. The matter is remanded to that court to reenter sentence in accordance with

this opinion and the law.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur

2
This Opinion should not be interpreted as rendering an opinion as to whether the Perry
County Common Pleas Court could impose a prison term of up to seven months for
Appellant’s violation of that portion of the post-release notification that was given.