[Cite as State v. Wolfenbarger, 2018-Ohio-1007.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
CASE NO. 6-17-18
PLAINTIFF-APPELLEE,
v.
THOMAS G. WOLFENBARGER, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. CRI 20172076
Judgment Affirmed
Date of Decision: March 19, 2018
APPEARANCES:
Todd A. Workman for Appellant
Jason M. Miller for Appellee
Case No. 6-17-18
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Thomas G. Wolfenbarger (“Wolfenbarger”)
appeals the judgment of the Hardin County Court of Common Pleas, alleging that
the trial court did not adequately notify him of his postrelease control sanctions
during his sentencing hearing. For the reasons set forth below, the judgment of the
trial court is affirmed.
Facts and Procedural History
{¶2} On May 25, 2017, Wolfenbarger was charged with one count of
intimidation in violation of R.C. 2921.03; one count of domestic violence in
violation of R.C. 2919.25(A); one count of violating a protection order in violation
of R.C. 2919.27(A)(1), (B)(4); and one count of criminal endangering or damaging
in violation of R.C. 2909.06(A)(1). Doc. 1. On July 28, 2017, Wolfenbarger pled
guilty to all four of these charges. Doc. 18, 19. On September 6, 2017,
Wolfenbarger appeared for sentencing. Tr. 1.
{¶3} At the sentencing hearing, the trial judge determined that the first
count—intimidation in violation of R.C. 2921.03—and the third count—violating a
protection order in violation of R.C. 2919.27(A)(1)—merged. Tr. 26. After this
determination, the trial court sentenced Wolfenbarger to twenty-four months in
prison for the first count and then sentenced Wolfenbarger to twenty-four months
in prison for the third count. Tr. 27-28. The trial court ordered the sentences for
the first and third counts to be served concurrently. Tr. 28. The trial judge then
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sentenced Wolfenbarger on the second and fourth counts charged against him. Tr.
28. Since the second and fourth counts charged against Wolfenbarger were
misdemeanor offenses, the trial court ordered the sentences for these offenses to be
served concurrently with the sentences for the felony offenses. Tr. 29.
{¶4} The sentence for the first count came with a term of postrelease control.
Tr. 30, 38. The trial judge then made the following statement to Wolfenbarger:
Because of the nature of these crimes it would be mandatory that
you serve post-release control supervision at the time that you
would be released from prison if you flat time out—which means
if you choose to serve the whole sentence that the Court has given
you, when you would be released the parole board would place
you on post-release control supervision for a period of three years.
If they place you on that, Mr. Wolfenbarger, and if you violate
any of their terms, those violations could result in them sending
you back to prison for ninety days for every violation, however
they cannot accumulate them to more than half of the term the
Court’s giving you. The exception to that rule is if you violate it
by committing any new felony crime of any sort, not only could
you naturally be sent to prison in that new felony case, but you’re
looking at a sanction for violating your post-release control
supervision, and there it can start with a minimum of one year, go
up to the amount of days remaining. So if you were started on a
full three years and violated within the first month—which I’ve
seen happen—you could be looking at another two years and
eleven months, perhaps, that would be included to run
consecutively, but law to run consecutively, with the new prison
term.
Tr. 30-32. After explaining postrelease control to Wolfenbarger, the trial court
recessed briefly. Tr. 37.
{¶5} During the recess, the trial judge determined that Wolfenbarger should
not have been sentenced on counts one and three since these two counts merged at
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sentencing. Tr. 38. After the recess, the trial court asked whether the prosecution
would elect to proceed on the first count or the third count. Tr. 38. The prosecution
elected to proceed on the first count. Tr. 38. In response, the trial judge stated:
“[w]e will not sentence on count three. Count one will be the exact same sentence
I already told you. Count one is, in fact, the sentence that carries mandatory PRC
time, so I’ve already informed you of that.” Tr. 38.
{¶6} On September 11, 2017, the trial court issued Wolfenbarger’s
sentencing entry. Doc. 24. Having filed his notice of appeal, Wolfenbarger raises
the following assignment of error:
The trial court erred when it failed to notify Appellant of the
mandatory Post Release Control Sanctions when he was
sentenced on the allied offenses.
In his sole assignment of error, Wolfenbarger argues that the trial court should have
advised him of his postrelease control sanctions after the trial court modified his
sentence to reflect the merger of counts one and three.
Legal Standard
{¶7} “Postrelease control is a period of supervision that occurs after a
prisoner has served his or her prison sentence and is released from incarceration,
during which the individual is subject to specific sanctions with which he or she
must comply.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d
462, ¶ 35. “[A] trial court has a statutory duty to provide notice of postrelease
control at the sentencing hearing” and * * * “any sentence imposed without such
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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. Under R.C. 2929.19(B),
the sentencing entry must contain the following information: (1)
whether postrelease control is discretionary or mandatory, (2) the
duration of the postrelease-control period, and (3) a statement to
the effect that the Adult Parole Authority (“APA”) will
administer the postrelease control pursuant to R.C. 2967.28 and
that any violation by the offender of the conditions of postrelease
control will subject the offender to the consequences set forth in
that statute.
Grimes at ¶ 1.
Legal Analysis
{¶8} At the sentencing hearing in this case, the trial judge advised
Wolfenbarger (1) that postrelease control was mandatory for him; (2) that he would
be subject to postrelease control for three years; and (3) that he would be supervised
after the parole board placed him in postrelease control. Tr. 30-32. See Grimes at
¶ 1. The trial judge also explained the consequences of violating the terms of
postrelease control. Tr. 30-32. See Grimes at ¶ 1. Thus, the trial judge gave
adequate notification of postrelease control to Wolfenbarger at the sentencing
hearing.
{¶9} The fact that the trial judge modified the sentence as to the third count
charged against Wolfenbarger during the sentencing hearing does not affect the
adequacy of this notification. After the recess, no changes were made to the
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sentence that came with the first count since the prosecution elected to proceed on
the first count instead of the third count. Further, the trial judge clearly stated that
the period of postrelease control came with the first count charged against
Wolfenbarger and that this sentencing modification would not affect the terms of
his postrelease control. Thus, Wolfenbarger’s first assignment of error is overruled.
Conclusion
{¶10} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Hardin County Court of Common Pleas is
affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/hls
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