Ohio Appellate Reports

Unpublished

STATE v. TYSON, Unpublished Decision (1-8-2007) 2007-Ohio-41 STATE OF OHIO, Plaintiff-Appellee, v. CHRISTOPHER TYSON, Defendant-Appellant. No. CA2006-02-019. Court of Appeals of Ohio, Twelfth District, Warren County. January 8, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.] Criminal Appeal from Warren County Court of Common Pleas, Case No. 2005CR22563.

Rachel A. Hutzel, Warren County Prosecuting Attorney, Joshua A. Engel, Lebanon, OH 45036, for plaintiff-appellee.

David M. Hopper, Springboro, OH 45066, for defendant-appellant.

OPINION

YOUNG, J.

{¶ 1} Defendant-appellant, Christopher Tyson,
appeals his conviction in the Warren County Court of Common
Pleas for escape.

{¶ 2} On September 25, 2003, after appellant was
convicted of one count of burglary (a felony of the third
degree), two counts of receiving stolen property (a felony
of the fourth degree), and one count of theft (a felony of
the fifth degree), the Montgomery County Court of Common
Pleas sentenced appellant to a total of 18 months in prison.
Each of the four sentencing entries included the following
post-release control language:

{¶ 3} “The Court advised the defendant that
following the defendant’s release from prison, the
defendant will/may serve a period of post-release control
under the supervision of the parole board;

{¶ 4} “Should the defendant violate any post-release
control sanction or any law, the adult parole board may
impose a more restrictive sanction. The parole board may
increase the length of the post-release control. The parole
board could impose an additional nine (9) months prison
term for each violation for a total of up to fifty percent
(50%) of the original sentence imposed by the court. If the
violation of the sanction is a felony, in addition to being
prosecuted and sentenced for the new felony, the defendant
may receive from the court a prison term for the violation
of the post-release control itself.”

{¶ 5} Upon completion of his prison sentence in
November 2004, appellant was placed on post-release control
for three years. On January 10, 2005, and again on May 9,
2005, appellant failed to meet with his parole officer. As
a result, he was charged with escape, on the basis he broke
detention by failing to report to his parole officer
pursuant to the terms of his post-release control.
Appellant pled no contest to the escape charge and was
sentenced by the trial court. This appeal follows in which
appellant raises the following assignment of error:

{¶ 6} “THE TRIAL COURT ERRED BY CONVICTING APPELLANT
OF ESCAPE FOR HIS FAILURE TO COMPLY WITH THE TERMS OF POST
RELEASE CONTROL WHERE THE TERMS [OF] POST-RELEASE CONTROL
HAD NOT BEEN PROPERLY INCORPORATED INTO THE SENTENCING
ENTRIES ON THE UNDERLYING CHARGES.”

{¶ 7} Appellant argues that because the Montgomery
County Common Pleas Court failed to properly include the
term of post-release control in its four sentencing
entries, the Adult Parole Authority did not have authority
to place him on post-release control. As a result, because
he could not be placed on post-release control, he could
not be convicted of escape for failure to report to his
parole officer. Appellant seems to argue that the terms of
his post-release control were not properly incorporated
into the sentencing entries because the entries did not
indicate the length of time ordered for post-release control
and whether that time would be optional or mandatory.

{¶ 8} “When sentencing a felony offender to a term
of imprisonment, a trial court is required to notify the
offender at the sentencing hearing about postrelease
control and is further required to incorporate that notice
into its journal entry imposing sentence.” Hernandez v.
Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, ¶ 15.
“Consequently, unless a trial court includes postrelease
control in its sentence, the Adult Parole Authority is
without authority to impose it.” Id. at ¶ 20.

{¶ 9} In Watkins v. Collins, 111 Ohio St.3d 425,
2006-Ohio-5082, the Ohio Supreme Court denied a writ of
habeas corpus to compel the release of 12 petitioners who
were in prison for violating the terms of their
post-release control. Like appellant, two of the
petitioners, John Ivy and Joseph Ramey, were initially
convicted and sentenced by the Montgomery County Common
Pleas Court. The post-release control language that the
Montgomery County Common Pleas Court included in
petitioners Ivy’s and Ramey’s sentencing entries was
identical to the post-release control language included in
appellant’s four sentencing entries. All 12 petitioners
claimed that their sentencing entries failed to incorporate
adequate notice of post-release control in their sentences.
As a result, they challenged “the authority of the Adult
Parole Authority to place them on post-release control and
sanction them for violations of that control in the absence
of appropriate language in their sentencing entries.” Id.
at ¶ 41.

{¶ 10} The supreme court found that the petitioners’
sentencing entries contained sufficient language to
authorize the Adult Parole Authority to exercise
post-release control over the petitioners, and denied the
writ. Id. at ¶ 53. According to the supreme court,

{¶ 11} “By contrast [to the sentencing entry in
Hernandez which contained no reference to post-release
control], the sentencing entries for the petitioners here
specified that postrelease control was, at a minimum,
discretionary and was part of their sentences. The
sentencing entries for petitioners Ivy and Ramey stated that
`[following the defendant’s release from prison, the
defendant will/may serve a period of post-release control
under the supervision of the parole board.’

{¶ 12} “While these entries erroneously refer to
discretionary instead of mandatory postrelease control,
they contain significantly more information than any of the
sentencing entries held insufficient by the court in
Hernandez (no reference to postrelease control), Adkins [v.
Wilson, 110 Ohio St.3d 1454, 2006-Ohio-4275] (no reference
to postrelease control), and Gensley [v. Eberlin, 110 Ohio
St.3d 1474, 2006-Ohio-4474] (vague reference about
petitioner’s understanding of possible penalties).
Consequently, the sentencing entries are sufficient to
afford notice to a reasonable person that the courts were
authorizing postrelease control as part of each
petitioner’s sentence. A reasonable person in the position
of any of the petitioners would have had sufficient notice
that postrelease control could be imposed following the
expiration of the person’s sentence. Any challenge to the
propriety of the sentencing court’s imposition of
postrelease control in the entries could have been raised
on appeal.” Id. at ¶ 50-51.

{¶ 13} In light of the foregoing, we find that
notification of post-release control was properly
incorporated in appellant’s four sentencing entries from
the Montgomery County Common Pleas Court. But, see, id. at
¶ 59 (Lanzinger, J., dissenting) (notice received by
petitioners was neither proper nor adequate; length of time
ordered for post-release control and whether that time is
optional or mandatory should be part of a defendant’s
post-control release notification). Because the sentencing
entries contained sufficient language to authorize the
Adult Parole Authority to place appellant on post-release
control, appellant could be convicted of escape for failure
to report to his parole officer. The assignment of error is
overruled.

{¶ 14} Judgment affirmed.

POWELL, P.J. and WALSH, J., concur.