State v. Eberle, Unpublished Decision (2-20-2001)
State v. Eberle, Unpublished Decision (2-20-2001)
Opinion of the Court
On January 18, 1998 around 3:00 a.m., appellant and his friend, Steven R. Cole, assaulted Christopher Jason Kindinger, a minority student at Miami University. Appellant and Cole randomly selected Kindinger as the victim of their crime, apparently on the basis of his race. The assailants beat Kindinger over the head with an axe handle and kicked him while he lay on the ground. After their crime, Cole and appellant celebrated with a "high five" and remarked "we took that one out" and "that nigger's down." Kindinger's injuries from the attack required reconstructive surgery.
Appellant was indicted on one count of felonious assault, to which he pled guilty. The trial court sentenced appellant to six years in prison. Appellant appeals from his sentence and raises two assignments of error for review.
THE SENTENCING COURT ERRED BY ORDERING THE DEFENDANT-APPELLANT TO SERVE SIX YEARS IN PRISON FOR A SECOND DEGREE FELONY WHEN HE HAD NEVER BEFORE SERVED TIME IN PRISON.
THE SENTENCING COURT ERRED BY ORDERING IMPOSING A PERIOD OF FIVE YEARS POST-RELEASE CONTROL FOR A SECOND DEGREE FELONY.
In his first assignment of error, appellant challenges the trial court's decision to order him to serve more than the minimum prison term for felonious assault.
An appellate court may not disturb an imposed sentence unless it finds by clear and convincing evidence that the sentence is not supported by the record or is contrary to law. R.C.
The trial court must impose the minimum term for an offender who, like appellant, has not previously served a prison term unless it finds on the record either that a minimum sentence would demean the seriousness of the offender's conduct or would not adequately protect the public from future crime by the offender or others. R.C.
The trial court convicted appellant of felonious assault in violation of R.C.
I get shudders thinking about how close this Mr. Kindinger came to dying in this case. And what are whatever sentence I give you isn't gonna [sic] compare to the life sentence you imposed on Jason Kindinger. He's gonna [sic] wear an iron plate in his face for the rest of his life. And he's gonna [sic] spend the rest of his life dealing with the trauma that you two imposed on him for absolutely no reason.
That could've been any person's son in this courtroom walking down the street that night, and you two would've decided to go attack him. * * *
To give you a minimum sentence would demean the seriousness of this offense. It would tell the world that there is a small price to pay to attack somebody * * * The underlying issue is the fact that you two decided for the fun of it, you'd beat somebody senseless. * * *
My sentence is gonna [sic] impact the community if it is anything different than taking this matter to be as serious as it was.
The record reflects that the court engaged in the necessary statutory analysis and found appellant's crime warranted a sentence greater than the minimum. The trial court's decision to sentence appellant to a term greater than the minimum prison term is supported by the record and is not contrary to law. Appellant's first assignment of error is overruled.
In his second assignment of error, appellant argues that the trial court erred by sentencing him to a five-year period of post-release control.
Post-release control is a "period of supervision by the adult parole authority after a prisoner's release from imprisonment that includes one or more post-release control sanctions" imposed in accordance with R.C.
The trial court sentenced appellant to six years in prison for committing felonious assault, a second-degree felony. Pursuant to R.C.
At the plea hearing, sentencing hearing and in the court's judgment entry of conviction, the trial court incorrectly indicated to appellant that appellant would be on post-release control for a period of five years.1 However, the plea agreement that appellant signed correctly notified appellant that he would be subject to post-release control for three years. Although the trial court technically fulfilled its obligation of notifying appellant that post-release control is part of his sentence, the trial court provided inconsistent and inaccurate information regarding its duration. Since the period of post-release control is part of the judicially imposed sentence, it follows that the trial court must correctly notify the offender of the maximum duration of post-release control that is part of his sentence. To the extent that the trial court failed to notify appellant that he would be subject to a mandatory period of three years of post-release control, the sentence is contrary to law.2 Appellant's second assignment of error is sustained in part.
Accordingly, pursuant to R.C.
Judgment affirmed as modified.
YOUNG and WALSH, JJ., concur.
The defendant is ordered to serve as part of this sentence any term of post[-]release control imposed by the Parole Board, and any prison term for violation of that post[-] release control. Appellant maintains that the trial court is attempting to "prophylactically" sentence him in case he commits a crime while on post-release control. Taken in context, the trial court's statement is an acknowledgement that the Parole Board has broad discretion in determining the conditions of post-release control and the sanctions for violating them, which may include imprisonment. See R.C.
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