State v. Tyson, Unpublished Decision (1-8-2007)
State v. Tyson, Unpublished Decision (1-8-2007)
Opinion of the Court
{¶ 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,
{¶ 9} In Watkins v. Collins,
{¶ 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,
{¶ 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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.