[Cite as State v. Nicholson,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : TIMOTHY J. NICHOLSON : Case No. CT2015-0016 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2014-0345

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 6, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX DAVID SAMS Prosecuting Attorney Box 40 W. Jefferson, Ohio 43162 By: GERALD V. ANDERSON II Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street, P.O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2015-0016 2

Baldwin, J.

{¶1} Defendant-appellant Timothy Nicholson appeals from the March 9, 2015

Entry of the Muskingum County Court of Common Pleas. Plaintiff-appellee is the State

of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On November 5, 2014, the Muskingum County Grand Jury indicted

appellant on one count of failure to comply (risk of harm) in violation of R.C. 2921.331(B),

a felony of the third degree. At his arraignment on November 12, 2014, appellant entered

a plea of not guilty to the charge.

{¶3} Thereafter, on January 15, 2015, appellant withdrew his not guilty plea and

entered a plea of guilty to the charge. As memorialized in an Entry filed on March 9, 2015,

appellant was sentenced to thirty-six (36) months in prison.

{¶4} Appellant now raises the following assignments of error on appeal:

{¶5} THE DEFENDANT-APPELLANT WAS NOT PROPERLY ADVISED OF

POST-RELEASE CONTROL OR ITS RAMIFICATIONS.

{¶6} THE DEFENDANT-APPELLANT WAS IMPROPERLY CONVICTED OF

AND SENTENCED TO THE MAXIMUM TERM FOR A VIOLATION OF R.C. 2921.331(B)

AS A FELONY OF THE THIRD DEGREE, AS THE TRIAL COURT DID NOT FIND

BEYOND A REASONABLE DOUBT ON THE FACTS OF THIS CASE THAT

APPELLANT CAUSED A SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM TO

PERSONS OR PROPERTY AS REQUIRED BY R.C. 2921.331(B)(C)(5)(a)(ii) AND THAT

THIS WAS THE WORST FORM OF FLEEING AND ELUDING. Muskingum County, Case No. CT2015-0016 3

I

{¶7} Appellant, in his first assignment of error, argues that he was not properly

advised of post-release control and its ramifications. Appellant specifically contends that

the trial court failed to advise him that, 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.

{¶8} R.C. 2929.19 states, in relevant part, as follows:

(B)(1) At the sentencing hearing, the court, before

imposing sentence, shall consider the record, any information

presented at the hearing by any person pursuant to division

(A) of this section, and, if one was prepared, the presentence

investigation report made pursuant to section 2951.03 of the

Revised Code or Criminal Rule 32.2, and any victim impact

statement made pursuant to section 2947.051 of the Revised

Code.

(2) Subject to division (B)(3) of this section, if the

sentencing court determines at the sentencing hearing that a

prison term is necessary or required, the court shall do all of

the following:….

(e) Notify the offender that, if a period of supervision

is imposed following the offender's release from prison, as

described in division (B)(2)(c) or (d) of this section, and if the

offender violates that supervision or a condition of post- Muskingum County, Case No. CT2015-0016 4

release control imposed under division (B) of section

2967.131 of the Revised Code, the parole board may impose

a prison term, as part of the sentence, of up to one-half of the

stated prison term originally imposed upon the offender. If a

court imposes a sentence including a prison term on or after

July 11, 2006, the failure of a court to notify the offender

pursuant to division (B)(2)(e) of this section that the parole

board may impose a prison term as described in division

(B)(2)(e) of this section for a violation of that supervision or a

condition of post-release control imposed under division (B)

of section 2967.131 of the Revised Code or to include in the

judgment of conviction entered on the journal a statement to

that effect does not negate, limit, or otherwise affect the

authority of the parole board to so impose a prison term for a

violation of that nature if, pursuant to division (D)(1) of section

2967.28 of the Revised Code, the parole board notifies the

offender prior to the offender's release of the board's

authority to so impose a prison term. Section 2929.191 of the

Revised Code applies if, prior to July 11, 2006, a court

imposed a sentence including a prison term and failed to

notify the offender pursuant to division (B)(2)(e) of this

section regarding the possibility of the parole board imposing Muskingum County, Case No. CT2015-0016 5

a prison term for a violation of supervision or a condition of

post-release control.

{¶9} R.C. 2929.141 governs commission of an offense by person under post-

release control. Subsection (A)(1) states as follows:

(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:

(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 Muskingum County, Case No. CT2015-0016 6

violation shall terminate the period of post-release control for

the earlier felony. (Emphasis added).

{¶10} 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.

{¶11} 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,

(8th Dist.) (… refusing to

extend the postrelease control notification requirements set

forth in State v. Jordan,

, 2004–Ohio–6085,

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, Muskingum County, Case No. CT2015-0016 7

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–Ohio–

1543 (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)).

{¶12} In the case sub judice, the trial court stated as follows at the March 2, 2015

sentencing hearing: Muskingum County, Case No. CT2015-0016 8

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.

{¶13} Transcript of March 2, 2015 sentencing hearing at 7-8. (Emphasis added).

{¶14} 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. Muskingum County, Case No. CT2015-0016 9

{¶15} Based on Wills, appellant’s first assignment of error is overruled.

II

{¶16} Appellant, in his second assignment of error, argues that he was improperly

convicted of and sentenced to the maximum term for a violation of R.C. 2921.331(B) as

a felony of the third degree because the trial court did not find beyond a reasonable doubt

that appellant caused a serious risk of physical harm to persons or property as required

by R.C. 2921.331(B)(C)(5)(a)(ii) and that this was the worst form of the offense.

{¶17} R.C. 2921.331 states, in relevant part, as follows:

(B) No person shall operate a motor vehicle so as

willfully to elude or flee a police officer after receiving a visible

or audible signal from a police officer to bring the person's

motor vehicle to a stop.

(C)(1) Whoever violates this section is guilty of failure

to comply with an order or signal of a police officer….

(5)(a) A violation of division (B) of this section is a

felony of the third degree if the jury or judge as trier of fact

finds any of the following by proof beyond a reasonable

doubt:…

(ii) The operation of the motor vehicle by the offender

caused a substantial risk of serious physical harm to persons

or property.

{¶18} In the case sub judice, the indictment alleged that appellant “did

purposefully operate a motor vehicle so as to willfully elude or flee a police officer after Muskingum County, Case No. CT2015-0016 10

receiving a visible or audible signal from a police officer to bring the motor vehicle to a

stop, the operation of the motor vehicle by [appellant] caused a substantial risk of serious

physical harm to persons or property” in violation of R.C. 2921.331(B), a felony of the

third degree. Appellant, on January 15, 2015, pleaded guilty to the charge as contained

in the indictment and the trial court found appellant guilty on the record. By pleading

guilty, appellant admitted to all of the allegations contained in the indictment.

{¶19} Appellant, in his second assignment of error, further argues that the trial

court, in sentencing him, did not consider the factors listed in R.C. 2921.331(B)(C)(5)(b)(i-

ix) in sentencing him.

{¶20} R.C. 2921.331 states, in relevant part, as follows:

B) No person shall operate a motor vehicle so as

willfully to elude or flee a police officer after receiving a visible

or audible signal from a police officer to bring the person's

motor vehicle to a stop.

(5)(a) A violation of division (B) of this section is a

felony of the third degree if the jury or judge as trier of fact

finds any of the following by proof beyond a reasonable doubt:

(i) The operation of the motor vehicle by the offender

was a proximate cause of serious physical harm to persons or

property.

(ii) The operation of the motor vehicle by the offender

caused a substantial risk of serious physical harm to persons

or property. Muskingum County, Case No. CT2015-0016 11

If a police officer pursues an offender who is violating

division (B) of this section and division (C)(5)(a) of this section

applies, the sentencing court, in determining the seriousness

of an offender's conduct for purposes of sentencing the

offender for a violation of division (B) of this section, shall

consider, along with the factors set forth in sections 2929.12

and 2929.13 of the Revised Code that are required to be

considered, all of the following:

(i) The duration of the pursuit;

(ii) The distance of the pursuit;

(iii) The rate of speed at which the offender operated the

motor vehicle during the pursuit;

(iv) Whether the offender failed to stop for traffic lights or

stop signs during the pursuit;

(v) The number of traffic lights or stop signs for which the

offender failed to stop during the pursuit;

(vi) Whether the offender operated the motor vehicle

during the pursuit without lighted lights during a time

when lighted lights are required;

(vii) Whether the offender committed a moving violation

during the pursuit;

(viii) The number of moving violations the offender

committed during the pursuit; Muskingum County, Case No. CT2015-0016 12

(ix) Any other relevant factors indicating that the offender's

conduct is more serious than conduct normally

constituting the offense.

{¶22} As noted by the court in State v. Yarbrough, 2nd Dist Clark No. 2014–CA–

67,

at paragraph 16:

Yarbrough has not cited, and we have not found,

authority for the proposition that a trial court must include

reference to R.C. 2921.331(C)(5)(b) factors in its judgment

entry or during the sentencing hearing. Indeed, case law holds

to the contrary—there is no requirement for the court to make

any specific finding in relation to R.C. 2921.331(C)(5)(b).

State v. Owen, 8th Dist. Cuyahoga No. 89948, 2008–Ohio–

3555. Accord State v. Reed, 10th Dist. Franklin No. 08AP–20,

2008–Ohio–6082.

{¶23} Moreover, there is nothing in the record supporting the claim that the trial

court failed to consider these factors when imposing sentence. At the January 15, 2015

plea hearing, the prosecutor stated, in relevant part, as follows on the record:

MR. WELCH: Deputies pursued the maroon minivan

[in which appellant was driving] in a marked police cruiser with

lights and sirens on. The suspect continued to flee in the

minivan through a field across Richvale Road and onto

Friendly Hills Road. Their speeds at that point were ranging

in the 60 to 75 miles-per-hour range. Muskingum County, Case No. CT2015-0016 13

During the pursuit deputies observed that the van was

being driven out of control, swerving one side of the roadway

to the other, passing and nearly hitting another vehicle while

on Friendly Hills Road, and disobeying traffic control devices

by passing through out at least three intersections while failing

to obey traffic control devices.

{¶24} Transcript of January 15, 2015 plea hearing at 9-10.

{¶25} In addition, at the at the March 2, 2015 hearing, appellant’s counsel stated,

in relevant part, as follows:

MS. FRIES: May it please the Court, Your Honor, we

would ask that you consider the sentencing factors set out of

the Ohio Revised Code 2921.331(C)(5)(b), and the

subsequent factors thereunder. The duration of the pursuit in

this matter was very short. It lasted approximately four

minutes. It only lasted for a couple miles. He did pass a

couple of stop signs, but he did slow down to ensure no one

was coming at the stop sign. The occurred during the daylight

hours, and Mr. Nicholson saw only two other vehicles on the

road, and he was not drinking that day. He has no recent

felony convictions, and he’s very remorseful.

{¶26} Transcript of March 2, 2015 sentencing hearing at 3-4. Muskingum County, Case No. CT2015-0016 14

{¶27} Based on the foregoing, we find that the trial court did consider the factors

set forth in R.C. 2921.331(B)(C)(5)(b)(i-ix). Appellant’s second assignment of error is,

therefore, overruled.

{¶28} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.