[Cite as State v. Mercer,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : MURREY J. MERCER : Case No. CT2015-0017 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2014-0142

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 6, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX DAVID A. SAMS Prosecuting Attorney Box 40 West Jefferson, Ohio 43162 By: GERALD V. ANDERSON II Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth St, P.O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2015-0017 2

Baldwin, J.

{¶1} Defendant-appellant Murrey Mercer appeals from the March 11, 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 May 14, 2014, the Muskingum County Grand Jury indicted appellant on

one count of retaliation in violation of R.C. 2921.05(B), a felony of the third degree. At his

arraignment on June 4, 2014, appellant entered a plea of not guilty to the charge.

{¶3} A bench trial was held on February 5, 2014. The trial court found appellant

guilty and a sentencing hearing was held on March 9, 2015. Pursuant to an Entry filed on

March 11, 2015, appellant was sentenced to thirty-six (36) months in prison. At

sentencing, appellant was advised that he could be placed on post-release control for up

to three (3) years after his release from prison and that if he violated the conditions of

supervision while on post-release control, he could be returned to prison for up to nine

months for each violation, for a total of one-half of his originally stated prison term.

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

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

POST-RELEASE CONTROL AND ITS RAMIFICATIONS.

I

{¶6} Appellant, in his sole 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. Muskingum County, Case No. CT2015-0017 3

{¶7} 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-

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 Muskingum County, Case No. CT2015-0017 4

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 a prison term for

a violation of supervision or a condition of post-release

control.

{¶8} 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 Muskingum County, Case No. CT2015-0017 5

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 violation shall terminate the period

of post-release control for the earlier felony. (Emphasis

added).

{¶9} 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 Muskingum County, Case No. CT2015-0017 6

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.

{¶10} 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,

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 Muskingum County, Case No. CT2015-0017 7

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)).

{¶11} In the case sub judice, the trial court stated as follows at the March 9, 2015

sentencing hearing:

{¶12} THE COURT: There’s one other thing I need to advise you, Mr. Mercer,

which I forgot to.

Upon completion of your sentence it’s mand - - optional that you be placed upon

post-release control, and that could be for a period of up to three years. While on post-

release control, you would be subject to a variety of rules and regulations. Should you

fail to follow those rules and regulations you can be sent back to prison for a period of up Muskingum County, Case No. CT2015-0017 8

to nine months for each rule violation you may commit. Total amount of time you can be

sent back to prison would be equal to one-half 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 time could be added to that sentence

in the form of the time you have left on post-release control, or one year, whichever’s

greater.

You understand what I just went over?

{¶13} THE DEFENDANT: Yes.

{¶14} Transcript of March 9, 2015 hearing at 7. (Emphasis added).

{¶15} 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.

{¶16} Based on Wills, appellant’s sole assignment of error is denied. Muskingum County, Case No. CT2015-0017 9

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

Pleas is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.