[Cite as State v. Howard,

.]

howardCOURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2017 CA 0035 TROY DARNELL HOWARD

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case Nos. 11 CR 0589 and 12 CR 0007

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: September 8, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP TROY D. HOWARD PROSECUTING ATTORNEY PRO SE JOSEPH C. SNYDER Richland Corr. Institution ASSISTANT PROSECUTOR 1001 South Olivesburg Road 38 South Park Street Mansfield, Ohio 44901-8107 Mansfield, Ohio 44902 Richland County, Case No. 2017 CA 0035 2

Wise, John, J.

{¶1} Appellant Troy D. Howard appeals from the decision of the Court of

Common Pleas, Richland County, which denied his request for judicial release. Appellee

is the State of Ohio. The relevant procedural facts leading to this appeal are as follows.

{¶2} On September 9, 2011, in case number 11-CR-589, appellant was indicted

by the Richland County Grand Jury on one count of burglary. On January 10, 2012,

appellant pled guilty to the charge. Pursuant to a joint recommendation, appellant was

thereafter sentenced to three years in prison.

{¶3} On January 6, 2012, in case number 12-CR-7, appellant was indicted by

the Richland County Grand Jury on one count of aggravated burglary, one count of

burglary, and three counts of breaking and entering. On January 10, 2012, appellant pled

guilty to the charge of aggravated burglary and the three counts of breaking and entering.

The count of burglary was dismissed. Pursuant to a joint recommendation, appellant was

thereafter sentenced to five years in prison, to be served consecutively to his sentence

under the aforementioned case number 11-CR-589.

{¶4} On January 27, 2017, appellant filed a pro se motion for judicial release

under both of the above case numbers. The State filed a memorandum in opposition on

February 22, 2017, noting inter alia that appellant’s sentence resulted from plea

negotiations. Appellant filed a reply motion on March 6, 2017.

{¶5} The trial court denied appellant’s motion on March 23, 2017.

{¶6} On April 20, 2017, appellant filed a notice of appeal. He herein raises the

following two Assignments of Error: Richland County, Case No. 2017 CA 0035 3

{¶7} “I. THE TRIAL COURT COMMITTED ERROR AND ABUSED IT’S [SIC]

DISCRETION WHEN IT FAILED TO CONSIDER THE APPELLANT'S/DEFENDANT’S

JUDICIAL RELEASE MOTION WHEREAS THE PLEA AGREEMENT IN THIS CASE DID

NOT BAR APPELLANT/DEFENDANT HOWARD FROM FILING FOR JUDICIAL

RELEASE WHEREAS THE PLEA AGREEMENT IS SILENT ON THE ISSUE.

{¶8} “II. THE TRIAL COURT COMMITTED ERROR AND ABUSED IT’S [SIC]

DISCRETION BY NOT HEARING THE JUDICIAL RELEASE MOTION ON THE MERITS

WHEREAS THE DEFENDANT/APPELLANT HOWARD REASONABLY BELIEVED

WHEN PLEADING GUILTY THAT HE COULD FILE FOR JUDICIAL RELEASE.”

I., II.

{¶9} In his First and Second Assignments of Error, appellant contends the trial

court erred in denying his motion for judicial release.

{¶10} R.C. 2929.20(B) states that “[o]n the motion of an eligible offender or upon

its own motion, the sentencing court may reduce the eligible offender's aggregated

nonmandatory prison term or terms through a judicial release under this section.”

{¶11} Nonetheless, it is well-established that the denial of a motion for judicial

release is not a final appealable order. See, e.g., State v. Bennett, 5th Dist. Muskingum

No. CT2005–0009, 2006–Ohio–2812, ¶ 15, citing State v. Masko, 7th Dist. Trumbull No.

2004–T0070, 2004–Ohio–5297, ¶ 2. See, also, State v. Rowbotham, 7th Dist. Mahoning

No. 12 MA 152, 2013–Ohio–2286, ¶ 1. As the Tenth District Court of Appeals has aptly

recognized, on questions of judicial release, R.C. 2929.20 “confers substantial discretion

to the trial court, but makes no provision for appellate review.” State v. Lawson, 10th Dist.

Franklin No. 02AP-148,

, ¶ 23. Furthermore, we have rejected the Richland County, Case No. 2017 CA 0035 4

proposition that the changes brought about by H.B. 86 in 2011 have vitiated this non-

appealability rule. See State v. Christner, 5th Dist. Stark No. 2012 CA 00135, 2012-Ohio-

4790, ¶ 11.

{¶12} Accordingly, we hold we lack jurisdiction to address the issues presented in

appellant's First and Second Assignments of Error.1

{¶13} For the reasons stated in the foregoing opinion, the appeal of the judgment

of the Court of Common Pleas, Richland County, Ohio, is hereby dismissed.

By: Wise, John, J.

Hoffman, P. J., and

Wise, Earle, J., concur.

JWW/0810

1 In the interest of justice, in regard to appellant’s suggestion that he was deprived of a hearing on his motion, we note R.C. 2929.20(D) states in pertinent part that “[u]pon receipt of a timely motion for judicial release filed by an eligible offender under division (C) of this section *** the court may deny the motion without a hearing or schedule a hearing on the motion. ***.”