[Cite as State v. Clark,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. CT2017-0032 JESSIE CLARK

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2017-0003

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 28, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX ERIC J. ALLEN Prosecuting Attorney The Law Offices of Eric J. Allen, Ltd. Muskingum County, Ohio 4605 Morse Rd., Suite 201 Gahanna, Ohio 43230 By: GERALD V. ANDERSON II Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street, PO Box 189 Zanesville, Ohio 43701 Muskingum County, Case No. CT2017-0032 2

Hoffman, J.

{¶1} Appellant Jessie L. Clark appeals the judgment entered by the Muskingum

County Common Pleas Court convicting him of receiving stolen property (R.C.

2913.51(A)) and attempt to have a weapon while under disability (R.C. 2923.02(A) and

R.C. 2923.13(A)(3)), both felonies of the fourth degree, and revoking his post-release

control in a separate case. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 28, 2016, Appellant offered to take a gun and sell it for another

person, knowing the gun was stolen. Appellant had a prior conviction for trafficking in

drugs, a felony of the fourth degree, which resulted in him being placed under disability

from owning or possessing a firearm.

{¶3} Appellant was indicted on one count of receiving stolen property and one

count of attempt to have a weapon under disability by the Muskingum County grand jury

on January 4, 2017. He entered a guilty plea to both charges and was sentenced to

eighteen months incarceration on each conviction, to be served concurrently.

{¶4} At the time of the commission of the offenses, Appellant was on post-

release control from Muskingum County Case No. CR2015-0423. During the plea and

sentencing hearing, the trial court stated:

The Court is going to terminate your PRC. The reason being, they

do the administrative to make it look like you did not commit a new offense

because you went in on a rule violation. You did commit a new offense

while on post-release control. Statistically they’re trying to make Muskingum County, Case No. CT2017-0032 3

themselves look better, and they use that against other departments who

don’t do that type of thing in regards to funding. It’s not right.

Therefore, the Court is terminating your post-release control and

ordering that the time you have left on it be imposed. You got the credit of

the six months that you would have gotten towards this sentence; therefore,

it’s the same amount of time one way or the other, but I am terminating and

imposing what you have left, which would be to whatever it is in May.

Tr. 15-16.

{¶5} With regards to revocation of post-release control and the accompanying

sanction, the sentencing entry recites:

The Court further finds that the Defendant was on post release

control at the time of the commission of the offenses herein in the

Muskingum County, Ohio, Court of Common Pleas, Case No. CR2015-

0243. Pursuant to ORC §2929.141, this Court terminates the Defendant’s

period of post release control and hereby ORDERS that the Defendant

serve the remainder of his post release control; said sentence shall be

served mandatory consecutive to the sentence imposed herein.

Judgment Entry, April 20, 2017.

{¶6} From this judgment Appellant prosecutes the instant appeal, assigning as

error: Muskingum County, Case No. CT2017-0032 4

THE TRIAL COURT FAILED TO INFORM THE APPELLANT OF THE

LENGTH OF HIS SANCTION EITHER ON THE RECORD OR IN THE

JUDGMENT ENTRY.

{¶7} Appellant argues the court erred in failing to specify the length of his

sanction for violation of post-release control. The State argues in rebuttal the term will be

calculated by the Adult Parole Authority.

{¶8} R.C. 2929.141(A)(1) provides for the termination of post-release control

upon commission of a new felony 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 Muskingum County, Case No. CT2017-0032 5

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.

{¶9} Only the trial court itself may make the decision to sentence for a post-

release control violation. State v. Branham, 2d Dist. Clark No. 2013–CA–49, 2014–Ohio–

5067. Once the court decides to impose a sentence for such a violation, it is bound by

R.C. 2929.141 when determining the time to be served. Id.

{¶10} While the statute gives the court discretion to decide whether or not to

sentence for a post-release control violation, once the court has decided to impose a

sentence, that sentence is determined by statute. The trial court specifically stated the

sentence would be the remainder of his post-release control. That specific sentence is

calculable to a certainty from information within the possession of the Adult Parole

Authority, while such information may not be readily available to the sentencing court.

Therefore, we find no error in the trial court’s failure to include the exact sentence in the

sentencing entry, as the sentence may be administratively determined by the Adult Parole

Authority as set forth by R.C. 2929.141(A)(1).

{¶11} The assignment of error is overruled. Muskingum County, Case No. CT2017-0032 6

{¶12} The judgment of the Muskingum County Common Pleas Court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, Earle, J. concur