[Cite as State v. Kalvitz, 2024-Ohio-392.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
STATE OF OHIO, CASE NO. 7-23-11 PLAINTIFF-APPELLEE,
v.
GREGORY R. KALVITZ, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO, CASE NO. 7-23-12 PLAINTIFF-APPELLEE,
Appeals from Henry County Common Pleas Court Trial Court Nos. 23 CR 0011 and 23 CR 0021
Judgment in Case No. 7-23-11: Affirmed in Part, Reversed in Part
Judgment in Case No. 7-23-12: Affirmed
Date of Decision: February 5, 2024
APPEARANCES:
Jeffrey P. Nunnari for Appellant
Gwen Howe-Gebers for Appellee Case No. 7-23-11 and 7-23-12
WALDICK, J.
{¶1} In these consolidated appeals, defendant-appellant, Gregory R. Kalvitz
(“Kalvitz”), appeals the July 5, 2023 judgments of conviction and sentence entered
against him in the Henry County Court of Common Pleas, after Kalvitz entered
negotiated pleas of guilty in two separate trial court cases. For the reasons that
follow, we affirm in part and reverse in part in one of the cases, and affirm in the
other case.
Background
{¶2} As reflected by filings in the records before us, these cases stemmed
from an educational neglect case that was reported in late 2022 to the Henry County
Job and Family Services agency, involving Kalvitz’s young daughter, E.K. Because
E.K. was not attending school as required, the agency began an
investigation. Kalvitz refused to cooperate in that investigation, and threatened an
agency caseworker with physical harm. Charges of Contributing to the Unruliness
or Delinquency of a Child were subsequently filed against Kalvitz and E.K.’s
mother, and both parents were court-ordered to produce the child to be interviewed
by Job and Family Services, which the parents failed to do. After several
unsuccessful attempts to get the parents to voluntarily produce the child, a judge
granted temporary custody of E.K. to Job and Family Services and ordered that law
enforcement take physical custody of the child to effectuate that temporary custody
-2- Case No. 7-23-11 and 7-23-12
order. Officers with the Henry County Sheriff’s Office went to Kalvitz’s residence
and, while the child was not located there, evidence of drug manufacturing was
discovered. A search warrant was obtained and a subsequent search of the property
revealed a marijuana grow operation in Kalvitz’s outbuilding. It was also
discovered that Kalvitz had tampered with his electrical meter in order to avoid
being charged for all the electricity he was using to grow the marijuana.
{¶3} In Case Number 7-23-11 (Case Number 23CR11 in the trial court), a
five-count indictment was returned against Kalvitz on January 27, 2023, charging
him as follows: Count 1 – Illegal Cultivation of Marijuana, a second-degree felony
in violation of R.C. 2925.04(A) and (C)(5)(e); Count 2 – Having Weapons While
Under Disability, a third-degree felony in violation of R.C. 2923.13(A)(3); Count 3
– Interference with Custody, a first-degree misdemeanor in violation of R.C.
2919.23(A)(1); Count 4 – Menacing, a first-degree misdemeanor in violation of
R.C. 2903.22(A) and (B); and Count 5 – Endangering Children, a third-degree
felony in violation of R.C. 2919.22(B)(6). Count 1 also contained forfeiture
specifications relating to a firearm, an ATV, two campers, and an assortment of
other personal property.
{¶4} On February 1, 2023, an arraignment was held and Kalvitz pled not
guilty to all counts in the indictment. At that time, the trial court formally appointed
attorney Christopher Zografides to represent Kalvitz. The trial court also set
discovery deadlines, scheduled a pretrial, and set a trial date for April 4, 2023.
-3- Case No. 7-23-11 and 7-23-12
{¶5} In Case Number 7-23-12 (Case Number 23CR21 in the trial court), a
single-count indictment was filed against Kalvitz on February 22, 2023, charging
him with Theft, a fifth-degree felony in violation of R.C. 2913.02(A)(1) and (B)(2).
{¶6} On March 1, 2023, an arraignment was held in the new case and Kalvitz
pled not guilty to the indictment. As in the earlier case, the trial court formally
appointed attorney Christopher Zografides to represent Kalvitz. The trial court also
set discovery deadlines, scheduled a pretrial, and set a trial date for June 20, 2023.
{¶7} On March 6, 2023, Kalvitz waived his right to a speedy trial until June
20, 2023 in the first case. The jury trial in that case was then rescheduled for June
20, 2023.
{¶8} On March 14, 2023, Attorney Zografides filed a motion to withdraw as
counsel in both cases, asserting that “[b]ased upon discussions as well as actions, an
impasse has been reached which makes it impossible for counsel to continue
representing the defendant.” (Docket Nos. 23 and 15, respectively).
{¶9} On March 14, 2023, Kalvitz filed a pro se motion in the earlier case
requesting that a number of specified things be provided to him in discovery, stating
that he was now representing himself. On March 17, 2023, Kalvitz filed a similar
motion in the second case.
{¶10} On March 17, 2023, the trial court granted Attorney Zografides’
motions to withdraw as counsel, and appointed attorney Scott Coon to represent
Kalvitz in both cases.
-4- Case No. 7-23-11 and 7-23-12
{¶11} On March 28, 2023, Attorney Coon filed a motion to withdraw as
counsel in both cases, requesting leave to be excused from the cases “due to a
conflict of interest that has arisen through his representation of the Defendant.”
(Docket Nos. 34 and 25, respectively).
{¶12} On March 30, 2023, the trial court granted Attorney Coon’s motions to
withdraw. The trial court then appointed attorney Danny Hill to represent Kalvitz
in both cases.
{¶13} On April 11, 2023, the trial court filed a judgment entry in each case,
noting that a pretrial had been held on April 10, 2023, at which time the defendant
indicated he was going to file a motion to suppress. In those entries, the trial court
scheduled a final pretrial and motion hearing for June 13, 2023 in both cases.
{¶14} On May 26, 2023, Attorney Hill filed a motion to suppress evidence in
the second case.
{¶15} On June 2, 2023, Kalvitz filed a pro se, handwritten document titled
“Conflict of Interest” in both cases. In that four-page document, Kalvitz first stated
that his prior attorney had accused Kalvitz of making a death threat against the trial
judge, although Kalvitz claimed the threat had really been made by another inmate
in the jail. In that pro se document, Kalvitz then suggested that he should receive a
lighter sentence for saving the life of the trial judge in light of the threats that had
been made against her. In the document, Kalvitz stated that he knew where both the
prosecutor and the judge lived, which Kalvitz alleged created a conflict of interest
-5- Case No. 7-23-11 and 7-23-12
that would deprive him of a fair trial. On that same date, Kalvitz also filed a pro se
motion in both cases requesting that his bond be reduced. In yet a third pro se filing
on June 2, 2023, Kalvitz requested that a different attorney, of his choosing, be
appointed to represent him in the two pending cases.
{¶16} On June 8, 2023, Attorney Hill filed a motion to suppress evidence in
the first case.
{¶17} On June 15, 2023, an order signed by Chief Justice Sharon Kennedy
of the Ohio Supreme Court was filed in both cases, appointing a new judge to sit by
assignment in the cases.
{¶18} On June 15, 2023, the trial court filed a judgment entry reflecting that
a suppression hearing had been scheduled for June 13, 2023, but that the hearing
was continued at the request of the defendant. The court ordered that a pretrial
would be held on June 15, 2023 in order to determine whether Kalvitz would be
retaining his own attorney or representing himself.
{¶19} On June 15, 2023, the parties again appeared in open court, and Kalvitz
entered negotiated pleas of guilty that resolved both cases. Specifically, in the
earlier case, Kalvitz pled guilty to Count 1 of the indictment, amended to a charge
of Illegal Cultivation of Marijuana, a third-degree felony, and he pled guilty to
Counts 4 and 5 as originally indicted. Kalvitz also admitted to the facts alleged in
the forfeiture specifications in Count 1, agreeing to forfeit the specified property. In
exchange, the state agreed to dismiss Counts 2 and 3 in that indictment. In the
-6- Case No. 7-23-11 and 7-23-12
second case, Kalvitz pled guilty to the single-count indictment. Pursuant to the
terms of the negotiated plea arrangement, the parties also agreed to a two-year prison
term on Count 1 in the first case, with the sentences on all other counts to be served
concurrently with that two-year term. The State of Ohio also agreed to not
recommend a prison sentence in the case pending against Jessica Downing,
Kalvitz’s co-defendant and the mother of his child.
{¶20} A sentencing hearing was then held in both cases on that same date.
Pursuant to the sentencing agreement reached by the parties, Kalvitz was sentenced
in the first case to two years in prison on Count 1, to six months in jail on Count 4,
and to one year in prison on Count 5, with those sentences to be served concurrently
with each other, and also concurrent with the sentence in the second case, in which
Kalvitz was sentenced to a 12-month prison term. In the earlier case, it was also
ordered on the record that Kalvitz be sentenced to a mandatory term of post-release
control of not less than one and no more than three years. In the July 5, 2023 entry
journalizing the conviction and sentence in that case, the trial court ordered that
“[t]he defendant shall be subject to post release control of up to three (3) years [.]”.
(Docket No. 60).
{¶21} On July 18, 2023, Kalvitz filed a pro se notice of appeal in both
cases. On that same date, the trial court filed an order appointing appellate counsel
to represent Kalvitz in the two cases. Kalvitz’s appeals were subsequently
consolidated by this Court for purposes of briefing and argument.
-7- Case No. 7-23-11 and 7-23-12
On appeal, Kalvitz raises two assignments of error for our review.
First Assignment of Error
Appellant’s pleas were not knowingly, intelligently, and voluntarily entered.
Second Assignment of Error
Appellant’s sentences are contrary to law.
{¶22} In the first assignment of error, Kalvitz argues that his guilty pleas in
the two cases were not knowing, intelligent, and voluntary. Specifically, Kalvitz
asserts that remarks made by the trial judge sitting by assignment in the cases
resulted in coercing Kalvitz to plead guilty, thereby negating the voluntariness of
the guilty pleas.
{¶23} With regard to the voluntariness of a guilty plea when allegations are
made on appeal that the plea resulted from coercion or improper pressure on the part
of the trial court, this Court recently noted in State v. Bodine, 3d Dist. Hardin No.
6-23-03, 2023-Ohio-2197, as follows:
“When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). A plea, if coerced or induced by promises or threats renders the plea involuntary. State v. Lawson, 3d Dist. Seneca No. 13-18-20, 2018-Ohio-4922, 2018 WL 6446476, ¶ 20.
With respect to a judge’s participation in the plea-bargaining process, the Supreme Court of Ohio has cautioned that “the judge’s position in the criminal justice system presents a great potential for coerced guilty pleas and can easily compromise the impartial position a trial judge -8- Case No. 7-23-11 and 7-23-12
should assume.” State v. Byrd, 63 Ohio St.2d 288, 292, 407 N.E.2d 1384 (1980). Judicial participation is strongly discouraged, but it does not render a plea per se involuntary; rather, the “ultimate inquiry is whether the judge’s active conduct could have led the defendant to believe he could not get a fair trial, including a fair sentence after trial, and whether the judicial participation undermined the voluntariness of the plea.” Lawson at ¶ 20. We consider the record in its entirety to determine the voluntariness of the plea. Id. citing State v. Jabbaar, 8th Dist. Cuyahoga, 2013-Ohio-1655, 991 N.E.2d 290, ¶ 29.
Id., at ¶¶ 7-8.
{¶24} In the instant case, we begin our analysis of the first assignment of error
by reviewing the proceedings, and specifically the interactions between the trial
court and Kalvitz, that preceded the guilty pleas at issue.
{¶25} The record reflects that on June 13, 2023, the parties were in court for
a previously scheduled hearing on the motions to suppress filed by Kalvitz. Prior
to commencing the suppression hearing, the trial judge introduced himself and noted
the procedural status of the cases on the record. The trial court then informed
Kalvitz that the court was not inclined to accept a plea agreement once a suppression
hearing had been held, which was apparently also the position of the State of
Ohio. Kalvitz responded by saying that he was not ready to move forward with the
suppression hearing. Kalvitz then went on at great length, claiming that he had not
had sufficient contact with his court-appointed attorneys, that he had been unable to
subpoena the officers and view the evidence that he had requested in his prior pro
se motions, that his family had not been able to reach his attorney, that he was being
denied effective counsel, and that the trial court was “withholding exculpatory
-9- Case No. 7-23-11 and 7-23-12
evidence in this case, violating the Brady Rule.” (6/13/23 Tr., 3). Kalvitz concluded
his harangue by asking to represent himself, or to be released from jail so that he
could retain private counsel.
{¶26} In response, the trial court noted that Kalvitz had so far been
represented by three different attorneys, that his actions and statements reflected an
attitude that may account for the difficulties with his attorneys, and that self-
representation was very rare. Kalvitz repeated his request for time to explore
retaining a lawyer, which the trial court then granted, ordering that the hearing be
continued. At that time, Kalvitz’s counsel noted for the record that he had met with
Kalvitz in the jail extensively, and discussed with him the motion to
suppress. Kalvitz’s attorney stated that he had explained to Kalvitz that the issues
Kalvitz was concerned with were trial issues, and that Kalvitz was seeming to have
a hard time understanding that. Counsel further noted that he had, in fact, spoken
with his client’s father on the phone and explained the same things to him.
{¶27} Kalvitz proceeded to again speak at length, asserting that he was
unprepared to handle his own case and arguing that he needed to be released on
bond in order to obtain counsel and prepare for the suppression hearing. The
prosecution then lodged an objection as to any reduction in bond, noting that the
state had reason to believe that Kalvitz had been violating the order that he have no
contact with his codefendant, and asserting that Kalvitz was a flight risk and had
attempted to flee before. Kalvitz argued in response that he had not tried to flee,
-10- Case No. 7-23-11 and 7-23-12
that he simply had tried to take his daughter out of county to find a different
children’s services agency and that he had always intended to get back in contact
with the courts locally. He additionally noted that he had not taken the child out of
state, but just to Cleveland. The trial court then stated that the bond would not be
modified and that “[i]f I were to address the bond, I’d probably increase it, based on
your attitude.” (6/13/23 Tr., 12). The trial court concluded the proceeding by
scheduling a status hearing in the cases for two days later, and urged caution to
Kalvitz on the issue of self-representation, explaining several potential problems
that can arise and telling Kalvitz he would be advised further about those issues at
the next hearing, should he still wish to represent himself.
{¶28} On June 15, 2023, the parties were back in court for a pretrial
conference, which began by the trial judge asking Kalvitz if different counsel had
been hired, to which Kalvitz replied, “not yet.” (6/15/23 Tr., 2). The trial court
asked if it was still Kalvitz’s desire to represent himself or if he was willing to
proceed with his present counsel, and Kalvitz stated, “As of this moment I’m going
to proceed and see how it goes.” (Id.). The trial court indicated that was fine, and
explained that they now needed to reschedule the suppression hearing and set a new
trial date.
{¶29} After scheduling those dates, the trial court addressed Kalvitz
regarding the status of plea negotiations in the cases, encouraging him to weigh the
two-year sentence that he had been offered by the prosecution pursuant to a
-11- Case No. 7-23-11 and 7-23-12
negotiated plea agreement against the potential sentence of ten or twelve years that
he might face if convicted following trial, once all the facts were known. Kalvitz
replied, “I think we can do a little better than that Your Honor.” (6/15/23 Tr., 4). The
trial court then reiterated the notice that had been given to Kalvitz at the last pretrial
concerning the fact that no plea deal would be accepted after that day.
{¶30} In response to that, Kalvitz began lodging another litany of complaints
about the charges against him, the investigation relating to his daughter, and stated
that the whole affair was a malicious action on the part of the sheriff who wanted a
reason to check Kalvitz’s residence for marijuana plants. The trial judge stopped
Kalvitz, saying the court had heard enough, but Kalvitz continued to interrupt the
court. The trial judge warned Kalvitz to stop speaking out of turn, telling him to
speak with his attorney, who could then speak to the court. Kalvitz responded to
that by saying that he wanted to address the conflict of interest of the prosecutor due
to the death threat against her, arguing that the prosecutor had a conflict of interest
and needed to step off the case because Kalvitz knew where the prosecutor
lived. Kalvitz pointed out that the prior judge handling the case had stepped down
for the same reason, after a death threat against her had been made. Kalvitz then
asserted that the prosecutor had a family member in Lucas County, which he alleged
would pose some type of conflict with the visiting judge, who was also from that
area. Kalvitz then began arguing that because the wife of the visiting judge was the
-12- Case No. 7-23-11 and 7-23-12
Lucas County Prosecutor, that presented another conflict of interest in the case and
that a change of venue was necessary.
{¶31} The trial court explained to Kavlitz that it was well established that the
judge did not have a conflict of interest due to his wife being a prosecutor unless
she was involved in a case over which the judge was presiding. The trial court
explained to Kalvitz that, in any event, the procedure would be to file a motion with
the Ohio Supreme Court and the Chief Justice then would review the conflict
issue. The trial court then added, “I don’t think [the Chief Justice] will, but I would
hope she’d remove me so you could have a different judge, because I’m already
tired of this case and I’ve only been in court twice[.]” (6/15/23 Tr., 7). Kalvitz
began speaking again of the death threats made against the prior judge on the case
and the current prosecutor at their residences, but the trial court asked Kalvitz to
speak no further at that point, and adjourned the proceedings until the suppression
hearing could be held on July 28, 2023. Court was recessed at 10:39 a.m.
{¶32} The record next reflects that the trial court unexpectedly reconvened in
the two cases at 11:57 a.m. on that same date, June 15, 2023. The trial judge noted
for the record that he had been called back after leaving the building earlier in the
morning, and was told that there had been a potential negotiated plea or pleas
discussed. The trial court asked if someone could tell the court what the potential
plea arrangement was. The prosecutor then set forth the details of the negotiated
-13- Case No. 7-23-11 and 7-23-12
pleas that had been worked out in the two cases, and defense counsel confirmed the
accuracy of that recitation.
{¶33} The trial court then addressed Kalvitz at length, confirming that he was
43 years old, had graduated high school, and could read and write the English
language. The trial court outlined in detail the charges to which Kalvitz would be
pleading guilty, the potential penalties, the jointly stipulated sentence that would be
imposed pursuant to the plea arrangement, and the other consideration being granted
by the prosecution in exchange for the guilty pleas, all of which Kalvitz readily
indicated that he understood. The trial court explained the constitutional rights
Kalvitz would be waiving by pleading guilty and Kalvitz expressed his
understanding of those issues. Kalvitz was specifically asked, “Now other than
what we have talked about here, has there been any other promises or threats made
to you to get you to enter these pleas of guilty today?”, and Kalvitz replied, “No,
just the deal we spoke about.” (6/15/23 Tr., 14-15).
{¶34} At the trial court’s request, Kalvitz set forth the facts upon which his
pleas of guilty were based, with the prosecutor adding a couple details for
clarification. The trial court then reviewed the written plea of guilty forms, which
Kalvitz acknowledged having previously reviewed with his attorney and having
signed. After Kalvitz indicated that he had no questions concerning the negotiated
pleas of guilty, the trial court accepted the pleas. At the request of defense counsel,
because of the agreed-upon sentence, the cases then proceeded directly to a joint
-14- Case No. 7-23-11 and 7-23-12
sentencing hearing. After both defense counsel and Kalvitz were permitted to, and
did, make statements relating to sentencing, the trial court imposed the agreed-upon
two-year aggregate prison sentence in the cases.
{¶35} On appeal, Kalvitz asserts that the trial court’s participation in the plea
negotiation process, combined with disdain displayed by the trial judge toward
Kalvitz, served to coerce the guilty pleas in these cases. After carefully examining
the trial judge’s role in the proceedings and considering the totality of the record,
we find that the trial court’s conduct did not coerce Kalvitz’s guilty pleas.
{¶36} With regard to what Kalvitz characterizes as “disdain” toward him by
the trial court, the record reflects that the trial judge was perhaps at times frustrated
with Kalvitz, particularly when Kalvitz appeared at the previously scheduled June
13, 2023 suppression hearing and indicated that he was not prepared to go forward
because he wanted yet another new attorney or, alternatively, to represent himself.
While the trial court did note at that time that Kalvitz was “difficult” and seemed to
have an “attitude”, such comments were not an inaccurate evaluation of Kalvitz’s
ongoing issues with his appointed counsel and reflect a no-nonsense approach by
the trial court in handling certain comments and demands by Kalvitz that were
patently unreasonable. More importantly, notwithstanding the trial court’s frank
assessment of the situation, the court granted Kalvitz the requested continuance of
the suppression hearing and appropriately urged caution concerning self-
representation.
-15- Case No. 7-23-11 and 7-23-12
{¶37} As to Kalvitz’s claim regarding the trial court’s “participation” in the
plea negotiations, the record reflects that such involvement was primarily limited to
informing Kalvitz that there was a deadline for accepting a plea agreement and in
discussing the potential sentence that would result from entering a negotiated plea.
The trial court never expressly discouraged a trial, nor did the court indicate that a
trial would be futile or unfair.
{¶38} In evaluating Kalvitz’s arguments on appeal, we note that trial courts
in Ohio, unlike federal courts and many courts in other states, may participate to
some extent in plea negotiations. State v. Elliott, 1st Dist. Hamilton No. C-190430,
2021-Ohio-424, ¶ 9, citing State v. Vari, 7th Dist. Mahoning No. 07-MA-142, 2010-
Ohio-1300, ¶ 20 (“The Federal Rules of Criminal Procedure and a number of courts
in other states prohibit participation by a judge in plea bargain negotiations.”);
compare State v. Byrd, supra, 63 Ohio St.2d at 293 (“Although this court strongly
discourages judge participation in plea negotiations, we do not hold that such
participation per se renders a plea invalid under the Ohio and United States
Constitutions.”). Thus, a trial court may weigh in on a material term of a plea
agreement. State v. Elliott, supra, citing State v. Bonnell, 12th Dist. Clermont No.
CA2001-12-094, 2002-Ohio-5882, ¶¶ 8–13 (affirming the trial court’s participation
in plea negotiation where it was involved in the discussions and promised not to
impose a prison sentence).
-16- Case No. 7-23-11 and 7-23-12
{¶39} Kalvitz argues that the trial judge himself extended a plea offer to
Kalvitz, based on the trial court commenting at the start of the June 15, 2023 status
conference that, “[B]efore I knew all of the facts I overruled the prosecutor the other
day and made an offer to you, of two years. If you’re convicted of all of these things
I’m not sure what the sentence is and again I’m not sure of all of the evidence but
some of the evidence has been disclosed in the motion to suppress. Um, you could
be looking at ten or twelve years.” (6/15/23 Tr., 3). While the court’s comment
could have perhaps been more precisely worded, it is clear from the overall record
that the trial judge was merely explaining to Kalvitz that, if negotiated pleas were
entered, the court was inclined to impose a two-year sentence, even if the prosecutor
had initially advocated for more time in pretrial discussions between counsel for the
parties and the court.
{¶40} Likewise, while Kalvitz suggests that the trial court put undue pressure
on him to plead guilty by referencing the potential sentences he faced should he
proceed to trial, “[t]here is no prohibition against a trial judge discussing the
different penalties associated with the plea as opposed to the penalties if convicted
of all the courts of the indictment.” State v. Jabbaar, 8th Dist. Cuyahoga No. 98218,
2013-Ohio-1655, ¶ 34. “‘[W]hen the trial court labors to make sure that a defendant
understands the charges against him and the possible penalties, this assurance does
not amount to an infringement on the constitutional right to a voluntary plea.’” Id.,
-17- Case No. 7-23-11 and 7-23-12
quoting State v. Carmicle, 8th Dist. No. 75001, 1999 WL 1000525, *3 (Nov. 4,
1999).
{¶41} We also consider the voluntariness of the guilty pleas here in light of
the change of plea hearing held on June 15, 2023. The record of that proceeding
reflects, as noted above, that the trial judge had left the courthouse after concluding
the pretrial status conference held on the record earlier that morning, and was then
called upon to return because a negotiated plea agreement had been reached by the
parties in the court’s absence. After court reconvened later that morning, but prior
to accepting Kalvitz’s guilty pleas, the trial court fully complied with Crim.R. 11
and advised Kalvitz of the constitutional rights he would be waiving by pleading
guilty. The record of the change of plea hearing reflects no hesitation on Kalvitz’s
part in entering the guilty pleas at that hearing. Further, Kalvitz was specifically
asked whether the guilty pleas were the result of any promises or threats having
been made against him, and Kalvitz indicated that the only inducement for his guilty
pleas was the negotiated plea agreement itself.
{¶42} Finally, we note that Kalvitz was represented by counsel at all times
relevant to his claims here, and that the negotiated pleas of guilty entered by Kalvitz
were highly favorable to him.
{¶43} In summary, based on our review of the entire record, we find nothing
demonstrating that the trial court’s conduct coerced or undermined the voluntariness
of Kalvitz’s guilty pleas.
-18- Case No. 7-23-11 and 7-23-12
{¶44} The first assignment of error is overruled.
{¶45} In the second assignment of error, which relates solely to Case Number
7-23-11, Kalvitz asserts that the trial court erred in the term of post-release control
that was imposed as part of the sentence. Specifically, Kalvitz argues that the
imposition of up to three years of post-release control renders his sentence contrary
to law, as the controlling statute provides for two years of post-release control for
the offenses of which Kalvitz was convicted. Upon review, we find that Kalvitz is
correct.
{¶46} The imposition of post-release control is governed by R.C. 2967.28.
Under that statute, post-release control may be either mandatory or discretionary,
and the length of the post-release control term varies, depending upon the offense
for which an offender is being sentenced.
{¶47} R.C. 2967.28(B) provides for the imposition of mandatory post-release
control in certain instances, stating that “[e]ach sentence to a prison term * * * for a
felony of the first degree, for a felony of the second degree, for a felony sex offense,
or for a felony of the third degree that is an offense of violence and is not a felony
sex offense shall include a requirement that the offender be subject to a period of
post-release control imposed by the parole board after the offender’s release from
imprisonment.” R.C. 2967.28(B) then further sets forth the length of the term of
-19- Case No. 7-23-11 and 7-23-12
mandatory post-release control that must be imposed for offenses of the level or
type specified. See R.C. 2967.28(B)(1) through (B)(4).
{¶48} R.C. 2967.28(C) provides for the imposition of discretionary post-
release control in certain other instances, stating that “[a]ny sentence to a prison
term for a felony of the third, fourth, or fifth degree that is not subject to division
(B)(1) or (4) of this section shall include a requirement that the offender be subject
to a period of post-release control of up to two years after the offender’s release
from imprisonment, if the parole board * * * determines that a period of post-release
control is necessary for that offender.”
{¶49} In the case at issue, Kalvitz was convicted and sentenced for two
felonies, Illegal Cultivation of Marijuana and Endangering Children, both being
felonies of the third degree. However, as neither of those third-degree felony
offenses for which Kalvitz was sentenced is an offense of violence as defined in
R.C. 2901.01(A)(9) or a felony sex offense, R.C. 2967.28(B) is not applicable
here. Accordingly, Kalvitz was subject to being sentenced to a discretionary term
of post-release control of up to two years pursuant to R.C. 2967.28(C), not the
mandatory term of post-release control of up to three years that the trial court
imposed.
{¶50} The second assignment of error is sustained as to Case Number 7-23-
11.
-20- Case No. 7-23-11 and 7-23-12
Conclusion
{¶51} In Case Number 7-23-11, having overruled the first assignment of
error but sustained the second assignment of error, the judgment of the Henry
County Court of Common Pleas is affirmed in part and reversed in part. The case
is remanded for resentencing, limited to the proper imposition of post-release
control. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238.
{¶52} In Case Number 7-23-12, having found no error in the particulars
assigned and argued, the judgment of the Henry County Court of Common Pleas is
affirmed.
Case Number 7-23-11: Affirmed in part, reversed in part.
Case Number 7-23-12: Affirmed.
WILLAMOWSKI, P.J., and ZIMMERMAN, J., concur.
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