State v. McCallister

2015 Ohio 3112

• Court: Ohio Court of Appeals
• Decided: August 3, 2015
• Docket: 2014CA00195
• Status: Published

Opinion

[Cite as State v. McCallister, 2015-Ohio-3112.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 2014CA00195 JOHN LAWRENCE MCCALLISTER : AKA JOHN LAWRENCE : MCCALLISTER : OPINION Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2014CR1212

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 3, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO TAMMI JOHNSON STARK COUNTY PROSECUTOR Public Defender's Office BY: RENEE WATSON 201 Cleveland Ave. S.W., Ste. 104 110 Central Plaza S., Ste. 510 Canton, OH 44702 Canton, OH 44702 [Cite as State v. McCallister, 2015-Ohio-3112.]

Gwin, P.J.

{¶1} Appellant John Lawrence McCallister (“McCallister”] appeals the October

2, 2014 Judgment Entry of the Stark County Court of Common Pleas overruling his

motion to dismiss and the October 7, 2014 Judgment Entry of that court finding him

guility of Escape.

Facts and Procedural History

{¶2} A statement of the facts underlying McCallister’s criminal conviction is not

necessary to our resolution of this appeal.

{¶3} On May 25, 2011, McCallister entered a negotiated guilty plea to one

count of Robbery, a felony of the third degree in violation of R.C. 2911.02(A)(3) in Stark

County Court of Common Pleas, Case No. 2011CR0322. A “Plea of Guility(F3) Criminal

Rule 11(C)” entry signed by McCallister, his attorney, the prosecuting attorney and the

trial judge was filed as part of the trial court’s Judgment Entry Change of Plea and

Presentence Investigation, Stark County Court of Common Pleas, Case No.

2011CR0322 on May 9, 2011.

{¶4} McCallister did not appeal or otherwise challenge his conviction and

sentence. Following his release from prison on February 21, 2013, McCallister began

serving his mandatory 3-year term of post-release control.

{¶5} On August 27, 2014, McCallister was indicted by the Stark County Grand

Jury for one count of Escape, a felony of the fifth degree in violation of R.C.

2921.34(A)(3)(c)(3) in Stark County Court of Common Pleas, Case No. 2014CR1212.

The basis for the Escape charge was a violation of the terms and conditions of post-

release control. Stark County, Case No. 2014CA00195 3

{¶6} On September 5, 2014, McCallister filed a motion to dismiss the

Indictment arguing that because he was improperly advised of post-release control, the

trial court was required to dismiss his escape charge and release him from his post-

release control obligations. The trial court overruled the motion by Judgment Entry filed

October 2, 2014.

{¶7} On October 1, 2014, McCallister entered a plea of “no contest” to the

Escape charge, and the trial court found him guilty. By Judgment Entry filed October 7,

2014, McCallister was sentenced to six months. The trial court advised McCallister of

the non-mandatory three-year post-release control period and the consequences for

violating post-release control.

{¶8} McCallister served his time and was released on January 19, 2015.

Assignment of Error

{¶9} McCallister raises one assignment of error,

{¶10} “I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

MOTION TO DISMISS IN VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS

UNDER THE OHIO AND UNITED STATES CONSTITUTIONS.”

Analysis

{¶11} In his sole assignment of error, McCallister complains that because he

was not properly advised of post-release control in his 2011 case, the Adult Parole

Authority did not have the authority to place him on post-release control and thus he

could not later be prosecuted for escape. Specifically, McCallister contends that the trial

court's use of the word "would" during its oral pronouncement of post-release control

imposes a discretionary period of post-release control and not a mandatory period. Stark County, Case No. 2014CA00195 4

{¶12} Post-release control is a period of supervision by the adult parole authority

that begins after a prisoner is released from prison. Woods v. Telb, 89 Ohio St.3d 504,

509 (2000); R.C. 2967.01(N). Pursuant to R.C. 2967.28(B),

(B) Each 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. This division applies with respect to all prison

terms of a type described in this division, including a term of any such type

that is a risk reduction sentence. If a court imposes a sentence including a

prison term of a type described in this division on or after July 11, 2006,

the failure of a sentencing court to notify the offender pursuant to division

(B)(2)(c) of section 2929.19 of the Revised Code of this requirement or to

include in the judgment of conviction entered on the journal a statement

that the offender's sentence includes this requirement does not negate,

limit, or otherwise affect the mandatory period of supervision that is

required for the offender under this division. Section 2929.191 of the

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

sentence including a prison term of a type described in this division and

failed to notify the offender pursuant to division (B)(2)(c) of section

2929.19 of the Revised Code regarding post-release control or to include

in the judgment of conviction entered on the journal or in the sentence Stark County, Case No. 2014CA00195 5

pursuant to division (D)(1) of section 2929.14 of the Revised Code a

statement regarding post-release control. Unless reduced by the parole

board pursuant to division (D) of this section when authorized under that

division, a period of post-release control required by this division for an

offender shall be of one of the following periods:

***

(3) For a felony of the third degree that is an offense of violence

and is not a felony sex offense, three years.

Emphasis added. Pursuant to R.C. 2967.28(B), post-release control is mandatory in

McCallister’s case.

{¶13} In State v. Jordan, 104 Ohio St.3d. 21, 2004-Ohio-6085, 817 N.E.2d 864,

the Ohio Supreme Court reviewed the statutory requirements for the imposition of post-

release control and held that because a trial court has a statutory duty to provide notice

of post-release control at the sentencing hearing, any sentence imposed without that

notification is contrary to law. Jordan at ¶ 23. The court determined that a trial court is

required to notify the offender about post-release control at the sentencing hearing and

is further required to incorporate that notice into its journal entry imposing sentence. Id.

at ¶ 9. The court determined that the proper remedy for any sentencing error was to

remand to the trial court for resentencing. Jordan at ¶ 27.

{¶14} The Supreme Court reiterated this principle in State v. Bezak, 114 Ohio

St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 16, in which the court held that when an

offender is convicted of or pleads guilty to one or more offenses and post-release

control is not properly included in a sentence for a particular offense, the sentence for Stark County, Case No. 2014CA00195 6

that offense is void. Id. at ¶ 16. In considering the type of resentencing, the court held

that when a court of appeals remands a case for resentencing because of the trial

court’s failure to inform the offender at the sentencing hearing that he or she may be

subject to post-release control, the court must conduct a new sentencing hearing in its

entirety rather than a hearing limited to re-imposing the original sentence with proper

notice of post-release control. Id. at ¶ 13, overruled, Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, ¶ 36; Accord State v. Harris, 132 Ohio St.3d 318, 2012-

Ohio-1908, 972 N.E.2d 509, ¶10.

{¶15} In State v. Harris, the Supreme Court noted,

The court in Fischer reaffirmed part of the holding in Bezak, finding

that a sentence that fails to include postrelease control is void, but added

the proviso that only the offending portion of the sentence is subject to

review and correction. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942

N.E.2d 332, at ¶ 27. The court modified the Bezak holding in respect to

the type of resentencing that an offender is entitled to receive, Fischer at ¶

28, and held that the new sentencing hearing is limited to proper

imposition of postrelease control, id. at ¶ 29.

Harris, 132 Ohio St.3d at ¶12.

{¶16} The Supreme Court of Ohio has further held that “[a] sentence that does

not include the statutorily mandated term of post-release control is void, is not precluded

from appellate review by principles of res judicata, and may be reviewed at any time, on

direct appeal or by collateral attack.” State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–

6238, paragraph one of the syllabus. The Supreme Court has explained that “Fischer Stark County, Case No. 2014CA00195 7

applies to every criminal conviction, including a collateral attack on a void sentence [.]”

State v. Billiter, 134 Ohio St.3d 103, 2012–Ohio–5144, ¶ 11. When a defendant

completes the prison term he was ordered to serve, he can no longer be subject to a

resentencing to correct errors in the imposition of his post-release control. State v.

Bezak, 114 Ohio St.3d 94, 2007–Ohio–3250, ¶ 18, modified in part, State v. Fischer,

128 Ohio St.3d 92, 2010–Ohio–6238. Accord Hernandez v. Kelly, 108 Ohio St.3d 395,

2006–Ohio–126.

{¶17} In the case at bar, prior to the change of plea hearing, McCallister signed

a “Plea of Guility(F3) Criminal Rule 11(C)” form which included a detailed explanation of

post-release control in conformity with R.C. 2967.28(B)(3)and R.C. 12929.19(B)(2)(c):

Upon release from prison, the defendant will be ordered to serve a

mandatory period of three (3) years of post-release control, pursuant to

R.C. 2967.28(B). This period of post-release control will be imposed as

part of defendant's criminal sentence at the sentencing hearing, pursuant

to R.C. 2929.19. If the defendant violates the conditions of post-release

control, the defendant will be subject to an additional prison term of up to

one-half of the stated prison term as otherwise determined by the parole

board according to law.

{¶18} In the Court's sentencing judgment entry, the mandatory three-year term

of post-release control was set forth as,

Upon release from prison, the Defendant is ordered to serve a

mandatory period of three (3) years of post-release control pursuant to

R.C. 2967.28(B). This period of post-release control was imposed as part Stark County, Case No. 2014CA00195 8

of Defendant's criminal sentence at the sentencing hearing, pursuant to

R.C. 2929.19. If the Defendant violates the conditions of post-release

control, the Defendant will be subject to an additional prison term of up to

one-half of the stated prison term as otherwise determined by the Parole

Board, pursuant to law.

{¶19} On the record, during McCallister’s sentencing hearing, the trial court

stated,

On the F3 count, the Defendant will be sentenced to serve a term

of two years imprisonment in an appropriate correctional facility. He will be

given credit for any time served up through today and pending his transfer.

He would be subject to post-release control for a period of three years. In

the event that he would violate any post-release control, he would subject

himself to an additional prison term of up to one half the stated sentence.

T. Stark County Court of Common Pleas, Case No. 2011 CR 0322, Sentencing, May

25, 2011 at 4-5 (emphasis added).

{¶20} We do not find that the trial court’s use of the word “would” transforms the

mandatory nature of McCallister’s post-release control into a discretionary imposition of

post-release control as urged by McCallister in this appeal. Under the totality of the

circumstances, we conclude that the trial court substantially complied with the Supreme

Court mandates and sufficiently notified McCallister about mandatory post-release

control. The statements by the trial court were neither ambiguous nor equivocal with

regard to whether post-release control was mandatory or discretionary. Compare, State Stark County, Case No. 2014CA00195 9

v. Thompson, Second Dist Montgomery No. 26395, 2015-Ohio-1473 (finding the trial

court’s statements to the defendant “[W]hen you get released from prison, you’re going

to have to serve a period of three years’ post release control or you may have to[.]” (Tr.

at 14–15). It then reiterated, “But with these two [convictions], you’re going to have to * *

* serve that [post-release control], or you may have to.” (Id. at 15) to be ambiguous and

equivocal).

{¶21} Although a sentencing court must comply with statutory requirements, the

Supreme Court has not prescribed a “magic words” test for imposing post-release

control. This is consistent with other areas of criminal sentencing where appellate

courts have held that trial courts need not recite specific magic words in imposing a

sentence. See, State v. Williams, 10th Dist. Franklin No. 10AP-922, 2011-Ohio-4923,

¶19; See also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659,

¶29 (“a word-for-word recitation of the language of the statute [R.C. 2929.14(C)(4)] is

not required, and as long as the reviewing court can discern that the trial court engaged

in the correct analysis and can determine that the record contains evidence to support

the findings, consecutive sentences should be upheld”).

{¶22} A thorough review of the entire record in the case at bar indicates that

post-release control was properly imposed at the original sentencing hearing and in the

original sentencing entry. The trial court did not err in overruling McCallister’s motion to

dismiss or in finding him guilty of Escape. Stark County, Case No. 2014CA00195 10

{¶23} McCallister’s sole assignment of error is overruled.

{¶24} For the foregoing reasons, the judgment of the Court of Common Pleas,

Stark County, Ohio is affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur