State v. Zachman

2023 Ohio 3661

• Court: Ohio Court of Appeals
• Decided: October 6, 2023
• Docket: 2023-CA-10
• Status: Published

Opinion

[Cite as State v. Zachman, 2023-Ohio-3661.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2023-CA-10 : v. : Trial Court Case No. 22-CR-0876 : MARKUS ZACHMAN : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on October 6, 2023

J. DAVID TURNER, Attorney for Appellant

ROBERT C. LOGSDON, Attorney for Appellee

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HUFFMAN, J.

{¶ 1} Markus Zachman appeals from his conviction, following his guilty plea, on

one count of failure to comply with an order or signal of a police officer. The State

concedes error in sentencing, noting that the trial court improperly imposed post-release

control (“PRC”) at the sentencing hearing and in its judgment entry of conviction. We -2-

independently note that the trial court also failed to properly determine Zachman’s jail-

time credit. The judgment will be affirmed in part, reversed in part, and remanded solely

for resentencing on PRC and jail-time credit, consistent with this opinion.

Procedural History

{¶ 2} On November 29, 2022, Zachman was indicted on one count of failure to

comply, one count of assault, and one count of obstructing official business, and he pled

not guilty. On February 6, 2023, Zachman pled guilty to failure to comply; pursuant to a

plea agreement, the other two counts were dismissed. The trial court imposed a prison

sentence of 36 months. Additionally, with respect to PRC, the trial court informed

Zachman at the sentencing hearing that he could be placed on PRC for “up to 2 years”;

in its judgment entry, the court stated that PRC was “optional for up to two (2) years” but

could be “increased up to a maximum term of eight years” if Zachman violated the terms

of PRC.

{¶ 3} Zachman appeals from his conviction.

Imposition of Post-Release Control

{¶ 4} Zachman asserts the following assignment of error:

THE TRIAL COURT DID NOT PROPERLY IMPOSE POST-

RELEASE CONTROL AT THE SENTENCING HEARING AND IN ITS

JUDGMENT ENTRY.

{¶ 5} Zachman argues that the trial court did not properly impose PRC. The State

agrees, specifically conceding that Zachman was not adequately advised at the

sentencing hearing of the potential consequences of violating PRC and that the trial court -3-

erred when it stated in its judgment entry that the duration of PRC could be increased to

a maximum of eight years.

{¶ 6} “Post-release control involves a period of supervision by the Adult Parole

Authority after an offender's release from prison that includes one or more post-release

control sanctions imposed under R.C. 2967.28.” State v. Collins, 2d Dist. Montgomery

No. 27939, 2018-Ohio-4760, ¶ 15. PRC “is mandatory for some offenses and is imposed

at the discretion of the Parole Board for others, depending on the nature and degree of

the offense.” Id., citing R.C. 2967.28(B) and (C); State v. Manzi, 2d Dist. Clark No. 2022-

CA-24, 2023-Ohio-732, ¶ 10.

{¶ 7} “ * * * R.C. 2929.19(B)(2)(d) and (e) require the trial court ‘to notify the

offender at his sentencing hearing that, depending on the degree of the offense in

question, the offender “will” or “may” be placed on [PRC] after he is released from

prison.’ ” State v. Coffee, 2d Dist. Clark Nos. 2022-CA-54, 2022-CA-55, 2023-Ohio-474,

¶ 15, quoting State v. Davis, 2d Dist. Montgomery No. 29316, 2022-Ohio-2373, ¶ 9. R.C.

2929.19(B)(2)(f) requires the trial court to notify the offender that if he violates PRC, “the

parole board may impose a prison term, as part of the sentence, of up to one-half of the

definite prison term originally imposed upon the offender as the offender’s stated prison

term or up to one-half of the minimum prison term originally imposed upon the offender

as part of the offender’s stated non-life felony indefinite prison term.” The Supreme

Court of Ohio has held that the trial court must advise the offender at the sentencing

hearing of the term of supervision, whether PRC is discretionary or mandatory, and the

consequences of violating PRC. State v. Bates, 167 Ohio St.3d 197, 2022-Ohio-475, -4-

190 N.E.3d 610, ¶ 11. In addition to the required oral advisements, the trial court is also

required to incorporate the PRC advisements into its sentencing entry. Manzi at ¶ 13.

{¶ 8} At the disposition hearing in this case, the trial court advised Zachman as

follows:

* * * The Court is going to order the Defendant be sentenced to 36

months in the Ohio State Penitentiary, a 10-year license suspension. Upon

your release, you could be placed on post-release control for up to 2 years

and you will receive credit for the time spent in the Clark County Jail dating

back to November 22nd of last year. * * *

{¶ 9} The judgment entry stated:

The Court notified the defendant that PRC is optional for up to two

(2) years. The defendant is therefore Ordered to serve as part of this

sentence any term of PRC imposed upon him by the Parole Authority.

The Court further notified the defendant that one of the following

sanctions could be imposed upon him if he violates PRC: (1) The duration

of PRC may be increased up to a maximum term of eight years; (2) more

restrictive rules may be placed upon him; (3) he could return to prison (the

maximum term for each violation is one-half of the original prison term or

nine months, whichever is less, and the maximum cumulative term for all

violations is one-half of the original prison term); and (4) if he commits a

felony offense while on PRC and is convicted of that offense, his PRC could

be terminated and he could be sentenced to prison for the greater of one -5-

year or the amount of time he has remaining on PRC and it would be

mandatory that the PRC time run consecutively to his sentence on the new

felony offense.

{¶ 10} Zachman pled guilty to one count of failure to comply in violation of R.C.

2921.331(B), which provides that “no person shall operate a motor vehicle so as willfully

to elude or flee a police officer after receiving a visible or audible sign from a police officer

to bring the person’s motor vehicle to a stop.” The offense is a felony of the third degree

if the operation of the motor vehicle caused a substantial risk of serious physical harm to

persons or property. R.C. 2921.331(C)(5)(a)(ii). Zachman was subject to mandatory

PRC due to his guilty plea to an R.C. 2921.331(C)(5)(a)(ii) violation, an offense of violence

pursuant to R.C. 2901.01(A)(9)(c). R.C. 2967.28(B) provides that “[e]ach sentence to a

prison term * * * for a felony of the third degree that is an offense of violence * * * shall

include a requirement that the offender be subject to a period of [PRC] imposed by the

parole board after the offender’s release from imprisonment.” For a felony of the third

degree that is an offense of violence, the period of PRC required is “up to three years, but

not less than one year.” R.C. 2967.28(B)(4).

{¶ 11} Here, the trial court erred by advising Zachman at disposition that he “could

be placed on [PRC] for up to 2 years.” The trial court further failed to advise Zachman

regarding the consequences of violating PRC at disposition. The court’s judgment entry

was also incorrect in that it provides that PRC was optional for up to two years and its

duration could be increased “up to a maximum term of eight years.” We therefore

conclude that the trial court did not properly impose PRC, either at the sentencing hearing -6-

or in its judgment entry of conviction. Zachman’s assignment of error is accordingly

sustained.

Jail-Time Credit

{¶ 12} Although not raised by the parties, we note that the trial court was also

required to determine Zachman’s jail-time credit at the time of sentencing, to notify

Zachman of the number of days of jail-time credit he was to receive, and to include that

information in its judgment entry. See R.C. 2949.08(B) and (C); R.C. 2967.191(A); R.C.

2929.19(B)(2)(g)(i); Ohio Adm.Code 5120-2-04(B); State v. Springs, 2d Dist. Clark No.

2022-CA-18, 2022-Ohio-4414, ¶ 5-7; State v. Windsor, 2d Dist. Clark No. 2021-CA-25,

2022-Ohio-1785, ¶ 4-7.

{¶ 13} In State v. Wade, 2d Dist. Clark No. 2015-CA-45, 2015-Ohio-5171, ¶ 14,

we noted that “R.C. 2949.08(B) specifies * * * that ‘the person’s conviction shall specify

the total number of days, if any, that the person was confined’ on the offense prior to

his conviction and ‘prior to delivery to the jailer, administrator, or keeper.’ (Emphasis

added.).” In Wade, we also concluded that the trial court’s failure to reduce the amount

of jail-time credit to a number of days, as required by R.C. 2949.08(B), coupled with the

absence of any opportunity for the defendant to be heard on the issue of jail-time credit,

warranted remanding the matter for the court to properly address the issue.” Id. at ¶ 15.

{¶ 14} Here, the trial court advised Zachman at the sentencing hearing that he

would receive jail-time credit “dating back to November 22nd of last year,” and the

judgment entry stated that he would receive jail-time credit “from November 22, 2022 until

conveyed to ODRC.” As in Wade, the trial court failed to reduce the amount of jail-time -7-

credit to a number of days and to give Zachman an opportunity to be heard on the issue.

{¶ 15} Because the trial court erred in imposing PRC and in failing to properly

calculate jail-time credit, the trial court’s judgment will be reversed in part, and the matter

will be remanded for resentencing on PRC and jail-time credit only. In all other respects,

the judgment of the trial court is affirmed.

TUCKER, J. and LEWIS, J., concur.