[Cite as State v. Montgomery,
2017-Ohio-4397.]
COURT OF APPEALS
STARK 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- :
:
THEODIS MONTGOMERY, JR. : Case No. 2017CA00035
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2010CR0295
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 19, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO THEODIS MONTGOMERY, JR., Pro Se
Prosecuting Attorney 3021 Neal Court, NW
By: KRISTINE BEARD Canton, OH 44709
Assistant Prosecuting Attorney
110 Central Plaza South - Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2017CA00035 2
Wise, Earle, J.
{¶ 1} Plaintiff-Appellant, Theodis Montgomery, Jr., appeals the January 25,
2017 judgment entry of the Court of Common Pleas of Stark County, Ohio, denying his
motion to vacate post-release control. Defendant-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 28, 2010, appellant pled guilty to one count of kidnapping in
violation of R.C. 2905.01, one count of domestic violence in violation of R.C. 2919.25,
and one count of violating a protection order in violation of R.C. 2919.27. By judgment
entry filed August 3, 2010, the trial court sentenced appellant to an aggregate term of
four years in prison and imposed post-release control.
{¶ 3} On December 29, 2016, appellant filed a motion to vacate post-release
control. By judgment entry filed January 25, 2017, the trial court denied the motion.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 5} "APPELLANT CONTENDS THE TRIAL COURT COMMITTED ERROR
BY IMPROPERLY NOTIFYING HIM OF SAID PRC SANCTIONS, SPECIFICALLY
'FAILING TO NOTIFY A DEFENDANT OF THE CONSECUTIVE PRISON TERM HE
COULD FACE IF HE WOULD COMMIT ANOTHER FELONY WHILE BEING ON PRC.'
THUS RENDERING HIS PRC SANCTION VOID FOR FAILURE TO FULLY NOTIFY
HIM OF THE CONSEQUENCES SET FORTH IN R.C. 2929.141."
{¶ 6} Preliminarily, we note this case is before this court on the accelerated
calendar which is governed by App.R. 11.1. Subsection (E), determination and
Stark County, Case No. 2017CA00035 3
judgment on appeal, provides in pertinent part: "The appeal will be determined as
provided by App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the
statement of the reason for the court's decision as to each error to be in brief and
conclusionary form."
{¶ 7} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusory decision more quickly than in a case on
the regular calendar where the briefs, facts, and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158,
463 N.E.2d 655 (10th
Dist.1983).
{¶ 8} This appeal shall be considered in accordance with the aforementioned
rules.
I
{¶ 9} In his sole assignment of error, appellant claims the trial court erred in
denying his motion to vacate post-release control. We disagree.
{¶ 10} Specifically, appellant argues when his post-release control was imposed,
the trial court failed to inform him that he could serve a consecutive prison term if he
committed another felony while on post-release control; therefore, the post-release
control sanction was void and in violation of R.C. 2929.141.
{¶ 11} In State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238,
942 N.E.2d 332,
paragraph one of the syllabus, the Supreme Court of Ohio held: "A sentence that does
not include the statutorily mandated term of postrelease 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."
Stark County, Case No. 2017CA00035 4
{¶ 12} R.C. 2929.14 governs sentencing. Subsection (B)(2)(e) states, "if the
sentencing court determines at the sentencing that a prison term is necessary or
required, the court shall":
Notify the offender that, if a period of supervision is imposed
following the offender's release from prison, as described in division
(B)(2)(c) or (d) of this section, and if the offender violates that supervision
or a condition of post-release control imposed under division (B) of section
2967.131 of the Revised Code, the parole board may impose a prison
term, as part of the sentence, of up to one-half of the stated prison term
originally imposed upon the offender. If a court imposes a sentence
including a prison term on or after July 11, 2006, the failure of a court to
notify the offender pursuant to division (B)(2)(e) of this section that the
parole board may impose a prison term as described in division (B)(2)(e)
of this section for a violation of that supervision or a condition of post-
release control imposed under division (B) of section 2967.131 of the
Revised Code or to include in the judgment of conviction entered on the
journal a statement to that effect does not negate, limit, or otherwise affect
the authority of the parole board to so impose a prison term for a violation
of that nature if, pursuant to division (D)(1) of section 2967.28 of the
Revised Code, the parole board notifies the offender prior to the offender's
release of the board's authority to so impose a prison term. Section
2929.191 of the Revised Code applies if, prior to July 11, 2006, a court
Stark County, Case No. 2017CA00035 5
imposed a sentence including a prison term and failed to notify the
offender pursuant to division (B)(2)(e) of this section regarding the
possibility of the parole board imposing a prison term for a violation of
supervision or a condition of post-release control.
{¶ 13} R.C. 2929.141 governs commission of offense by person under post-
release control and states the following in pertinent part:
(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 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
Stark County, Case No. 2017CA00035 6
imposition of a prison term for the post-release control violation shall
terminate the period of post-release control for the earlier felony.
{¶ 14} We acknowledge there is a split of authority among the appellate districts
as to whether a trial court is required to inform a defendant that if he/she commits a new
felony while on post-release control, he/she could be subject to a prison sentence on
the new felony and an additional consecutive prison sentence for the post-release
control violation. However, this court has previously held that such notification is
required. State v. Johnson, 5th Dist. Muskingum No. CT2016–0035, 2016–Ohio–7931,
appeal accepted, 148 Ohio St.3d 1442,
2017-Ohio-1427,
72 N.E.3d 656. See State v.
Willis, 5th Dist Muskingum No. CT2015-0009,
2015-Ohio-4599 ("could be added"
language is sufficient and tantamount to saying "consecutive to"); State v. Nicholson,
5th Dist. Muskingum No. CT2015-0016, 2016-Ohio-50; State v. Mercer, 5th Dist.
Muskingum No. CT2015-0017,
2016-Ohio-49; State v. Morrison, 5th Dist. Delaware No.
17 CAA 01 003,
2017-Ohio-1240 (no qualitative difference between the use of the
phrase "could be added" and the use of the word "plus").
{¶ 15} In the case sub judice, appellant did not provide this court with the
transcript of his sentencing hearing; therefore, we are unable to review what the trial
court said in informing appellant of post-release control. We presume regularity in the
proceeding.
{¶ 16} In its judgment entry filed August 3, 2010, the trial court informed appellant
of post-release control as follows in pertinent part:
Stark County, Case No. 2017CA00035 7
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.
If the defendant commits another felony while subject to this period
of control or supervision the defendant may be subject to an additional
prison term consisting of the maximum period of unserved time remaining
on post release control as set out above or 12 months whichever is
greater.
{¶ 17} We find the phrase "may be subject to an additional prison term"
adequately informed appellant of the possibility of the imposition of consecutive
sentences.
{¶ 18} Upon review, we find the trial court did not err in denying appellant's
motion to vacate post-release control.
{¶ 19} The sole assignment of error is denied.
Stark County, Case No. 2017CA00035 8
{¶ 20} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Wise, John, J. concur and
Hoffman, P.J. disents.
_______________________________
Hon. Earle E. Wise, Jr.
_______________________________
Hon. William B. Hoffman
_______________________________
Hon. John W. Wise
EEW/sg 518
Stark County, Case No. 2017CA00035 9
Hoffman, P.J., dissenting
{¶21} I respectfully dissent from the majority decision. I do not find the trial
court’s entry stating “may be subject to an additional prison term” sufficient to inform
Appellant of the mandatory nature of time imposed for violation of postrelease control in
that the term for the new felony would be served consecutive to the term imposed for
violation of postrelease control.
{¶22} In State v. Morrison, Delaware App. No. 17CAA01003, 2017-Ohio-1240,
this Court held a trial court must not only advise the defendant a post-release control
violation by the commission of a new felony could result in an additional prison sentence
for the violation, but must also advise the defendant such sentence would be served
consecutively to any prison term imposed for the new felony.
{¶23} In State v. Wills, 5th Dist. Musk. Co. No. CT2015-0009, 2015-Ohio-4599,
this Court found the trial court’s notification at sentencing, the commission of a new
felony while on post-release control would result in an additional prison term which
“could be added to” the sentence for the new felony, sufficient and tantamount to saying
“consecutive to.”
{¶24} In State v. Nicholson, Musk. No. CT2015-0016, 2016-Ohio-50, and State
v. Mercer, Musk. No. CT2015-0017,
2016-Ohio-49, this Court held the trial court’s
statement, “in addition to any sentence you receive for that new felony, additional prison
time could be added to that sentence” sufficient to advise the defendant of post-release
control and its ramifications. (Emphasis added.)
{¶25} In State v. Morrison, Delaware App. No. 17CAA01003, 2017-Ohio-1240,
this Court analyzed the trial court’s notification, “if the violation is a new felony, you
Stark County, Case No. 2017CA00035 10
could be returned to prison for the remaining period of control or 12 months, whichever
is greater, plus receive a new prison term for the new felony.” This Court held there is
no qualitative difference between use of the phrase “could be added” and the use of the
word “plus,” and the language used conveyed the sentences would run consecutively.
{¶26} Appellant did not introduce a transcript of the hearing into the record, so
we must assume the regularity of the sentencing hearing. National City Bank v. Beyer,
89 Ohio St.3d 152, 160,
729 N.E. 2d 711 (2000). The trial court’s August 3, 2000
judgment entry states,
If the Defendant commits another felony while subject to this period
of control or supervision the defendant may be subject to an additional
prison term consisting of the maximum period of unserved time remaining
on post release control as set out above or 12 months whichever is
greater.
(Emphasis added.)
{¶27} The trial court advised Appellant he “may be subject to an additional
prison term,” but failed to inform Appellant the additional prison term, if imposed, would
have to be served consecutive to any term imposed for the new felony. I would not find
the phrase “may be subject to an additional prison term” tantamount to advising
Appellant the sentences would have to run consecutively.
________________________________
HON. WILLIAM B. HOFFMAN
