[Cite as State v. Holbert,
2024-Ohio-175.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29704
:
v. : Trial Court Case No. 2022 CR 01799/1
:
ALBERT DAVID HOLBERT : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on January 19, 2024
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CHRISTOPHER BAZELEY, Attorney for Appellant
MATHIAS H. HECK, JR., by SARAH H. CHANEY, Attorney for Appellee
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WELBAUM, J.
{¶ 1} Albert David Holbert appeals from his conviction, following a plea of no
contest, of one count of felonious assault. The State concedes that the trial court failed
to properly advise Holbert at sentencing pursuant to the Reagan Tokes Act and regarding
post-release control (“PRC”). The judgment entry of conviction also erroneously states
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that Holbert pled guilty. Accordingly, the judgment of the trial court is reversed in part
and remanded for resentencing. In all other respects, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 11, 2022, Holbert was indicted on one count of felonious assault
(serious physical harm) and one count of felonious assault (deadly weapon). Holbert
entered a no contest plea on December 22, 2022, to one count of felonious assault
(serious physical harm), a felony of the second degree, in exchange for which the other
count was dismissed. On January 19, 2023, the trial court sentenced Holbert to an
indefinite term of a minimum of three years to a maximum of four and a half years in
prison.
{¶ 3} Holbert’s first appointed counsel filed a brief pursuant to Anders v. California,
386 US. 738, 87 S.Ct. 1396,
18 L.Ed.2d 493 (1967). On September 13, 2023, we struck
the Anders brief and appointed new appellate counsel. 1 Holbert now raises two
assignments of error.
ASSIGNMENTS OF ERROR AND ANALYSIS
{¶ 4} Holbert asserts two assignments of errors, which we will consider together:
THE TRIAL COURT FAILED TO PROPERLY ADVISE HOLBERT
OF HIS RIGHTS UNDER THE RE[A]GAN TOKES ACT AS REQUIRED BY
R.C. 2929.19,
THE TRIAL COURT FAILED TO PROPERLY ADVISE HOLBERT
1
We “no longer permit counsel to withdraw on the basis that an appeal is frivolous or
accept briefs filed pursuant to Anders.” State v. Holbert, 2d Dist. Montgomery No. 29704,
2023-Ohio-3272, ¶ 26.
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OF THE CONDITIONS OF PRC AT SENTENCING.
{¶ 5} In his first assignment, Holbert argues that the trial court failed to comply with
R.C. 2929.19(B)(2)(c) at the sentencing hearing by providing certain advisements,
although he acknowledges that the judgment entry of conviction properly set forth the
necessary advisements. In his second assignment of error, Holbert argues that the trial
court failed to properly advise him of the conditions of PRC at the sentencing hearing,
although again he acknowledges that he was properly advised about PRC during the plea
colloquy and in the judgment entry of conviction. The State concedes both errors by the
trial court.
{¶ 6} Regarding the first issue, R.C. 2929.19(B)(2) states that, if the sentencing
court finds at disposition that a prison term is necessary or required, it must do all of the
seven enumerated actions set forth in that subsection. R.C. 2929.19(B)(2)(c) requires
the court to notify an offender, sentenced to a non-life indefinite prison term, of the
following pertaining to the offender’s minimum and maximum prison terms and to the
operation of a rebuttable presumption of release from service of the sentence upon the
expiration of minimum term. That section provides:
(i) That it is rebuttably presumed that the offender will be released from
service of the sentence on the expiration of the minimum prison term
imposed as part of the sentence or on the offender's presumptive earned
early release date, as defined in section 2967.271 of the Revised Code,
whichever is earlier;
(ii) That the department of rehabilitation and correction may rebut the
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presumption described in division (B)(2)(c)(i) of this section if, at a hearing
held under section 2967.271 of the Revised Code, the department makes
specified determinations regarding the offender's conduct while confined,
the offender's rehabilitation, the offender's threat to society, the offender's
restrictive housing, if any, while confined, and the offender's security
classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, the
department at the hearing makes the specified determinations and rebuts
the presumption, the department may maintain the offender's incarceration
after the expiration of that minimum term or after that presumptive earned
early release date for the length of time the department determines to be
reasonable, subject to the limitation specified in section 2967.271 of the
Revised Code;
(iv) That the department may make the specified determinations and
maintain the offender's incarceration under the provisions described in
divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to
the limitation specified in section 2967.271 of the Revised Code;
(v) That if the offender has not been released prior to the expiration of the
offender's maximum prison term imposed as part of the sentence, the
offender must be released upon the expiration of that term.
{¶ 7} “We have previously held that an indefinite prison sentence under the
Reagan Tokes Act is contrary to law when the trial court fails to notify the offender at the
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sentencing hearing of the information set forth in R.C. 2929.19(B)(2)(c).” State v. Greene,
2d Dist. Clark No. 2021-CA-65, 2022-Ohio-4113, ¶ 8. Moreover, we have rejected the
“argument that the trial court sufficiently notified the offender of all the information in R.C.
2929.19(B)(2)(c) by simply including the information in the judgment entry of conviction.”
Id., citing State v. Massie, 2d Dist. Clark No. 2020-CA-50,
2021-Ohio-3376.
{¶ 8} The transcript reflects, and the State concedes, that the trial court failed to
advise Holbert as required by the Reagan Tokes Act at sentencing. Accordingly,
Holbert’s first assignment of error is sustained.
{¶ 9} In his second assignment, Holbert asserts that the trial court failed to advise
him at the sentencing hearing “whether PRC was mandatory, that it would be monitored
by the Adult Probation Authority, or of any of the possible consequences of failure to
comply with PRC,” although it did so during the plea hearing and in the judgment entry;
the trial court merely advised Holbert at sentencing: “Upon your release from prison you
will be placed on post-release control for not less than 18 months, but it could be up to
three years.” The State concedes the error and that the matter should be remanded to
the trial court for the trial court to provide the proper notifications.
{¶ 10} With regard to a trial court’s obligation to notify a defendant about post-
release control, we have stated:
… “It is settled that ‘a trial court has a statutory duty to provide
notice of post[-]release control at the sentencing hearing’ and that ‘any
sentence imposed without such notification is contrary to law.’ ” State v.
Grimes, 151 Ohio St.3d 19,
2017-Ohio-2927,
85 N.E.3d 700, ¶ 8, quoting
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State v. Jordan, 104 Ohio St.3d 21,
2004-Ohio-6085,
817 N.E.2d 864, ¶ 23,
overruled on other grounds, State v. Harper, 160 Ohio St.3d 480, 2020-
Ohio-2913, 159 N.E.3d 248. Accord State v. Bates, Ohio Slip Opinion No.
2022-Ohio-475, __ N.E.3d __, ¶ 11.
Per its statutory duty, “[t]he trial court must advise the offender at the
sentencing hearing of the term of [post-release control] supervision,
whether post-release control is discretionary or mandatory, and the
consequences of violating post-release control.” Bates at ¶ 11, citing
Grimes at ¶ 11. Accord State v. Hall, 2d Dist. Montgomery No. 28882,
2021-Ohio-1894, ¶ 13. “Among other consequences, an offender's
violation of a postrelease-control sanction or condition may result in the
[Adult Parole Authority's] imposing a prison term on the offender.” Bates
at ¶ 11, citing R.C. 2967.28(F)(3). “However, the maximum cumulative
prison term for all violations under R.C. 2967.28(F)(3) ‘shall not exceed one-
half’ of the stated prison term originally imposed.” Id. Therefore, “at the
sentencing hearing, the court must notify the offender that if he or she
‘violates [post-release control] …, 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.’ ” Grimes at ¶ 9, quoting former R.C.
2929.19(B)(2)(e); R.C. 2929.19(B)(2)(f); State v. Fields, 2d Dist. Clark No.
2020-CA-19, 2021-Ohio-3845, ¶ 10-11.
State v. Heinzen, 2d Dist. Clark No. 2019-CA-65,
2022-Ohio-1341, ¶ 24-25.
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{¶ 11} Here, the trial court failed to properly advise Holbert regarding post-release
control at sentencing. Holbert’s second assignment of error is sustained.
{¶ 12} Finally, we note that although Holbert entered a plea of no contest, the
judgment entry of conviction erroneously states that he entered a guilty plea.
{¶ 13} Based upon the foregoing, the judgment of the trial court is reversed in part
and remanded for resentencing consistent with this opinion, including the issuance of a
judgment entry properly reflecting the plea entered. In all other respects, the judgment
is affirmed.
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TUCKER, J. and LEWIS, J., concur.
