State v. Evilsizor
2018 Ohio 3599
Ohio Ct. App.2018Background
- Andrew D. Evilsizor pled guilty to trafficking in cocaine (4th-degree felony) in Case No. 2016 CR 107 and to breaking and entering (5th-degree felony) in Case No. 2016 CR 120; two other charges were dismissed.
- At the time of both new offenses (Sept. and Dec. 2015) Evilsizor was on three years of post-release control from an earlier conviction, with 1,013 days remaining at the time of the September offense and 908 days at the December offense.
- The trial court imposed consecutive prison terms for the underlying offenses (total 24 months) and revoked post-release control in Case No. 2016 CR 107, imposing a 730-day prison term for the PRC violation to run consecutively to the new offense; no PRC prison term was imposed in Case No. 2016 CR 120.
- Appellate counsel initially filed an Anders brief; on independent review the court found a non-frivolous issue and appointed new counsel.
- On appeal Evilsizor challenged (1) how much PRC time the court treated him as subject to and (2) whether the court could impose PRC penalties in multiple cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court may treat multiple separate PRC violations as distinct and impose separate PRC prison terms that run consecutively | State argued court may impose PRC penalty under R.C. 2929.141 in each case as part of sentencing | Evilsizor argued PRC is singular; court cannot terminate the same PRC period multiple times or stack PRC penalties across cases | Court: R.C. 2929.141 authorizes a singular prison term for the earlier PRC; trial court erred to treat PRC as terminable separately in each case. No prejudice from plea colloquy misstatement; assignment overruled on that ground. |
| Proper reference date to calculate PRC time available for an R.C. 2929.141 prison term: date of offense or date of sentencing | State used PRC remaining at date(s) of offenses (1,013 and 908 days) | Evilsizor argued calculation must use PRC time remaining at sentencing (when court terminates PRC) | Held: Calculation must use time remaining at sentencing; because the 730-day PRC prison term exceeded the time remaining at sentencing, that PRC sentence was improper and must be reversed and remanded for resentencing on the PRC penalty. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (standards for counsel to file a brief when appellate claims are frivolous)