State v. BeverState v. Bever
Charles E. Coulson, Lake County Prosecutor, and Joshua S. Horacek, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Michael L. Bever, appeals the sentence of the Lake County Court of Common Pleas following his guilty plea to attempted felonious assault. At issue is whether the trial court erred in sentencing him for a post-release control violation. For the reasons that follow, we affirm.
{¶3} Appellant waived his right to an indictment, and on December 9, 2009, he pled guilty by way of information to attempted felonious assault, a felony of the third degree, in violation of
{¶4} Prior to his sentencing hearing in the present case, appellant filed a sentencing brief in which he argued his previous sentence in 2007 was void because the trial court had not correctly advised him regarding post-release control. He therefore argued the court could not sentence him for a post-release control violation in addition to his new felony.
{¶5} The following procedural history is based on a statement of facts outlined by the trial court at appellant‘s sentencing hearing in the present case on January 14, 2010. After this recitation, the parties stipulated to its accuracy. On November 29, 2007, appellant pled guilty in two prior cases in the trial court. In Case No. 07 CR 000478, he pled guilty to trafficking in marihuana, a felony of the fifth degree. In Case No. 07 CR 000702, he pled guilty to attempted felonious assault, a felony of the third
{¶6} While sentencing appellant on his 2007 attempted felonious assault case, the trial court informed him that the Ohio Adult Parole Authority had the option to put him on post-release control for up to three years. In the court‘s sentencing entry for that case, the court repeated “that post-release control is optional in this case up to a maximum of 3 years ***.” Appellant did not object to this admonition regarding post-release control. At the same time, the court sentenced appellant in his drug trafficking case. In that case the court also advised him that he was subject to optional post-release control for up to three years. The court‘s judgment on sentence in that case also stated that post-release control was optional for up to three years. Appellant entered prison on December 28, 2007. After serving his entire sentence, appellant was released on February 19, 2009, and placed on post-release control by the APA.
{¶7} At the sentencing hearing in the present case, the court stated that its advice in 2007 regarding post-release control was accurate for the drug trafficking charge, but not for the attempted felonious assault charge, for which post-release control was mandatory for up to three years. The trial court found that because it had correctly advised appellant regarding post-release control as to the drug trafficking offense, the court‘s November 29, 2007 sentence was not void. At the time appellant did not object to this admonition regarding post-release control. The court found that
{¶8} Further, the trial court noted that two months after appellant committed the present crime but before his sentencing hearing, the APA released appellant from post-release control on November 27, 2009. The court essentially found, however, that because appellant was still on post-release control when he committed the present crime, the APA‘s later release of appellant from post-release control was irrelevant to whether the court had authority to sentence him for a post-release control violation.
{¶9} The court sentenced appellant to five years in prison for attempted felonious assault and one year for the post-release control violation, the two terms to be served consecutively, for a total term in prison of six years. Appellant appeals his sentence, asserting two assignments of error. For his first assigned error, he contends:
{¶10} “The trial court erred when it imposed a consecutive prison sentence for a violation of postrelease [sic] control in violation of the defendant-appellant‘s right to due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 10, Article 1 of the Ohio Constitution.”
{¶11}
{¶13} “***
{¶14} “(c) Notify the offender that the offender will be supervised under section
{¶15}
{¶16} Alternatively,
{¶18} “The following conclusions can be drawn from the [Supreme Court of Ohio] authority discussed above. First, a court must advise a defendant that post-release control sanctions will be a part of his or her sentence at the sentencing hearing and journalize a similar notification in its judgment entry on sentence. [State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085]. The failure to do so renders a defendant‘s sentence void. [State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795]; [State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197]. To the extent a defendant is still incarcerated, the state may move the trial court to resentence the defendant because the trial court retains continuing jurisdiction over a criminal matter for purposes of correcting a void judgment. Jordan, supra; [Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126]; Cruzado, supra; Simpkins, supra. However, where a defendant has served his term of incarceration on the underlying sentence, the parole authority lacks the authority to impose post-release control upon a defendant and there can be no remand for resentencing. Hernandez, supra; Cruzado, supra. Under such circumstances, the defendant who has served his prison term is entitled to release from post-release control. Id.” Biondo, supra, at ¶28.
{¶19} Appellant argues that because the trial court incorrectly advised him during his 2007 sentencing that post-release control was optional for up to three years, instead of mandatory, as required by
{¶20} At the sentencing hearing in the instant case, the trial court found that the APA was authorized to put appellant on discretionary post-release control because, in sentencing him in his 2007 drug trafficking case, the court correctly informed him that post-release control was optional for up to three years. Appellant concedes on appeal that the trial court correctly advised him as to post-release control with respect to his prior drug trafficking offense. The court found: “[A]s far as this Court is concerned, the Defendant was on post release control at the time that this [present offense] occurred. Whether it was mandatory post release control or option[al] post release control is going to be a question of law. I‘m taking the position that it was optional post release control, because he couldn‘t have been on mandatory post release control.” The court found that because appellant was on optional post-release control when he committed his present felony, it had authority to sentence him for the post-release control violation. The trial court thus found that any error resulting from his failure to correctly advise appellant concerning mandatory post-release control for his prior attempted felonious assault offense was harmless.
{¶21} Appellant challenges this finding, arguing that he was not placed on optional post-release control because his sentence in his prior drug trafficking case was six months and therefore completed before he began serving his sentence on the attempted felonious assault case. However, the record does not reflect the sequence in
{¶22} Appellant also argues that, due to a letter from the APA to appellant releasing him from post-release control effective November 27, 2009, the trial court had no authority to sentence him for his post-release control violation on January 14, 2010. Appellant argues the APA sent this letter due to its determination that the sentence was flawed due the the trial court‘s failure to properly advise appellant concerning post-release control. However, there is nothing in the record showing this was the reason for the APA‘s release of appellant from post-release control. Appellant failed to present any evidence concerning the offense for which he was on post-release control at the time he committed the present offense. Appellant‘s argument that he was on mandatory rather than discretionary post-release control at the time he committed the present offense would be pure speculation in which this court cannot indulge. We are,
{¶23} The issue is resolved by
{¶24} “(A) Upon the *** 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:
{¶25} “(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. *** A prison term imposed for the violation shall be served consecutively to any prison term imposed for the new felony. The imposition of a prison term for the post-release control violation shall terminate the period of post-release control for the earlier felony.
{¶26} “(2) Impose a sanction under sections
{¶27} Thus, under this statute the pivotal consideration is whether appellant was on post-release control at the time he committed the present crime. In State v. Berry III, 5th Dist. No. 06-CAA-10-0079, 2007-Ohio-4242, the Fifth District held:
{¶29} The concurring opinion in Berry III amplified the court‘s holding in that case as follows:
{¶30} “I do not find the date Appellant entered his plea as relevant in determining whether *** a post-release control sanction can be imposed following Appellant‘s commission of a new felony. I find the sole determinate factor is whether Appellant was on post-release control at the time of the commission of the new felony. If so, the sanction may be imposed upon his *** plea of guilty to the new felony, even if the post-release control expired before the conviction, plea or sentencing.” (Emphasis added.) Id. at ¶18.
{¶31} It is undisputed that: (1) appellant was on post-release control at the time he committed the present crime and that (2) the trial court had correctly notified him that he could be placed on post-release control as to his 2007 drug trafficking case for up to three years. Based on the foregoing authority, because the trial court correctly advised appellant concerning post-release control concerning his prior drug trafficking case, his prior sentence was not void. The trial court was thus authorized to sentence appellant for the post-release control violation. It is, therefore, irrelevant that, two months after appellant committed the present crime, the APA released him from post-release control.
{¶33} Appellant provides a general survey of the Supreme Court of Ohio‘s cases regarding the failure of the trial court to advise a defendant concerning post-release control. However, he does not cite any authority suggesting, let alone holding, that a trial court is divested of authority to sentence a defendant for a post-release control violation in the circumstances presented here.
{¶34} We therefore hold that, because the trial court correctly advised appellant concerning post-release control with respect to his prior drug trafficking conviction in both the sentencing hearing and entry, his sentence was not void and the APA had authority to place him on discretionary post-release control upon his release from
{¶35} Appellant‘s first assignment of error is overruled.
{¶36} For his second assignment of error, appellant alleges:
{¶37} “The trial court erred by sentencing the defendant-appellant to the maximum term of imprisonment.”
{¶38} Appellant concedes his sentence was not contrary to law, but instead argues for the first time on appeal that the trial court abused its discretion in imposing the maximum sentence because, he claims, the court did not give “careful and substantial deliberation” to the pertinent seriousness and recidivism factors in
{¶39} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court of Ohio, in striking down parts of Ohio‘s sentencing scheme, held that “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” Id. at paragraph seven of the syllabus.
{¶40} Post-Foster, “appellate courts must apply a two-step approach [in reviewing a felony sentence]. First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. If this first prong is satisfied, we consider, with reference to the general principles of felony sentencing and the seriousness and recidivism factors set forth in
{¶41} In Foster, the Supreme Court of Ohio also held that two statutory sections,
{¶42} It is well-settled that
{¶43} Turning our attention to the instant case, as noted above, appellant concedes on appeal that the trial court‘s sentence was not contrary to law. In so conceding, he also agrees that the court complied with all applicable statutes, including
{¶44} First, he argues the court failed to sufficiently consider appellant‘s stated remorse. However, the court was also presented with evidence of appellant‘s lack of genuine remorse. At the time of appellant‘s arrest when the sheriff‘s deputies attempted to speak to him about what he had done, when referring to the victim, appellant said, “I don‘t care about that kid ***. ”
{¶45} Next, appellant argues the court disregarded appellant‘s acknowledgement of his drug and alcohol addiction and his desire to obtain treatment. However, appellant made these points at the hearing, and there is nothing in the record to indicate the court disregarded them.
{¶46} Finally, appellant argues the court failed to sufficiently consider his version of the crime and that he did not intend to harm the victim. While appellant told the court that Mr. Crittle became loud and came toward him in “sort of a menacing type of
{¶47} While the trial court obviously did not find appellant‘s statements credible, he cannot dispute that the court considered the statutory factors. In Delmanzo, supra, this court held: “A trial court is not required to give any particular weight or emphasis to a given set of circumstances; it is merely required to consider the statutory factors in exercising its discretion.” Id. at ¶23.
{¶48} Moreover, the court weighed the other, pertinent factors under
{¶49} The court also noted appellant‘s lack of response to the court‘s previously-imposed sanctions and the serious physical harm suffered by the victim.
{¶50} As this court stated in Chapdelaine, supra, “It appears the court concluded appellant‘s long history of criminal conduct and his inability to respond favorably to previous sanctions outweighed appellant‘s expressions of remorse. Such a decision is well within the trial court‘s discretion and cannot be considered arbitrary or unreasonable.” Id. at ¶24.
{¶51} Likewise, here, in considering the relevant seriousness and recidivism factors, the court obviously found appellant‘s extensive criminal history and failure to respond to previously-imposed sanctions outweighed his expressions of remorse. We cannot say that in doing so the court abused its discretion.
{¶52} The trial court indicated on the record and in its sentencing entry that it had considered the purposes and principles of felony sentencing in
{¶54} We do not agree with appellant‘s suggestion that the trial court was required to make findings under
{¶55} Appellant‘s second assignment of error is overruled.
{¶56} For the reasons stated in the Opinion of this court, the assignments of error are not well taken. It is the judgment and order of this court that the judgment of the Lake County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
concur.