STATE OF OHIO v. HARRY H. KROUSKOUPF, III
Case No. CT2019-0066
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 20, 2020
[Cite as State v. Krouskoupf, 2020-Ohio-1220.]
Hon. W. Scott Gwin, P.J. Hon. Craig R Baldwin, J. Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2018-0007 JUDGMENT: Affirmed
For Plaintiff-Appellee
D. MICHAEL HADDOX
Prosecuting Attorney
Muskingum County, Ohio
By: TAYLOR P. BENNINGTON
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
For Defendant-Appellant
TODD W. BARSTOW
538 South Yearling Road Suite 202
Columbus, Ohio 43213
{¶1} Defendant-appellant Harry H. Krouskoupf III appeals his conviction and sentence from the Muskingum County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 3, 2018, appellant was indicted on one count of theft, a felony of the fifth degree, in violation of
{¶3} Thereafter, on February 26, 2018, appellant entered a plea of guilty to theft, a felony of the fifth degree, and two counts of robbery, felonies of the second degree, with a repeat violent offender specification. The remaining counts and firearm specifications were dismissed Pursuant to an Entry filed on March 13, 2018, appellant was sentenced to an aggregate sentence of thirteen (13) years in prison. The trial court also found that appellant had violated the terms of his post-release control and, at the sentencing hearing, terminated appellant‘s post-release control and ordered him to a prison term equal to the time remaining on that sanction. (Sent. Hearing, Mar. 12, 2018 at 8-9). The court ordered appellant to serve that sentence consecutive to the thirteen-year prison sentence. (Id.)
{¶5} The trial court, as memorialized in an Entry filed on April 12, 2019, ordered that appellant‘s previously entered guilty plea was vacated.
{¶6} Thereafter, on July 19, 2019, appellant withdrew his former not guilty plea and entered a plea of guilty to the amended count of robbery in violation of
{¶8} Appellant now raises the following assignment of error on appeal:
{¶9} “I. APPELLANT DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTER HIS PLEAS OF GUILTY, IN VIOLATION OF HIS RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION.”
I
{¶10} Appellant, in his sole assignment of error, argues that his plea was not knowing, intelligent and voluntary because the trial court failed to advise him of the maximum penalty for the prison term that it imposed for his post release control violation. Appellant contends that the trial court was obligated to notify him of the time he would be required to serve as a result of the violation of the terms of post release control.
{¶11}
{¶12} (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:
{¶13} (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
{¶14} Only the trial court itself may make the decision to sentence for a post release control violation. State v. Branham, 2nd Dist. Clark No. 2013-CA-49, 2014-Ohio-5067. Once the court decides to impose a sentence for such a violation, it is bound by
{¶15} While the statute gives the court discretion to decide whether or not to sentence for a post-release control violation, once the court has decided to impose a sentence, that sentence is determined by statute. The trial court specifically stated on the record that it was terminating appellant‘s post-release control and that it would impose the time that appellant “had left on it“, which would be the remainder of his post-release control. Transcript at 4. That specific sentence is calculable to a certainty from information within the possession of the Adult Parole Authority, while such information may not be readily available to the sentencing court. Therefore, we find no error in the trial court‘s failure to advise appellant of the exact sentence and include the exact sentence in the sentencing entry, as the sentence may be administratively determined by the Adult Parole Authority as set forth by
{¶16} We find, therefore, that the trial court properly advised appellant of the penalty for the post release control violation and that his plea was knowing, intelligence and voluntary.
{¶17} Appellant‘s sole assignment of error is, therefore, overruled.
{¶18} Accordingly, the judgment of the Muskingum County Court of Common Pleas is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, John, J. concur.