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State v. Frost

Court of Appeals of Ohio, Eighth District

July 3, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TERRY FROST DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-527425, CR-529266

ATTORNEY FOR APPELLANT Thomas A. Rein Leader Building, Suite

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor, T. Allan Regas Assistant County Prosecutor.

BEFORE: McCormack, J., Celebrezze, P.J., and Kilbane, J.

JOURNAL ENTRY AND OPINION

TIM McCORMACK, JUDGE.

{¶ 1} Defendant-appellant, Terry Frost ("Frost"), appeals his sentence in the consolidated Cuyahoga C.P. Nos. CR-527425 and CR-529266, in which the trial court sentenced Frost to two 18-month sentences to be served consecutively, in addition to two 10-month sentences to be served concurrently. Finding merit to the appeal, we affirm in part and reverse in part.

Substantive Facts and Procedural History

{¶ 2} On August 19, 2009, Frost was indicted on two counts of kidnapping with sexual motivation specifications, two counts of gross sexual imposition, and one count of attempted rape in Cuyahoga C.P. No. CR-527425. On October 14, 2009, Frost was indicted on two counts of theft in Cuyahoga C.P. No. CR-529266.

{¶ 3} On March 4, 2010, pursuant to a plea bargain agreement, Frost pleaded guilty in CR-527425 to attempted abduction as amended in Counts 1 and 3 of the indictment and gross sexual imposition in Counts 2 and 4 of the indictment. The state dismissed the remaining Count 5 of attempted rape. In CR-529266, Frost pleaded guilty to two counts of theft.

{¶ 4} During the plea hearing, the trial court explained the potential sentences to Frost for the offenses to which he pleaded guilty:

[For] the theft offenses, you could get a prison sentence of 6 months, 7 months all the way to 12 months in Lorain Correctional * * * [on] the attempted abduction and the gross sexual imposition your prison stint is 6 months, 7 months all the way up to 18 months in Lorain Correctional.

The court also explained the supervision of the parole board:

Post-release control is a part of the sentence. It's mandatory 5 years supervision by the Parole Board because of the gross sexual imposition charges in [Case No. CR-527425], so for the attempted abduction it's an optional post-release control up to 3 years. Same for the theft offenses in the other case.
But for the two GSI's it's a mandatory 5-year supervision by the Parole Board, which means that across these two cases if you were sent to prison on all the charges in both cases, that 5-year mandatory supervision would trump everything else. So that's what you would be left with is mandatory supervision by the Parole Board for a 5-year period.

The court continued to explain to Frost what would happen should he not follow the mandates of the parole board:

During the Parole Board supervision you have to do what they say. If you don't, they could extend supervision in time, change terms and conditions or return you to prison. * * * Your return to prison time is up to one-half the original sentence. So if you got sent to prison for 6 months then you'd have a five-year supervision, but your return to prison time would be limited to up to one-half of the 6 months.

{¶ 5} At this time, the trial court advised Frost that community control is a permissible sentence for his crimes, as well as possible fines and restitution to the victims in the theft case. Frost then entered his plea of guilty to the charges as amended in the plea bargain agreement.

{¶ 6} Following Frost's plea, on April 5, 2010, the trial court ordered a presentence investigation and report and continued the sentencing to May 3, 2010. At the sentencing hearing, the court advised Frost that it reviewed the presentence report. The court also advised Frost that due to the gross sexual imposition, he is a Tier I sex offender and is required to register annually his address with the sheriff's department.

{¶ 7} Prior to sentencing Frost, the trial court reviewed Frost's extensive criminal record for theft, distribution of cocaine, carrying concealed weapons, receiving stolen property, and assault. The court also noted that Frost violated a prior supervised release, he has a substance abuse problem, and he is a high-risk offender according to the Ohio Offender Risk Assessment, stating that "despite your age and your health and your circumstances, you have continued to be arrested and be charged in the criminal justice system with serious offenses." The trial court then addressed the recidivism factors and the seriousness factors:

When we look at recidivism factors, we look at the long criminal record and the fact that he has violated supervision in the past as being two of several factors we could list which would indicated he's gonna' commit crime in the future. There are no factors indicating he won't.
His relationship with his victim in the sex offense case facilitated the offense since he was given access to this child by her mother. That, and the fact the victim was only 14 years of age, gives us in that case number two seriousness factors which are pertinent. There's certainly no factors making it less serious.

{¶ 8} Thereafter, the trial court sentenced Frost to community control for three years in each case, along with the requirement that he "report to the Probation Department as they order you to report for these two cases." The court further advised Frost that he must abide by the law and he is prohibited from involving himself in any automobile transaction excepting his own, as "a condition of supervision and staying out of prison." As a further condition of "basic supervision, " the court ordered Frost to abstain from alcohol, and it prohibited him from entering the victim's neighborhood. In concluding the hearing, the trial court stated:

If you violate the terms of my supervision in the 527 case number, then your sentence would be six years in the Lorain Correctional Institution, and it would be a concurrent term of two years in the 529266 case number.
You're gonna have to pay supervision fees of $200 and court costs and, of course, the restitution of $250 through the Probation Department * * *.

{ΒΆ 9} After Frost's initial sentencing, Frost was found to be in violation of his community control on three separate occasions. On March 22, 2011, Frost tested positive for cocaine. The trial court ...


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