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State v. Perry

Court of Appeals of Ohio, Fourth District

September 12, 2013

STATE OF OHIO, Plaintiff-Appellee,
BLAINE PERRY, Defendant-Appellant.

Robert W. Bright, Middleport, Ohio, for Appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.


Marie Hoover, Judge.

(¶ 1} Blaine Perry (hereinafter "appellant") appeals from the Athens County Common Pleas Court judgment revoking judicial release and ordering him to serve the remainder of his original prison term on a conviction of escape. Appellant relies on State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, and contends that the trial court was prohibited from reimposing the original one-year prison sentence because the court did not specifically state the prison term that he would be subject to upon a violation of community control when it previously granted him judicial release.

(¶ 2} Because appellant herein was not originally sentenced to community control, but was only placed on community control after the trial court granted his motion for judicial release, Brooks is inapplicable. Rather, R.C. 2929.20 governs the revocation of judicial release. Under R.C. 2929.20, a trial court may reserve the right to reimpose the original sentence upon an offender who violates the terms and conditions of community control following judicial release. In the case sub judice, the trial court properly reserved such right; and thus, appellant's sole assignment of error is without merit. The judgment of the trial court is affirmed.

(¶ 3} Appellant was convicted of third degree felony escape, in violation of R.C. 2921.34, after he jumped the fence at the SEPTA Correctional Facility. Appellant had been serving a sentence at SEPTA for a previous felony conviction out of Fairfield County. Appellant was subsequently sentenced to one year in prison. Because appellant had approximately 60 days left to serve at SEPTA at the time of his escape, the trial court judge indicated at the sentencing hearing that he would look favorably upon judicial release after appellant served 60 days.

(¶ 4} The appellant filed a motion for judicial release after serving 50 days in prison, requesting a hearing on the motion as soon as he reached 60 days of incarceration. The State filed a response opposing judicial release. A hearing was held; and shortly thereafter the motion was granted. As part of the conditions of judicial release, appellant's prison term sentence was suspended; and he was placed on community control sanctions for a period of up to five years.

(¶ 5} While on judicial release, the State filed several notices of violation of community control alleging that appellant had been charged with domestic violence, convicted of aggravated menacing in violation of R.C. 2903.21, and convicted of burglary in violation of R.C. 2911.12. At the hearing on the matter, appellant stipulated to a violation of his community control; and he was ordered to serve the balance of his previously suspended one-year term of imprisonment.

(¶ 6} It is from this judgment which appellant now appeals, raising the following assignment of error for our review:


(¶ 7} Appellant argues that the trial court was not permitted to reimpose the balance of his prison sentence upon the revocation of judicial release because at the judicial release hearing, the trial court did not notify him of the specific prison term that could be imposed if he violated the community control sanctions. Appellant relies on Brooks, supra, and its progeny, in support of his argument.

(¶ 8} In Brooks, the Supreme Court of Ohio addressed the statutory notice requirements under R.C. 2929.19(B)(5) and R.C. 2929.15. After Brooks was released, R.C. 2929.19 was amended without any relevant substantive changes, and R.C. 2929.19(B)(5) was moved to R.C. 2929.19(B)(4). State v. Marshall, 6th Dist. Erie No. E-12-022, 2013-Ohio-1481, ¶ 9.

(¶ 9} R.C. 2929.19(B)(4) states, in pertinent part, that when imposing a community control sanction, the trial court "shall notify the offender that, if the conditions of the sanction are violated, if the offender commits a violation of any law, or if the offender leaves this state without the permission of the court or the offender's probation officer, the court may impose a longer time under the same sanction, may impose a more restrictive sanction, or may impose a prison term on the offender and shall indicate the specific prison term that may be imposed as a sanction for the violation[.]"

(ΒΆ 10} R.C. 2929.15, which details the procedures for a trial court to follow when an offender has violated the conditions of community control, provides in relevant part that if an offender violates the conditions of his community control and the court chooses to impose a prison term, such "shall not exceed the prison term specified in the ...

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