Court of Appeals of Ohio, Fourth District, Highland
Timothy Young, Ohio Public Defender, and Allen Vender, Ohio
Assistant Public Defender, Columbus, Ohio, for appellant.
P. Collins, Highland County Prosecuting Attorney, Hillsboro,
Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
WILLIAM H. HARSHA, JUDGE
The trial court initially sentenced Nathan L. Murray to
prison followed by a term of post-release control. However
the court did not include notification in its sentencing
entry that a violation of post-release control would result
in a prison sentence to be served consecutively to any prison
sentence Murray received for committing a new crime.
While on post-release control Murray was convicted of a new
felony offense and the court sentenced him to a prison term
for his post-release control violation. The court ordered
that the post-release control sanction be served
consecutively to the prison term for his new conviction.
After he had served the prison term for his new crime, Murray
filed a motion to vacate his judicial-sanction sentence,
which the trial court denied.
On appeal Murray asserts that based on our precedent, the
trial court erred in denying his motion. Nevertheless, as he
concedes in his reply brief, in State v. Mozingo,
2016-Ohio-8292, ___ N.E.3d ___ (4th Dist.) we have recently
overruled the cases he relies upon. Based on
Mozingo, we overrule his assignment of error and
affirm the judgment of the trial court.
In October 2010, in Case No. 10CR0048, the Highland County
Court of Common Pleas sentenced Nathan L. Murray to a prison
term of eight months and a mandatory five-year term of
post-release control on his felony conviction for
importuning. In accordance with R.C. 2929.141(A)(1) the trial
court advised Murray at his sentencing hearing that if he was
convicted of a new felony while under post-release control,
he could be sentenced to serve an additional prison term for
his violation of post-release control, and that term would be
consecutive to his sentence in the new felony case. But the
trial court's sentencing entry only stated that
"[i]f the violation is a new felony, the defendant could
receive a prison term of the greater of one year or the time
remaining on post release control, in addition to any other
prison term imposed for the offense." It did not provide
notice that the new term would be served consecutively to his
sentence for the new felony offense.
After completing his eight-month prison term on March 3,
2011, and while on post-release control, Murray committed a
new felony offense, failure to register a change of address
as a registered sex offender, thus violating the terms of his
supervised release. In September 2011, in Case No. 11 CR 098,
the trial court sentenced Murray to 14 months in prison for
his new offense and additionally imposed a 1, 617-day
judicial-sanction sentence for violating his post-release
control, to be served consecutively to his 14-month sentence.
In May 2016, Murray filed a motion to vacate the
judicial-sanction portion of his sentence. (OP37) He claimed
that his October 2010 sentencing entry was defective because
it did not properly advise him that his judicial-sanction
sentence would be served consecutively to any prison term
imposed for a new felony, in accordance with R.C.
2929.141(A)(1). Following a hearing where it stated its
intent to "challenge the Fourth District, and hopefully
the Supreme Court to take this on and address what I think
was a result that makes no sense, " the trial court
denied the motion. This appeal ensued.
ASSIGNMENT OF ERROR
Murray assigns the following error for our review:
TRIAL COURT ERRED WHEN IT DENIED MR. MURRAY'S MOTION TO
VACATE HIS ...