Court of Appeals of Ohio, Fifth District, Muskingum
from the Muskingum County Court of Common Pleas, Case No.
Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney
GERALD V. ANDERSON II Assistant Prosecuting Attorney
Muskingum County, Ohio
Defendant-Appellant ERIC J. ALLEN The Law Office of Eric J.
JUDGES: Hon. John W. Wise, P.J. Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
Appellant, Jerome A. Johnson, appeals the Muskingum County
Court of Common Pleas Entry of September 15, 2017,
specifically that portion of the Entry that imposed a
sentence for violation of the terms of appellant's post
release control. Appellee is the State of Ohio.
AND PROCEDURAL POSTURE
Appellant was the subject of a controlled buy of cocaine on 5
separate occasions in September 2016. Appellant was arrested
on January 5, 2017 at the Adult Parole Authority Office in
Muskingum County, but he escaped. The grand jury later
indicted him on eleven counts of drug related offenses and a
warrant was issued for his arrest on April 13, 2017. He was
apprehended, arrested and incarcerated on April 21, 2017. He
initially entered plea of not guilty on April 28, 2017 and a
trial was scheduled for July 18, 2017. On June 28, 2017,
appellant entered a plea of guilty and the plea was accepted
on June 29, 2017. Pursuant to plea negotiations, Count I of
the complaint was dismissed.
The trial court conducted a sentencing hearing on August 14,
2017 and a sentencing entry was filed September 6, 2017. A
sentencing entry nunc pro tunc was filed September 15, 2017
imposing a sentence of 23 years for all charges but
correcting the mandatory incarceration time to sixteen years.
During the sentencing hearing the trial court noted that
appellant was on post-release control arising out of a charge
of trafficking in cocaine, a felony of the second degree, and
tampering with evidence, a felony of the third degree, from
January 2012 and that appellant was still subject to post
release control for those convictions. The trial court
notified the appellant that "The Court also has -- the
post-release control you're on currently has not been
dealt with. The Court is going to order that that
post-release control be terminated and the time you have left
on that be imposed, which by law must be served consecutive
to the time you are currently serving."(Sentencing
Hearing Transcript, p. 12, lines 22-25 to p. 13, lines 1-3).
The trial court included the following in its sentencing
The Court further finds that the Defendant was on post
release control at the time of the commission of the offenses
herein in Case No. CR2011-0198. Pursuant to ORC
§2929.141, this Court terminates the Defendant's
period of post release control and hereby ORDERS (sic) that
the Defendant serve the remainder of his post release
control; said sentence shall be served mandatory
consecutive (sic) to the sentence imposed herein.
Sentencing Entry, Sept 15, 2017, p. 3 (Emphasis in original).
Appellant filed a notice of appeal and submits one assignment
THE TRIAL COURT ERRED WHEN IT FAILED TO NOTIFY THE APPELLANT
AT SENTENCING THE AMOUNT OF TIME HE WOULD BE REQUIRED TO