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State v. Johnson

Court of Appeals of Ohio, Fifth District, Muskingum

June 18, 2018

STATE OF OHIO Plaintiff - Appellee
v.
JEROME A. JOHNSON Defendant-Appellant

          Appeal from the Muskingum County Court of Common Pleas, Case No. CR2017-0149

          For Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney GERALD V. ANDERSON II Assistant Prosecuting Attorney Muskingum County, Ohio

          For Defendant-Appellant ERIC J. ALLEN The Law Office of Eric J. Allen, Ltd.

          JUDGES: Hon. John W. Wise, P.J. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.

          OPINION

          BALDWIN, JUDGE

         {¶1} 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.

         FACTS AND PROCEDURAL POSTURE

         {¶2} 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.

         {¶3} 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).

         {¶4} The trial court included the following in its sentencing entry:

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).

         {¶5} Appellant filed a notice of appeal and submits one assignment of error:

         {¶6} THE TRIAL COURT ERRED WHEN IT FAILED TO NOTIFY THE APPELLANT AT SENTENCING THE AMOUNT OF TIME HE WOULD BE REQUIRED TO SERVE ...


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