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State v. Harper

Court of Appeals of Ohio, Tenth District

June 28, 2018

State of Ohio, Plaintiff-Appellee,
v.
Andre D. Harper, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 12CR-1841

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

          Yeura R. Venters, Public Defender, and George M. Schumann, for appellant.

         Argued:

          Seth L. Gilbert.

          George M. Schumann.

          DECISION

          BRUNNER, J.

         {¶ 1} Defendant-appellant, Andre D. Harper, appeals a decision of the Franklin County Court of Common Pleas entered on September 29, 2017 denying his motion for the trial court to consider void his previously imposed post-release control term and to order his immediate release. Because the judgment entry in Harper's case insufficiently notified him of consequences he could face if he violates conditions of post-release control on his release from prison, we remand the decision to the trial court for it to correct its entry nunc pro tunc in accordance with R.C. 2929.19(B)(2)(e) and State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, ¶ 1.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} On April 12, 2012, a Franklin County Grand Jury indicted Harper for two counts of robbery, felonies of the second and third degree respectively. (Apr. 12, 2012 Indictment.) Harper was charged for attempting to steal approximately $1, 800 worth of merchandise from Macy's. (Feb. 13, 2013 Sentencing & Plea Tr. at 4-5, filed Dec. 1, 2017.) Loss prevention officers at Macy's apparently apprehended him during his attempt but, in the course of being apprehended, Harper bit one male officer on the shoulder and bit a female office once on the hand and twice on the face. Id. Harper initially pled "not guilty." (Apr. 16, 2012 Plea Form.)

         {¶ 3} After a number of pre-trial proceedings, including one at which Harper failed to appear and was subsequently arrested on a capias order, he agreed to plead guilty to a third-degree felony robbery charge with a recommended sentence of three years in exchange for dismissal of the second-degree robbery charge and time served on his failure to appear case. (Nov. 2, 2012 Capias; Nov. 19, 2012 Capias Return; Feb. 15, 2013 Plea Form.) The trial court held a combined plea and sentencing hearing on February 13, 2013. At this hearing, the trial court heard testimony that was not transcribed until after the trial court issued its decision now under review and for which we declined to allow Harper to supplement the appellate record with the hearing transcript. (Sentencing & Plea Tr. at 12-14; Dec. 27, 2017 Entry Denying Supplement.) We thus presume the regularity of proceedings and that Harper was appropriately orally notified of post-release control.[1] State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs., 127 Ohio St.3d 202, 2010-Ohio- 5073, ¶ 14; Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).

         {¶ 4} In addition to receiving presumptive oral notification, Harper signed a notice that reads as follows:

After you are released from prison you (will} may have a period of post-release control for 3 years following your release from prison. If you violate post-release control sanctions imposed upon you, any one or more of the following may result:
(1) The Parole Board may impose a more restrictive postrelease control sanction upon you; and
(2) The Parole Board may increase the duration of the postrelease control subject to a specified maximum; and
(3) The more restrictive sanction that the Parole Board may impose may consist of a prison term, provided that the prison term cannot exceed nine months and the maximum cumulative prison term so imposed for all violations during the period of post-release control cannot exceed one-half of the stated prison term originally imposed upon you; and
(4) If the violation of the sanction is a felony, you may be prosecuted for the felony and, in addition to any sentence it imposes on you for the new felony, the Court may impose a prison term, subject to a specified maximum, for the violation.

(Feb. 15, 2013 Notice.) Harper also signed a plea form that he would be subject to three years of mandatory post-release control:

I understand that a violation of post-release control conditions or the condition under R.C. 2967.131 could result in more restrictive non-prison sanctions, a longer period of supervision or control up to a specified maximum, and/or reimprisonment for up to nine months. The prison term(s) for all post-release control violations may not exceed one-half of the prison term originally imposed. I understand that I may be prosecuted, convicted, and sentenced to an additional prison term for a violation that is a felony. I also understand that such felony violation may result in a consecutive prison term of twelve months or the maximum period of unserved post-release ...

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