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State v. Bryan

Court of Appeals of Ohio, Fifth District, Muskingum

July 22, 2019

STATE OF OHIO Plaintiff-Appellee
v.
KEVIN J. BRYAN Defendant-Appellant

          CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2018-0318 JU

          For Plaintiff-Appellee NO APPEARANCE

          For Defendant-Appellant JAMES A. ANZELMO ANZELMO LAW

          JUDGES: Hon. John W. Wise, P. J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          WISE, JOHN, P. J.

         {¶1} Appellant Kevin Bryan appeals his conviction on two weapons counts in the Court of Common Pleas, Muskingum County. Appellee is the State of Ohio. The relevant procedural facts leading to this appeal are as follows.

         {¶2} On or about December 14, 2017, appellant's parole officer asked the Muskingum County Sheriffs Office to check into appellant's failure to maintain contact with the Adult Parole Authority. Sheriff deputies went to an address in Zanesville, Ohio, and spoke with appellant's girlfriend. They subsequently discovered a .22 caliber handgun on the premises, which appellant ultimately admitted was his. See Plea Hearing Tr. at 10-11.

         {¶3} On May 23, 2018, appellant was indicted on one count of having a weapon while under a disability (R.C. 2923.13(A)(3)), a third-degree felony, and possession of a defaced weapon (R.C. 2923.201(A)(2)), a first-degree misdemeanor.

         {¶4} On August 10, 2018, appellant appeared with counsel before the court for a plea hearing. The defense and prosecution jointly recommended a two-year prison sentence and forfeiture of the handgun. See Plea Hearing Tr. at 3. Appellant entered pleas of guilty to both charges.

         {¶5} A sentencing hearing was conducted on August 13, 2018. Via a judgment entry issued on August 14, 2018, appellant was sentenced to two years in prison on Count I, and six months of local incarceration on Count II, to be served concurrently.

         {¶6} In addition, the court concluded that appellant had violated the post-release control that he had been serving under Muskingum County case number CR2012-0053. The court therefore terminated that post-release control and ordered appellant to consecutively serve in prison the remaining post-release control time, which the court had calculated at the sentencing hearing to be 1, 124 days. See Sentencing Tr. at 8. However, the sentencing entry did not restate the 1, 124 figure or state a specific amount of prison time for the post-release control violation from CR2012-0053. See Judgment Entry, Aug. 14, 2018, at 1-2. The entry merely stated that the court "imposes the remainder of time left on Post Release Control be served in prison." Id. at 2.

         {¶7} The court also ordered appellant to pay court costs. Judgment Entry, Aug. 14, 2018, at 2. When the court costs ruling was announced on the record (Sentencing Tr. at 8), appellant's trial counsel did not object even though appellant had received appointed counsel on June 11, 2018 due to his indigence.

         {¶8} On September 7, 2018, appellant filed a notice of appeal. He herein raises the following two Assignments of Error:

         {¶9} "I. THE TRIAL COURT ERRED WHEN IT SENTENCED BRYAN, IN VIOLATION OF HER [SIC] DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ...


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