State v. Smith , 2012 Ohio 2728 ( 2012 )

[Cite as State v. Smith, 2012-Ohio-2728.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110668
TRIAL NO. B-1103240
Plaintiff-Appellant, :
vs. : O P I N I O N.
JULIUS SMITH, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 20, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Bruce K. Hust, for Defendant-Appellee.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} In May 2011, the grand jury returned an indictment charging
defendant-appellant Julius Smith with one count of robbery and one count of
trafficking in cocaine. According to the bill of particulars,
[O]n or about May 17, 2011, during a telephone
conversation the defendant offered to sell crack cocaine to
another individual for U.S. currency in the amount of
$20.00. The defendant agreed to meet individual [sic] at
BP Gas Station at Harrison and Queen City Avenue. On
the above listed date at approximately 2137 hours the
defendant handed the individual an empty piece of tissue
paper. The defendant and individual continued to walk to
1520 Queen City Avenue where the defendant went
towards his waist and threatened to shoot the individual
and demanded the individual’s property. The defendant
stole the individual’s cell phone and $20.00.
{¶2} Pursuant to a plea agreement with the state, Smith pleaded guilty to the
robbery count, and the trafficking count was dismissed. The trial court sentenced
Smith to a prison term of two years, and informed him at the sentencing hearing that
following his release from prison, he would be subject to three years of postrelease
control. See R.C. 2929.19(B)(2)(c) and 2967.28. The court further advised Smith that
should he violate that supervision, the parole board could impose a prison term of up to
one-half of the stated prison term originally imposed upon him. See R.C.
2929.19(B)(2)(e). This appeal followed.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} In his single assignment of error, Smith argues that his sentence was
contrary to law because the trial court failed to advise him at the sentencing hearing
that the parole board could impose a prison term should he commit a new felony while
on postrelease control. Whether a sentencing court must so specifically advise an
offender is an issue of first impression in this appellate district.
{¶4} “Where the sentencing court fails to advise an offender about
postrelease control at the sentencing hearing, the court has violated a ‘statutory duty’
and ‘any sentence imposed without such notification is contrary to law’ and void.”
State v. Williams, 1st Dist. No. C-081148, 2010-Ohio-1879, ¶ 20, quoting State v.
Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23. But see State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26 (holding that where
a judge fails to impose statutorily mandated postrelease control as part of the
defendant’s sentence, only that part of the sentence is void).
{¶5} R.C. 2929.19(B)(2) requires sentencing courts to notify an offender
about several aspects of postrelease control, including that “if a period of supervision is
imposed following the offender’s release from prison * * * and if the offender violates
that supervision * * * the parole board may impose a prison term, as part of the
sentence, of up to one-half of the stated prison term originally imposed on the
offender.” R.C. 2929.19(B)(2)(e). The statute does not, however, require a sentencing
court to advise an offender about the particular consequences of committing a new
felony while on postrelease control. Nor has Smith directed our attention to any other
statute or holding that requires a defendant to be so advised. We, therefore, cannot say
that the lack of such a notification renders a sentence contrary to law. Accord State v.
Susany, 7th Dist. No. 07-MA-7, 2008-Ohio-1543, ¶ 95. See also State v. Black, 7th
Dist. No. 09-CO-15, 2010-Ohio-2701, ¶ 29.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} The single assignment of error is overruled, and the judgment of the
trial court is affirmed.
Judgment affirmed.
H ILDEBRANDT , P.J., and C UNNINGHAM , J., concur.
Please note:
The court has recorded its own entry this date.
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