[Cite as State v. Boyd, 2018-Ohio-4790.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :       JUDGES:
                                           :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                 :       Hon. Patricia A. Delane, J.
                                           :       Hon. Earle E. Wise, Jr., J.
-vs-                                       :
                                           :
JACKIE L. BOYD                             :       Case No. 2018 AP 05 0023
                                           :
        Defendant-Appellant                :       OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Case No. 2017 CR 08 0197




JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  November 29, 2018




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

AMANDA K. MILLER                                   DONOVAN HILL
Assistant Prosecuting Attorney                     116 Cleveland Avenue North
125 East High Street                               Canton, OH 44702
New Philadelphia, OH 44663
Tuscarawas County, Case No. 2018 AP 05 0023                                                2


Wise, Earle, J.

       {¶ 1} Defendant-Appellant Jackie L. Boyd appeals the May 18, 2018 judgment of

conviction and sentence of the Court of Common Pleas Tuscarawas County, Ohio.

Plaintiff-Appellee is the state of Ohio.

                                     Procedural History

       {¶ 2} A recitation of the underlying facts is not necessary to our resolution of this

matter.

       {¶ 3} On September 29, 2017, the Tuscarawas County Grand Jury returned an

indictment charging appellant with one count of theft in violation of R.C. 2913.02(A)(1)

and (B)(2), a felony of the fifth degree, and one count of breaking and entering in violation

of R.C. 2911.13(A) and (C), also a felony of the fifth degree. In October, 2017, appellant

entered pleas of not guilty to the charges. The matter was set for trial on May 1, 2018.

       {¶ 4} In April, 2018, the state amended the indictment, dismissing count two of

the indictment, breaking and entering. On the day of trial, appellant elected to plead guilty

to the remaining charge of theft, waive a presentence investigation, and proceed directly

to sentencing.

       {¶ 5} During sentencing, the trial court noted appellant's lengthy criminal history,

eight prior prison commitments during which he failed to comply with prison rules, the fact

that he never reported to his parole officer following his last prison commitment, and the

fact that he committed not only this offense while on post-release control, but also

additional offenses in Muskingum County. After making the appropriate findings, the trial

court sentenced appellant to 12 months incarceration and imposed the balance of

appellant's post-release control (PRC) time– 852 days – to be served consecutively.
Tuscarawas County, Case No. 2018 AP 05 0023                                              3


      {¶ 6} Appellant now brings this appeal raising one assignment of error:

                                                I

      {¶ 7} "APPELLANT'S SENTENCE WAS CONTRARY TO LAW."

      {¶ 8} In his sole assignment of error, appellant argues his sentence is contrary to

law because the trial court improperly imposed consecutive sentences disproportionate

to his conduct against the dictates of to R.C 2929.14(C)(4). We note, that R.C.

2929.14(C)(4) is inapplicable here as this matter does not involve consecutive sentences

imposed for the instant charges. Appellant pled to and was sentenced on only one count

of the indictment. Appellant's argument, rather, involves the imposition of the additional

consecutive 852 days imposed by the trial court for appellant's violation of his post-PRC

which appellant argues is excessive for stealing cigarettes. We disagree.

      {¶ 9} R.C. 2929.141 grants trial courts discretion to further punish defendants

who commit new felonies while on post-release control, and provides, in relevant part:



             (A) Upon the conviction of or plea of guilty to a felony by a person on

             post-release control at the time of the commission of the felony, the

             court may terminate the term of post-release control, and the court

             may do either of the following regardless of whether the sentencing

             court or another court of this state imposed the original prison term

             for which the person is on post-release control:

             (1) In addition to any prison term for the new felony, impose a prison

             term for the post-release control violation. The maximum prison term

             for the violation shall be the greater of twelve months or the period
Tuscarawas County, Case No. 2018 AP 05 0023                                                4


             of post-release control for the earlier felony minus any time the

             person has spent under post-release control for the earlier felony. In

             all cases, any prison term imposed for the violation shall be reduced

             by any prison term that is administratively imposed by the parole

             board as a post-release control sanction. A prison term imposed for

             the violation shall be served consecutively to any prison term

             imposed for the new felony. The imposition of a prison term for the

             post-release control violation shall terminate the period of post-

             release control for the earlier felony.



      {¶ 10} Thus while the trial court has discretion as to whether to impose the balance

of a term of PRC, it has no discretion as to how it shall be served, and must impose

remaining PRC time consecutive to time imposed on a new felony.

      {¶ 11} Appellant does not raise any irregularity in his plea, the trial court's finding

of guilt, his underlying 12-month sentence for theft, the calculation of his remaining time

on PRC or the authority of the trial court to revoke his PRC. Nor does he raise any

irregularity in the matter which resulted in his placement on PRC. Rather, he argues his

aggregate sentence is disproportionate to his crime.

      {¶ 12} As the state points out, however, appellant's time remaining on PRC

is part of a previous sentence on a different matter. According to the record, the

trial court exercised its discretion and imposed appellant's remaining PRC time

due to his commission of a new crime in the instant matter as well as in Muskingum

County while on PRC, his atrocious prior record, and his failure to respond
Tuscarawas County, Case No. 2018 AP 05 0023                                              5


favorably to eight previously imposed prison terms. Transcript of sentencing 8-9.

Based on the foregoing, we find no abuse of discretion in the trial court's imposition

of appellant's PRC time, to be served consecutively to the 12 months imposed for

his new felony offense.

       {¶ 13} The sole assignment of error is overruled.

       {¶ 14} The judgment of the Court of Common Pleas, Tuscarawas County,

Ohio is affirmed.


By Wise, Earle, J.

Gwin, P.J. and

Delaney, J. concur.




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