[Cite as State v. Wells, 2015-Ohio-39.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :       JUDGES:
                                              :
                                              :       Hon. John W. Wise, P.J.
        Plaintiff - Appellee                  :       Hon. Patricia A. Delaney, J.
                                              :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :
SHAWN S. WELLS                                :       Case No. 14-CA-36
                                              :
                                              :
        Defendant - Appellant                 :       OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Licking County
                                                      Court of Common Pleas, Case No.
                                                      14 CR 00061



JUDGMENT:                                             Reversed and Remanded



DATE OF JUDGMENT:                                     January 7, 2015



APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

KENNETH W. OSWALT                                     WILLIAM T. CRAMER
Licking County Prosecutor                             470 Olde Worthington Road, Suite 200
                                                      Westerville, OH 43082
By: JUSTIN T. RADIC
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, OH 43055
Licking County, Case No. 14-CA-36                                                     2




Baldwin, J.

      {¶1}    Appellant Shawn S. Wells appeals a judgment of the Licking County

Common Pleas Court sentencing him to an aggregate term of incarceration of 20 years

and nine months upon a plea of guilty to kidnapping (R.C. 2905.01(A)(4)) and failure of

a sex offender to provide notice of change of address (R.C. 2950.05(B)). Appellee is

the State of Ohio.

                            STATEMENT OF FACTS AND CASE

      {¶2}    On January 27, 2014, appellant went to a model home located in

Pataskala, Ohio, where the victim was working as a sales representative. Appellant

pretended to be interested in purchasing a home, and made multiple attempts to lure

the victim into remote areas of the home. The victim was suspicious of appellant’s

behavior, and would not accompany him to those areas of the home. The victim briefly

turned her back on appellant, and he put her in a headlock and pulled her to the ground.

He attempted to pull her shirt down and pulled her hair. She briefly got away from

appellant, but he grabbed her leg in an attempt to pull her back to him. She got away

and fled to another house in the neighborhood.

      {¶3}    Appellant was on post-release control at the time of the offense. Further,

he was required to register as a sex offender due to a prior rape conviction. Appellant

was charged by indictment with two counts of kidnapping, attempted rape, abduction,

and failure of a sex offender to provide notice of a change of address.       Appellant

entered a guilty plea to one count of kidnapping and failure to provide notice of change

of address. On April 28, 2014, the court sentenced appellant to nine years on each
Licking County, Case No. 14-CA-36                                                      3


count, to be served consecutively. The court also sentenced appellant to 33 months

remaining on his post-release control time as of the date of the offense, also to be

served consecutively, for an aggregate term of 20 years and nine months incarceration.

       {¶4}   Appellant assigns a single error to the sentence:

       {¶5}   “THE TRIAL COURT VIOLATED DUE PROCESS AND R.C. 2929.141 BY

CALCULATING THE MAXIMUM SANCTION FOR A POST-RELEASE CONTROL

VIOLATION BASED ON THE DATE OF THE NEW OFFENSE RATHER THAN THE

DATE OF THE CONVICTION FOR THE NEW OFFENSE.”

       {¶6}   R.C. 2929.141(A)(1) allows a sentencing court to impose an additional

sentence for violation of post-release control:

                     (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 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
Licking County, Case No. 14-CA-36                                                          4


              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.

       {¶7}   In State v. Harris, 1st Dist. Hamilton No. C-130442, 2014-Ohio-4237, the

Court of Appeals for the First District addressed the same issue raised by the instant

case. The court held that the post-release control for the earlier felony did not terminate

until the trial court imposed a prison term for the post-release control violation, and the

trial court therefore should have credited Harris for the entire amount of time he spent

on post-release control for the earlier felony, rather than limiting his credit to the amount

of time he spent on post-release control before committing the new felony. Id. at ¶40.

       {¶8}   We agree with the reasoning of the First District in the Harris case. In the

instant case, appellant remained on post-release control while awaiting sentencing for

the violation of post-release control; therefore, the time remaining on his post-release

control sanction should have been calculated from the date of sentencing, April 28,

2014, rather than from the date of the offense, January 27, 2014.
Licking County, Case No. 14-CA-36                                                  5


      {¶9}   The assignment of error is sustained. The judgment of the Licking County

Common Pleas Court is reversed, and this cause is remanded to that court for

resentencing in accordance with this opinion. Costs are assessed to appellee.

By: Baldwin, J.

Wise, P.J. and

Delaney, J. concur.
