[Cite as State v. Montgomery, 2017-Ohio-4397.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    :   JUDGES:
                                                 :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       :   Hon. John W. Wise, J.
                                                 :   Hon. Earle E. Wise, Jr., J.
-vs-                                             :
                                                 :
THEODIS MONTGOMERY, JR.                          :   Case No. 2017CA00035
                                                 :
        Defendant-Appellant                      :   OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2010CR0295




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 19, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      THEODIS MONTGOMERY, JR., Pro Se
Prosecuting Attorney                                 3021 Neal Court, NW
By: KRISTINE BEARD                                   Canton, OH 44709
Assistant Prosecuting Attorney
110 Central Plaza South - Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2017CA00035                                                      2

Wise, Earle, J.

      {¶ 1} Plaintiff-Appellant, Theodis Montgomery, Jr., appeals the January 25,

2017 judgment entry of the Court of Common Pleas of Stark County, Ohio, denying his

motion to vacate post-release control. Defendant-Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

      {¶ 2} On July 28, 2010, appellant pled guilty to one count of kidnapping in

violation of R.C. 2905.01, one count of domestic violence in violation of R.C. 2919.25,

and one count of violating a protection order in violation of R.C. 2919.27. By judgment

entry filed August 3, 2010, the trial court sentenced appellant to an aggregate term of

four years in prison and imposed post-release control.

      {¶ 3} On December 29, 2016, appellant filed a motion to vacate post-release

control. By judgment entry filed January 25, 2017, the trial court denied the motion.

      {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶ 5} "APPELLANT CONTENDS THE TRIAL COURT COMMITTED ERROR

BY IMPROPERLY NOTIFYING HIM OF SAID PRC SANCTIONS, SPECIFICALLY

'FAILING TO NOTIFY A DEFENDANT OF THE CONSECUTIVE PRISON TERM HE

COULD FACE IF HE WOULD COMMIT ANOTHER FELONY WHILE BEING ON PRC.'

THUS RENDERING HIS PRC SANCTION VOID FOR FAILURE TO FULLY NOTIFY

HIM OF THE CONSEQUENCES SET FORTH IN R.C. 2929.141."

      {¶ 6} Preliminarily, we note this case is before this court on the accelerated

calendar which is governed by App.R. 11.1.          Subsection (E), determination and
Stark County, Case No. 2017CA00035                                                      3


judgment on appeal, provides in pertinent part: "The appeal will be determined as

provided by App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the

statement of the reason for the court's decision as to each error to be in brief and

conclusionary form."

         {¶ 7} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th

Dist.1983).

         {¶ 8} This appeal shall be considered in accordance with the aforementioned

rules.

                                             I

         {¶ 9} In his sole assignment of error, appellant claims the trial court erred in

denying his motion to vacate post-release control. We disagree.

         {¶ 10} Specifically, appellant argues when his post-release control was imposed,

the trial court failed to inform him that he could serve a consecutive prison term if he

committed another felony while on post-release control; therefore, the post-release

control sanction was void and in violation of R.C. 2929.141.

         {¶ 11} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,

paragraph one of the syllabus, the Supreme Court of Ohio held: "A sentence that does

not include the statutorily mandated term of postrelease control is void, is not precluded

from appellate review by principles of res judicata, and may be reviewed at any time, on

direct appeal or by collateral attack."
Stark County, Case No. 2017CA00035                                                       4


       {¶ 12} R.C. 2929.14 governs sentencing.        Subsection (B)(2)(e) states, "if the

sentencing court determines at the sentencing that a prison term is necessary or

required, the court shall":



              Notify the offender that, if a period of supervision is imposed

       following the offender's release from prison, as described in division

       (B)(2)(c) or (d) of this section, and if the offender violates that supervision

       or a condition of post-release control imposed under division (B) of section

       2967.131 of the Revised Code, 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 upon the offender.       If a court imposes a sentence

       including a prison term on or after July 11, 2006, the failure of a court to

       notify the offender pursuant to division (B)(2)(e) of this section that the

       parole board may impose a prison term as described in division (B)(2)(e)

       of this section for a violation of that supervision or a condition of post-

       release control imposed under division (B) of section 2967.131 of the

       Revised Code or to include in the judgment of conviction entered on the

       journal a statement to that effect does not negate, limit, or otherwise affect

       the authority of the parole board to so impose a prison term for a violation

       of that nature if, pursuant to division (D)(1) of section 2967.28 of the

       Revised Code, the parole board notifies the offender prior to the offender's

       release of the board's authority to so impose a prison term.           Section

       2929.191 of the Revised Code applies if, prior to July 11, 2006, a court
Stark County, Case No. 2017CA00035                                                     5


       imposed a sentence including a prison term and failed to notify the

       offender pursuant to division (B)(2)(e) of this section regarding the

       possibility of the parole board imposing a prison term for a violation of

       supervision or a condition of post-release control.



       {¶ 13} R.C. 2929.141 governs commission of offense by person under post-

release control and states the following in pertinent 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 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
Stark County, Case No. 2017CA00035                                                        6


       imposition of a prison term for the post-release control violation shall

       terminate the period of post-release control for the earlier felony.



       {¶ 14} We acknowledge there is a split of authority among the appellate districts

as to whether a trial court is required to inform a defendant that if he/she commits a new

felony while on post-release control, he/she could be subject to a prison sentence on

the new felony and an additional consecutive prison sentence for the post-release

control violation.   However, this court has previously held that such notification is

required. State v. Johnson, 5th Dist. Muskingum No. CT2016–0035, 2016–Ohio–7931,

appeal accepted, 148 Ohio St.3d 1442, 2017-Ohio-1427, 72 N.E.3d 656. See State v.

Willis, 5th Dist Muskingum No. CT2015-0009, 2015-Ohio-4599 ("could be added"

language is sufficient and tantamount to saying "consecutive to"); State v. Nicholson,

5th Dist. Muskingum No. CT2015-0016, 2016-Ohio-50; State v. Mercer, 5th Dist.

Muskingum No. CT2015-0017, 2016-Ohio-49; State v. Morrison, 5th Dist. Delaware No.

17 CAA 01 003, 2017-Ohio-1240 (no qualitative difference between the use of the

phrase "could be added" and the use of the word "plus").

       {¶ 15} In the case sub judice, appellant did not provide this court with the

transcript of his sentencing hearing; therefore, we are unable to review what the trial

court said in informing appellant of post-release control. We presume regularity in the

proceeding.

       {¶ 16} In its judgment entry filed August 3, 2010, the trial court informed appellant

of post-release control as follows in pertinent part:
Stark County, Case No. 2017CA00035                                                   7


             If the Defendant violates the conditions of post-release control, the

      Defendant will be subject to an additional prison term of up to one-half of

      the stated prison term as otherwise determined by the Parole Board,

      pursuant to law.

             If the defendant commits another felony while subject to this period

      of control or supervision the defendant may be subject to an additional

      prison term consisting of the maximum period of unserved time remaining

      on post release control as set out above or 12 months whichever is

      greater.



      {¶ 17} We find the phrase "may be subject to an additional prison term"

adequately informed appellant of the possibility of the imposition of consecutive

sentences.

      {¶ 18} Upon review, we find the trial court did not err in denying appellant's

motion to vacate post-release control.

      {¶ 19} The sole assignment of error is denied.
Stark County, Case No. 2017CA00035                                           8


      {¶ 20} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Wise, John, J. concur and

Hoffman, P.J. disents.




                                       _______________________________
                                       Hon. Earle E. Wise, Jr.




                                       _______________________________
                                       Hon. William B. Hoffman




                                       _______________________________
                                       Hon. John W. Wise


EEW/sg 518
Stark County, Case No. 2017CA00035                                                      9

Hoffman, P.J., dissenting

       {¶21} I respectfully dissent from the majority decision. I do not find the trial

court’s entry stating “may be subject to an additional prison term” sufficient to inform

Appellant of the mandatory nature of time imposed for violation of postrelease control in

that the term for the new felony would be served consecutive to the term imposed for

violation of postrelease control.

       {¶22} In State v. Morrison, Delaware App. No. 17CAA01003, 2017-Ohio-1240,

this Court held a trial court must not only advise the defendant a post-release control

violation by the commission of a new felony could result in an additional prison sentence

for the violation, but must also advise the defendant such sentence would be served

consecutively to any prison term imposed for the new felony.

       {¶23} In State v. Wills, 5th Dist. Musk. Co. No. CT2015-0009, 2015-Ohio-4599,

this Court found the trial court’s notification at sentencing, the commission of a new

felony while on post-release control would result in an additional prison term which

“could be added to” the sentence for the new felony, sufficient and tantamount to saying

“consecutive to.”

       {¶24} In State v. Nicholson, Musk. No. CT2015-0016, 2016-Ohio-50, and State

v. Mercer, Musk. No. CT2015-0017, 2016-Ohio-49, this Court held the trial court’s

statement, “in addition to any sentence you receive for that new felony, additional prison

time could be added to that sentence” sufficient to advise the defendant of post-release

control and its ramifications. (Emphasis added.)

       {¶25} In State v. Morrison, Delaware App. No. 17CAA01003, 2017-Ohio-1240,

this Court analyzed the trial court’s notification, “if the violation is a new felony, you
Stark County, Case No. 2017CA00035                                                     10


could be returned to prison for the remaining period of control or 12 months, whichever

is greater, plus receive a new prison term for the new felony.” This Court held there is

no qualitative difference between use of the phrase “could be added” and the use of the

word “plus,” and the language used conveyed the sentences would run consecutively.

      {¶26} Appellant did not introduce a transcript of the hearing into the record, so

we must assume the regularity of the sentencing hearing. National City Bank v. Beyer,

89 Ohio St.3d 152, 160, 729 N.E. 2d 711 (2000). The trial court’s August 3, 2000

judgment entry states,



             If the Defendant commits another felony while subject to this period

      of control or supervision the defendant may be subject to an additional

      prison term consisting of the maximum period of unserved time remaining

      on post release control as set out above or 12 months whichever is

      greater.

      (Emphasis added.)



      {¶27} The trial court advised Appellant he “may be subject to an additional

prison term,” but failed to inform Appellant the additional prison term, if imposed, would

have to be served consecutive to any term imposed for the new felony. I would not find

the phrase “may be subject to an additional prison term” tantamount to advising

Appellant the sentences would have to run consecutively.



                                                ________________________________
                                                HON. WILLIAM B. HOFFMAN
