[Cite as State v. Peace, 2014-Ohio-2126.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 5-13-32

        v.

TODD E. PEACE,                                           OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hancock County Common Pleas Court
                            Trial Court No. 1997 CR 29

                       Judgment Reversed and Cause Remanded

                              Date of Decision: May 19, 2014




APPEARANCES:

        William T. Cramer for Appellant

        Mark C. Miller for Appellee
Case No. 5-13-32


SHAW, J.

       {¶1} Defendant-appellant, Todd E. Peace (“Peace”), appeals the September

23, 2013 judgment of the Hancock County Court of Common Pleas imposing a

mandatory five year term of postrelease control.

       {¶2} On November 9, 1998, the trial court entered a judgment finding

Peace guilty of aggravated murder, aggravated arson, and tampering with

evidence. On February 11, 1999, the trial court sentenced Peace to a life prison

term with parole eligibility after 20 years for the aggravated murder offense, a nine

year prison term for the aggravated arson offense, and a four year prison term for

the tampering with evidence offense. The trial court ordered that the “prison terms

are to be served consecutively, one after the other, for an aggregate prison term of

life with parole eligibility after serving thirty-three (33) years.” (Doc. No. 103 at

3).

       {¶3} In April of 2011, Peace moved to withdraw his guilty plea. The trial

court denied Peace’s motion and Peace appealed to this Court, asserting a number

of assignments of error. In a judgment entry without opinion, we remanded this

matter to the trial court because it had failed to properly impose postrelease

control.

       {¶4} On January 9, 2012, the trial court conducted a limited resentencing

hearing. The hearing was conducted via videoconference. During the hearing, the


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trial court denied Peace’s request for counsel, stating that the hearing was an

administrative proceeding which did not invoke the right to counsel.

       {¶5} Peace appealed the trial court’s imposition of postrelease control

arguing, in part, that the trial court erred in denying his request for counsel. This

Court subsequently issued an opinion concluding that the trial court improperly

denied Peace’s request for counsel and remanded the matter to the trial court.

State v. Peace, 3d Dist. Hancock No. 5-12-04, 2012-Ohio-6118, ¶ 19

(Willamowski, J., dissenting).

       {¶6} On March 27, 2013, the trial court conducted a hearing to impose

postrelease control where Peace appeared in person with defense counsel present.

The trial court imposed a mandatory period of five years of postrelease control.

       {¶7} Peace appeals the trial court’s imposition of postrelease control,

asserting the following assignment of error.

       THE   TRIAL  COURT     ERRED   BY IMPOSING
       POSTRELEASE CONTROL AFTER APPELLANT HAS
       COMPLETED THE ELIGIBLE OFFENSES.

       {¶8} In his sole assignment of error, Peace argues that the trial court lacked

the authority to impose postrelease control because at the time of the March 2013

hearing he had already served his thirteen year prison term for the aggravated

arson and the tampering with evidence offenses, which were the only two offenses

to which he was sentenced that the postrelease control sanction applied.


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Case No. 5-13-32


Specifically, Peace relies on the recent decision of the Supreme Court of Ohio,

State v. Holdcroft, in which the Court held that “a trial court cannot add a term of

postrelease control as a sanction for a particular offense after the defendant has

already served the prison term for that offense, even if the defendant remains in

prison for other offenses.” 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 1.1

        {¶9} Section 5120-2-03.1(M) of the Ohio Administrative Code describes

the manner in which the time served by an offender is to be allocated when the

offender is sentenced to a stated prison term consecutive to a life prison term:

        When an offender is serving any stated prison terms
        consecutively to any life terms of imprisonment and/or to any
        one, three, five and/or six-year mandatory prison terms imposed
        pursuant to division (D)(1)(a)(i) of section 2929.14 the Revised
        Code, for using a firearm in the commission of an offense,
        and/or division (D)(1)(a)(ii) of section 2929.14 of the Revised
        Code, for committing a felony by discharging a firearm from a
        motor vehicle, the aggregate of all such one, three, five and/or
        six-year mandatory prison terms shall be served first, then the
        aggregate of all other mandatory prison terms shall be served,
        and then the aggregate of the non-mandatory portion of the
        stated prison terms shall be served, and then the aggregate of the
        non-mandatory portion of the life terms of imprisonment shall
        be served.

        {¶10} According to OAC 5120-2-03.1(M), Peace’s time served is to be first

allocated to the stated prison terms of nine years and four years for the aggravated

arson and the tampering with evidence offenses. At the time of the March 2013

hearing, Peace had completed the prison terms for these offenses and was serving
1
  We note that the Supreme Court’s decision in Holdcroft was released on November 20, 2013, after the
trial court imposed postrelease control and while this case was pending on appeal.

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Case No. 5-13-32


time for the life prison term for the aggravated murder offense. We note that

aggravated murder is an unclassified felony to which the postrelease control

sanction does not apply. See State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,

¶ 36.

        {¶11} Therefore, pursuant to the Supreme Court’s holding in Holdcroft and

by operation of OAC 5120-2-03.1(M), the trial court was without the authority to

impose the term of postrelease control because at the time of the hearing Peace

had already completed the stated prison terms for the aggravated arson and the

tampering with evidence offenses, which were the only portion of his aggregate

sentence to which the postrelease control sanction applied.

        {¶12} Accordingly, Peace’s assignment of error is sustained. The judgment

is reversed and we remand this case to the trial court with instructions to vacate

the imposition of postrelease control.

                                                          Judgment Reversed and
                                                               Cause Remanded

WILLAMOWSKI, P.J. and ROGERS, J., concur.

/jlr




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