[Cite as State v. Christner, 2012-Ohio-4790.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. 2012 CA 00135
ALFRED CHRISTNER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 2011 CR 00521


JUDGMENT:                                       Dismissed



DATE OF JUDGMENT ENTRY:                         October 15, 2012



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JOHN D. FERRERO                                 ALFRED CHRISTNER
PROSECUTING ATTORNEY                            HOCKING CORRECTIONAL INSTITUTION
RENEE M. WATSON                                 Post Office Box 59
ASSISTANT PROSECUTOR                            Nelsonville, Ohio 45764
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012 CA 00135                                                     2

Wise, J.

       {¶1}   Appellant Alfred Christner appeals from the decision of the Court of

Common Pleas, Stark County, which denied his request for judicial release. The

relevant facts leading to this appeal are as follows.

       {¶2}   In May 2011, the Stark County Grand Jury indicted appellant on two

counts of gross sexual imposition (R.C. 2907.05(A)(4)), both felonies of the third

degree. The indictment was based on an allegation of acts by appellant occurring

between November 2010 and March 2011.

       {¶3}   On June 29, 2011, appellant entered pleas of guilty as charged to both

counts in the Stark County Court of Common Pleas. Appellant was thereafter sentenced

to five years on each count, to be served concurrently. Appellant was also classified as

a Tier II sex offender.

       {¶4}   Over the course of the ensuing months, appellant unsuccessfully sought

judicial release in the trial court on several occasions. On June 25, 2012, appellant filed

another motion for judicial release, which the trial court denied via judgment entry on the

same day.

       {¶5}   On July 13, 2012, appellant filed a notice of appeal regarding the

aforesaid judgment entry. He herein raises the following two Assignments of Error:

       {¶6}   “I. HOUSE BILL 86 (H.B. 86) CREATES A SUBSTANTIAL RIGHT OF

LIBERTY FOR QUALIFIED, INCARCERATED, NON-VIOLENT OFFENDERS.

       {¶7}   “II. MR. CHRISTNER IS UNNECESSARILY BEING DEPRIVED OF HIS

SUBSTANTIAL RIGHT TO LIBERTY AND THE PURSUIT OF HAPPINESS.”
Stark County, Case No. 2012 CA 00135                                                      3


                                           I., II.

       {¶8}   In his First and Second Assignments of Error, appellant essentially

contends the trial court erred and deprived him of his constitutional rights in denying his

motion for judicial release.

       {¶9}   As an initial procedural matter, we note R.C. 2929.20(C)(3) states in

pertinent part as follows: “An eligible offender may file a motion for judicial release with

the sentencing court within the following applicable periods: *** If the aggregated

nonmandatory prison term or terms is five years, the eligible offender may file the

motion not earlier than four years after the eligible offender is delivered to a state

correctional institution or, if the prison term includes a mandatory prison term or terms,

not earlier than four years after the expiration of all mandatory prison terms.”

       {¶10} Based on the aforesaid procedural history of this matter, it appears

impossible that appellant would have been “delivered to a state correctional institution”

for his present gross sexual imposition crimes any earlier than 2011; thus, should we

reach the issue, we would be inclined to find that his motion for judicial release is

premature until some point in 2015, pursuant to R.C. 2929.20(C)(3).

       {¶11} Nonetheless, it is well-established that the denial of a motion for judicial

release is not a final appealable order. See, e.g., State v. Bennett, Muskingum App.No.

CT2005-0009, 2006-Ohio-2812, ¶ 15, citing State v. Masko, Trumbull App. No. 2004-T-

0070, 2004-Ohio-5297, ¶ 2. Appellant’s unsupported assertion in his reply brief that

H.B. 86 vitiates this nonappealability rule is unpersuasive.
Stark County, Case No. 2012 CA 00135                                               4


      {¶12} Accordingly, we hold we lack jurisdiction to address the issues presented

in appellant’s First and Second Assignments of Error.

      {¶13} For the reasons stated in the foregoing opinion, the appeal of the

judgment of the Court of Common Pleas, Stark County, Ohio, is hereby dismissed.


By: Wise, J.

Delaney, P. J., and

Edwards, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                             JUDGES
JWW/d 0913
Stark County, Case No. 2012 CA 00135                                                5


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
ALFRED CHRISTNER                          :
                                          :
       Defendant-Appellant                :         Case No. 2012 CA 00135




       For the reasons stated in our accompanying Memorandum-Opinion, the appeal

of the judgment of the Court of Common Pleas of Stark County, Ohio, is dismissed.

       Costs assessed to appellant.




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                                                             JUDGES
