[Cite as State v. Harris, 2016-Ohio-3355.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                      CHAMPAIGN COUNTY

 STATE OF OHIO                                     :
                                                   :   Appellate Case No. 2015-CA-34
          Plaintiff-Appellee                       :
                                                   :   Trial Court Case No. 15-CR-75
 v.                                                :
                                                   :   (Criminal Appeal from
 NORA I. HARRIS                                    :    Common Pleas Court)
                                                   :
          Defendant-Appellant                      :
                                                   :

                                              ...........
                                             OPINION
                              Rendered on the 10th day of June, 2016.
                                              ...........

KEVIN S. TALEBI, Atty. Reg. No. 0069198, by JANE A. NAPIER, Atty. Reg. No. 0061426,
Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
     Attorney for Plaintiff-Appellee

SEAN BRINKMAN, Atty. Reg. No. 0088253, Durden Law, LLC, 10 West Monument
Avenue, Dayton, Ohio 45402
     Attorney for Defendant-Appellant

                                             .............

FAIN, J.

        {¶ 1} Defendant-appellant Nora Harris appeals from her sentence, following a

plea of guilty, for Possession of Heroin.          She contends that the trial court erred by

advising her, at sentencing, that the conviction carried a three-year period of post-release
                                                                                          -2-


control, when it should have specified a three-year period of possible post-release control.

       {¶ 2} We conclude that the record supports a finding that Harris was properly

informed of the possible maximum penalties in regard to her conviction. Accordingly, the

judgment of the trial court is Affirmed.



                              I. The Course of Proceedings

       {¶ 3} On May 7, 2015, Harris was indicted on two counts of Possession of Heroin,

one count of Possessing Drug Abuse Instruments, and one count of Illegal Use or

Possession of Drug Paraphernalia. Pursuant to a plea agreement, Harris entered a

guilty plea to one count of Possession of Heroin, in violation of R.C. 2925.11(A)(C)(6)(a),

a fifth-degree felony.   In exchange for the plea, the State dismissed the remaining

charges, and agreed to make a recommendation of community control sanctions if a pre-

sentence report did not indicate a criminal history, and if Harris did not commit any offense

prior to sentence. The written plea agreement, signed by Harris, contains the following

statement:

       Post Release Control. In addition, a period of supervision by the Adult

       Parole Authority after release from prison is optional in this case.       If I

       receive prison for a felony of the fifth degree, I may be given up to three (3)

       years of post-release control. A violation of any post release control rule

       or condition can result in a more restrictive sanction while I am under post

       release control, and increased duration of supervision or control, up to the

       maximum term and re-imprisonment even though I have served the entire

       stated prison term imposed upon me by this Court for all offenses.
                                                                                         -3-




       {¶ 4} During the plea hearing, the trial court stated as follows:

              If you are sentenced to prison, upon release from prison you are

       subject to supervision by state or local authorities. That is what is known

       as post-release control. Post-release control in your case can be for a

       period of up to three years after release from imprisonment, subject to

       Parole Board determination.

       {¶ 5} At the sentencing hearing, it was noted that the pre-sentence report indicated

that Harris had previously served a prison term, and that she used heroin one day prior

to her pre-sentence investigation interview, in violation of the terms of her bond

conditions.   The State was therefore relieved of its sentencing recommendation.

Despite the violation and prior criminal history, the trial court sentenced Harris to a two-

year term of community control, with the requirement that she complete a residential

substance abuse program. The trial court, after noting that a violation of community

control would result in a prison term, stated as follows:

              Upon release from prison you are subject to - - if you are sentenced

       to prison, upon release you are subject to a period of post-release control

       for a period of up to three years after your release from imprisonment

       subject to Parole Board determination. There are rules to follow on post-

       release control.    If you violate those rules, you can be punished.

       Punishment can include increasing the duration of your post-release control

       time period up to that maximum three-year period I just told you about.

       {¶ 6} In the journal entry of judgment, conviction, and sentence, the trial court set
                                                                                      -4-


forth the following:

              Post-release control. Where the Defendant is sentenced to a term

       of imprisonment, upon release from prison, Defendant shall be subject to

       post-release control for a period of up to three (3) years after the

       Defendant’s release from imprisonment, subject to Parole Board

       determination.

       {¶ 7} Harris appeals.



        II. The Trial Court’s Failure to State, Expressly, that a Period of Post-

        Release Control of up to Three Years, in the Discretion of the Parole

        Authority, Is Not Mandatory Did Not Render Harris’s Plea other than

                                 Knowing and Intelligent

       {¶ 8} Harris’s sole assignment of error states:

              MS.      HARRIS’    PLEA    WAS      NOT     MADE     KNOWINGLY,

       INTELLIGENTLY, AND VOLUNTARILY.

       {¶ 9} Harris contends that the trial court failed to inform her that post-release

control was optional for a felony of the fifth degree. She contends that the trial court

informed her that it was mandatory. She argues that her plea could not have been made

knowingly, voluntarily and intelligently, because she was not properly informed of the

maximum penalties. She further argues that she was prejudiced by the “misinformation

[because she] may not have pled guilty if she knew that post-release control may be

imposed, rather than is imposed, if she was sentenced to prison.”

       {¶ 10} Post-release control requirements with respect to fifth-degree felony
                                                                                            -5-

offenses are discretionary. State v. Sulek, 2d Dist. Greene No. 09CA75, 2010-Ohio-

3919, ¶ 10.     “The period of optional post-release control to which an offender is subject

as part of a sentence for a felony of the fifth degree is a period of up to three years.”

State v. Ramey, 2d Dist. Montgomery No. 24944, 2012-Ohio-3978, ¶9, citing R.C.

2967.28(C). R.C. 2929.19(B)(2)(d) requires that a sentencing court notify a defendant

that he or she may be subject to supervision after leaving prison if it imposes a sentence

for a fifth-degree felony that does not involve a sex offense or an offense of physical harm

or a threat of physical harm.

       {¶ 11} The trial court informed Harris of the maximum penalties, including the

maximum possible term of post-release control. The written plea agreement, which was

signed in open court and acknowledged by counsel and Harris, specifically noted that

post-release control is optional, and may last for up to three years. The trial court, during

the plea hearing, also properly informed her that if she is imprisoned, she will be subject

to post-release control upon release, subject to Parole Board determination, and that the

post-control release can be for a period of up to three years. The record does not

demonstrate that the trial court affirmatively stated that post-release control was

mandatory. Instead, it appears that Harris interprets the phrase “subject to” as implying

that post-release control is mandatory. We disagree.

       {¶ 12} We find no error in the trial court’s recitation of the possible penalties, since

that recitation included the maximum penalty. We further find Harris’s claim of prejudice

speculative. She entered the guilty plea in exchange for the dismissal of the other two

charges.      While the State, following the disclosure of the bond violation, did not

recommend community control, Harris nevertheless was sentenced to community control,
                                                                                    -6-


which was what she originally bargained for.

       {¶ 13} Harris’s sole assignment of error is overruled.



                                     III. Conclusion

       {¶ 14} Harris’s sole assignment of error having been overruled, the judgment of

the trial court is Affirmed.

                                     .............




HALL, J., and WELBAUM, J., concur.


Copies mailed to:

Kevin S. Talebi
Jane A. Napier
Sean Brinkman
Hon. Nick A. Selvaggio
