[Cite as State v. Weeden, 2011-Ohio-2277.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 95288




                                    STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                              MARLON J. WEEDEN
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-536368

        BEFORE:           Keough, J., Stewart, P.J., and Sweeney, J.

        RELEASED AND JOURNALIZED: May 12, 2011
ATTORNEY FOR APPELLANT

Edward M. Graham
13363 Madison Avenue
Lakewood, OH 44107

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Angela Thomas
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

      {¶ 1} Defendant-appellant, Marlon J. Weeden, pleaded guilty to theft of

an automobile in violation of R.C. 2913.02(A)(1), a felony of the fourth degree.

During the plea colloquy, the trial court advised him that the possible penalty

for the offense to which he was pleading guilty was six to 18 months

incarceration and a fine of up to $5,000. The court advised him further that

“if at the time of sentencing the court would impose a prison term, then the

parole board on your release from prison may at their discretion place you on

postrelease control for up to three years.     And if you violate any of the
restrictions placed upon you by the parole board, they can add additional

restrictions or impose additional prison time for up to nine months for one

violation but a maximum of one-half of the original prison term for all

violations.”   The trial court subsequently sentenced Weeden to 12 months

incarceration.

      {¶ 2} Under Crim.R. 11(C)(2), a court shall not accept a guilty plea in a

felony case without first determining that the defendant understands the

nature of the charges against him and the penalty involved.                Weeden

contends that because the trial court told him that postrelease control would

be discretionary with the parole board, rather than mandatory, he did not

understand the nature of the charge against him and the maximum penalty

involved and, accordingly, his plea was not knowingly or intelligently made

and should be vacated. We find no merit to Weeden’s argument.

      {¶ 3} R.C.    2967.28,   governing    postrelease    control,   provides   in

subsection (B) that first degree felonies and felony sex offenses are subject to

a mandatory period of five years postrelease control, and second and third

degree felony offenses that are not felony sex offenses are subject to a

mandatory period of three years postrelease control. Under R.C. 2967.28(C),

“[a]ny sentence to a prison term for a felony of the third, fourth, or fifth

degree that is not subject to division (B)(1) or (3) of this section shall include a

requirement that the offender be subject to a period of postrelease control of
up to three years after the offender’s release from imprisonment, if the parole

board, in accordance with division (D) of this section, determines that a period

of postrelease control is necessary for that offender.”     (Emphasis added.)

Thus, under the statute, the imposition of postrelease control for a fourth

degree felony is discretionary with the parole board.

      {¶ 4} Weeden pleaded guilty to theft of a motor vehicle in violation of

R.C. 2913.02, a fourth degree felony.     Hence, the trial court’s advisement

that “the parole board on your release from prison may at their discretion

place you on postrelease control for up to three years” was correct. Upon

questioning by the judge, Weeden stated that he understood the charge and

the possible penalties for the offense to which he was pleading guilty. We

find, therefore, that Weeden’s plea was made knowingly, voluntarily, and

intelligently with an understanding of the nature of the charges and of the

maximum penalty involved, as required by Crim.R. 11(C).

      {¶ 5} Appellant’s assignment of error is overruled.

      Affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR
