[Cite as State v. Wolfenbarger, 2018-Ohio-1007.]




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




STATE OF OHIO,
                                                         CASE NO. 6-17-18
       PLAINTIFF-APPELLEE,

       v.

THOMAS G. WOLFENBARGER,                                  OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Hardin County Common Pleas Court
                          Trial Court No. CRI 20172076

                                     Judgment Affirmed

                            Date of Decision: March 19, 2018



APPEARANCES:

        Todd A. Workman for Appellant

        Jason M. Miller for Appellee
Case No. 6-17-18


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Thomas G. Wolfenbarger (“Wolfenbarger”)

appeals the judgment of the Hardin County Court of Common Pleas, alleging that

the trial court did not adequately notify him of his postrelease control sanctions

during his sentencing hearing. For the reasons set forth below, the judgment of the

trial court is affirmed.

                           Facts and Procedural History

       {¶2} On May 25, 2017, Wolfenbarger was charged with one count of

intimidation in violation of R.C. 2921.03; one count of domestic violence in

violation of R.C. 2919.25(A); one count of violating a protection order in violation

of R.C. 2919.27(A)(1), (B)(4); and one count of criminal endangering or damaging

in violation of R.C. 2909.06(A)(1). Doc. 1. On July 28, 2017, Wolfenbarger pled

guilty to all four of these charges.     Doc. 18, 19.     On September 6, 2017,

Wolfenbarger appeared for sentencing. Tr. 1.

       {¶3} At the sentencing hearing, the trial judge determined that the first

count—intimidation in violation of R.C. 2921.03—and the third count—violating a

protection order in violation of R.C. 2919.27(A)(1)—merged. Tr. 26. After this

determination, the trial court sentenced Wolfenbarger to twenty-four months in

prison for the first count and then sentenced Wolfenbarger to twenty-four months

in prison for the third count. Tr. 27-28. The trial court ordered the sentences for

the first and third counts to be served concurrently. Tr. 28. The trial judge then

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sentenced Wolfenbarger on the second and fourth counts charged against him. Tr.

28.   Since the second and fourth counts charged against Wolfenbarger were

misdemeanor offenses, the trial court ordered the sentences for these offenses to be

served concurrently with the sentences for the felony offenses. Tr. 29.

       {¶4} The sentence for the first count came with a term of postrelease control.

Tr. 30, 38. The trial judge then made the following statement to Wolfenbarger:

       Because of the nature of these crimes it would be mandatory that
       you serve post-release control supervision at the time that you
       would be released from prison if you flat time out—which means
       if you choose to serve the whole sentence that the Court has given
       you, when you would be released the parole board would place
       you on post-release control supervision for a period of three years.
       If they place you on that, Mr. Wolfenbarger, and if you violate
       any of their terms, those violations could result in them sending
       you back to prison for ninety days for every violation, however
       they cannot accumulate them to more than half of the term the
       Court’s giving you. The exception to that rule is if you violate it
       by committing any new felony crime of any sort, not only could
       you naturally be sent to prison in that new felony case, but you’re
       looking at a sanction for violating your post-release control
       supervision, and there it can start with a minimum of one year, go
       up to the amount of days remaining. So if you were started on a
       full three years and violated within the first month—which I’ve
       seen happen—you could be looking at another two years and
       eleven months, perhaps, that would be included to run
       consecutively, but law to run consecutively, with the new prison
       term.

Tr. 30-32. After explaining postrelease control to Wolfenbarger, the trial court

recessed briefly. Tr. 37.

       {¶5} During the recess, the trial judge determined that Wolfenbarger should

not have been sentenced on counts one and three since these two counts merged at

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sentencing. Tr. 38. After the recess, the trial court asked whether the prosecution

would elect to proceed on the first count or the third count. Tr. 38. The prosecution

elected to proceed on the first count. Tr. 38. In response, the trial judge stated:

“[w]e will not sentence on count three. Count one will be the exact same sentence

I already told you. Count one is, in fact, the sentence that carries mandatory PRC

time, so I’ve already informed you of that.” Tr. 38.

       {¶6} On September 11, 2017, the trial court issued Wolfenbarger’s

sentencing entry. Doc. 24. Having filed his notice of appeal, Wolfenbarger raises

the following assignment of error:

       The trial court erred when it failed to notify Appellant of the
       mandatory Post Release Control Sanctions when he was
       sentenced on the allied offenses.

In his sole assignment of error, Wolfenbarger argues that the trial court should have

advised him of his postrelease control sanctions after the trial court modified his

sentence to reflect the merger of counts one and three.

                                  Legal Standard

       {¶7} “Postrelease control is a period of supervision that occurs after a

prisoner has served his or her prison sentence and is released from incarceration,

during which the individual is subject to specific sanctions with which he or she

must comply.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d

462, ¶ 35. “[A] trial court has a statutory duty to provide notice of postrelease

control at the sentencing hearing” and * * * “any sentence imposed without such

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notification is contrary to law.” State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-

2927, 85 N.E.3d 700, ¶ 8, quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-

6085, 817 N.E.2d 864, ¶ 23. Under R.C. 2929.19(B),

       the sentencing entry must contain the following information: (1)
       whether postrelease control is discretionary or mandatory, (2) the
       duration of the postrelease-control period, and (3) a statement to
       the effect that the Adult Parole Authority (“APA”) will
       administer the postrelease control pursuant to R.C. 2967.28 and
       that any violation by the offender of the conditions of postrelease
       control will subject the offender to the consequences set forth in
       that statute.

Grimes at ¶ 1.

                                   Legal Analysis

       {¶8} At the sentencing hearing in this case, the trial judge advised

Wolfenbarger (1) that postrelease control was mandatory for him; (2) that he would

be subject to postrelease control for three years; and (3) that he would be supervised

after the parole board placed him in postrelease control. Tr. 30-32. See Grimes at

¶ 1. The trial judge also explained the consequences of violating the terms of

postrelease control. Tr. 30-32. See Grimes at ¶ 1. Thus, the trial judge gave

adequate notification of postrelease control to Wolfenbarger at the sentencing

hearing.

       {¶9} The fact that the trial judge modified the sentence as to the third count

charged against Wolfenbarger during the sentencing hearing does not affect the

adequacy of this notification. After the recess, no changes were made to the


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sentence that came with the first count since the prosecution elected to proceed on

the first count instead of the third count. Further, the trial judge clearly stated that

the period of postrelease control came with the first count charged against

Wolfenbarger and that this sentencing modification would not affect the terms of

his postrelease control. Thus, Wolfenbarger’s first assignment of error is overruled.

                                     Conclusion

       {¶10} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Hardin County Court of Common Pleas is

affirmed.

                                                                  Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/hls




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