[Cite as State v. Powell, 2019-Ohio-3858.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 19-COA-022
DALE L. POWELL, JR.                            :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Ashland County
                                                   Court of Common Pleas, Case 10-CRI-041




JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            September 20, 2019




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

CHRISTOPHER R. TUNNELL                             DALE L. POWELL, JR. #593-674
Ashland County Prosecutor                          Marion Correctional Institution
110 Cottage Street, 3rd Floor                      Box 57
Ashland, OH 44805                                  Marion, OH 43301
Ashland County, Case No. 19-COA-022                                                          2

Gwin, P.J.

       {¶1}   Appellant Dale L. Powell, Jr. appeals the May 8, 2019 judgment entry of the

Ashland County Court of Common Pleas denying his motion to credit time served.

Appellee is the State of Ohio.

                                    Facts & Procedural History

       {¶2}   In 2004, appellant pled guilty to two counts of unlawful sexual conduct with

a minor, felonies of the third degree, in the Morrow County Court of Common Pleas. After

appellant completed his prison term, he was placed on post-release control and

completed three years and seventeen days of a five-year term.

       {¶3}   While on post-release control in the Morrow County case, appellant was

found guilty by a jury of trafficking in marijuana, a felony of the first degree, possession of

marijuana, a felony of the second degree, possessing criminal tools, a felony of the fifth

degree, and endangering children, a misdemeanor of the first degree, in the Ashland

County Court of Common Pleas. The trial court found the possession of marijuana count

was an allied offense of similar import to trafficking in marijuana and thus did not sentence

appellant on the possession of marijuana count. On November 18, 2010, the trial court

sentenced appellant to an aggregate prison term of ten years for those offenses, as

follows: ten years on the trafficking in marijuana count; twelve months for possessing

criminal tools, to be served concurrently to the ten years for trafficking in marijuana; and

one hundred and eighty days in jail for endangering children, to be served concurrently

to the two other sentences.

       {¶4}   Additionally, the trial court terminated appellant’s post-release control from

the Morrow County case and imposed, as an additional prison term, appellant’s remaining
Ashland County, Case No. 19-COA-022                                                          3


time on post-release control, which was seven hundred and thirty-two days, to be served

consecutively to the ten-year prison term. The trial court also sentenced appellant to a

new term of post-release control and notified appellant that upon completion of his prison

term, he shall serve five years of post-release control.

       {¶5}   Appellant appealed his conviction and sentence to this Court and argued:

the trial court erred in denying his motion to dismiss for a violation of his right to a speedy

trial and the jury verdict finding appellant guilty of trafficking in marijuana was against the

manifest weight of the evidence. In State v. Powell, 5th Dist. Ashland No. 10-COA-040,

2011-Ohio-4112, this Court overruled appellant’s assignments of error and affirmed the

judgment of the trial court. This Court also affirmed the trial court’s denial of appellant’s

motion to waive imposition of a mandatory fine in State v. Powell, 5th Dist. Ashland No.

15-COA-016, 2015-Ohio-3561.

       {¶6}   On May 28, 2013, appellant filed a motion to correct sentence unauthorized

by law. Appellant argued the 2004 sentence from the Morrow County Common Pleas

Court did not include the statutorily mandated term of post-release control and thus the

seven hundred and thirty-two day sanction imposed by the Ashland County Common

Pleas Court in 2010 was void. Appellee filed a response to the motion on June 10, 2013.

The trial court issued a judgment entry on June 26, 2013. The trial court found that when

it sentenced appellant in 2010, a portion of that sentence was the imposition of a seven

hundred and thirty-two day prison term for violating post-release control arising from a

prior sentence imposed by the Morrow County Common Pleas Court on October 24,

2004. The trial court found the Morrow County Common Pleas Court failed to properly

advise appellant regarding post-release control. Thus, the trial court found the seven
Ashland County, Case No. 19-COA-022                                                         4


hundred and thirty-two day portion of the sentence was void and ordered the sentence

imposed be corrected to exclude the prior imposition of the seven hundred and thirty-two

days.

        {¶7}   On November 2, 2016, the trial court issued a judgment entry clarifying jail

time credit, finding appellant was not previously credited with the correct jail-time credit

served, finding appellant was entitled to sixty-one additional days credit, and ordering the

Bureau of Sentence Computation to adjust its records to reflect that appellant has total

jail time credit of two hundred and eighty one days. On May 12, 2017, the trial court

issued a nunc pro tunc order correcting the total jail time credit to a total of three hundred

and one days.

        {¶8}   Appellant filed a motion to credit time served on April 8, 2019. In his motion,

appellant sought an order from the trial court to credit three years and seventeen days he

served for a post-release control violation. Appellant asserts he served three years and

seventeen days of his improper post-release control sanction and thus that time should

be credited towards the five years of post-release control that he will be required to serve

when he is released on January 29, 2020. Appellee filed an objection to appellant’s

motion to credit time served on April 10, 2019. On May 8, 2019, the trial court issued a

judgment entry denying appellant’s motion to credit time served. The trial court found

appellant is not entitled to credit for post-release control.

        {¶9}   Appellant appeals the May 8, 2019 judgment entry of the Ashland County

Court of Common Pleas and assigns the following as error:

        {¶10} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT’S REQUEST TO CREDIT HIM WITH 3 YEARS AND 17 DAYS HE SERVED
Ashland County, Case No. 19-COA-022                                                      5


FOR A VOID POST RELEASE CONTROL VIOLATION TOWARD THE IMPOSITION OF

POST RELEASE CONTROL ON THE SENTENCE HE IS CURRENTLY SERVING.”

                                                I.

      {¶11} In his assignment of error, appellant contends he improperly served an

additional three years and seventeen days of post-release control in the Morrow County

case and is entitled to credit for that time served in the Ashland County case. Appellant

argues his post-release control from the Ashland County case of five years should be

reduced by three years and seventeen days.

      {¶12} Appellant cites two cases in support of his argument. In both cases, the

defendants argued they should receive credit for prison time served because the trial

court did not properly impose post-release control and because they had already served

their post-release control sanction violation sentences prior to their secondary felony

sentences. State v. Tanksley, 2nd Dist. Clark No. 2015-CA-80, 2016-Ohio-2963; State

v. Spencer, 2nd Dist. Clark No. 2017-CA-22, 2018-Ohio-873. In both Tanksley and

Spencer, the trial court specifically ordered the defendants to serve their post-release

control sentences prior to and consecutive to the prison sentence imposed for the new

charges they were convicted of while on post-release control. Id. Thus, the Second

District held the time the defendants served in prison for violations of their post-release

control should be credited towards their prison sentences on the new charges. Id. We

find both Tanksley and Spencer to be distinguishable and inapplicable to this case. In

neither case did the court hold that the voided portion of the defendant’s post-release

control be credited against post-release control on the new charge, as appellant requests

in this case. In this case, both parties and the Ohio Department of Rehabilitation and
Ashland County, Case No. 19-COA-022                                                       6


Correction agree that appellant is scheduled to be released on January 29, 2020, after

serving his ten-year sentence for trafficking in marijuana. Appellant has not served any

time on his post-release control sentence that was vacated in 2014 and he will not serve

any of that sentence when he is released in January of 2020.

       {¶13} Post-release control is governed by R.C. 2967.28, which provides, in

pertinent part:

              (B)   Each sentence to a prison term, other than a term of life

       imprisonment, for a felony of the first degree * * * shall include a requirement

       that the offender be subject to a period of post-release control imposed by

       the parole board after the offender’s release from imprisonment.           This

       division applies with respect to all prison terms of a type described in this

       division, including a term of any such type that is a risk reduction sentence.

       If a court imposes a sentence including a prison term of a type described in

       this division on or after July 11, 2006, the failure of a sentencing court to

       notify the offender pursuant to division (B)(2)(d) of section 2929.19 of the

       Revised Code of this requirement or to include in the judgment of conviction

       entered on the journal a statement that the offender’s sentence includes this

       requirement does not negate, limit, or otherwise affect the mandatory period

       of supervision that is required for the offender under this division. This

       division applies with respect to all prison terms of a type described in this

       division, including a non-felony indefinite prison term. * * * Unless reduced

       by the parole board pursuant to division (D) of this section when authorized
Ashland County, Case No. 19-COA-022                                                       7


       under that division, a period of post-release control required by this division

       for an offender shall be of one of the following periods:

       (1) For a felony of the first degree or for a felony sex offense, five years * *

       *.

       {¶14} The trial court’s imposition of five years of post-release control in the

Ashland County case is mandated by R.C. 2967.28. Further, R.C. 2967.28 does not

provide for credit of one offense’s post-release control onto another offense’s post-

release control. The time appellant was on post-release control in the Morrow County

case is separate from any post-release control requirement mandated by R.C. 2967.28

in the Ashland County case and thus appellant is not entitled to any credit in the Ashland

County case for the post-release control served in the Morrow County case. See State

v. Miller, 6th Dist. Huron No. 04-002, 2004-Ohio-6654 (holding that a defendant is not

entitled to jail time credit on a subsequent conviction for time served for a prior post-

release control sanction).

       {¶15} Based on the foregoing, appellant’s assignment of error is overruled.

Neither the post-release control statute nor case law provide for appellant’s prior voided

post-release control to be credited against his future post-release control.
Ashland County, Case No. 19-COA-022                                            8


       {¶16} The May 8, 2019 judgment entry of the Ashland County Court of Common

Pleas is affirmed.


By Gwin, P.J.,

Hoffman, J., and

Wise, John, J., concur
