[Cite as State v. Nicholson, 2016-Ohio-50.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                  :      Hon. Patricia A. Delaney, J.
                                              :      Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
TIMOTHY J. NICHOLSON                          :      Case No. CT2015-0016
                                              :
        Defendant - Appellant                 :      OPINION



    CHARACTER OF PROCEEDING:                         Appeal from the Muskingum County
                                                     Court of Common Pleas, Case No.
                                                     CR2014-0345



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    January 6, 2016



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

D. MICHAEL HADDOX                                    DAVID SAMS
Prosecuting Attorney                                 Box 40
                                                     W. Jefferson, Ohio 43162
By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2015-0016                                                    2

Baldwin, J.

       {¶1}   Defendant-appellant Timothy Nicholson appeals from the March 9, 2015

Entry of the Muskingum County Court of Common Pleas. Plaintiff-appellee is the State

of Ohio.

                        STATEMENT OF THE FACTS AND CASE

       {¶2}   On November 5, 2014, the Muskingum County Grand Jury indicted

appellant on one count of failure to comply (risk of harm) in violation of R.C. 2921.331(B),

a felony of the third degree. At his arraignment on November 12, 2014, appellant entered

a plea of not guilty to the charge.

       {¶3}   Thereafter, on January 15, 2015, appellant withdrew his not guilty plea and

entered a plea of guilty to the charge. As memorialized in an Entry filed on March 9, 2015,

appellant was sentenced to thirty-six (36) months in prison.

       {¶4}   Appellant now raises the following assignments of error on appeal:

       {¶5}   THE DEFENDANT-APPELLANT WAS NOT PROPERLY ADVISED OF

POST-RELEASE CONTROL OR ITS RAMIFICATIONS.

       {¶6}   THE DEFENDANT-APPELLANT WAS IMPROPERLY CONVICTED OF

AND SENTENCED TO THE MAXIMUM TERM FOR A VIOLATION OF R.C. 2921.331(B)

AS A FELONY OF THE THIRD DEGREE, AS THE TRIAL COURT DID NOT FIND

BEYOND A REASONABLE DOUBT ON THE FACTS OF THIS CASE THAT

APPELLANT CAUSED A SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM TO

PERSONS OR PROPERTY AS REQUIRED BY R.C. 2921.331(B)(C)(5)(a)(ii) AND THAT

THIS WAS THE WORST FORM OF FLEEING AND ELUDING.
Muskingum County, Case No. CT2015-0016                                                     3


                                               I

       {¶7}   Appellant, in his first assignment of error, argues that he was not properly

advised of post-release control and its ramifications. Appellant specifically contends that

the trial court failed to advise him that, if he committed a new felony while on post-release

control, any additional post-release control time would have to be served consecutively

to any term for the new felony under R.C. 2929.19(B) and R.C. 2929.141.

       {¶8}   R.C. 2929.19 states, in relevant part, as follows:

                      (B)(1) At the sentencing hearing, the court, before

              imposing sentence, shall consider the record, any information

              presented at the hearing by any person pursuant to division

              (A) of this section, and, if one was prepared, the presentence

              investigation report made pursuant to section 2951.03 of the

              Revised Code or Criminal Rule 32.2, and any victim impact

              statement made pursuant to section 2947.051 of the Revised

              Code.

                      (2) Subject to division (B)(3) of this section, if the

              sentencing court determines at the sentencing hearing that a

              prison term is necessary or required, the court shall do all of

              the following:….

                      (e) Notify the offender that, if a period of supervision

              is imposed following the offender's release from prison, as

              described in division (B)(2)(c) or (d) of this section, and if the

              offender violates that supervision or a condition of post-
Muskingum County, Case No. CT2015-0016                                           4


           release control imposed under division (B) of section

           2967.131 of the Revised Code, the parole board may impose

           a prison term, as part of the sentence, of up to one-half of the

           stated prison term originally imposed upon the offender. If a

           court imposes a sentence including a prison term on or after

           July 11, 2006, the failure of a court to notify the offender

           pursuant to division (B)(2)(e) of this section that the parole

           board may impose a prison term as described in division

           (B)(2)(e) of this section for a violation of that supervision or a

           condition of post-release control imposed under division (B)

           of section 2967.131 of the Revised Code or to include in the

           judgment of conviction entered on the journal a statement to

           that effect does not negate, limit, or otherwise affect the

           authority of the parole board to so impose a prison term for a

           violation of that nature if, pursuant to division (D)(1) of section

           2967.28 of the Revised Code, the parole board notifies the

           offender prior to the offender's release of the board's

           authority to so impose a prison term. Section 2929.191 of the

           Revised Code applies if, prior to July 11, 2006, a court

           imposed a sentence including a prison term and failed to

           notify the offender pursuant to division (B)(2)(e) of this

           section regarding the possibility of the parole board imposing
Muskingum County, Case No. CT2015-0016                                          5


             a prison term for a violation of supervision or a condition of

             post-release control.

      {¶9}   R.C. 2929.141 governs commission of an offense by person under post-

release control. Subsection (A)(1) states as follows:

                    (A)      Upon the conviction of or plea of guilty to a

             felony by a person on post-release control at the time of the

             commission of the felony, the court may terminate the term of

             post-release control, and the court may do either of the

             following regardless of whether the sentencing court or

             another court of this state imposed the original prison term for

             which the person is on post-release control:

                    (1)      In addition to any prison term for the new

             felony, impose a prison term for the post-release control

             violation. The maximum prison term for the violation shall be

             the greater of twelve months or the period of post-release

             control for the earlier felony minus any time the person has

             spent under post-release control for the earlier felony. In all

             cases, any prison term imposed for the violation shall be

             reduced by any prison term that is administratively imposed

             by the parole board as a post-release control sanction. A

             prison term imposed for the violation shall be served

             consecutively to any prison term imposed for the new felony.

             The imposition of a prison term for the post-release control
Muskingum County, Case No. CT2015-0016                                                    6


              violation shall terminate the period of post-release control for

              the earlier felony. (Emphasis added).

       {¶10} As noted by appellant in this brief, there is a split of appellate authority as

to whether or not that there is a duty to inform an offender of a possible consecutive

sentence under R.C. 2929.141. In State v. Adkins, 4th Dist. Lawrence No. 14CA29, 2015-

Ohio-2830 and State v. McDowell, 9th Dist. Summit App. No. 26697, 2014–Ohio–3900,

both cited by appellant, the courts held that the trial court was required to notify a

defendant that a prison term imposed for commission of a new felony during a term of

post-release control will be served consecutively to the prison term imposed by the court

for the violation of post-release control.

       {¶11} However, as the court noted in Adkins at paragraph 14:

                     We are cognizant that a number of other appellate

              districts have considered whether the postrelease control

              notification of R.C. 2929.19(B)(2)(e) must include notification

              of the penalty provisions in R.C. 2929.141(A)(1)-(2) and have

              held that this notification is not required. See State v. Bybee,

              2015–Ohio–878, 28 N.E.3d 149 (8th Dist.) (… refusing to

              extend the postrelease control notification requirements set

              forth in State v. Jordan, 104 Ohio St.3d 21, 2004–Ohio–6085,

              817 N.E.2d 864 and codified in R.C. 2929.19(B) to require

              additional notification of penalties under R.C. 2929.141 but

              agreeing with Mullins, infra, that it is a better practice to do

              so); State v. Burgett, 3rd Dist. Marion App. No. 9–10–37,
Muskingum County, Case No. CT2015-0016                                                  7


             2010–Ohio–5945 (“we find no such requirement contained in

             the statute mandating the trial court to notify a defendant of all

             the possible consequences of his commission of a felony

             while on post release control, as set forth under R.C.

             2929.141”); State v. Lane, 3rd Dist. Allen App. No. 1–10–10,

             2010–Ohio–4819       (the   possible   consequences       of   the

             commission of a felony under R.C. 2929.141 are discretionary

             options of the trial court, and no notice to a defendant of those

             options is required); State v. Witherspoon, 8th Dist. Cuyahoga

             No. 90498, 2008–Ohio–4092; State v. Mullins, 12th Dist.

             Butler App. No. CA2007–01–028, 2008–Ohio–1995, ¶ 14

             (holding that there is no requirement that the trial court at the

             sentencing hearing notify defendant of the possible penalties

             under R.C. 2929.141, though “we do note that the better

             practice would be to include notification of the potential

             implications of R.C. 2929.141 when notifying defendants of

             the other potential implications of postrelease control”); State

             v. Susany, 7th Dist. Mahoning App. No. 07MA7, 2008–Ohio–

             1543 (there is no requirement that the defendant must also be

             informed of the penalties under R.C. 2929.141 as part of the

             notification required under R.C. 2929.19(B)).

      {¶12} In the case sub judice, the trial court stated as follows at the March 2, 2015

sentencing hearing:
Muskingum County, Case No. CT2015-0016                                                    8


                     THE COURT: It is mandatory upon your release from

              prison you will be placed on what is known as post-release

              control for a period of three years by the adult parole authority.

              While on post-release control, you will be subject to a variety

              of rules and regulations. Should you fail to follow those rules

              and regulations, you could be sent back to prison for a period

              of up to nine months for each rule violation you may commit.

              The total amount of time you could be sent back to prison

              would be equal to one-half of your original prison sentence.

                     If you commit a new felony while on post-release

              control, in addition to any sentence you receive for that new

              felony, additional prison time could be added to that sentence

              in the form of the time you have left on post-release control,

              or one year, whichever is the greater. Do you understand

              what I just went over?

                     THE DEFENDANT: Yes.

       {¶13} Transcript of March 2, 2015 sentencing hearing at 7-8. (Emphasis added).

       {¶14} Recently, in State v. Wills, 5th Dist. Muskingum No. CT2015-0009, 2015-

Ohio-4599, this Court found that the trial court, which used identical language to the above

highlighted language at sentencing, “advised appellant of post release control and the

language ‘could be added’ is sufficient and tantamount to saying ‘consecutive to.’” Wills,

at paragraph 13. We found that the appellant, in Wills, had been advised of post-release

control and its ramifications.
Muskingum County, Case No. CT2015-0016                                                    9

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

                                               II

       {¶16} Appellant, in his second assignment of error, argues that he was improperly

convicted of and sentenced to the maximum term for a violation of R.C. 2921.331(B) as

a felony of the third degree because the trial court did not find beyond a reasonable doubt

that appellant caused a serious risk of physical harm to persons or property as required

by R.C. 2921.331(B)(C)(5)(a)(ii) and that this was the worst form of the offense.

       {¶17} R.C. 2921.331 states, in relevant part, as follows:

                     (B)     No person shall operate a motor vehicle so as

              willfully to elude or flee a police officer after receiving a visible

              or audible signal from a police officer to bring the person's

              motor vehicle to a stop.

                     (C)(1) Whoever violates this section is guilty of failure

              to comply with an order or signal of a police officer….

                     (5)(a) A violation of division (B) of this section is a

              felony of the third degree if the jury or judge as trier of fact

              finds any of the following by proof beyond a reasonable

              doubt:…

                     (ii) The operation of the motor vehicle by the offender

              caused a substantial risk of serious physical harm to persons

              or property.

       {¶18} In the case sub judice, the indictment alleged that appellant “did

purposefully operate a motor vehicle so as to willfully elude or flee a police officer after
Muskingum County, Case No. CT2015-0016                                                    10


receiving a visible or audible signal from a police officer to bring the motor vehicle to a

stop, the operation of the motor vehicle by [appellant] caused a substantial risk of serious

physical harm to persons or property” in violation of R.C. 2921.331(B), a felony of the

third degree. Appellant, on January 15, 2015, pleaded guilty to the charge as contained

in the indictment and the trial court found appellant guilty on the record. By pleading

guilty, appellant admitted to all of the allegations contained in the indictment.

       {¶19} Appellant, in his second assignment of error, further argues that the trial

court, in sentencing him, did not consider the factors listed in R.C. 2921.331(B)(C)(5)(b)(i-

ix) in sentencing him.

       {¶20} R.C. 2921.331 states, in relevant part, as follows:

                     B) No person shall operate a motor vehicle so as

              willfully to elude or flee a police officer after receiving a visible

              or audible signal from a police officer to bring the person's

              motor vehicle to a stop.

                     (5)(a) A violation of division (B) of this section is a

              felony of the third degree if the jury or judge as trier of fact

              finds any of the following by proof beyond a reasonable doubt:

                     (i) The operation of the motor vehicle by the offender

              was a proximate cause of serious physical harm to persons or

              property.

                     (ii) The operation of the motor vehicle by the offender

              caused a substantial risk of serious physical harm to persons

              or property.
Muskingum County, Case No. CT2015-0016                                           11


                    If a police officer pursues an offender who is violating

           division (B) of this section and division (C)(5)(a) of this section

           applies, the sentencing court, in determining the seriousness

           of an offender's conduct for purposes of sentencing the

           offender for a violation of division (B) of this section, shall

           consider, along with the factors set forth in sections 2929.12

           and 2929.13 of the Revised Code that are required to be

           considered, all of the following:

           (i)      The duration of the pursuit;

           (ii)     The distance of the pursuit;

           (iii)    The rate of speed at which the offender operated the

                    motor vehicle during the pursuit;

           (iv)     Whether the offender failed to stop for traffic lights or

                    stop signs during the pursuit;

           (v)      The number of traffic lights or stop signs for which the

                    offender failed to stop during the pursuit;

           (vi)     Whether the offender operated the motor vehicle

                    during the pursuit without lighted lights during a time

                    when lighted lights are required;

           (vii)    Whether the offender committed a moving violation

                    during the pursuit;

           (viii)   The number of moving violations the offender

                    committed during the pursuit;
Muskingum County, Case No. CT2015-0016                                                12


              (ix)   Any other relevant factors indicating that the offender's

                     conduct is more serious than conduct normally

                     constituting the offense.

       {¶22} As noted by the court in State v. Yarbrough, 2nd Dist Clark No. 2014–CA–

67, 2015-Ohio-1672 at paragraph 16:

                     Yarbrough has not cited, and we have not found,

              authority for the proposition that a trial court must include

              reference to R.C. 2921.331(C)(5)(b) factors in its judgment

              entry or during the sentencing hearing. Indeed, case law holds

              to the contrary—there is no requirement for the court to make

              any specific finding in relation to R.C. 2921.331(C)(5)(b).

              State v. Owen, 8th Dist. Cuyahoga No. 89948, 2008–Ohio–

              3555. Accord State v. Reed, 10th Dist. Franklin No. 08AP–20,

              2008–Ohio–6082.

       {¶23} Moreover, there is nothing in the record supporting the claim that the trial

court failed to consider these factors when imposing sentence. At the January 15, 2015

plea hearing, the prosecutor stated, in relevant part, as follows on the record:

                     MR. WELCH: Deputies pursued the maroon minivan

              [in which appellant was driving] in a marked police cruiser with

              lights and sirens on. The suspect continued to flee in the

              minivan through a field across Richvale Road and onto

              Friendly Hills Road. Their speeds at that point were ranging

              in the 60 to 75 miles-per-hour range.
Muskingum County, Case No. CT2015-0016                                                  13


                      During the pursuit deputies observed that the van was

               being driven out of control, swerving one side of the roadway

               to the other, passing and nearly hitting another vehicle while

               on Friendly Hills Road, and disobeying traffic control devices

               by passing through out at least three intersections while failing

               to obey traffic control devices.

        {¶24} Transcript of January 15, 2015 plea hearing at 9-10.

        {¶25} In addition, at the at the March 2, 2015 hearing, appellant’s counsel stated,

in relevant part, as follows:

                      MS. FRIES: May it please the Court, Your Honor, we

               would ask that you consider the sentencing factors set out of

               the   Ohio       Revised   Code    2921.331(C)(5)(b),   and   the

               subsequent factors thereunder. The duration of the pursuit in

               this matter was very short.         It lasted approximately four

               minutes. It only lasted for a couple miles. He did pass a

               couple of stop signs, but he did slow down to ensure no one

               was coming at the stop sign. The occurred during the daylight

               hours, and Mr. Nicholson saw only two other vehicles on the

               road, and he was not drinking that day. He has no recent

               felony convictions, and he’s very remorseful.

        {¶26} Transcript of March 2, 2015 sentencing hearing at 3-4.
Muskingum County, Case No. CT2015-0016                                                 14


       {¶27} Based on the foregoing, we find that the trial court did consider the factors

set forth in R.C. 2921.331(B)(C)(5)(b)(i-ix). Appellant’s second assignment of error is,

therefore, overruled.

       {¶28} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.
