[Cite as State v. Smith, 2011-Ohio-410.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-10-28

        v.

AARON M. SMITH,                                           OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2007-CR-112

                                      Judgment Affirmed

                            Date of Decision: January 31, 2011




APPEARANCES:

        S. Mark Weller for Appellant

        Edwin A. Pierce for Appellee
Case No. 2-10-28


WILLAMOWSKI, J.

        {¶1} Defendant-appellant, Aaron M. Smith (“Smith”), appeals the

judgment of the Auglaize County Common Pleas Court, reimposing his previously

ordered prison sentence of eighteen months (plus 1,259 days in prison for a post-

release control violation) for violating the terms of his judicial release.                    For the

reasons set forth herein, we affirm the judgment of the trial court.

        {¶2} On August 30, 2007, the Auglaize County Grand Jury indicted

Smith for one count of failure to notify change of address in violation of R.C.

2950.05(E)(1), 2950.99(A)(1)(a)(ii), a felony of the fourth degree. At the time of

this offense, Smith was on post-release control for a prior conviction.

        {¶3} After initially entering a plea of not guilty, Smith withdrew that plea

and tendered a plea of guilty to the sole count in the indictment on October 15,

2007.      The trial court ordered a pre-sentence investigation and scheduled

sentencing for a later date. On December 3, 2007, Smith was sentenced to five

years of community control. In this sentence, the trial court notified Smith that if

he violated the conditions of community control that he was subject to eighteen

months in prison as well as 1,274 days in prison for the post-release control

violation.1



1
 The Revised Code requires that any prison term imposed for a violation of post-release control be served
consecutively to any prison term imposed for a new felony that was committed by the offender while the
offender was on post-release control. R.C. 2929.141.


                                                  -2-
Case No. 2-10-28


        {¶4} On July 11, 2008, the State filed a motion requesting a hearing

regarding allegations that Smith violated his conditions of community control. For

various reasons, this hearing did not occur until January 8, 2009. At that time,

Smith admitted violating the conditions of his community control, and the trial

court ordered that he serve eighteen months in prison on the failure to notify

change of address charge and an additional 1,259 days in prison for committing

this offense while on post-release control.2 The court’s judgment entry reflecting

this sentence was filed one day later on January 9, 2009.

        {¶5} In March, June, and September of 2009, Smith filed motions for

judicial release, all of which were summarily denied by the trial court without

hearings. On April 23, 2010, Smith filed a pro se motion for judicial release, and

three days later, his attorney filed a motion for judicial release on his behalf. On

May 11, 2010, the trial court held a judicial release hearing and granted Smith’s

request for judicial release and placed him on community control. The trial court

also informed Smith that if he violated the terms of judicial release, it could

reimpose his prison sentences. That same day, Smith violated the terms of his

community control, and the State then filed a motion requesting a hearing to

determine whether Smith violated the terms of his community control. On July



2
  As previously noted, the original prison term for the post-control violation was 1,274 days. However, in
the January, 2009 entry that number was changed to 1,259. A transcript of this hearing was not provided to
this Court, and the record is otherwise silent as to the reason this number was reduced.


                                                   -3-
Case No. 2-10-28


21, 2010, a hearing was held, and Smith admitted violating the terms of

community control.3 The trial court reimposed Smith’s prison sentences for the

original offense as well as for the post-release control violation

        {¶6} Smith appeals the decision of the trial court, raising one assignment

of error.

        THE TRIAL COURT’S SENTENCE OF THE DEFENDANT-
        APPELLANT CONSTITUTED AN ABUSE OF DISCRETION
        IN FAILING TO PROPERLY CONSIDER AND APPLY THE
        FELONY SENTENCING GUIDELINES SET FORTH IN R.C.
        2929.11 AND 2929.12.

        {¶7} In his sole assignment of error, Smith contends that the trial court

failed to consider the purposes and principles of sentencing, pursuant to R.C.

2929.11, and the seriousness and recidivism factors enumerated in R.C. 2929.12

when it reimposed his prison term for violating the conditions of his judicial

release, rendering its sentence contrary to law. Smith further asserts that the

record does not support his prison sentence because his conduct in committing the

offense of failing to notify change of address was one of the least serious forms of

conduct that could be committed for this offense, his offense was committed under

circumstances that were not likely to recur, and he was genuinely remorseful.

However, Smith acknowledges that several of the factors that indicate he is likely

to commit future crimes were present, i.e. he was on post-release control at the


3
  Originally, the State alleged six different violations. Smith admitted to four of them, and the State
dismissed the remaining two allegations.


                                                 -4-
Case No. 2-10-28


time of the offense, he had previously been adjudicated a delinquent child, he had

a history of criminal convictions, and his prior conduct demonstrated that he had

not been rehabilitated to a satisfactory degree after previously being adjudicated a

delinquent child. In short, Smith is challenging the prison term that was imposed

upon him for his criminal offense of failing to notify change of address.

        {¶8} When a trial court releases an offender pursuant to R.C. 2929.20, it

must “place the offender under an appropriate community control sanction, under

appropriate conditions, and under the supervision of the department of probation

serving the court[.]” R.C. 2929.20(K). Further, the trial court that releases the

offender reserves “the right to reimpose the sentence that it reduced if the offender

violates the sanction.” Id. This Court has previously held that when an offender

violates the conditions of his judicial release, R.C. 2929.20(K)4 “provides that the

trial court may reimpose the conditionally reduced sentence without making the

findings that are required when a felony sentence is originally imposed.” State v.

Mann, 3rd Dist. No. 3-03-42, 2004-Ohio-4703, ¶16, citing State v. Gardner, 3rd

Dist. No. 14-99-24, 1999-Ohio-938. Therefore, although Smith presently takes

issue with the validity of his prison term, the appropriate time to do so was the

point at which the trial court actually issued the prison sentence not when it



4
  This portion of the judicial release statute was formerly codified as R.C. 2929.20(I). (emphasis added.)
Effective April 7, 2009, this division was changed to (K). However, the language pertinent to the case sub
judice did not change.


                                                   -5-
Case No. 2-10-28


reimposed that sentence.

       {¶9} App.R. 4(A) generally provides that an appellant has thirty days

from the date of the entry of judgment to perfect a timely appeal. As previously

noted, the original judgment entry imposing Smith’s prison sentence was rendered

on January 9, 2009. The record is clear that Smith failed to file a notice of appeal

within thirty days from the date of that entry. Therefore, since Smith could have

raised these issues previously, he is barred from raising them now. See Gardner,

1999-Ohio-938; see, also, State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d

104. As a result, Smith’s assignment of error is overruled.

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

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, P.J., and PRESTON, J., concur.

/jlr




                                        -6-
