[Cite as State v. Holbrook, 2020-Ohio-4100.]


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


STATE OF OHIO,
                                                          CASE NO. 6-19-14
       PLAINTIFF-APPELLEE,

       v.

TERRY PAUL HOLBROOK,                                      OPINION

       DEFENDANT-APPELLANT.


STATE OF OHIO,
                                                          CASE NO. 6-19-15
       PLAINTIFF-APPELLEE,

       v.

TERRY PAUL HOLBROOK,                                      OPINION

       DEFENDANT-APPELLANT.


                 Appeals from Hardin County Common Pleas Court
                 Trial Court Nos. CRI 20192093 and CRI 20192123

                                     Judgments Affirmed

                            Date of Decision: August 17, 2020



APPEARANCES:

        Michael B. Kelley for Appellant

        Jason M. Miller for Appellee
Case Nos. 6-19-14 and 6-19-15



WILLAMOWSKI, J.

        {¶1} Defendant-appellant Terry P. Holbrook (“Holbrook”) brings this appeal

from the judgments of the Hardin County Common Pleas Court revoking his post

release control (“PRC”) and imposing his remaining prison time in addition to the

sentences for two new felonies. For the reasons set forth below, the judgments are

affirmed.

        {¶2} On June 13, 2019, the Hardin County Grand Jury indicted Holbrook on

one count of possession of heroin in violation of R.C. 2925.11(A),(C)(6)(a), a felony

of the fifth degree. ADoc. 11 On August 16, 2019, the Hardin County Grand Jury

indicted Holbrook on one count of possession of cocaine in violation of R.C.

2925.11(A),(C)(4)(a), a felony of the fifth degree; one count of possession of drugs

in violation of R.C. 2925.11(A),(C)(2)(a), a felony of the fifth degree; and one count

of illegal use or possession of drug paraphernalia in violation of R.C. 2925.14(C)(1),

a misdemeanor of the fourth degree. BDoc. 1. At the time of these offenses,

Holbrook was on PRC. Tr. 2-3. A change of plea and sentencing hearing was held

on October 23, 2019. Tr. Pursuant to a plea agreement, Holbrook agreed to enter

guilty pleas to the possession of heroin and possession of cocaine and admitted that

he was on PRC at the time of the offenses. ADoc. 14 and BDoc. 11. The change

of plea form noted that “[i]f you are on [PRC], your existing [PRC] can be



1
 The docket in case number 6-19-14 will be identified as ADoc. and the docket in case number 6-19-15 will
be identified as BDoc.

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Case Nos. 6-19-14 and 6-19-15

terminated and a consecutive sentence be imposed for the [PRC] violation.” Id. At

the hearing, the State indicated that Holbrook would plead guilty to two fifth degree

felonies and the remainder of the charges would be dismissed. Tr. 2. The State also

indicated that there was a joint sentencing recommendation for sentences of ten

months on each count to be run consecutively. Tr. 2. When the trial court asked if

the State had a position regarding the PRC, the State indicated it was remaining

silent. Tr. 3. Counsel for Holbrook agreed that they were entering pleas of guilty

to the two counts and that Holbrook consented to the sentencing recommendation.

Tr. 3. Before accepting the pleas of guilty, the trial court had the following dialogue

with Holbrook.

       Judge: So my next question is, and I know the answer to this –
       are you currently on post-release control supervision?

       Defendant: Yes sir.

       Judge: Alright. So it is very important – do you believe that she
       was able to explain to you how post-release control supervision
       violations, how they’re handled in the context of new felony
       convictions?

       Defendant: Yes sir.

       Judge: So I’m going to go into that with you right now. You
       understand, being on post-release control supervision, that not
       only does the APA have authority to give you a sanction, or both,
       for either of these charges, but I am the judge in a new felony case
       – actually two new felony cases – will have the authority to give
       you sanction myself whereby I would terminate your post-release
       control supervision and then give you a prison sanction that I
       could actually begin with a minimum of a year, but I more
       importantly could go all the way up to the amount of time
       remaining, which I believe is over seven hundred days of


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Case Nos. 6-19-14 and 6-19-15

      supervision time still remaining.      Do you understand that’s
      possible?

      Defendant: Yes sir.

      Judge: And you understand if whatever prison sanction, should
      I give you one, whatever one I would give you has to be served
      first before you begin the underlying sentence on the new cases.
      Do you understand all that?

      Defendant: Yes sir.

      Judge: Alright. Do you have any questions about any of that,
      because that’s a serious matter. I mean I just want to make sure
      you understand the Supreme Court has just this year ruled judges
      have to make sure if a person is on PRC, that the person
      understands the ramification. I’ve always wanted to do that, I’ve
      always tried to do it.

      Defendant: Yes.

      Judge: But I’m even a little more aggressive about it now. Any
      questions?

      Defendant: No sir, I went over it in detail with my attorney.

      Judge: Alright. Attorney Kocher, do you have any reason that
      he had any confusion about the potential of the maximum amount
      of time that could be imposed?

      Kocher: No, we have gone over it thoroughly.

Tr. 22-24. Holbrook then signed the change of plea agreement and entered pleas of

guilty. Tr. 30-31. The trial court then imposed the jointly recommended sentences

as to the two new felony charges. Tr. 44-45. The trial court then moved on to

sentence Holbrook on the PRC violation.

      As I said when we started this Mr. Holbrook, it’s one of the worst
      records I’ve seen in the period of a year and a half on post-release
      control supervision. I mean I honestly cannot remember one that

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Case Nos. 6-19-14 and 6-19-15

      has been that bad where the person had four or five whereabouts
      unknown * * * [.]

      ***

      I really have no – I have to consider the PRC sanction. You have
      not shown yourself to be able to live in the community. You said
      you even had a good job, which just even puzzles me more – that
      you had the benefit some people don’t have, and yet you continued
      with this horribly irresponsible conduct. So the Court is going to
      terminate your post-release control supervision period, and the
      Court is going to give you the sanction of the remaining period of
      time as a prison sanction prior to and consecutive to the
      underlying twenty month aggregated sentence out of this case.

Tr. 45-48.

      {¶3} Holbrook filed notices of appeal in these cases. ADoc. 21 and BDoc.

19. On appeal, Holbrook raises the following assignment of error.

      The trial court erred by abusing its discretion when it imposed, as
      a prison term, the remaining 702 days on PRC for a violation of
      PRC based upon a conviction for a new felony charge, which was
      not part of the jointly recommended sentence, and was plain
      error.

      {¶4} The sole assignment of error alleges that the trial court erred in

imposing the remaining time on PRC as part of the aggregate prison term. The

sentence to be imposed for violations of PRC is set forth in R.C. 2929.141.

      (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

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Case Nos. 6-19-14 and 6-19-15

       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 violation shall terminate the period of post-release control
       for the earlier felony.

R.C. 2929.141. Thus, the trial court had the authority to impose the remaining time

on PRC as a prison term for the violation of the PRC. Here, the trial court

determined there was 702 days of supervision left and imposed that time as a

sentence to be served prior to the sentences in the new felonies. This complies with

the statute.

       {¶5} Holbrook argues that the trial court erred in imposing the remaining

time for the PRC violation because the record did not support the severity of the

sentence and that the sentence was plain error. If a sentence is within the statutory

limits, the severity of the sentence is not a basis for seeking relief on direct appeal.

Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). A

review of the record shows that the trial court considered Holbrook’s record. The

trial court specifically noted that Holbrook’s record on PRC was the worst one he

had ever seen. He noted that since October of 2018, Holbrook had been missing

from supervision five times, had multiple misdemeanor convictions, and had a long

criminal history. Tr. 36-38. The trial court noted that the first underlying felony



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Case Nos. 6-19-14 and 6-19-15

occurred in February of 2019 and Holbrook took no action to go into treatment and

instead committed a second offense in April of 2019. Tr. 44.

         {¶6} Holbrook also appears to be arguing that the trial court did not correctly

apply the sentencing factors in deciding to re-impose the remaining prison term for

violation of PRC. This court notes that the trial court in this case did not impose the

original sentence that caused Holbrook to be on PRC. The sentencing factors were

presumably reviewed at the time the sentence was imposed.2 The trial court in this

case was merely re-imposing the remainder of the sentence previously ordered.

Given the record before us, this Court does not find that there was any abuse of

discretion or plain error in imposing the sentence it did. The assignment of error is

overruled.

         {¶7} Having found no prejudicial error in the particulars assigned and

argued, the judgments of the Hardin County Common Pleas Court are affirmed.

                                                                                 Judgments Affirmed

PRESTON and ZIMMERMAN, J.J., concur.

/hls




2
 The record for the original case is not before this Court, thus we have no ability to review it. However, we
can presume the regularity of the prior proceedings.

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