STATE OF OHIO v. KRISTOPHER O. PITTS

Circleville, OH - Criminal defense attorney represented Kristopher O. Pitts with committing drug offenses while on post release control ("PRC”) in a prior case.

On July 12, 2019, a grand jury indicted Appellant on the following

charges: possession of heroin in violation of R.C. 2925.11(A) and (C)(6)(c),

trafficking in heroin in violation of R.C. 2925.03(A)(2) and (C)(1)(c), aggravated

possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(b), aggravated

trafficking in drugs in violation of R.C. 2925.03(A)(2) and (C)(1)(c). Initially,

Appellant pled not guilty.

{¶3} Pursuant to a sentence enhancement request form ("ODRC form”)

dated December 10, 2019, and pursuant to R.C. 2929.141, the Ohio Department

of Rehabilitation and Correction requested the State to pursue a sentence

enhancement if Appellant was convicted of the charged drug offenses herein

because he committed these offenses while he was on PRC in a prior case from

Hamilton County. The parties eventually reached a plea whereby Appellant

would plead guilty to counts one and three with the State dismissing counts two

and four, but each party would argue the appropriate sentence.

{¶4} On February 4, 2020, the trial court held a plea hearing during which

the trial court engaged Appellant in the required Crim.R. 11 colloquy. During the

colloquy, the Appellant admitted that he was on PRC at the time he committed

the drug offenses herein. The trial court then informed Appellant that if he is

convicted of a felony while on PRC, the court can terminate his post release Gallia App. No. 20CA6 3

control and impose a prison term for violating PRC. The Appellant

acknowledged that he understood that consequence, and his counsel informed

the trial court that he had discussed the issue with Appellant. Appellant then pled

guilty to counts one and three, and trial court accepted his plea and set

sentencing for February 13, 2020.

{¶5} At the February 13, 2020 sentencing hearing, the State called officer

Joel Jagers of the Adult Parole Authority of Gallia County to establish Appellant's

violation of PRC and to calculate the sentence enhancement. Jagers testified

that when Appellant committed the drug offenses herein, he (Appellant) was

serving a three-year term of PRC from a prior Hamilton County case. Jagers

testified that Appellant began serving that PRC on July 13, 2016. However,

Jagers testified that Appellant was a violator at large on three different occasions

(September 15, 2016 to November 25, 2016, October 26, 2017 to March 13,

2019, and June 21, 2019 to December 8, 2019) with each at-large period not

counting toward Appellant serving his PRC. Jagers opined that Appellant's PRC

would expire on August 11, 2021. The prosecutor then asked Jagers: "Ok. So

545 days?” Jagers responded: "That sounds correct.”

{¶6} However, later during the sentencing hearing, the trial asked to look

at the ODRC form. The trial court asked the prosecutor "you have calculated 545

days as of today? Because [the ORDRC form] says 610 as of 12/10?” In

response the prosecutor stated: "So let's see, well what I did was I went with the

end date that Mr. Jagers testified to of 8/11/2021. I count today and use a start

date and end date of 8/11/2021 that comes up with 545 days.” Gallia App. No. 20CA6 4

{¶7} The trial court agreed with the State's calculation, and taking into

account three days of jail time credit, issued an entry imposing an additional

prison term of 542 days as a sentence enhancement for violating his PRC in the

Hamilton County case. The trial court ordered the 542-day sentence

enhancement to be served consecutive to his 72-month prison term for the drug

offenses, resulting in an aggregate prison term of approximately 90 months. It is

from this judgment that Appellant appeals, asserting a single assignment of error.

ASSIGNMENT OF ERROR

THE CONSTITUTIONAL GUARANTEES AND PROTECTIONS OF DUE

PROCESS WERE NOT AFFORDED TO APPELLANT WHEN THE LENGHTH

OF THE PRC JUDICIAL SANCTION WAS DETERMINED FROM AN

UNSIGNED LETTER.



{¶8} The Appellant argues that by relying on the unsigned ODRC form to

impose the 542-day sentence enhancement, the trial court violated his due

process rights. Appellant asserts that the trial court should have imposed a 531-

day sentence enhancement. He offers the following calculation in support:

ï‚· July 13, 2016 (PRC began)

ï‚· September 15, 2016 to November 25, 2016 (violator at large, not counted

toward serving PRC)

ï‚· October 26, 2017 to March 13, 2019 (violator at large, so not counted

toward serving PRC)

ï‚· June 21, 2019 to December 8, 2019 (violator at large, so not counted

toward serving PRC)

ï‚· February 13, 2020 (sentence hearing)

ï‚· July 13, 2016 to September 15, 2016 = 64 days served Gallia App. No. 20CA6 5

ï‚· November 25, 2016 to October 26, 2017 = 335 days served

ï‚· March 13, 2019 to June 21, 2019= 100 days served

 December 8, 2019 to February 13, 2020 – 65 days served

 Total time served PRC – 564 days

ï‚· Time remaining on PRC - 1095-564 = 531 days.

{¶9} Therefore, Appellant asserts "that portion of the trial court's

sentencing order should be vacated.”

{¶10} In response, the State admits that "[t]here is a discrepancy in the

calculation between the violator at large tolling periods and the [ODRC form].”

Therefore, the State "agrees to reduce the PRC enhancement to Appellant's

calculation of 531 days remaining at the time of sentencing,” but should "maintain

the rest of the sentence.”

LAW AND ANALYSIS

Standard of Review

{¶11} An "appellate court may increase, reduce, or modify the sentence or

vacate it and remand for resentencing if the court clearly and convincingly finds *

* * "[t]hat [a] sentence is * * * contrary to law.” State v. Conant, 4th Dist. Adams

No. 20CA1108, 2020-Ohio-4319, ¶ 42, quoting R.C. 2953.08(G)(2). "A sentence

for the post-release control violation is not otherwise contrary to law if it comports

with the requirements of R.C. 2929.141.” State v. Lincoln, 4th Dist. Washington

No. 18CA22, 2019-Ohio-4560, 148 N.E.3d 7, ¶ 10, citing State v. Lehman, 2nd

Dist. Champaign No. 2014-CA17, 2015-Ohio-1979, ¶ 17. Gallia App. No. 20CA6 6

Sentence Enhancement for Violating PRC

{¶12} If a defendant is convicted of felony while on post-release control,

then the trial court

may terminate the term of post-release control * * * and * * * [i]n

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.” (Emphasis added.)

R.C. 2929.141(A).

In calculating how much PRC an Appellant has served

The time between the date on which a person who is a parolee

or other releasee is declared to be a violator or violator at large

and the date on which the person is returned to custody in this

state under the immediate control of the adult parole authority

shall not be counted as time served under the sentence imposed

on that person or as a part of the term of post-release control.

Chapin v. Bradley, 4th Dist. Pickaway No. 16CA12, 2016-Ohio-7441, 76

N.E.3d 533, ¶ 13, quoting R.C. 2967.15(C)(1).

{¶13} Initially we note that Appellant's allegation of a violation of his due

process rights lacks merit. The trial court informed Appellant both at his plea

hearing and his sentence hearing that he would be subject to a sentence

enhancement because he had committed the drug offenses at issue herein while

he was on PRC in the Hamilton County case. Moreover, at the sentencing

hearing, the trial court heard testimony and arguments from both parties

regarding the appropriate sentence enhancement. Accordingly, Appellant was

afforded sufficient due process during his sentencing hearing with regard to the Gallia App. No. 20CA6 7

determination of his sentence enhancement. That said, it appears that the trial

erred in imposing a 542-day sentence enhancement.

{¶14} Both parties agree that when Appellant committed the drug offenses

herein, he was serving a three-year term of PRC in a Hamilton County case that

he began to serve on July 13, 2016. However, in calculating the sentence

enhancement for the PRC violation, the State relied on Jager's testimony that

Appellant's PRC would terminate on August 11, 2021. In fact, Appellant's

calculation herein correctly establishes that Appellant's PRC was scheduled to

end on July 13, 2019 (this date was calculated by adding three years (1095 days)

to the PRC start date of July 13, 2016). Appellant's calculation then determines -

over that 1095-day period how many days of PRC he had remaining, which was

531 days. The state agrees that an error was made in calculating Appellant's

sentencing enhancement. We would note, however, that the calculation of the

time served from December 8, 2019 to February 13, 2020, which Appellant

claims is 65 days, is in fact 67 days. This benefits Appellant in that he had had

529 days of PRC left to serve, as opposed to 531 as he calculated.

{¶15} Accordingly, the trial court's 542-day sentence enhancement was

contrary to law because it did not comply with R.C. 2929.141. Lincoln, 4th Dist.

Washington No. 18CA22, 2019-Ohio-4560, 148 N.E.3d 7, ¶ 10. However, in

addressing the remedy, we agree with the State there is no need to vacate

Appellant's entire sentence. We have issued decisions remedying only the

invalid portion of an Appellant's sentences in other cases. See e.g. State v.

Moore, 4th Dist. Adams No. 18CA1070, 2019-Ohio-1467, ¶ 16 ("Because the Gallia App. No. 20CA6 8

post-release control portion of Appellant's sentence is contrary to law and void,

we sustain the first assignment of error to the extent it challenges that portion of

her sentence, reverse that portion of her sentence * * *.”).

Therefore, we vacate Appellant’s sentence enhancement only, and remand the cause to the trial court to recalculate the sentence enhancement consistent with our decision.