[Cite as State v. Harris, 2016-Ohio-3355.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CHAMPAIGN COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

NORA I. HARRIS 

Defendant-Appellant 

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Appellate Case No. 2015-CA-34 

Trial Court Case No. 15-CR-75 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 10th day of June, 2016. 

. . . . . . . . . . . 

KEVIN S. TALEBI, Atty. Reg. No. 0069198, by JANE A. NAPIER, Atty. Reg. No. 0061426, 

Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 

 Attorney for Plaintiff-Appellee 

 

SEAN BRINKMAN, Atty. Reg. No. 0088253, Durden Law, LLC, 10 West Monument 

Avenue, Dayton, Ohio 45402 

 Attorney for Defendant-Appellant 

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FAIN, J. 

{¶ 1} Defendant-appellant Nora Harris appeals from her sentence, following a 

plea of guilty, for Possession of Heroin. She contends that the trial court erred by 

advising her, at sentencing, that the conviction carried a three-year period of post-release 
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control, when it should have specified a three-year period of possible post-release control. 

{¶ 2} We conclude that the record supports a finding that Harris was properly 

informed of the possible maximum penalties in regard to her conviction. Accordingly, the 

judgment of the trial court is Affirmed. 

I. The Course of Proceedings 

{¶ 3} On May 7, 2015, Harris was indicted on two counts of Possession of Heroin, 

one count of Possessing Drug Abuse Instruments, and one count of Illegal Use or 

Possession of Drug Paraphernalia. Pursuant to a plea agreement, Harris entered a 

guilty plea to one count of Possession of Heroin, in violation of R.C. 2925.11(A)(C)(6)(a), 

a fifth-degree felony. In exchange for the plea, the State dismissed the remaining 

charges, and agreed to make a recommendation of community control sanctions if a presentence report did not indicate a criminal history, and if Harris did not commit any offense 

prior to sentence. The written plea agreement, signed by Harris, contains the following 

statement: 

Post Release Control. In addition, a period of supervision by the Adult 

Parole Authority after release from prison is optional in this case. If I 

receive prison for a felony of the fifth degree, I may be given up to three (3) 

years of post-release control. A violation of any post release control rule 

or condition can result in a more restrictive sanction while I am under post 

release control, and increased duration of supervision or control, up to the 

maximum term and re-imprisonment even though I have served the entire 

stated prison term imposed upon me by this Court for all offenses. 
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{¶ 4} During the plea hearing, the trial court stated as follows: 

If you are sentenced to prison, upon release from prison you are 

subject to supervision by state or local authorities. That is what is known 

as post-release control. Post-release control in your case can be for a 

period of up to three years after release from imprisonment, subject to 

Parole Board determination. 

{¶ 5} At the sentencing hearing, it was noted that the pre-sentence report indicated 

that Harris had previously served a prison term, and that she used heroin one day prior 

to her pre-sentence investigation interview, in violation of the terms of her bond 

conditions. The State was therefore relieved of its sentencing recommendation. 

Despite the violation and prior criminal history, the trial court sentenced Harris to a twoyear term of community control, with the requirement that she complete a residential 

substance abuse program. The trial court, after noting that a violation of community 

control would result in a prison term, stated as follows: 

Upon release from prison you are subject to - - if you are sentenced 

to prison, upon release you are subject to a period of post-release control 

for a period of up to three years after your release from imprisonment 

subject to Parole Board determination. There are rules to follow on postrelease control. If you violate those rules, you can be punished. 

Punishment can include increasing the duration of your post-release control 

time period up to that maximum three-year period I just told you about. 

{¶ 6} In the journal entry of judgment, conviction, and sentence, the trial court set 
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forth the following: 

Post-release control. Where the Defendant is sentenced to a term 

of imprisonment, upon release from prison, Defendant shall be subject to 

post-release control for a period of up to three (3) years after the 

Defendant’s release from imprisonment, subject to Parole Board 

determination. 

{¶ 7} Harris appeals. 

II. The Trial Court’s Failure to State, Expressly, that a Period of PostRelease Control of up to Three Years, in the Discretion of the Parole 

Authority, Is Not Mandatory Did Not Render Harris’s Plea other than 

Knowing and Intelligent 

{¶ 8} Harris’s sole assignment of error states: 

MS. HARRIS’ PLEA WAS NOT MADE KNOWINGLY, 

INTELLIGENTLY, AND VOLUNTARILY. 

{¶ 9} Harris contends that the trial court failed to inform her that post-release 

control was optional for a felony of the fifth degree. She contends that the trial court 

informed her that it was mandatory. She argues that her plea could not have been made 

knowingly, voluntarily and intelligently, because she was not properly informed of the 

maximum penalties. She further argues that she was prejudiced by the “misinformation 

[because she] may not have pled guilty if she knew that post-release control may be 

imposed, rather than is imposed, if she was sentenced to prison.” 

{¶ 10} Post-release control requirements with respect to fifth-degree felony 
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offenses are discretionary. State v. Sulek, 2d Dist. Greene No. 09CA75, 2010-Ohio3919, ¶ 10. “The period of optional post-release control to which an offender is subject 

as part of a sentence for a felony of the fifth degree is a period of up to three years.” 

State v. Ramey, 2d Dist. Montgomery No. 24944, 2012-Ohio-3978, ¶9, citing R.C. 

2967.28(C). R.C. 2929.19(B)(2)(d) requires that a sentencing court notify a defendant 

that he or she may be subject to supervision after leaving prison if it imposes a sentence 

for a fifth-degree felony that does not involve a sex offense or an offense of physical harm 

or a threat of physical harm. 

{¶ 11} The trial court informed Harris of the maximum penalties, including the 

maximum possible term of post-release control. The written plea agreement, which was 

signed in open court and acknowledged by counsel and Harris, specifically noted that 

post-release control is optional, and may last for up to three years. The trial court, during 

the plea hearing, also properly informed her that if she is imprisoned, she will be subject 

to post-release control upon release, subject to Parole Board determination, and that the 

post-control release can be for a period of up to three years. The record does not 

demonstrate that the trial court affirmatively stated that post-release control was 

mandatory. Instead, it appears that Harris interprets the phrase “subject to” as implying 

that post-release control is mandatory. We disagree. 

{¶ 12} We find no error in the trial court’s recitation of the possible penalties, since 

that recitation included the maximum penalty. We further find Harris’s claim of prejudice 

speculative. She entered the guilty plea in exchange for the dismissal of the other two 

charges. While the State, following the disclosure of the bond violation, did not 

recommend community control, Harris nevertheless was sentenced to community control, 
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which was what she originally bargained for. 

{¶ 13} Harris’s sole assignment of error is overruled. 

III. Conclusion 

{¶ 14} Harris’s sole assignment of error having been overruled, the judgment of 

the trial court is Affirmed. 

. . . . . . . . . . . . . 

HALL, J., and WELBAUM, J., concur. 

Copies mailed to: 

Kevin S. Talebi 

Jane A. Napier 

Sean Brinkman 

Hon. Nick A. Selvaggio