[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 : O P I N I O N 

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 postrelease 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)(iix) 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.