Ohio Supreme Court Decision: Conviction for Escape Does Not Require State to Show Postrelease Control Was Orally Announced at Sentencing

State v. Jordan, Slip Opinion No. 2010-Ohio-281.
Marion App. No. 9-08-11, 2008-Ohio-4647. Certified question answered in the affirmative, and judgment of the court of appeals affirmed.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-281.pdf

(Feb. 4, 2010) The Supreme Court of Ohio today ruled that, to obtain a conviction for the crime of escape for violating the terms of a post-release control order, the state may prove that a defendant was subject to postrelease control without proving that during a sentencing hearing the trial court orally notified the defendant that he would be subject to postrelease control. The Court’s 5-2 decision was written by Chief Justice Thomas J. Moyer.

The case involved an appeal by Rusty Jordan of Marion of his conviction for escape under R.C. 2921.34(A)(1) for violating the terms of his postrelease control.

Jordan entered guilty pleas to several felony counts in 2006 and was sentenced to a term of imprisonment. In its written sentencing entry, the trial court included a three-year term of postrelease control. After his release from prison, Jordan complied with the terms of his postrelease control for several months, reporting regularly to a parole officer. Jordan eventually failed to report for scheduled meetings with a parole officer, and it was determined that he had abandoned his approved residence. Eventually, Jordan was located, arrested, and charged with escape under R.C. 2921.34. A jury found him guilty of that offense, and the court sentenced him to a prison term of three years.

Jordan appealed, arguing that in order to be guilty of escape the law required that he must be “under detention,” and claiming that he was not lawfully under detention at the time he changed residences without notification and failed to report to probation authorities. Jordan based that claim on the fact that prosecutors at his escape trial had not submitted evidence that, during his 2006 sentencing hearing, the trial judge had orally advised Jordan in open court that he would be subject to a term of post-release control. The 3rd District Court of Appeals affirmed Jordan’s conviction, but certified that its decision conflicted with a 2007 decision in which the 9th District Court of Appeals overturned an escape conviction on similar grounds. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

In today’s decision, Chief Justice Moyer wrote: “In Jordan’s view, the evidence of supervision was legally insufficient because the state did not prove that the sentencing court advised him of postrelease control as required by R.C. 2929.19 and, therefore, the state did not prove that the Department of Rehabilitation and Corrections was authorized to supervise him. We are not persuaded by Jordan’s argument. ... When the parties do not submit evidence to show whether the sentencing court performed each of its duties for imposition of postrelease control, the question is simply whether the state provided sufficient evidence to prove that the defendant was under detention.”

“The state provided ample evidence that Jordan was under the supervision of the Department of Rehabilitation and Correction. The relevant sentencing entry states that Jordan ‘may be subject to a period of three (3) years of postrelease control.’ Jordan was also advised of his postrelease control two weeks before his release from prison. Jordan signed a document detailing the conditions of his monitored time (one type of postrelease control) on the day after his release from prison. This document stated: ‘I understand if I am a releasee and abscond supervision, I may be prosecuted for the crime of escape, under section 2921.34 of the revised code.’ A few weeks later, when Jordan was arrested for an unrelated charge, his postrelease control was increased from monitored time to basic supervision. When he was placed on basic supervision, his parole officer met with him, explained the terms of basic supervision, and provided him with a document entitled ‘Conditions of Supervision.’ This document also included the statement, ‘I understand that if I am a releasee and abscond supervision, I may be prosecuted for the crime of escape, under section 2921.34 of the Revised Code.’”

Based on this evidence and Jordan’s documented compliance with the terms his postrelease control by contacting and meeting with his parole officer over a period of several months, the Chief Justice wrote: “(W)e hold that the state proved beyond a reasonable doubt that Jordan was subject to supervision by the Department of Rehabilitation and Correction. The evidence shows that Jordan was ‘under detention’ as ‘detention’ is defined in R.C. 2921.01(E), and therefore the state proved that element of R.C. 2921.34(A)(1).”

While affirming the ruling of the 3rd District in this case, the Chief Justice noted that today’s decision did not reach the issue of whether a defendant can be convicted of escape when the evidence affirmatively demonstrates that the sentencing court failed or declined to impose postrelease control at the time of sentencing.

Chief Justice Moyer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor,

Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, in which she pointed out that in a line of recent Supreme Court decisions “We have ruled that unless the defendant is advised of postrelease control both at the sentencing hearing and in the judgment entry, the Adult Parole Authority is without authority to impose it. ... (I)n this case ... the state has not provided evidence that the defendant was orally notified of postrelease control at the sentencing hearing. ... In failing to require the state to show proper oral notification to the defendant, the majority retreats from the idea that unless a defendant is notified of postrelease control at sentencing, the sentence is void. ... I would require the state to prove that a defendant was notified of postrelease control at sentencing to show that the defendant was under valid detention for purposes of escape. I respectfully dissent and would reverse the defendant’s conviction.”

Contacts
Denise Martin, 740.223.4290, for the Marion County prosecutor’s office.

Stephen P. Hardwick, 614.466.5394, for Rusty Jordan.

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