State v. Christner

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State v. Christner

State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-4790

Case Date: 10/15/2012

Plaintiff: State

Defendant: Christner

Preview:[Cite as State v. Christner, 2012-Ohio-4790.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO                                   JUDGES:
                                                Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee                              Hon. John W. Wise, J.
                                                Hon. Julie A. Edwards, J.
-vs-
                                                Case No. 2012 CA 00135
ALFRED CHRISTNER
Defendant-Appellant                             O P I N I O N
CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No.   2011 CR 00521
JUDGMENT:                                       Dismissed
DATE OF JUDGMENT ENTRY:                         October 15, 2012
APPEARANCES:
For Plaintiff-Appellee                          For Defendant-Appellant
JOHN D. FERRERO                                 ALFRED CHRISTNER
PROSECUTING ATTORNEY                            HOCKING CORRECTIONAL INSTITUTION
RENEE M. WATSON                                 Post Office Box 59
ASSISTANT PROSECUTOR                            Nelsonville, Ohio   45764
110 Central Plaza South, Suite 510
Canton, Ohio   44702-1413

Stark County, Case No. 2012 CA 00135                                                          2
Wise, J.
{¶1}   Appellant  Alfred  Christner  appeals  from  the  decision  of  the  Court  of
Common  Pleas,  Stark  County,  which  denied  his  request  for  judicial  release.  The
relevant facts leading to this appeal are as follows.
{¶2}   In  May  2011,  the  Stark  County  Grand  Jury  indicted  appellant  on  two
counts  of  gross  sexual  imposition                                                         (R.C.                                                            2907.05(A)(4)),  both  felonies  of  the  third
degree. The  indictment  was  based on an allegation of  acts by appellant  occurring
between November 2010 and March 2011.
{¶3}   On June 29, 2011, appellant entered pleas of guilty as charged to both
counts in the Stark County Court of Common Pleas. Appellant was thereafter sentenced
to five years on each count, to be served concurrently. Appellant was also classified as
a Tier II sex offender.
{¶4}   Over the course of the ensuing months, appellant unsuccessfully sought
judicial release in the trial court on several occasions. On June 25, 2012, appellant filed
another motion for judicial release, which the trial court denied via judgment entry on the
same day.
{¶5}   On  July                                                                               13,                                                              2012,  appellant  filed  a  notice  of  appeal  regarding  the
aforesaid judgment entry. He herein raises the following two Assignments of Error:
{¶6}                                                                                          “I.   HOUSE BILL 86  (H.B.  86) CREATES A SUBSTANTIAL RIGHT OF
LIBERTY FOR QUALIFIED, INCARCERATED, NON-VIOLENT OFFENDERS.
{¶7}                                                                                          “II.   MR. CHRISTNER IS UNNECESSARILY BEING DEPRIVED OF HIS
SUBSTANTIAL RIGHT TO LIBERTY AND THE PURSUIT OF HAPPINESS.”

Stark County, Case No.   2012 CA 00135                                                         3
I., II.
{¶8}   In  his  First  and  Second  Assignments  of  Error,  appellant  essentially
contends the trial court erred and deprived him of his constitutional rights in denying his
motion for judicial release.
{¶9}   As  an  initial  procedural  matter,  we  note  R.C.  2929.20(C)(3)  states  in
pertinent part as follows: “An eligible offender may file a motion for judicial release with
the  sentencing  court  within  the  following  applicable  periods:                           ***  If  the  aggregated
nonmandatory prison term or terms is five years, the eligible offender may file the
motion not earlier than four years after the eligible offender is delivered to a state
correctional institution or, if the prison term includes a mandatory prison term or terms,
not earlier than four years after the expiration of all mandatory prison terms.”
{¶10}  Based  on  the  aforesaid  procedural  history  of  this  matter,  it  appears
impossible that appellant would have been “delivered to a state correctional institution”
for his present gross sexual imposition crimes any earlier than 2011; thus, should we
reach the issue, we would be inclined to find that his motion for judicial release is
premature until some point in 2015, pursuant to R.C. 2929.20(C)(3).
{¶11}  Nonetheless, it is well-established that the denial of a motion for judicial
release is not a final appealable order. See, e.g., State v. Bennett, Muskingum App.No.
CT2005-0009, 2006-Ohio-2812, ¶ 15, citing State v. Masko, Trumbull App. No. 2004-T-
0070,  2004-Ohio-5297,  ¶  2. Appellant’s unsupported assertion in his reply brief that
H.B. 86 vitiates this nonappealability rule is unpersuasive.

Stark County, Case No.   2012 CA 00135                                                 4
{¶12}  Accordingly, we hold we lack jurisdiction to address the issues presented
in appellant’s First and Second Assignments of Error.
{¶13}  For  the  reasons  stated  in  the  foregoing  opinion,  the  appeal  of  the
judgment of the Court of Common Pleas, Stark County, Ohio, is hereby dismissed.
By: Wise, J.
Delaney, P. J., and
Edwards, J., concur.
JUDGES
JWW/d 0913

Stark County, Case No. 2012 CA 00135                                                5
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO                                                                       :
:
Plaintiff-Appellee                                                                  :
:
-vs-                                                                                :   JUDGMENT ENTRY
:
ALFRED CHRISTNER                                                                    :
:
Defendant-Appellant                                                                 :   Case No. 2012 CA 00135
For the reasons stated in our accompanying Memorandum-Opinion, the appeal
of the judgment of the Court of Common Pleas of Stark County, Ohio, is dismissed.
Costs assessed to appellant.
JUDGES

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