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State v. Bell8/31/2001
JUDGMENT: Sentencing Entry Modified. Judgment Affirmed as Modified.
Defendant-appellant Charles Bell, Jr. appeals from his conviction of escape which was entered after he pled guilty in the Belmont County Common Pleas Court. He argues that the crime of escape by a parolee is inapplicable to him. He also appeals the portion of his sentence which refers to bad time. For the following reasons, appellant's conviction is affirmed. However, the trial court's judgment entry is hereby modified to eliminate the portion of his sentence which refers to bad time.
STATEMENT OF THE CASE
Appellant served approximately eleven years in prison out of a ten to twenty-five year sentence for aggravated burglary, a first degree felony. According to the state's brief, he was paroled on April 4, 1998. Appellant absconded from his parole obligations from March 16, 1999 until he was arrested on April 24, 1999. Specifically, the state's bill of particulars discloses that after appellant was arrested for driving under the influence , he called his parole officer, stated that he was at his sister's house and claimed that he could not report to the parole office due to car problems. The parole officer offered to come to appellant and instructed appellant to remain at his sister's house. Because the parole officer had been informed about the driving under the influence arrest by others, he sent officers to arrest appellant for violating his parole. However, appellant was not at his sister's house when the officers arrived. Apparently, he fled to Arizona where he was subsequently arrested on unknown charges. Finally, on April 24, 1999, appellant was arrested in Martins Ferry, Ohio after a bar disturbance.
On May 5, 1999, appellant was indicted for escape in violation of R.C. 2921.34(A)(1), a second degree felony due to the fact that the offense for which he was on parole was a first degree felony. On November 12, 1999, the court accepted a plea agreement whereby the state amended the indictment to third degree felony escape and appellant pled guilty. On November 16, 1999, the court sentenced appellant to four years in prison to run consecutive to any reinstated sentence for the parole violation. On October 23, 2000, this court granted appellant leave to file a delayed appeal pursuant to App.R. 5(A).
ASSIGNMENT OF ERROR NUMBER ONE
Appellant sets forth three assignments of error on appeal. Appellant's first assignment contends:
"THE TRIAL COURT ERRED IN ACCEPTING MR. BELL'S GUILTY PLEA. THIS VIOLATED R.C. 2967.021(A), AS WELL AS DUE PROCESS AND THE PROHIBITION AGAINST EX POST FACTO LAWS [UNDER THE RELEVANT SECTIONS OF THE OHIO AND UNITED STATES CONSTITUTIONS]."
Pursuant to R.C. 2921.34(A), the crime of escape entails purposely breaking or attempting to break detention where the offender knows he is under detention or is reckless in that regard. Detention did not previously include parolees. See former R.C. 2921.01(E) (which specifically stated, "other than release on parole" when defining those in detention). This statutory section was amended effective October 4, 1996 to delete the exception for parolees. The amendment created a conflict with R.C. 2967.15(C)(2) which explicitly excluded parolees from those who could be prosecuted for escape. This temporary conflict was resolved on March 17, 1998, when the amendment to R.C. 2967.15 (C)(2) went into effect and removed the exception for parolees by explicitly stating that parolees can be prosecuted for escape.
The Supreme Court had occasion to address a case concerning parolees who had been charged with escape for absconding acts occurring between October 4, 1996 and March
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