State v. Pointer
| Decision Date | 24 March 2011 |
| Docket Number | No. 24210.,24210. |
| Citation | 2011 -Ohio- 1419,953 N.E.2d 853,193 Ohio App.3d 674 |
| Parties | The STATE of Ohio, Appellee,v.POINTER, Appellant. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Carley J. Ingram, Assistant Prosecuting Attorney, for appellee.Charles A. McKinney, Dayton, and Mark J. Miller, Columbus, for appellant.FROELICH, Judge.
[Ohio App.3d 675] {¶ 1} After the trial court overruled his motion to dismiss, William L. Pointer pleaded no contest in the Montgomery County Court of Common Pleas to one count of escape, in violation of R.C. 2921.34(A)(1), a second-degree felony. The trial court found Pointer guilty and sentenced him to the minimum mandatory term of two years in prison, to be served consecutively to the sentence imposed in another case.
{¶ 2} Pointer appeals from his conviction, claiming that the trial court erred in overruling his motion to dismiss. For the following reasons, the trial court's judgment will be reversed, the conviction and sentence for escape will be vacated, and Pointer will be ordered discharged as to this offense only.
{¶ 3} In 1997, Pointer was convicted of involuntary manslaughter, a first-degree felony, and felonious assault, a second-degree felony, in case No. 97–CR–449. The trial court sentenced him to an aggregate term of nine years in prison, to be served consecutively to the one-year sentence imposed in case No. 97–CR–1720. The termination entry addressed postrelease control, stating: “Following [Ohio App.3d 676] the defendant's release from prison, the defendant will/may serve a period of postrelease control under the supervision of the parole board.” 1 Under R.C. 2967.28(B), Pointer was subject to a mandatory term of five years of postrelease control for the involuntary manslaughter and a mandatory term of three years of postrelease control for the felonious assault.
{¶ 4} On March 4, 2007, Pointer was released from prison under the supervision of the Ohio Department of Rehabilitation and Correction, Adult Parole Authority (“APA”). At the time of his release, Pointer met with his parole officer and signed and initialed the conditions of supervision, which set forth his obligations under postrelease control. Paragraph two of that document included notice “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.” On March 5, 2007, Pointer also signed a separate notice informing him that postrelease-control supervision constitutes detention and that he could be convicted of escape if he absconded from supervision; Pointer again signed this form on October 27, 2008.
{¶ 5} Pointer failed to report to his parole officer on May 15, 2009. On December 1, 2009, Pointer was charged with escape due to his failure to report between June 22, 2009, and November 3, 2009. He was arrested for this charge on January 8, 2010.
{¶ 6} Pointer moved to dismiss the indictment for escape. He claimed that he could not be charged with escape since the APA lacked the authority to supervise him, because the trial court in case No. 97–CR–449 had not properly imposed postrelease control. Pointer supported his motion with a copy of the termination entry in case No. 97–CR–449 and a termination-of-supervision notice, which stated that “[u]nder the Authority of the Supreme Court decision, the Ohio Adult Parole Authority hereby issues a Final Release on the above number to take effect on 2/25/2010.” (Emphasis sic.)
{¶ 7} In response, the state argued that State v. Jordan, 124 Ohio St.3d 397, 2010-Ohio-281, 922 N.E.2d 951, was controlling, and that Jordan permitted the state to prove, without evidence that the sentencing court had properly advised him of postrelease control, that Pointer was subject to supervision. Pointer's wife subsequently filed a “Motion to Dismiss Amended [and] Correction of Ohio Supreme Court Case Authority Memorandum,” which the trial court struck.
{¶ 8} The trial court overruled Pointer's motion to dismiss. The court held that Jordan governed the circumstances before it and that the evidence was [Ohio App.3d 677] sufficient, at that stage of the case, to demonstrate that Pointer was under detention and subject to the escape statute. The trial court concluded, “As it relates to his Motion to Dismiss, Defendant has failed to meet his burden on this Motion of demonstrating a lack of authority by the [Ohio Department of Rehabilitation and Correction] to supervise him such that this court would be compelled to dismiss the indictment herein.”
{¶ 9} Subsequently, Pointer again moved for an order of dismissal, arguing that he had obtained additional documents to support the conclusion that the APA lacked authority to impose postrelease-control sanctions on him. Before the court ruled on that motion, Pointer entered a plea of no contest to the escape charge. The court found him guilty and sentenced him accordingly.
{¶ 10} Pointer appeals from his conviction, raising one assignment of error.
{¶ 11} In his sole assignment of error, Pointer claims that the court erred in denying his motion to dismiss. He asserts that because the trial court in his 1997 case failed to properly impose postrelease control, the APA was not authorized to supervise him and he was not under detention for purposes of the escape statute. In his reply brief, Pointer cites our recent opinion in State v. Renner, Montgomery App. No. 24019, 2011-Ohio-502, 2011 WL 345806.
{¶ 12} In the indictment, the state charged Pointer with one count of escape, in violation of R.C. 2921.34(A)(1). The indictment alleged that Pointer, between June 22, 2009, and November 3, 2009, “knowing that he was under detention or being reckless in that regard, did purposely break or attempt to break such detention, or purposely fail to return to detention, while being detained” for the charges of involuntary manslaughter and felonious assault.
{¶ 13} As a threshold matter, the state asserts that Pointer's no-contest plea prevents him from challenging the facts alleged in the indictment, including the fact that he was under detention when he failed to report to his parole officer. The state argues that a motion to dismiss under Crim.R. 12(C)(2) is limited to whether the language of the indictment alleges the offense. The state thus asserts that Pointer should have raised whether the evidence was sufficient to establish his detention in a Crim.R. 29 motion for acquittal at the conclusion of the state's case at trial, not through a pretrial motion to dismiss.
{¶ 14} Pointer responds that the issue raised in his motion to dismiss was whether the indictment was legally sufficient to support a charge for escape. He states:
{¶ 15} Crim.R. 12(C) governs pretrial motions. It provides that “prior to trial, any party may raise by motion any defense, objection, evidentiary issue, or request that is capable of determination without the trial of the general issue.” The rule requires certain issues to be raised before trial, including defenses and objections based on defects in the institution of the prosecution; defenses and objections based on defects in the indictment, information, or complaint (with two exceptions); motions to suppress evidence; requests for discovery under Crim.R. 16; and requests for severance of charges or defendants under Crim.R. 14. Id. A defendant who enters a plea of no contest may raise on appeal that the trial court erred in its ruling on a pretrial motion. Crim.R. 12(I).
{¶ 16} “A motion to dismiss an indictment tests the legal sufficiency of the indictment, regardless of the quality or quantity of the evidence that may be introduced by either the state or the defendant.” State ex rel. Steffen v. Court of Appeals, First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906, ¶ 34. Accordingly, in ruling on a motion to dismiss an indictment, the trial court may not examine the sufficiency of the state's evidence. State v. Miller (Dec. 4, 1998), Montgomery App. No. 17273, 1998 WL 833796. Rather, the court must look to the indictment to determine only whether the charges as set forth describe an offense under the law of the state. Id. “Crim.R. 12 permits a court to consider evidence beyond the face of an indictment when ruling on a pretrial motion to dismiss an indictment if the matter is capable of determination without trial of the general issue.” State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 3. However, whether sufficient evidence exists to convict on an indictment—that is, to persuade the finder of fact of all of the essential elements of the offense beyond reasonable doubt—is a matter that must be determined through a trial on charges alleged in the indictment; there is no pretrial mechanism for this purpose. State v. Netzley, Darke App. No. 07–CA–1723, 2008-Ohio-3009, 2008 WL 2477452, ¶ 7.
{¶ 17} It is indeed a thorny procedural issue as to what error was preserved by Pointer's no-contest plea. The resolution of that issue depends on whether the motion to dismiss in this case addressed the sufficiency of factual evidence regarding whether Pointer was “under detention” or the legal question as to what constitutes “detention.” In our view, these are two distinct matters. Whether a person is lawfully under postrelease control and whether postrelease control constitutes a form of “detention” are threshold legal determinations, not matters to be proven at trial. See, e.g., State v. Boggs, Montgomery App. No. 22081, 2008-Ohio-1583, 2008 WL 853341 (...
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