Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

R.C. 2921.34 -- Escape.
R.C. 2921.35 -- Aiding escape or resistance to authority.
State v. Jordan, 124 Ohio St. 3d 397, 2010-Ohio-281 – Defendant who absconded from postrelease control was convicted of escape. Judgment entry imposed postrelease control but the state failed to prove he was so advised in court. Syllabus: “To obtain a conviction for escape under R.C. 2921.34(A)(1), the state may prove that the 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.” ¶14: If the evidence affirmatively demonstrates he was not advised at sentencing, then (apparently) there cannot be a conviction. See dissent on the proposition a void sentence is just that.
State v. Pointer, 193 Ohio App. 3d 674, 2011-Ohio-1419 – Post release control was not properly included in the original sentence. Defendant unsuccessfully raised the issue in a pre-trial motion, then pled no contest. Court concluded issue was a legal one that could be determined by motion without going to the ultimate issue in the case. Reversed. Also see State v. Renner, Montgomery App. No. 24019, 2011-Ohio-502.
State v. Hobson, 187 Ohio App. 3d 630, 2010-Ohio-2638 – Defendant was convicted of escape based on a violation of the terms of his postrelease control. He was released on appeal bond, which was amended to require he continue to comply with the conditions of his postrelease control. A second conviction for escape followed after he failed to report. Defendant is unsuccessful in an attempt to have the added condition of the appeal bond equated to belated addition of postrelease control to a sentence. The second escape charge was based on his original sentence, not the appeal bond.
State v. Powell, 177 Ohio App. 3d 825, 2008-Ohio-4171 – Defendant went to the police station after her boyfriend was arrested on a warrant. As she was leaving he dashed past her at the door and escped. She was convicted of complicity in his escape. R.C. 2921.34(B) states irregularity in bringing about or maintaining detention is not a defense, but this does not prevent testimony or arguments concerning irregularity in detention practices as they may bear on proof of the defendant‘s intent or the credibility of the officer whose custody was broken.
State v. Wilkinson, 178 Ohio App. 3d 99, 2008-Ohio-4400 – Parolee was indicted for escape before he was picked up. Prior to trial the indictment was amended to include the entire time he was on the run, including days following the return of the indictment. This did not violate Criminal Rule 7, as the date of the escape is not an element, but it did violate the constitutional requirement of presentment and consideration by a grand jury.
State v. Chappell, 149 Ohio Misc. 2d 80, 2008-Ohio-6416 – Probationer left the probation office after testing positive for marijuana. He had signed a form stating he was being detained for a drug test and that if he tried to escape or leave the building he would be charged with escape. Nonetheless he was neither under detention or arrest for purposes of the offense of escape, and consequently is found not guilty.
State v. Turner, 192 Ohio App. 3d 323, 2011-Ohio-393 – Parolee failed to show up for an appointment with P.O, then left Alvis House and missed a second appointment. Escape statute is not unconstitutionally vague. Selective prosecution claim rejected as well.
State v. Gapen, 104 Ohio St. 3d 358, 2004-Ohio-6548, ¶72 -- "...(W)e find that pretrial electronic home monitoring was not intended to be a form of detention under R.C. 2921.01(E). Thus, we hold that pretrial electronic home monitoring does not constitute detention for the purpose of prosecuting the crime of escape, not does it satisfy the requirements of proof in R.C. 2929.04(A)(4)."
State v. Thompson, 161 Ohio App. 3d 334, 2005-Ohio-2508 -- Gapen applies retroactively, notwithstanding a local opinion holding a breech of electronic home monitoring constitutes escape. A limiting interpretation of a law applies retroactively.
State v. Cooper, Medina App. No. 02CA0078-M, 2003-Ohio-1920, ¶ 13 -- The control necessary to constitute detention need not be accompanied by physical restraint, but may be established by the defendant's submission to police authority or by the police exercising control over him. Defendant bolted while supposedly looking for his shoes, after being informed he was under arrest.
State v. Barnes (2000), 136 Ohio App. 3d 430 -- A one-year sentence for escape premised on the failure to report to a parole officer during a two-week period does not constitute cruel and unusual punishment because such a sentence for a crime of this gravity does not shock the conscience of the community. Failing this first stage of Eighth Amendment analysis, the court need not further determine proportionality within the same jurisdiction or the sentences imposed for similar offenses in other jurisdictions.
State v. Mitchell (2001), 141 Ohio App. 3d 770 -- Defendant pleaded guilty to attempted escape, a fourth degree felony, and was sentenced to "time served." Reversed. Only options available to the court were community control, which would require a presentence investigation, or a mandatory term of imprisonment.
State v. Larkins, Richland App. No. 02CR206D, 2003-Ohio-4273 -- No retroactive law or ex post facto violation found in application of revised escape statute, adding parolees, to those who were in prison at the time the amendment went onto effect. Also see State v. Edwards, Stark App. No. 2003CA00327, 2004-Ohio-2656.
State v. Thompson, 102 Ohio St. 3d 287, 2004-Ohio-2946 -- Syllabus: "A parolee who fails to report to his parole officer after March 17, 1998, may be prosecuted for escape under R.C. 2921.34, regardless of when his or her underlying offense was communicated.' Opinion turns on statutory construction, not constitutional issues.
State v. Reed (1981), 65 Ohio St. 2d 117 -- Syllabus: "A person is under 'detention,' as that term is used in R.C. 2921.34, when he is arrested and the arresting officer has established control over his person."
State v. Magnuson (1981), 2 Ohio App. 3d 20, 23 -- For a defendant to be guilty of escape he must have been under the control of the arresting officer before he broke detention and fled. Where this control has not been established and the defendant has merely avoided apprehension, the offense is resisting arrest.
State v. Shook (1975), 45 Ohio App. 2d 32 -- Detention may be broken by the defendant simply walking away. It is not necessary that he use force in doing so. Also see State v. Smith (1985), 29 Ohio App. 3d 194.
State v. Diodati (1991), 77 Ohio App. 3d 46 -- Defendant claimed detention for purposes of escape did not include "constraint incidental to release on bail" after bolting from clerk's office while speaking with his attorney. Conviction affirmed.
State v. Jackson (1992), 83 Ohio App. 3d 298 -- Proof was insufficient to support escape conviction where defendant bolted after being told there was a warrant for his arrest, but before he surrendered to or was placed under the control of the deputy.
State v. Long (1992), 82 Ohio App. 3d 168 -- Escape conviction affirmed where defendant removed anklet used to monitor electronically monitored house arrest and went to local tavern. Also see State v. Luikart (3rd. Dist 1995), No. 9-95-57, unreported.
State v. Davis (1992), 81 Ohio App. 3d 706 -- (1) Testimony of probation officer as to absconder status properly admitted under Evid. R. 404(B) to explain motive for escape. (2) Though defendant was not handcuffed when taken from the Highway Patrol substation, he was under detention. Failure to use cuffs was not an irregularity giving rise to the affirmative defense set forth in the escape statute.
State v. Cross (1979), 58 Ohio St. 2d 482 -- Syllabus: "The language of R.C. 2921.34(B) does not preclude raising an affirmative defense of necessity or duress." Also see State v. Proctor (1977), 51 Ohio App. 2d 151
State v. Harkness (1991), 75 Ohio App. 3d 7 -- (1) Drug snitch charged with escaping as he was being transported to the jail was entitled to an instruction on necessity. (2) Though the court concludes the defendant's detention was unlawful as a judge had set bond in excess of the maximum fine for a minor misdemeanor, unlawful incarceration did not give the defendant license to break custody.
State v. Dawson (1995), 105 Ohio App. 3d 643 -- Escape sentence could be made consecutive to misdemeanor sentence. The specific directive in R.C. 2921.34(C)(3) that an escape sentence be consecutive to any other sentence governs over the general directive in R.C. 2929.41(A) that all misdemeanor sentences must be served concurrently with felony sentences.
State v. Sawicki (1998), 128 Ohio App. 3d 585 -- Prison escapee pled to F-3 escape and received a one-year sentence. Prison wrote the court pointing out he had been serving time for an F-1 and should have received more time for an F-2 violation of the escape statute. Plea was vacated, the indictment amended, and ultimately a longer sentence was imposed. Held to be double jeopardy since the error lay in the nature of the offense charged and not the sentencing.
State v. Proctor (1977), 51 Ohio App. 2d 151 -- Double jeopardy does not bar criminal prosecution for an escape which has already been the subject of administrative punishment.
State v. Conyers (1999), 87 Ohio St. 3d 246 -- Prior to 1994 parolees were not defined as being in custody for purposes of the escape statute, but amendment of the statute effectively allowed prosecution for escape for unauthorized absences from halfway houses. But until 1998, R.C. 2967.15, controlling arrest and proceedings against parolees, continued to exclude prosecution for escape. Held that R.C. 2967.15 constituted a special provision controlling over the general provision of the escape statute.
State v. Snowder (1999), 87 Ohio St. 3d 335 -- Detainees in community based correctional facilities are subject to prosecution for escape.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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