Opinion
Case No. 84221.
DATE OF ANNOUNCEMENT OF DECISION: November 4, 2004.
Criminal appeal from Common Pleas Court Case No. CR-436362.
Reversed and Remanded.
William D. Mason, Cuyahoga County Prosecutor, Ralph A. Kolasinski, Assistant County Prosecutor, Justice Center — 8th Floor, Cleveland, Ohio 44113, for Plaintiff-Appellant.
John P. Parker, The Brownhoist Building, 4403 St. Clair Avenue, Cleveland, Ohio 44103, for Defendant-Appellee.
JOURNAL ENTRY AND OPINION
{¶ 1} The State of Ohio appeals from an order of Judge Jose A. Villanueva that dismissed an indictment for escape against Curtis Duckworth. Because our opinion in State v. Thompson was reversed by the Ohio Supreme Court during the pendency of this appeal, we are required to reverse and remand.
Cuyahoga App. No. 78919, 2002-Ohio-6478.
State v. Thompson (2004), 102 Ohio St.3d 287, 2004-Ohio-2946, 809 N.E.2d 1134.
{¶ 2} Duckworth was on parole following his release from prison for a crime committed before July 1, 1996. Because he was not home during an attempted visit by his parole officer, he was declared a parole violator at large and indicted for escape. He moved to dismiss the indictment because of this court's opinion that a person on parole for a crime committed before July 1, 1996, could not be guilty of escape. The State's sole assignment of error is set forth in the appendix to this opinion.
See Thompson, Cuyahoga App. No. 78919, 2002-Ohio-6478, supra (vacating defendant's escape conviction).
{¶ 3} The syllabus in State v. Thompson provides: "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 crime was committed."
Thompson, 102 Ohio St.3d 287, at syllabus.
{¶ 4} Duckworth argues on appeal that application of State v. Thompson violates ex post facto laws. We have previously decided this argument has no merit. The Supreme Court has ruled that escape is a new criminal offense and the date of the "underlying crime is of no consequence." Under this ruling, Duckworth's escape charge is based on conduct that occurred after the statutory amendments and does not run afoul of ex post facto laws. The assignment of error has merit. Judgment reversed and remanded.
See State v. Helton, Cuyahoga App. No. 83960, 2004-Ohio-4231, at ¶ 6, n. 3 ("Helton's ex post facto argument is without merit."); State v. Davis, Cuyahoga App. No. 82855, 2004-Ohio-5027 (rejecting appellant's ex post facto argument).
Thompson, 2004-Ohio-2946, at ¶ 17.
Id.
APPENDIX — ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DISMISSING THE ESCAPE CHARGE AGAINST THE DEFENDANT.
It is ordered that appellant recover from appellee costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Sweeney, J., and Calabrese Jr., J., concur.