[Cite as State v. Gilbert, 2016-Ohio-5539.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2015-CA-117
:
v. : Trial Court Case No. 2015-CR-524
:
DENNIS GILBERT : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 26th day of August, 2016.
...........
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
ADRIAN KING, Atty. Reg. No. 0081882, P. O. Box 302, Xenia, Ohio 45385
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Dennis Gilbert, appeals from the sentence he received
in the Clark County Court of Common Pleas for violating post-release control. Gilbert
contends that in sentencing him for the violation, the trial court misapplied the
requirements set forth in R.C. 2929.141(A) by treating the maximum possible prison term
as a mandatory sentence. For the reasons outlined below, the judgment of the trial court
will be affirmed.
{¶ 2} On October 13, 2015, Gilbert was indicted on two counts of forgery and one
count of theft with a specification that the victim was an elderly or disabled adult. The
charges stemmed from Gilbert allegedly stealing checks from the victim, forging the
victim’s signature, and then attempting to cash the checks for various amounts at the
Security National Bank in Clark County, Ohio.
{¶ 3} Following his indictment, Gilbert entered a plea agreement in which he
agreed to plead guilty to one count of forgery in exchange for the dismissal of the
remaining charges. At the time of his offense, Gilbert was on post-release control for a
prior felony conviction committed in Clark County Case Nos. 2012-CR-156 and 2012-CR-
167. During the plea hearing, Gilbert admitted that he was on post-release control and
the trial court thereafter advised Gilbert that the court, at sentencing, “could impose an
additional penalty upon [him] as a result of violating post-release control.” Plea Trans.
(Nov. 5, 2015), p. 7.
{¶ 4} At the sentencing hearing, the trial court stated that it had considered the pre-
sentence investigation report, which indicates that Gilbert has a high risk of recidivism per
the Ohio Risk Assessment System. The trial court also considered that Gilbert has
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served eight prior prison terms for breaking and entering, receiving stolen property,
burglary, and domestic violence. In addition, the trial court considered the short time
lapse between Gilbert’s date of release from his most recent imprisonment and the date
of the forgery offense. Following these considerations, the trial court imposed a 12-
month prison term and $380 in restitution for the forgery offense.
{¶ 5} After imposing the forgery sentence, the trial court advised Gilbert that it
would also impose a sanction for his post-release control violation. The trial court noted
that Gilbert had been placed on five years of post-release control on August 23, 2015,
and that he had four years, eight months and twenty-four days remaining. The trial court
stated that since it was choosing to impose a sanction for the violation, it “[didn’t] think it
[had] any choice but to order that [Gilbert] be sentenced to the amount of time [he had]
remaining on post-release control or one year, whichever is greater, and that that time be
consecutive to the [forgery] sentence[.]” Disposition Trans. (Nov. 30, 2015), p. 7.
Accordingly, the trial court revoked Gilbert’s post-release control in Cases No. 2012-CR-
156 and No. 2012-CR-167 and ordered him to serve the remaining time on his post-
release control in prison consecutively to the 12 months imposed for the forgery offense.
{¶ 6} Gilbert now appeals from the sentence he received for violating his post-
release control, raising the following single assignment of error for review:
WHEN THE COURT SENTENCED MR. GILBERT, THE COURT ERRED
WHEN IT TREATED THE MAXIMUM SENTENCE FOR A PAROLE
VIOLATION (NEW FELONY) AS REQUIRED BY LAW.
{¶ 7} Under his sole assignment of error, Gilbert asserts that the trial court
improperly deferred to the maximum prison sentence provided for in R.C. 2929.141 when
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sentencing him for the post-release control violation. Gilbert claims that the trial court
had discretion to impose a prison sentence that was equal to or shorter than the maximum
term defined in the statute because the statute defines only the maximum term and is
mute on lesser sentences. Therefore, Gilbert essentially contends that the trial court
incorrectly treated the maximum prison term in R.C. 2929.141 as a mandatory sentence.
In support of this claim, Gilbert points to the trial court’s statement that upon choosing to
impose a sanction it “[didn’t] think it [had] any choice but to order that [Gilbert] be
sentenced to the amount of time [he had] remaining on post-release control or one year,
whichever is greater[.]”
{¶ 8} R.C. 2929.141 provides, in relevant part, as follows:
(A) Upon the conviction of or plea of guilty to a felony by a person on
post-release control at the time of the commission of the felony, the court
may terminate the term of post-release control, and the court may do either
of the following regardless of whether the sentencing court or another court
of this state imposed the original prison term for which the person is on post-
release control:
(1) In addition to any prison term for the new felony, impose a prison
term for the post-release control violation. The maximum prison term for
the violation shall be the greater of twelve months or the period of post-
release control for the earlier felony minus any time the person has spent
under post-release control for the earlier felony. In all cases, any prison
term imposed for the violation shall be reduced by any prison term that is
administratively imposed by the parole board as a post-release control
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sanction. A prison term imposed for the violation shall be served
consecutively to any prison term imposed for the new felony. The imposition
of a prison term for the post-release control violation shall terminate the
period of post-release control for the earlier felony.
(Emphasis added.) R.C. 2929.141(A)(1).
{¶ 9} Under R.C. 2929.141(A)(1), a trial court is authorized to terminate post-
release control and impose a sentence representing the time remaining on his term of
post-release control. State v. Barron, 2d Dist. Montgomery No. 25059, 2012-Ohio-5787,
¶ 16. Only the trial court itself may make the decision to sentence for a post-release
control violation. State v. Branham, 2d Dist. Clark No. 2013-CA-49, 2014-Ohio-5067.
Once the court decides to impose a sentence for such a violation, it is bound by R.C.
2929.141 when determining the time to be served. Id. The court is not required by the
statute to make any findings prior to terminating post-release control. Barron at ¶ 16.
The court also is not required to explain or justify why it has elected to impose a prison
sentence for the violation. Id.
{¶ 10} The Supreme Court of Ohio recently held that pursuant to the plain
language of R.C. 2953.08(G)(2), “an appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence that the record
does not support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-
1002, ¶ 1. In addition, the court explained that “an appellate court may vacate or modify
any sentence that is not clearly and convincingly contrary to law only if the appellate court
finds by clear and convincing evidence that the record does not support the sentence.”
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Id., at ¶ 7.
{¶ 11} A sentence for a post-release control violation is not contrary to law so long
as it comports with the requirements of R.C. 2929.141. State v. Lehman, 2d Dist.
Champaign No. 2014-CA-17, 2015-Ohio-1979, ¶ 17. However, a sentence is clearly and
convincingly contrary to law if the trial court misreads an applicable statute to incorrectly
conclude that a prison term is mandatory. See State v. Duka, 11th Dist. Lake No. 2012-
L-106, 2013-Ohio-4548, ¶ 12.
{¶ 12} In this case, the prison sentence imposed by the trial court for Gilbert’s post-
release control violation is expressly authorized by R.C. 2929.141. While Gilbert is
correct that the language of R.C. 2929.141 does not provide for a mandatory prison term,
his claim that the trial court misinterpreted the statute to provide for a mandatory prison
term is mere speculation. Under the specific circumstances of this case, the trial court’s
statement at the sentencing hearing that it “had no choice” but to impose the remainder
of the post-release control as the prison term can be interpreted to mean that the trial
court knew it had discretion to determine the prison term, but felt, given Gilbert’s extensive
criminal history, that it had no choice but to impose the maximum sentence. In fact, the
trial court’s understanding of its discretion in sentencing Gilbert under R.C. 2929.141 is
demonstrated by the trial court’s statement at the plea hearing that it “could impose an
additional penalty upon [him] as a result of violating post-release control.” (Emphasis
added.) Plea Trans. (Nov. 5, 2015), p. 7. Regardless, it is a well-settled rule of law that
we presume the regularity of the proceedings below and the validity of the trial court’s
judgment. Beach v. Sweeney, 167 Ohio St. 477, 150 N.E.2d 42 (1958). Accordingly,
given the ambiguity in the record as to the statement at issue, we presume regularity, i.e.,
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that the trial court correctly interpreted R.C. 2929.141 when sentencing Gilbert.
{¶ 13} Since the prison sentence imposed by the trial court for Gilbert’s post-
release control violation is expressly authorized by R.C. 2929.141, the sentence is not
clearly and convincingly contrary to law. Accordingly, this court may vacate the sentence
and remand the matter for resentencing only if there is clear and convincing evidence that
the record does not support the sentence imposed by the trial court. We cannot say that
is the case here, as there is no evidence that the record does not support the sentence.
We again note that Gilbert has an extensive criminal history, a high risk of recidivism, and
that he committed his most recent offense just over a month after he was released from
prison.
{¶ 14} Because we presume the regularity of the lower court’s judgment, and
because Gilbert’s sentence for violating post-release control is not clearly and
convincingly contrary to law and there is no clear and convincing evidence that the record
does not support the sentence, Gilbert’s sentence must stand. Therefore, Gilbert’s sole
assignment of error is overruled and the judgment of the trial court is affirmed.
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FAIN, J. concurs.
FROELICH, J., dissenting.
{¶ 15} Pursuant to R.C. 2929.141(A)(1), the trial court was authorized to terminate
Gilbert’s post-release control and impose a maximum sentence of one year or the time
remaining of his post-release control, whichever was greater. However, R.C.
2929.141(A)(1) does not require the trial court to impose any sentence, let alone the
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maximum sentence, for a post-release control violation, leaving the trial court with
discretion to determine the appropriate sentence for the violation.
{¶ 16} Upon sentencing Gilbert for his post-release control violation, the trial court
stated that it “[didn’t] think it [had] any choice but to order that [Gilbert] be sentenced to
the amount of time [he had] remaining on post-release control or one year, whichever is
greater, and that that time be consecutive to the [forgery] sentence[.]” On its face, the
phrase “I don’t think it [the court] has any choice” indicates that the trial court did not
exercise the discretion that R.C. 2929.141 conferred, and that Gilbert may have been
sentenced to a term of imprisonment that was longer than the trial court, upon the exercise
of its discretion, might have imposed.
{¶ 17} As the majority concludes, the trial court might have understood that it had
discretion to determine a sentence for the post-release control violation, yet found that
Gilbert’s new offenses and criminal history “left it no choice,” in its discretion, but to
impose the maximum sentence. In affirming the trial court’s judgment, the majority
stated that it presumes the regularity of the trial court proceedings and, based on that
doctrine, accepted this alternative interpretation of the trial court’s statements.
{¶ 18} Under the presumption of regularity, a court “presume[s] that a public official
means what he says and that he [or she] is duly performing the function that the law calls
upon him [or her] to perform.” Westerville City Schools Bd. Of Edn. v. Franklin Cty. Bd.
Of Revision, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-1506, ¶ 57, quoting Toledo v.
Levin, 117 Ohio St.3d 373, 2008-Ohio-1119, 884 N.E.2d 31, ¶ 28; see also L.J. Smith,
Inc. v. Harrison Cty. Bd. of Revision, 140 Ohio St.3d 114, 2014-Ohio-2872, 16 N.E.3d
573, ¶ 27.
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{¶ 19} “A presumption of regularity attaches to all judicial proceedings.” State v.
Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 19. Courts have
generally employed the presumption of regularity in the absence of a record of the judicial
proceeding or of the relevant portion of the judicial proceeding. Appellate courts
presume that the lower courts “predicated their merits rulings upon a proper jurisdictional
basis.” AERC Saw Mill Village, Inc. v. Franklin Cty. Bd. Of Revision, 127 Ohio St.3d 44,
2010-Ohio-4468, 936 N.E.2d 472, ¶ 14.
{¶ 20} Here, the issue is not the absence of a record or a silent record on the
relevant ruling. Rather, the issue is the trial court’s express statement that it “[didn’t]
think it [had] any choice” but to impose the maximum sentence. “Discretion” means “the
power or right to decide or act according to one’s own judgment; freedom of judgment or
choice.” www. dictionary. com /browse/ discretion (accessed Aug. 11, 2016). The
record here says, literally, that the court believed it had no freedom of choice.
{¶ 21} To construe the trial court’s language to mean that Gilbert’s poor criminal
record did not give the trial court any meaningful choice as to his sentence would require
us to speculate about the trial court’s intent and to ignore the plain meaning of the trial
court’s clear statement. Accordingly, I would reverse the trial court’s sentence on
Gilbert’s post-release control violation and remand for resentencing on that violation.
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Copies mailed to:
Megan M. Farley
Adrian King
Hon. Douglas M. Rastatter