[Cite as State v. Buxton, 2018-Ohio-4150.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
DENNY R. BUXTON, : Case No. 18-COA-028
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County
Court of Common Pleas, Case No.
04-CRI-089
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 11, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL DENNY R. BUXTON, pro se
Ashland County Prosecuting Attorney Inmate # 474-778
110 Cottage Street Grafton Correctional Institue
Ashland, Ohio 44805 2500 South Avon Belden Road
Grafton, Ohio 44044
By: VICTOR R. PEREZ
Assistant Prosecuting Attorney
By: COLE F. OBERLI
Assistant Prosecuting Attorney
Ashland County, Case No. 18-COA-028 2
Baldwin, J.
STATEMENT OF FACTS AND THE CASE
{¶1} On April 11, 2005, appellant pled guilty to two counts each of burglary and
attempted grand theft in violation of R.C. 2911.12 and 2913.02/2923.02, respectively. In
the plea that he signed, Appellant was advised that he was subject to five years of
mandatory post-release control and the consequences for violating post-release control.
A sentencing hearing was held on same date. By judgment entry filed April 15, 2005, the
trial court sentenced appellant to an aggregate term of ten years in prison. Although the
entry stated appellant was advised during the hearing of post-release control and the
consequences for violating post-release control, the entry was silent as to the details.
{¶2} Appellant filed an appeal, challenging his sentence. This court reversed the
sentence and remanded the matter to the trial court for resentencing in accordance with
State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470, and State v. Mathis,
109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1. State v. Buxton, 5th Dist. Ashland No.
05COA020, 2006–Ohio–2521.
{¶3} A resentencing hearing was held on July 24, 2006. Appellant voluntarily
withdrew his request for resentencing. By judgment entry filed August 3, 2006, the trial
court sentenced appellant to the same sentence, and did not mention post-release
control.
{¶4} On November 9, 2009, appellee filed a motion to resentence appellant to
properly impose post-release control in light of the decision in State v. Bloomer, 122 Ohio
St.3d 200, 2009–Ohio–2462, 909 N.E.2d 1254, and/or R.C. 2929.191. By nunc pro tunc
sentencing judgment entry filed June 8, 2010, the trial court included the details
Ashland County, Case No. 18-COA-028 3
concerning the advisement of post-release control given to appellant during the April 11,
2005 sentencing hearing (mandatory five years and the consequences for violating). In
the nunc pro tunc entry, the trial court noted that such entry “does not change or modify
the Defendant's original sentence in any way. It simply contains the exact advisements
given to the Defendant concerning post-release control at his original sentencing
hearing.”
{¶5} On June 21, 2017, appellant filed a pro se motion captioned “Judicial Notice
Plain Error Criminal Rule 52(B) Motion to Vacate Void Sentence Incorporating Motion to
Withdraw Guilty Plea Pursuant to Criminal Rule 32.1,” contesting the imposition of post-
release control. On October 10, 2017, appellant filed a pro se motion for judgment on the
pleadings pursuant to Civ.R. 12(C) on the issue of post-release control. By judgment entry
filed February 2, 2018, the trial court denied the motions.
{¶6} Appellant filed a pro se appeal challenging the trial court’s use of a nunc pro
tunc entry to change defendant-appellants original sentence. We reversed in part solely
on the matter of post-release control and remanded the case to the court for resentencing
limited to the proper imposition of post-release control. State v. Buxton, 5th Dist. Ashland
No. 18-COA-010, 2018-Ohio-2094, ¶ 21.
{¶7} The trial court conducted a hearing on resentencing on June 25, 2018 with
the defendant present and represented by counsel. The trial court noted that the case
was remanded to the Court of Common Pleas for resentencing, specifically the proper
imposition of post-release control. The judgment entry filed June 28, 2018 reflects the
following regarding the imposition of post-release control:
Ashland County, Case No. 18-COA-028 4
Upon completion of the prison term ordered herein, the Defendant
shall serve a mandatory three (3) years post-release control as determined
pursuant to Ohio Revised Code Section 2967.28. The Defendant was
advised that if he violates the terms of post-release control, the adult parole
authority may impose a more restrictive sanction, or the parole board may
return the Defendant to prison for up to nine (9) months, but not more than
half of the original prison sentence. The Court further advised that if the
Defendant commits a new felony while on post-release control, he may be
given a prison sanction of a minimum of one (1) year up to the time
remaining on post-release control, in addition to any sentence received on
the new felony offense. The Defendant acknowledged his understanding of
the Court's explanation of post-release control. For purposes of post-
release control, the Court FINDS (sic) that the Defendant's county of
residence is Ashland County, Ohio.
{¶8} Appellant filed his notice of appeal on July 19, 2018 and submits one
assignment of error:
{¶9} “I. TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO
A MANDATORY TERM OF THREE YEARS POST RELEASE CONTROL.”
{¶10} Preliminarily, we note this case is before this court on the accelerated
calendar which is governed by App.R. 11.1. Subsection (E), Determination and Judgment
on Appeal, provides in pertinent part: “The appeal will be determined as provided by
App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the
reason for the court's decision as to each error to be in brief and conclusionary form.”
Ashland County, Case No. 18-COA-028 5
{¶11} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusory decision more quickly than in a case on
the regular calendar where the briefs, facts, and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th
Dist.1983).
{¶12} This appeal shall be considered in accordance with the aforementioned
rules.
{¶13} Appellant filed a Reply Brief in this matter without obtaining the necessary
leave of this Court. Pursuant to App.R. 11.1(C) reply briefs shall not be filed unless
ordered by the court. Because this Court did not order filing of a reply brief, the Appellant’s
Reply Brief shall not be considered.
ANALYSIS
{¶14} Appellant claims the trial court erred in sentencing him to a mandatory term
of three years post-release control because he was convicted of an offense that was not
a sex offense or an offense of violence. Appellant was found guilty of two counts of
burglary in violation of R.C. 2911.12 (A) (3), felonies of the third degree. As correctly noted
by Appellee, a violation of division (A)(1), (2), or (3) of section 2911.12 is by definition an
offense of violence (R.C. 2901.01(A)(9)). However, both parties are relying upon the
current version of R.C. 2967.68, and not the version that was effective on the date of
Appellant’s original sentencing hearing, April 11, 2005. At that time the language of R.C.
2967.68 was as follows:
(B) Each sentence to a prison term for a felony of the first degree, for a
felony of the second degree, for a felony sex offense, or for a felony of the
Ashland County, Case No. 18-COA-028 6
third degree that is not a felony sex offense and in the commission of which
the offender caused or threatened to cause physical harm to a person shall
include a requirement that the offender be subject to a period of post-
release control imposed by the parole board after the offender's release
from imprisonment. Unless reduced by the parole board pursuant to division
(D) of this section when authorized under that division, a period of post-
release control required by this division for an offender shall be of one of
the following periods:
(1) For a felony of the first degree or for a felony sex offense, five years;
(2) For a felony of the second degree that is not a felony sex offense,
three years;
(3) For a felony of the third degree that is not a felony sex offense and
in the commission of which the offender caused or threatened physical harm
to a person, three years.
(C) Any sentence to a prison term for a felony of the third, fourth, or fifth
degree that is not subject to division (B)(1) or (3) of this section shall include
a requirement that the offender be subject to a period of post-release control
of up to three years after the offender's release from imprisonment, if the
parole board, in accordance with division (D) of this section, determines that
a period of post-release control is necessary for that offender
{¶15} The trial court is obligated to use the version of the statute that was in effect
at the time the Appellant was sentenced. State v. Vore, 12th Dist. Warren No. CA2012-
07-065, 2014-Ohio-1583, ¶ 16. The version that was in effect on the date of the
Ashland County, Case No. 18-COA-028 7
Appellant’s sentencing on April 11, 2005 imposed a mandatory post-release control
period of three years only in the event that the Appellant committed a felony of the third
degree and caused or threatened physical harm to a person. The version of Revised
Code 2919.19(B)(1)(c) in effect on the date of his sentencing required the trial court to
notify Appellant that he “will be supervised under section 2967.28 of the Revised Code
after the offender leaves prison if the offender is being sentenced *** for a felony of the
third degree in the commission of which the offender caused or threatened to cause
physical harm to a person.” The proper notification is contained within the sentencing
entry, but we are unable to determine whether the trial court found that the Appellant
caused or threatened to cause harm to a person because Appellant failed to file a
transcript of the sentencing hearing.
{¶16} We have held that when an appeal is filed in this court without a transcript
in this context, we generally presume the regularity of that proceeding and affirm. State
v. Ball, 5th Dist. Licking No. 13-CA-17, 2013-Ohio-3443, ¶ 13. In this case we can
determine that the trial court conducted a hearing as required by our ruling in State v.
Buxton, 5th Dist. Ashland No. 18-COA-010, 2018-Ohio-2094 and that the judgment entry
reflects the Appellant was given notice of a mandatory three year period of post-release
control, but, without the transcript we are unable to address the Appellant’s assertion that
the R.C. 2967.28 does not provide for mandatory post-release control in his case, so we
must affirm the decision of the trial court.
Ashland County, Case No. 18-COA-028 8
{¶17} For the forgoing reasons, the decision of the Ashland County Court of
Common Pleas is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, Earle, J. concur.