[Cite as State v. Conn, 2020-Ohio-370.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 19CA1094
vs. :
JUSTIN CONN, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Timothy Young, Ohio Public Defender, and Jeremy Masters, Assistant State Public Defender,
Columbus, Ohio, for appellant.1
C. David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams County Assistant
Prosecuting Attorney, West Union, Ohio, for appellee.
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 1-21-20
ABELE, J.
{¶ 1} This is an appeal from an Adams County Common Pleas Court judgment that denied a
motion to vacate a sentence imposed after a post-release control violation. Justin Conn, defendant
below and appellant herein, assigns one error for review:
ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY FAILING TO VACATE JUSTIN
CONN’S VOID JUDICIAL SANCTION. APRIL 30, 2019 JUDGMENT
ENTRY.”
1
Different counsel represented appellant during the trial court proceedings.
ADAMS, 19CA1094 2
{¶ 2} On July 24, 2002, in Case No. 20020030, the trial court sentenced appellant to serve
twelve years in prison for felonious assault and escape. The sentencing entry contained the following
post-release control language:
The Court has further notified the defendant that post release control is MANDATORY
in this case up to a maximum of five (5) years. If the defendant violates a Post Release
Control Sanction or any condition imposed by the Parole Board under Revised Code
Section 2967.28, the Parole Board may impose a more restrictive sanction, a prison term
not to exceed nine (9) months or a maximum cumulative prison term for all violations not
to exceed one-half of the stated prison term originally imposed. The defendant is
ordered to serve as part of this sentence any term of post release control imposed by the
Parole Board, and any prison term for violation of that post release control.2 (Emphasis
added.)
{¶ 3} We find no information in the record to indicate that appellant directly appealed his 2002
convictions and sentences. The record does indicate that in 2013 appellant was released from prison
and placed on post-release control.
{¶ 4} In September 2014, an Adams County Grand Jury returned an indictment in Case No.
20140187 that charged appellant with (1) one count of breaking and entering, (2) one count of
vandalism, (3) one count of theft, and (4) one count of complicity. At the time of the indictment,
appellant remained on post-release control from his convictions in Case No. 20020030.
{¶ 5} Pursuant to a plea agreement, on October 3, 2014 appellant pleaded guilty to breaking
and entering in exchange for the dismissal of the remaining counts. The trial court sentenced
appellant to serve 42 months in prison, in addition to a consecutive 1,487 day sentence for the
post-release control violation. We find no indication that appellant directly appealed this conviction
2
On December 29, 2004, the trial court issued a nunc pro tunc entry in Case No. 20020030 that contained
identical language to the July 24, 2002 sentencing entry.
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or sentence.
{¶ 6} On December 16, 2016, appellant filed a motion to vacate the judicial-sanction
sentence. Appellant, citing State v. Burns, 4th Dist. Highland No. 11CA19, 2012-Ohio-1626,
argued that because the trial court did not properly impose post-release control in Case No.
20020030, his post-release control sanction is void and he cannot be subject to a judicial sanction
sentence. In particular, appellant argued that the trial court should have notified him of mandatory
post-release control for five years, not for “up to” five years. On January 9, 2017, the trial court
denied appellant’s motion to vacate his sentence. The court then issued an entry on February 2,
2017 that granted appellant until February 17, 2017 to file a rebuttal to the state’s response to the
original motion to vacate and set a hearing for February 28, 2017 on the motion. The trial court held
a hearing on February 28, 2017.
{¶ 7} On June 13, 2018, appellant filed a supplement to his prior motion “to vacate the void
judicial sanction he is currently serving” and asked the court for a timely ruling. On April 22, 2019,
the trial court denied the motion to vacate judicial sanction sentence and issued another entry that
denied the motion to vacate in greater detail. Specifically, the court noted that the signed change of
plea documentation in Case No. 20020030 provides under post-release control, “If I am sentenced to
prison for a Felony I or Felony sex offense, after my prison release, I will have 5 years of post
release control under conditions determined by the Parole Board. * * * If the violation is a new
felony, I could receive a prison term of the greater of one year or the time remaining on post release
control, in addition to any other prison term imposed for the offense.”
{¶ 8} In addition to the statement “I will have 5 years post-release control,” the court noted
that appellant was also mandatorily informed at the time of his release from prison that he was under
ADAMS, 19CA1094 4
mandatory PRC supervision for a period of five years. The trial court pointed to the dispute over the
“up to” versus “a period of” language and indicated that it hoped that this court will “revisit” the
analysis included in State v. Burns, 4th Dist. Highland No. 11CA19, 2012-Ohio-1626, State v.
Adkins, 4th Dist. Lawrence No. 14CA29, 2015-Ohio-2830, (overruled by State v. Mozingo,
2016-Ohio-8292, 72 N.E.2d 661 (4th Dist.), and State v. Mozingo, supra. The trial court then
granted appellant’s motion for an appeal bond. This appeal followed.
{¶ 9} In his sole assignment of error, appellant asserts that the trial court erred by failing to
vacate a void judicial sanction. In particular, appellant maintains that his sentence is void because
the 2002 sentencing entry (Case No. 20020030) did not properly impose post-release control because
it used the language “post release control is MANDATORY in this case up to a maximum of five
years.” (Emphasis added.)
{¶ 10} After a long line of post-release control cases, in State v. Grimes, 151 Ohio St.3d 19,
2017-Ohio-2927, 85 N.E.3d 700, the Supreme Court of Ohio stated:
It is settled that ‘a trial court has a statutory duty to provide notice of postrelease
control at the sentencing hearing’ and that ‘any sentence imposed without such
notification is contrary to law.’ State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085,
817 N.E.2d 864, ¶ 23. Concomitantly, because a court is generally said to speak only
through its journal, id. at ¶ 6, the trial court is ‘required to incorporate that notice into
its journal entry imposing sentence,’ id. at ¶ 17.
Grimes at ¶ 8.
{¶ 11} Also, the sentencing entry must contain the following information:
(1) whether the postrelease control is discretionary or mandatory, (2) the duration of
the postrelease-control period, and (3) a statement to the effect that the Adult Parole
Authority * * * will administer the postrelease control pursuant to R.C. 2967.28 and
that any violation by the offender of the conditions of postrelease control will subject
the offender to the consequences set forth in that statute. Grimes at ¶ 1.
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{¶ 12} “When a court fails to properly impose post-release control for a particular offense,
the offending portion of the sentence is void, must be set aside, and is subject to review and
correction.” State v. Taylor, 4th Dist. Lawrence No. 15CA12, 2016-Ohio-2781, ¶ 41, citing State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 27-29, State v. Triplett, 4th Dist.
Lawrence No. 10CA35, 2011-Ohio-4628, ¶ 4. In looking to our sister districts, we observe that the
Second and Fifth have held that the use of the “up to” language in a sentencing entry does not
properly impose a mandatory term of post-release control. The Second District illustrated the
significance of the post-release control sentencing entry language in State v. Montgomery, 2d Dist.
Clark No. 2018-CA-40, 2018-Ohio-5278:
The problem is not that the trial court failed to recite the word “mandatory” when it
advised [the defendant] about post-release control. The problem is that the trial court
advised [the defendant] at his sentencing hearing and in its termination entry that he
faced “up to five years” of post-release control. This court repeatedly has held that
imposing post-release control for “up to” a certain period of time, when post-release
control is mandatory for that period of time, renders the post-release control portion
of a defendant’s sentence void, not merely voidable.
Id. at ¶ 13, quoting State v. Singleton, 2d Dist. Montgomery No. 27329, 2017-Ohio-7265, ¶ 6. The
Fifth District also held that a trial court’s use of the “up to” language for five years of post-release
control does not properly impose a mandatory term under R.C. 2967.28(B)(1). See McGuire, 5th
Dist. Fairfield No. 18 CA 10, 2018-Ohio-4676, ¶ 27, citing State v. Bolden, 5th Dist. Fairfield No.
17-CA-51, 2018-Ohio-2684, ¶ 10, citing State v. Massey, 5th Dist. Delaware No. 15 CA 05 0043,
2015-Ohio-5193, ¶ 17, State v. Green, 5th Dist. Stark No. 2010CA00198, 2011-Ohio-1636, and
State v. Patterson, 5th Dist. Stark No. 2014CA00220, 2015-Ohio-4714, ¶ 16.
{¶ 13} In contrast, the Seventh and Tenth Districts have held that the use of the “up to”
language does not render the post-release control provision of a sentence void. The Tenth District
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follows an approach that appears to be a “totality of the circumstances test,” and concludes that a
“trial court sufficiently fulfilled its statutory obligations when its oral and written notifications, taken
as a whole, properly informed the defendant of post-release control.” See State v. Boone,
2012–Ohio–3653, 975 N.E.2d 546, ¶ 18 (10th Dist.), citing State v. Mays, 10th Dist. Franklin No.
10AP–113, 2010–Ohio–4609, appeal not allowed, 127 Ohio St.3d 1535, 2011–Ohio–376, 940
N.E.2d 987, and State v. Townsend, 10th Dist. Franklin No. 10AP–983, 2011–Ohio–5056. The
Tenth District thus considers a combination of: (1) judgment entries that alone may be insufficient to
properly impose post-release control; (2) other documents, such as plea agreements; and (3)
sentencing hearing transcripts. Boone at ¶ 25.
{¶ 14} For example, in State v. Maser, 10th Dist. Franklin No. 15AP-129, 2016-Ohio-211,
although at the sentencing hearing the trial court used the words “up to” to impose post-release
control, the court concluded that the post-release control provision is not void. Id. at ¶ 16. The
court noted that, during the sentencing hearing, the defendant signed a form that correctly informed
him that he was subject to a mandatory five-year term of post-release control. Id. at ¶ 15. The
court stated that, although the phrase “up to” may have discretionary connotations, the use of such
“inartfully stated” language did not render the post-release control notification void, and any claims
that relate to that language are nonjurisdictional in nature. Maser at ¶ 11-12, citing Surella v. Ohio
Adult Parole Auth., 10th Dist. Franklin No. 11AP-499, 2011-Ohio-6833 (finding that the existence
of the words “up to” in the sentencing entry did not render the post-release control sentence void, but
at most is a voidable error that should have been raised on direct appeal). Therefore, under the
totality of the circumstances, the trial court sufficiently notified the defendant of the post-release
control terms. Id. at ¶ 16.
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{¶ 15} More recently, in State v. Sullivan, 10th Dist. Franklin No. 17AP-94,
2017-Ohio-2943, the defendant signed a written notice that stated “[a]fter you are released from
prison you (will, may) have a period of post-release control for 5 years following your release from
prison.” The court concluded that “R.C. 2929.19 requires that felony offenders be notified about the
term of post-release control they will or may receive following imposition of a related prison
sentence. It does not require that the notice be in any particular medium, but it should be reasonably
calculated to actually notify the felony offender.” Sullivan at ¶ 12. The Tenth District underscored
“[a]ccording to the law of this district, a trial court’s compliance with these statutes need not be
mechanically perfect in order to avoid reversal.” Id. at ¶ 9. Thus, the court concluded that a
“technical deficiency in a sentencing entry imposing postrelease control does not render the entry
void where the record as a whole reveals the trial court satisfied all of the statutorily mandated terms
for imposing postrelease control.” State v. Williams, 10th Dist. Franklin No. 10AP-1135,
2011-Ohio-6231, ¶ 21, citing Strong v. Ohio State Adult Parole Auth., 10th Dist. Franklin No.
11AP-52, 2011-Ohio-5615, ¶ 21.
{¶ 16} In State v. Zechar, 7th Dist. Mahoning No. 17 MA 0111, 2018-Ohio-3731, the
Seventh District recently considered a post-release control issue in which the court gave a correct
oral advisement, but the sentencing entry included the “up to” language. The court held that,
although the entry used the “up to” language, the defendant was nevertheless appropriately notified
during the sentencing hearing of the length and mandatory nature of post-release control. Zechar at
¶ 19-20. Therefore, the court determined that the defendant was “informed that he would be subject
to post-release control, the time period for post-release control, the mandatory nature of it, and the
consequences for violating post-release control.” Id. The Seventh District held that the “use of the
ADAMS, 19CA1094 8
terms ‘up to’ in the sentencing entry, albeit unnecessary, should not rise to the level of creating a
void sentencing entry with regard to post release control.” Id. at ¶ 20.
{¶ 17} Similarly, in State v. Smith, 7th Dist. Mahoning No. 17MA0174, 2018-Ohio-4562, the
Seventh District recently considered another case in which the trial court advised the defendant at the
sentencing hearing that he was subject to: “[m]andatory five years post-release control,” but the
sentencing entry stated “[i]n addition, as part of this sentence, post release control must be imposed
up to a maximum period of five (5) years.” Id. at ¶ 8. The court, citing Zechar, held that all the
information taken together provided sufficient notice that the appellant is subject to a mandatory
five-year post-release control term. “Although the trial court used the superfluous language ‘up to’
in the sentencing entry, the court also stated that ‘post release control must be imposed up to a
maximum period of five years.” Smith at ¶ 10.
{¶ 18} In a similar case, the Eighth District reviewed a case in which the entry used the
phrase “if postrelease control is imposed.” State v. Bartee, 8th Dist. Cuyahoga No. 97411,
2012-Ohio-3944, ¶ 17. The Eighth District considered the use of the word “if” to be a case of “form
over substance” and not require a new sentencing hearing, when notification of post-release control
was properly given at the sentencing hearing. Id. at ¶ 18.
{¶ 19} Appellant points to our previous decision in State v. Burns, 4th Dist. Highland No.
11CA19, 2012-Ohio-1626, as support for a bright-line construction. In Burns, the defendant filed a
motion to vacate the post-sentence control portion of his sentence. In 2004, Burns pleaded guilty in
Brown County to five counts of sexual battery. The trial court sentenced Burns to serve a prison
term and, during the sentencing hearing, notified him that he would be subject to a mandatory five
year period of post-release control. However, the sentencing entry stated that post-release control
ADAMS, 19CA1094 9
would be “mandatory in this case up to five years[.]” (Emphasis added.) In 2007, Burns was
released from prison and placed on post-release control. In 2009, Burns pled guilty to grand theft
and sentenced to serve 35 months in prison on the post-release control violation. The trial court also
denied Burns’ motion for resentencing and his request to vacate his sentence. On appeal, this court
held that the trial court failed to properly impose post-release control when its sentencing entry stated
that post-release control was mandatory “up to a maximum of three years” rather than “three years.”
Burns at ¶ 9. At that point, having determined that the defendant’s post-release control sanction was
void, we concluded that Burns was not on post-release control at the time of his new Highland
County felony offense. Further, we noted that by the time the Brown County court attempted to
re-sentence appellant and issue a nunc pro tunc entry, appellant’s prison term had long expired and
Brown County no longer had jurisdiction and could not correct the 2004 sentencing error. Burns at
¶ 11, citing State v. Ables, 3d Dist. Mercer No. 10-11-03, 2011-Ohio-5873, ¶ 8, citing State v.
Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 70; State v. Bezak, 114 Ohio
St.3d 94, 2007-Ohio-3250, ¶ 18; and State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884
N.E.2d 568, syllabus. Burns at ¶ 11.
{¶ 20} After our review of the many cases from our sister districts that have considered the
content and sufficiency of the post-release control notice and have arrived at different conclusions,
we now believe that the totality-of-the-circumstances approach is the better approach in these cases.
Thus, we should depart from our previous ruling in State v. Burns, 4th Dist. Highland No. 11CA19,
2012-Ohio-1626, and, instead, hold that a mere technical deficiency in the sentencing entry, such as
the inclusion of the “up to” language, does not automatically render the post-release control sanction
void when the record, as a whole, reveals that the trial court sufficiently complied with the statutory
ADAMS, 19CA1094 10
requirements to impose post-release control.
{¶ 21} In the case sub judice, our review reveals that the trial court’s decision indicates that
appellant signed a plea agreement in Case No. 20020030 that states: “If I am sentenced to prison for
a Felony I or Felony sex offense, after my prison release, I will have 5 years of post-release control
under conditions determined by the Parole Board.” Although the judgment entry from Case No.
20020030 is part of the record before us, neither the sentencing transcript nor the change of plea
documentation in Case No. 20020030 is a part of the record before us. However, without the
transcript we presume that the trial court properly notified appellant of his post-release control
obligations. See State v. Grimes, 2017-Ohio-2927 at ¶ 20, citing Natl. City Bank v. Beyer, 89 Ohio
St.3d 152, 160, 729 N.E.2d 711 (2000); State v. Gann, 12th Dist. Butler No. CA2010-07-153,
2011-Ohio-895, ¶ 18, State v. Hernandez, 12th Dist. Warren No. CA2009-09-123, 2010-Ohio-2056,
¶ 12; see also, State v. Brown, 8th Dist. Cuyahoga No. 95086, 2011-Ohio-345, ¶ 9 (finding court
must presume defendant properly notified of post-release control obligations when not provided with
transcript of sentencing hearing), and State v. Bunn, 7th Dist. Mahoning No. 17MA0125,
2019-Ohio-2703, ¶ 19 (“The judgment entry from that case was properly made a part of the record
before us. However, the sentencing transcript in that case is not a part of our record and there is no
claim that the advisement at the sentencing hearing was inadequate”).
{¶ 22} Thus, in light of our foregoing discussion, we conclude that in the case sub judice the
trial court’s sentencing entry’s “up to” language does not require the conclusion that the trial court
improperly imposed the post-release control sanction, accord Williams, supra, at ¶ 21, because we
believe that the record, taken as a whole, reveals that the trial court sufficiently complied with all
requirements and placed appellant on notice that he was subject to a mandatory five-year post-release
ADAMS, 19CA1094 11
control term. Smith, supra, at ¶ 10. Therefore, because we believe that the trial court satisfied all
of the statutorily mandated terms to impose post-release control, we must reject the appellant’s
argument. Additionally, we also share the same sentiment and agree with Justice DeWine’s
assessment of this area of the law as “an unnecessarily complicated area of criminal sentencing,” in
State v. Murray, 155 Ohio St.3d 446, 2018-Ohio-4938, ¶ 9, (DeWine, J., dissenting). Unfortunately,
Ohio’s complex and complicated felony sentencing scheme creates unnecessary confusion in an area
of the law that should be straightforward and understandable.
{¶ 23} Accordingly, based upon the foregoing reasons, we overrule appellant’s assignment of
error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the
trial court or this court, it is temporarily continued for a period not to exceed sixty days upon the bail
previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period,
or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of
sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
ADAMS, 19CA1094 13
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time
period for further appeal commences from the date of filing with the clerk.