[Cite as State v. Watters, 2012-Ohio-3809.]


                   Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 97656



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  JAMES E. WATTERS
                                                    DEFENDANT-APPELLANT




                                 JUDGMENT:
                         AFFIRMED IN PART, REVERSED
                           IN PART, AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-543396

        BEFORE: E. Gallagher, J., Blackmon, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                   August 23, 2012
ATTORNEY FOR APPELLANT

Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Aaron Brockler
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant James E. Watters appeals his conviction and sentence

from the Cuyahoga County Court of Common Pleas. Watters argues the trial court erred

in denying his motion to withdraw his guilty plea, in ordering his telephone and mail

privileges suspended, in sentencing him to a 28-year prison sentence and in failing to

correctly impose postrelease control. For the following reasons, we affirm in part,

reverse in part, and remand the matter for proceedings consistent with this opinion.

       {¶2} On October 28, 2010, a Cuyahoga County grand jury returned an

indictment charging Watters with aggravated murder with one and three-year firearm

specifications, carrying a concealed weapon, having weapons under disability and

tampering with evidence.

       {¶3} On June 14, 2011, the state presented evidence to the court at a pretrial

conference that Watters was using the county jail’s telephone system to manufacture

alibis and threaten potential witnesses. Based upon this evidence, the court ordered the

cessation of Watters’s phone and mail privileges. On October 18, 2011 during a hearing

on pending motions, Watters expressed to the court his dissatisfaction with the restriction

of his phone and mail privileges. Appellant stated, “I don’t understand the purpose of

the phone and mail restrictions.” Tr. 27. The court reiterated its rationale for the
restrictions and ordered that they be continued.

       {¶4} On November 7, 2011, appellant withdrew his not guilty plea and pleaded

guilty to aggravated murder with one and three-year firearm specifications as charged in

the indictment. In return, the state dismissed the remaining charges. After the change

of plea was entered, the court heard from members of the victim’s family, the arresting

officer, members of the appellant’s family, the appellant’s attorney, the state’s attorney

and the appellant. The court then sentenced appellant to consecutive terms of three

years on the firearm specification and 25 years to life on the charge of aggravated murder

with parole eligibility after 28 years.     During sentencing, the court noted that it

considered all of the requirements under R.C. 2929.11, 2929.12 and 2929.13. The court

then informed Watters that there was “no PRC requirement under the statute at this

time.” Tr. 74.

       {¶5} In the court’s journal entry for the sentencing hearing, however, the court

included language stating that “post release control is part of this prison sentence for 5

years mandatory for the above felony(s) under R.C. 2967.28.”

       {¶6} On December 6, 2011, the appellant filed his notice of appeal to the court.

Watters’s notice of appeal stated that he was appealing “from the judgment of

conviction” and included the court’s journal entry from the November 7, 2011

sentencing hearing. In the section designated for a brief summation of anticipated

assignments of error, the appellant included no information. The form has since
remained unmodified.

       {¶7} After Watters filed the instant appeal, he filed a motion with the trial court

to withdraw his guilty plea that the court denied on January 12, 2012.

       {¶8} In his first assignment of error, Watters argues that the trial court erred in

failing to grant his motion to withdraw his guilty plea. In his second assignment of

error, Watters argues that the trial court violated his constitutional rights when it

terminated his telephone and mail privileges.      These assignments of error shall be

addressed contemporaneously.

       {¶9} Appellant’s notice of appeal fails to include the journal entries for the

denial of his motion to withdraw his guilty plea and the court’s order that his phone and

mail privileges be removed. Furthermore, appellant makes no mention of these potential

assignments of error anywhere in his notice of appeal. The only journal entry included

in appellant’s notice of appeal is that of his sentencing hearing. Thus, appellant has

failed to separately appeal these issues.

       {¶10} App.R. 3(D) states that a notice of appeal “shall designate the judgment,

order or part thereof appealed from * * *.” This court has held that it is “without

jurisdiction to review a judgment or order which is not designated in appellant’s notice

of appeal.” State v. Wright, 8th Dist. No. 95634, 2011-Ohio-3583, citing Parks v.

Baltimore & Ohio RR., 77 Ohio App.3d 426, 428, 602 N.E.2d 674 (8th Dist.1991), and

Schloss v. McGinness, 16 Ohio App.3d 96, 97-98, 474 N.E.2d 666 (8th Dist.1984). This
court has also applied this holding in several other cases. See State v. Kennedy, 8th

Dist. No. 79143, 2002-Ohio-42; State v. Millhouse, 8th Dist. No. 79910,

2002-Ohio-2255, ¶ 51-52.

       {¶11} In the present case, Watters failed to comply with App.R. 3(D) and failed

to amend his notice of appeal under the procedures outlined in App.R. 3(F). He also

failed to file a separate notice of appeal based on these first two assignments of error.

For the reasons stated above, the appellant’s first two assignments of error fall outside

the scope of the current appeal and will not be addressed by this court.

       {¶12} In his third assignment of error, Watters argues that the trial court abused

its discretion in sentencing him to a 28-year prison sentence. Specifically, Watters

argues that his sentence was not consistent with that of similarly situated offenders, and

that the court failed to consider the required statutory factors under R.C. 2929.11. We

disagree.

       {¶13} The Ohio Supreme Court established the proper standard of review for

sentencing determinations in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124; State v. Brunning, 8th Dist. No. 95376, 2011-Ohio-1936, ¶ 16, fn.2.

       {¶14} Appellate courts must first “examine the sentencing court’s compliance

with all applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If the first prong

is satisfied, then we review the trial court’s decision under the abuse of discretion
standard. Id. To constitute an abuse of discretion, the ruling must be unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d

1140 (1983).

       {¶15}   In this matter the appellant pleaded guilty to aggravated murder in

violation of R.C. 2903.01, which carried a possible penalty of life imprisonment with

eligibility for parole after 20 years, after 25 years, after 30 years or no possibility for

parole. R.C. 2929.03(A)(1). The charge of aggravated murder contained both one and

three-year firearm specifications, which, pursuant to R.C. 2929.14(B)(1)(a)(ii) and R.C.

2929.145(A), requires the trial court to sentence a defendant to an additional three-years

incarceration. Thus, Watters’s sentence of 28 years to life was within the statutory

provisions. See R.C. 2929.03, R.C. 2929.14(B)(1)(a)(ii), R.C. 2929.145(A).

       {¶16} The trial court’s sentencing journal reads in part: “The court considered

all required factors of the law. The court finds that prison is consistent with the purpose

of R.C. 2929.11.” This statement alone has been held to be enough to show the trial

court considered all of the factors of R.C. 2929.11. See State v. Burrell, 8th Dist. No.

95512, 2011-Ohio-2533, ¶ 19. Furthermore, in the transcript of the sentencing hearing

the court stated: “The court having considered all the required factors under 2912.12,

.11, .12 and .13, * * * after considering all of the required factors again under 2929.11,

.12 and .13, I am sentencing you to life [sic] imprisonment with parole eligibility after

serving 25 full years.” Tr. 71-72.
          {¶17} Even though, as noted above, the trial court considered all the required

factors under R.C. 2929.11, 2929.12, and 2929.13, Watters maintains that his sentence

was not consistent with sentences imposed for similar crimes. This court has concluded

that in order to support a contention that his or her sentence is disproportionate to

sentences imposed upon other offenders, a defendant must raise this issue before the trial

court and present some evidence, however minimal, in order to provide a starting point

for analysis to preserve the issue for appeal. State v. Bronczyk, 8th Dist. No. 96326,

2011-Ohio-5924, ¶ 61; State v. Cole, 8th Dist. No. 93271, 2010-Ohio-3408, ¶ 31.

          {¶18} During his sentencing hearing, Watters did not raise the issue that his

sentence was disproportionate to sentences given to other offenders with similar records

who have committed the same offense, nor did he present evidence as to what a

“proportionate sentence” might be. Therefore, he has not preserved the issue for appeal.



          {¶19} Based on the foregoing, we conclude that Watters’s sentence was not

contrary to law. Similarly, we find no abuse of discretion on the part of the trial court.

Accordingly, appellant’s third assignment of error is overruled.

          {¶20} In his fourth and final assignment of error, Watters argues that the trial

court improperly imposed a term of postrelease control in this case.1 We agree.


      1
       In this assigned error, Watters also alleges that the trial court failed to
advise him of the potential postrelease control provisions in a separate felony case
in the common pleas court. This case, which Watters does not identify, is not
       {¶21}    Under R.C. 2967.28, postrelease control is not applicable to an

unclassified felony. State v. Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, 893 N.E.2d

462, ¶ 36. Under R.C. 2967.28(B) postrelease control applies to

       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 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.

       {¶22} Thus, the statute does not apply to an unclassified felony, one of which is

aggravated murder. The proper remedy in this case is to remand the case to the trial

court in order to correct the journal entry. See State v. Evans, 8th Dist. No. 95692,

2011-Ohio-2153, ¶ 11.

       {¶23} Watters’s fourth and final assignment of error is sustained, in part.

       {¶24} The judgment of the trial court is affirmed in part, reversed in part, and

remanded for proceedings consistent with this opinion.

       It is ordered that appellant and appellee share 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

common pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to


before this court on appeal and thus, any alleged errors will be disregarded.
Rule 27 of the Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

PATRICIA ANN BLACKMON, A.J., and
MELODY J. STEWART, J., CONCUR


                                      Appendix

Assignments of Error:

      “I. THE TRIAL COURT ERRED BY DENYING APPELLANT’S
      MOTION TO WITHDRAW HIS GUILTY PLEA AND BY FAILING TO
      CONDUCT AN EVIDENTIARY HEARING ON THE MOTION.

      “II. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS
      WHEN THE COURT DENIED HIM ACCESS TO PHONE AND MAIL
      PRIVILEGES PRIOR TO TRIAL.

      “III. THE TRIAL COURT’S IMPOSITION OF MORE THAN THE
      MINIMUM AVAILABLE SENTENCE WAS CONTRARY TO LAW AND
      AN ABUSE OF DISCRETION.

      “IV.  THE TRIAL COURT ERRED BY FAILING TO ADVISE
      APPELLANT OF POSTRELEASE CONTROL APPLICABLE TO HIS
      NON-CAPITAL OFFENSES AND THE SENTENCING JOURNAL ENTRY
      IMPROPERLY IMPOSED A TERM OF POSTRELEASE CONTROL FOR
      AGGRAVATED MURDER, AN UNCLASSIFIED FELONY.”
