[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.
