[Cite as State v. Schroeder, 2016-Ohio-849.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                      Court of Appeals No. L-14-1228

        Appellee                                   Trial Court No. CR0200701938

v.

James E. Schroeder                                 DECISION AND JUDGMENT

        Appellant                                  Decided: March 4, 2016

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        David F. Cooper, Assistant Prosecuting Attorney, for appellee.

        Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
        Assistant Public Defender, for appellant.

                                               *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a September 30, 2014 judgment of the Lucas County

Court of Common Pleas, denying appellant’s motion to vacate postrelease control in

connection to appellant’s 2007 felony conviction of two counts of unlawful sexual

conduct with a minor, in violation of R.C. 2907.04(A), felonies of the third degree. For

the reasons set forth below, this court affirms the judgment of the trial court.
       {¶ 2} Appellant, James E. Schroeder, sets forth the following assignment of error:

              The trial court erred by failing to vacate Mr. Schroeder’s post release

       control.

       {¶ 3} The following undisputed facts are relevant to this appeal. In 2007, the

Lucas County Sheriff’s Department was contacted by concerned parents of various

teenage boys regarding a pattern of conduct by appellant. It came to the attention of

these parents that appellant was furnishing their sons drugs and alcohol and ultimately

initiating and engaging in oral and anal sex with the boys.

       {¶ 4} The investigation revealed that the minors pursued by appellant would be

approximately 13 years of age when initially approached by appellant. The subsequent

investigation included a search of appellant’s residence and extensive interviews with the

victims. The investigation uncovered a wealth of irrefutable evidence that established

repeated unlawful sexual conduct between appellant and minor males over a period of

many years. In addition, appellant possesses an extensive criminal history, including

multiple past felony sexual offenses, and multiple drug and alcohol offenses.

       {¶ 5} On May 3, 2007, appellant was indicted on four counts of unlawful sexual

conduct with a minor, in violation of R.C. 2907.04(A), felonies of the third degree. On

August 21, 2007, pursuant to a negotiated plea agreement, appellant pled no contest to

two of the four counts pending against him. In exchange, the remaining charges were

dismissed.




2.
       {¶ 6} On September 26, 2007, appellant, appellant’s counsel, and the trial judge all

reviewed and executed a detailed written document entitled, “Notice Pursuant to R.C.

2929.19(B)(3).” Notably, the first sentence of this document unambiguously states, “A

term of post-release control after prison will be imposed following prison release for an

F1 or F2, a felony sex offense as defined in RC 2967.28 or for an F3.”

       {¶ 7} As applicable to this matter, appellant pled no contest to two F3 sexual

offenses, thereby clearly triggering the imposition of postrelease control. In conjunction

with this, the record further reflects that in the written plea agreement itself, executed by

appellant and affirmed by him during the colloquy process, states, “If I am sentenced to

prison for a felony one or a felony sex offense, after my prison release I will have 5 years

of post-release control under conditions determined by the parole board.” Lastly, the

2007 sentencing entry clearly reflects that appellant was furnished, “post release control

notice under R.C. 2929.19(B)(3) and R.C. 2967.28.”

       {¶ 8} On September 26, 2007, at the request of counsel for appellant, the R.C.

2929.19(B)(3) notice documentation was executed by appellant, counsel for appellant,

and the trial court. The completion of appellant’s sentencing was continued until

October 1, 2007. On October 1, 2007, appellant was sentenced to a total term of

incarceration of seven years. The sentencing entry reflects in pertinent part, “Defendant

given * * * post release control notice under R.C. 2929.19(B)(3) and R.C. 2967.28.”




3.
       {¶ 9} On May 16, 2014, as the conclusion of appellant’s term of incarceration

approached, appellant filed a motion to vacate postrelease control alleging trial court

error in the imposition of postrelease control such that it is void.

       {¶ 10} On September 30, 2014, the trial court denied appellant’s motion, holding

in pertinent part,

               The Sixth District has released numerous cases holding a simple

       reference to the applicable statutes [R.C. 2929.19(B)(3) and 2967.28] is

       sufficient to give the offender notice that the court authorized a post-release

       control sanction. In view of the above, the court finds that the court

       properly notified defendant of his post-release control sanction at the time

       of sentencing and properly incorporated the notice into its sentencing entry.

This appeal ensued.

       {¶ 11} In the assignment of error, appellant maintains that the 2007 imposition of

postrelease control as a component of appellant’s sentence was defective and, therefore,

void. We do not concur. In support of this appeal, appellant alleges, “Here, the trial

court did not impose any period of post-release control at any time.” The record of

evidence in this matter does not comport with appellant’s position.

       {¶ 12} We have carefully reviewed and considered this matter. We find that the

record of evidence demonstrates that appellant was explicitly and properly notified on

multiple occasions that postrelease control could and would be imposed as a result of the

proceedings against him.




4.
       {¶ 13} On August 21, 2007, appellant executed a written plea agreement explicitly

attesting to his knowledge that he was entering pleas of no contest to several third-degree

felony sexual offenses and that a felony sex offense sentencing will result in, “5 years of

post-release control under conditions determined by the parole board.” The plea

agreement goes on to further attest to appellant’s understanding that, “[I]f I violate any of

the conditions imposed, I could be given a longer period under court control, greater

restrictions, or a prison term from the basic range.”

       {¶ 14} On September 26, 2007, appellant, appellant’s counsel, and the trial court

all reviewed, executed, and certified a written notice to appellant performed pursuant to

R.C. 2929.19(B)(3). This document consistently states, “A term of post-release control

after prison will be imposed following prison release for an F1 or F2, a felony sex offense

as defined in R.C. 2967.28 or for an F3.” Appellant subsequently entered pleas to third-

degree felony offenses. This same document further delineated, “For violating post-

release control conditions, the adult parole authority or parole board may impose a more

restrictive or longer control sanction, including a nine-month prison term for each

violation.” The acknowledgment provision at the conclusion of the document and

executed by all involved unambiguously stated, “Defendant understands all components

and consequences of sentencing at this time. Defendant acknowledges receiving a copy

of this form, completely reading it and understanding all components of any sentence the

Court imposes.”




5.
       {¶ 15} On October 1, 2007, appellant’s bifurcated sentencing hearing was

completed. The corresponding sentencing judgment entry clearly reflects, “Defendant

given * * * post release control notice under R.C. 2929.19(B)(3) and R.C. 2967.28.”

       {¶ 16} In conjunction with all of the foregoing, we note that the underlying dispute

in this matter is governed by this court’s ruling set forth in State v. Murray, 2012-Ohio-

4996, 979 N.E.2d 831 (6th Dist.). In Murray, it was similarly alleged that the imposition

of the postrelease control sanction was defective. In addition, the cases are further

analogous in that both involve appellants who failed to furnish full sentencing transcripts

in support of appeals alleging trial court error at those sentencings.

       {¶ 17} In Murray, this court clearly stated, “Our court has released numerous

cases holding a simple reference to the applicable statutes is sufficient to give the

offender the required notice that the court authorized a post-release control sanction.” Id.

at ¶ 24. Significantly, this court further held that because appellants failed to incorporate

into the record a full transcript of the sentencing hearing, “[W]e must presume the

propriety of that hearing and find that appellant was properly notified of post-release

control at the sentencing hearing.” Id. at ¶ 25.

       {¶ 18} Based upon the foregoing, we find that appellant’s failure to incorporate a

full transcript of the sentencing hearing in the record on appeal culminates in a

presumption of the regularity of the proceedings at the sentencing hearing. However, we

further find that even assuming arguendo that the presumption of regularity of the




6.
sentencing hearing was not applicable, the record nevertheless contains ample evidence

of proper postrelease control notification to appellant.

       {¶ 19} Wherefore, we find appellant’s assignment of error to be not well-taken.

The judgment of the Lucas County Court of Common Pleas is hereby affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Stephen A. Yarbrough, J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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