[Cite as State v. Butner, 2019-Ohio-2616.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                     Hon. Craig R. Baldwin, J.
                                                Hon. Earle E. Wise, Jr., J.
 -vs-
                                                Case No. 18CA118
 SCOTT BUTNER

        Defendant-Appellant                     O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Richland County Court of
                                                Common Pleas, Case No. 1992-CR-0002



 JUDGMENT:                                      Affirmed in Part, Vacated in Part, Final
                                                Judgment Entered

 DATE OF JUDGMENT ENTRY:                        June 27, 2019


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 GARY BISHOP                                    R. JOSHUA BROWN
 Prosecuting Attorney                           32 Lutz Avenue
 Richland County, Ohio                          Lexington, Ohio 44902

 JOSEPH C. SNYDER
 Assistant Prosecuting Attorney
 38 South Park Street
 Mansfield, Ohio 44902
Richland County, Case No. 18CA118                                                          2

Hoffman, P.J.
           {¶1}    Appellant Scott Butner appeals the judgment entered by the Richland

County Common Pleas Court sentencing him to seven years incarceration and imposing

a five year term of mandatory post-release control for violation of his probation. Appellee

is the state of Ohio.

                                           STATEMENT OF THE CASE1

           {¶2}    On February 14, 1992, Appellant entered a combination of pleas of guilty

and no contest to five counts of rape (R.C. 2907.02) and five counts of gross sexual

imposition (R.C. 2907.05). The remaining twenty-seven counts in the indictment against

him were dismissed.

           {¶3}    Appellant was sentenced to a term of incarceration of eight to twenty-five

years on each of the rape counts, with five years of mandatory incarceration on each

count, to be served concurrently. He was sentenced to two years incarceration on each

count of gross sexual imposition, to be served consecutively to each other and

consecutively to the rape counts. The prison sentences on the gross sexual imposition

counts were suspended and Appellant was placed on probation, to begin immediately

upon his release from incarceration.

           {¶4}    After serving the time on the sentences for rape, Appellant was released

from prison and placed on probation. A probation violation was filed against Appellant on

August 20, 2018, and an addendum to the violation was filed August 30, 2018. Appellant

admitted the allegations set forth in the request for revocation of his probation.




1   A rendition of the facts is unnecessary to our disposition of this appeal.
Richland County, Case No. 18CA118                                                            3


       {¶5}   The trial court sentenced Appellant to an aggregate term of incarceration of

seven years on the five convictions of gross sexual imposition for which his sentences

had previously been suspended, and also imposed a five year mandatory term of post-

release control.

       {¶6}   It is from the October 22, 2018, Community Control Violation Journal Entry

Appellant prosecutes this appeal, assigning as error:



              THE TRIAL COURT ERRED IN IMPOSING POST-RELEASE

       CONTROLS [SIC] UPON THE DEFENDANT.

       {¶7}   Appellant argues the trial court did not have authority to place him on post-

release control, as post-release control did not exist when he committed the offenses of

gross sexual imposition for which his probation was revoked and sentence imposed. The

State concedes the error, citing this Court’s decision in State v. Ferrell, 5th Dist. Stark No.

2013CA00121, 2013-Ohio-5521. See also State v. Jackson, 8th Dist. Cuyahoga No.

105228, 2017-Ohio-4191.

       {¶8}   The assignment of error is sustained.
Richland County, Case No. 18CA118                                                      4


      {¶9}   The judgment of the Richland County Common Pleas Court is affirmed with


the exception of the imposition of five years mandatory post-release control. Pursuant to


App. R. 12(B), we hereby enter final judgment vacating that portion of the sentence


imposing five years of post-release control on Appellant.




By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur
