[Cite as State v. Kish, 2014-Ohio-699.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 99895




                                          STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                            ERIC KISH
                                                     DEFENDANT-APPELLANT



                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-431285

        BEFORE: Keough, J., Celebrezze, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                    February 27, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
By: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Adam M. Chaloupka
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

          {¶1} Defendant-appellant, Eric Kish, appeals the trial court’s imposition of

five-years mandatory postrelease control in CR-431285. For the reasons that follow, we

affirm.

          {¶2} In 2003, Kish pleaded guilty to involuntary manslaughter in CR-431285 and

aggravated robbery in CR-432975. The trial court sentenced Kish to an agreed prison

sentence of ten years for involuntary manslaughter and five years             for aggravated

robbery.      According to the journal entry in CR-431285, the court ordered that the

ten-year sentence “run consecutive to CR-432975” (the five-year sentence for aggravated

robbery). The sentencing entry improperly notified Kish of postrelease control.

          {¶3} Accordingly, Kish filed a motion to correct his sentence in 2012 arguing that

postrelease control was improperly imposed at sentencing. The trial court conducted a

limited sentencing hearing in April 2013 for the sole-purpose of imposing postrelease

control. At the hearing, Kish argued that postrelease control could not be imposed on

either case, (CR-431285 or CR- 432975) because when consecutive sentences are

imposed it is “treated as one big sentence of 15 years” under Ohio Administrative Code

section 5120-2-031(G). Therefore, according to Kish, it was unclear as to which of the

two sentences in the two different cases were already served, and as a result postrelease

control could not be imposed on either.

          {¶4} The state argued that after telephonically conferring with an individual at the

Bureau of Sentence Computation, it was determined that Kish’s five-year sentence in
CR-432975 had been served and that he was currently serving his ten-year sentence in

CR-431285. 1 Accordingly, the state requested that the mandatory term of five-years

postrelease control be imposed on CR-431285.

       {¶5} The trial court found, without explanation, that Kish had served his sentence

in CR-432975; therefore, postrelease control could not be imposed under that case. After

properly advising Kish regarding postrelease control, the court imposed a mandatory term

of five-years postrelease control in CR-431285

       {¶6} Kish now appeals, raising three assignments of error, which will be addressed

out of order and together where appropriate.

       {¶7} In his first assignment of error, Kish argues that “because there is no question

that the defendant has already served one of the two terms of imprisonment in full, the

trial court erred when it imposed postrelease control in both CR-431285 and

[CR-]432975.”

       {¶8} Contrary to Kish’s statement, the trial court’s journal entry clearly provides

that postrelease control was only imposed in CR-431285. Accordingly, Kish’s first

assignment of error is overruled.

       {¶9} In his third assignment of error, Kish contends “alternatively, the only

sentence upon which PRC can still be imposed is that for aggravated robbery in




         The State concedes on appeal that the “individual” at the bureau may have misinformed the
       1


state about this information.
CR-432975 because the sentence for involuntary manslaughter was imposed in a lower

numbered case and is presumed to have been served first.”

       {¶10} This court recently considered a similar case in which the trial court entered

reciprocal sentencing entries on two different cases. State v. Cvijetinovic, 8th Dist.

Cuyahoga No. 99316, 2013-Ohio-5121. In Cvijetinovic, this court rejected the “lower

case number is served first” doctrine. Rather, “it is axiomatic that a trial court only

speaks through its journal entries; thus, the sentencing journal entries should dictate how

sentences are served.” Id. at ¶ 21. Accordingly, Kish’s third assignment of error is

overruled.

       {¶11} In his second assignment of error, Kish contends “because, as a matter of

law, the terms of imprisonment have merged into a single period of imprisonment from

which it cannot be determined which term has been served in full, postrelease control

cannot be imposed on either case.” Specifically, Kish contends that although Ohio Adm.

Code 5120-2-03.1 dictates how his life in prison will be conducted, i.e. determining an

out-date and eligibility for particular programs, it is unhelpful to determine which

sentence is to be served first.

       {¶12} While we summarily disagree with Kish’s reasoning why postrelease control

cannot be imposed on either case, we agree with Kish that no revised or administrative

code dictates how multiple case sentences are to be served. Rather, it is the court’s

sentencing journal entry dictates how a sentence is to be served. See, e.g., State v.

Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 2-3, 10; State v. Holdcroft,
2012-Ohio-3066, 973 N.E.2d 334 (3d Dist.), ¶ 4; Cvijetinovic at ¶ 21. Therefore, it is

imperative that a trial court’s sentencing journal entry is unambiguous and clearly sets

forth the sequence in which consecutive sentences are to be served, especially when

sentencing on multiple cases or counts. Merely stating that the cases or counts are to run

consecutive to or with each other is insufficient because it does not indicate which

sentence is to be served first. See generally Cvijetinovic.

       {¶13} In this case, the parties requested that this matter be remanded to the trial

court to reconsider the imposition of postrelease control. Accordingly, considering that

the state conceded at oral argument that the trial court may have received misinformation

about which sentence Kish served first, and in light of our recent decision in Cvijetinovic,

we reverse the imposition of postrelease control and remand the matter back to the trial

court to conduct a hearing to determine the sequence of Kish’s sentences and then impose

postrelease control on his remaining unserved sentence.

       {¶14} Judgment reversed, case remanded.

       It is ordered that the parties share equally 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. Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR




KEY WORDS:
99895

postrelease control, consecutive sentences, reciprocal Hearing warranted to determine
the sequence of a defendant’s consecutive prison sentence on two separate cases. A trial
court’s sentencing journal entry dictates how a sentence is to be served. Postrelease
control can only be imposed on unserved prison sentences.
