[Cite as State v. Shouse, 2015-Ohio-3918.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 26172
                                                   :
 v.                                                :   Trial Court Case No. 2013-CR-2901
                                                   :
 RODNEY SHOUSE                                     :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                         Rendered on the 25th day of September, 2015.

                                              ...........

MATHIAS H. HECK, JR., by CHRISTINA E. MAHY, Atty. Reg. No. 0092671, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee


MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard,
Springboro, Ohio 45066
      Attorney for Defendant-Appellant

                                             .............




WELBAUM, J.
                                                                                        -2-




       {¶ 1} Defendant-appellant, Rodney Shouse, appeals from the conviction and

sentence he received in the Montgomery County Court of Common Pleas after he was

found guilty of burglary following a bench trial. Specifically, Shouse challenges the legal

sufficiency and manifest weight of the evidence with respect to the trespass element of

burglary. In addition, Shouse challenges the trial court’s decision to impose an additional

838 days of prison time consecutive to the three-year prison sentence he received for

burglary as a result of violating his post-release control sanctions. For the reasons

outlined below, the judgment of the trial court will be affirmed, but the matter will be

remanded for the limited purpose of allowing the trial court to issue a nunc pro tunc entry

to correct a clerical error in its sentencing entry.



                            Facts and Course of Proceedings

       {¶ 2} On October 8, 2013, Shouse was indicted on one count of burglary in

violation of R.C. 2911.12(A)(1), a felony of the second degree, with an underlying offense

of aggravated menacing and/or disorderly conduct.         The charge stemmed from a

September 11, 2013 altercation between Shouse and his neighbor, Cindy Mixon.

Shouse pled not guilty to the burglary charge and the matter proceeded to a bench trial.

At trial, the State presented testimony from Mixon; Mixon’s neighbor, Nevin Smith; and

the investigating police officer, Nathan Speelman. The defense presented testimony

from Shouse’s fiancé, Melissa Smart.

       {¶ 3} It is undisputed that Mixon and her children have resided at 358 Kenwood

Avenue in Dayton, Ohio since June 2013. The residence is a duplex owned by Jeff Acre,
                                                                                        -3-


to whom Mixon and other tenants pay rent. Mixon’s side of the property is a single

occupancy, whereas the other side, 356 Kenwood Avenue, houses multiple tenants who

rent rooms and share common areas. It is undisputed that sometime prior to September

2013, Shouse and his fiancé, Smart, entered into a month-to-month lease for one of the

rooms inside 356 Kenwood Avenue.

       {¶ 4} At trial, Mixon testified that she would sometimes collect rent for Acre when

he was unavailable; however, Mixon claimed this was a rare occurrence. Mixon also

testified that she would relay complaints to Acre if tenants were unable to contact him, as

well as show prospective tenants the available rooms for rent inside the property.

According to Mixon, she showed Smart the room that Smart and Shouse eventually

rented, and had them fill out a lease agreement, which she later gave to Acre. Despite

assisting Acre with his rental business, Mixon testified that her side of the property was

not a business, but her home, and that the other tenants had to knock on her door if they

wanted to speak to her. Mixon also denied allowing Shouse to enter her home as he

pleased or giving Shouse a key to her property.

       {¶ 5} As for the burglary, Mixon testified that she was inside her home during the

early evening hours of September 11, 2013, when she heard Shouse yelling and

screaming obscenities at her from the backyard. After hearing Shouse’s outburst, Mixon

testified that she looked out her window and saw Shouse walking toward the front of the

property.   As Shouse walked around the property, Mixon testified that he continued

threatening her and yelling for her come outside. Specifically, Mixon heard Shouse state

that “[h]e was going to whoop [her] ass.” Trial Trans. (Mar. 17, 2014), p. 56. According

to Mixon, Shouse was threatening her because she had called the police a few days
                                                                                        -4-


earlier due to Shouse and Smart constantly fighting with each other.

      {¶ 6} When Shouse reached the front of the property, Mixon testified that he went

to her side of the porch, opened her screen door, and began banging on her locked inner

door and jiggling the door knob. During this time, Mixon was in a late stage of pregnancy

and babysitting Acre’s two-year-old daughter. Mixon testified that she was concerned

about her safety and the safety of Acre’s daughter, so she called 9-1-1 for assistance and

reported Shouse’s behavior, noting that he appeared intoxicated. After speaking with

the police, Mixon informed Shouse that she had called 9-1-1.

      {¶ 7} Continuing, Mixon testified that Shouse eventually went to his side of the

property, sat on the front porch, and drank from a six-pack of beer. While Shouse was

sitting on the porch drinking, Mixon testified that he continued yelling threats at her, as

well as yelling at people walking by, challenging them to fight. Mixon then testified that

Shouse began pounding on her door again and yelled “I’m going to kill you.” Id. at 58,

61. Frightened, Mixon testified that she called 9-1-1 a second time and told Shouse to

go away. However, Mixon claimed that instead of leaving, Shouse continued to bang on

her door so hard that the door opened.

      {¶ 8} Once the door opened, Mixon testified that Shouse stepped through the

doorway into her living room. According to Mixon, Shouse then began yelling in her face

saying “I’m going to beat your ass. Teach you to call the police on me.” Trial Trans.

(Mar. 17, 2014), p. 66. In response, Mixon told Shouse to get out of her house and

pushed the door shut, forcing him out and locking the door behind him. Thereafter,

Mixon claimed that Shouse remained on the front porch until approximately ten minutes

before the police arrived some two hours later.
                                                                                        -5-


       {¶ 9} Nevin Smith, a resident of 356 Kenwood Avenue, testified that Shouse was

one of the tenants on his side of the duplex and that Shouse was drinking heavily on the

day in question. Smith also testified that on the same day, he heard a male voice

shouting loudly from the front of the property while he was inside taking a shower.

Specifically, Smith heard the voice threaten to kill Mixon.

       {¶ 10} After hearing the shouting, Smith testified that he went outside to Mixon’s

side of the property and observed Mixon frightened and in tears. According to Smith,

Mixon told him that Shouse had broken into her home and threatened Acre’s daughter.

Smith claimed that when the police arrived approximately two hours later, he assisted the

officers in locating Shouse inside their shared portion of the duplex. Smith testified that

Shouse was intoxicated when the police made contact with him.

       {¶ 11} Smith further testified that he never paid rent to Mixon nor raised any

complaints with her regarding the duplex.      He claimed that Mixon was just another

tenant, whereas Acre was the sole party responsible for the property. However, Smith

testified that he had seen Mixon take prospective tenants through the property for Acre.

       {¶ 12} Officer Nathan Speelman of the Dayton Police Department testified that on

September 11, 2013, he was dispatched to 358 Kenwood Avenue where he encountered

Smith and Mixon. Upon his arrival, Speelman testified that Smith approached him and

spoke to him about what had occurred. Thereafter, Speelman testified that he spoke

with Mixon and noted that she appeared very distraught. Speelman further testified that

he examined Mixon’s doorframe and found it plausible that the door had been forced open

in the manner Mixon had described.

       {¶ 13} Upon confronting Shouse, Speelman testified that Shouse was upset,
                                                                                         -6-


uncooperative, belligerent, highly intoxicated, and used profane language. Speelman

also recalled Shouse using a racial slur to identify another officer at the scene.

According to Speelman, Shouse denied doing anything wrong; however, based on his

investigation, Speelman arrested Shouse for burglary and aggravated menacing.

      {¶ 14} The State rested its case after the foregoing testimony and the admission

of its exhibits, which included a recording of Mixon’s two 9-1-1 calls and photographs of

the property. Shouse then moved for acquittal, claiming that the State had failed to

establish the trespass element of burglary.       In so moving, Shouse attempted to

characterize Mixon’s home as a rental office that was open to the public. The trial court

overruled the motion and Shouse thereafter called his fiancé, Smart, as his sole defense

witness.

      {¶ 15} Smart, who was not at the property during the altercation at issue, testified

that she found the vacancy at 356 Kenwood Avenue on the internet and contacted Acre

to set up a time to view the property. Once a viewing was scheduled, Smart testified that

Mixon showed her the room for rent and had her fill out a lease while they were in Mixon’s

living room. According to Smart, it was her understanding that Mixon was the live-in

manager of the building who collected rent for Acre when he was unavailable. Smart

also testified that she had paid her deposit and rent to Mixon.

      {¶ 16} Smart further testified that Mixon’s side of the duplex “wasn’t really a rental

office.” Trial Trans. (Mar. 17, 2014), p. 155. In addition, although Smart claimed that

Mixon had told her she could come over anytime to talk about issues with the property,

Smart testified that there was never a sign outside Mixon’s home advertising it as a rental

office, nor any posting regarding hours of operation. Smart also explained that the public
                                                                                            -7-


could not just walk into Mixon’s home, but had to knock. However, Smart claimed that

she and Shouse had a key to Mixon’s back door so that they could use her refrigerator

until Acre purchased them a refrigerator of their own.

        {¶ 17} Following Smart’s testimony, Shouse introduced a letter written by a local

locksmith, James Nolen, which was admitted into evidence. In the letter, Nolen indicated

there was no damage to Mixon’s front door or doorframe and opined that the door could

not have been forced open without some sign of damage. Nolen also discussed the

door’s locks and their potential for failure.

        {¶ 18} After hearing all the evidence, the trial court found Shouse guilty of burglary.

In so holding, the court found that Mixon’s portion of the duplex was not open to the public,

but a private residence. The trial court then sentenced Shouse to three years in prison

for the burglary plus an additional consecutive 838 days in prison for violating his post-

release control sanctions imposed in Montgomery County Case Nos. 2011-CR-1889 and

2012-CR-1395.

        {¶ 19} Shouse now appeals from his conviction and sentence, raising three

assignments of error for review.



                         First and Second Assignments of Error

        {¶ 20} For purposes of convenience, we will address Shouse’s first two

assignments of error together. They are as follows:

   I.      THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S

           MOTION FOR ACQUITTAL SINCE THE STATE FAILED TO SUPPLY

           SUFFICIENT EVIDENCE AS TO ALL THE ELEMENTS NECESSARY
                                                                                           -8-


            TO SUPPORT THE CHARGE AGAINST THE DEFENDANT.

   II.      THE TRIAL COURT’S VERDICT SHOULD BE REVERSED AS IT WAS

            AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶ 21} Under his First and Second Assignments of Error, Shouse contends his

conviction for burglary was not supported by sufficient evidence and was against the

manifest weight of the evidence. Specifically, Shouse contends the evidence did not

establish that he committed the trespass element of burglary because his entry into

Mixon’s home was privileged and lawful. We disagree.

         {¶ 22} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to

the state could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683

N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds

that reasonable minds could not reach the conclusion reached by the trier-of-fact.”

(Citations omitted.) Id.

         {¶ 23} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating

whether a conviction is against the manifest weight of the evidence, the appellate court
                                                                                          -9-


must review the entire record, weigh the evidence and all reasonable inferences, consider

witness credibility, and determine whether, in resolving conflicts in the evidence, the trier

of fact “clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” Thompkins at 387, quoting State

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the

evidence is subject to different interpretations does not render the conviction against the

manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013 CA 61,

2013 CA 62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.

       {¶ 24} As noted earlier, Shouse was convicted of burglary in violation of R.C.

2911.12(A)(1). Pursuant to that statute:

       No person, by force, stealth, or deception, shall * * * [t]respass in an

       occupied structure or in a separately secured or separately occupied portion

       of an occupied structure, when another person other than an accomplice of

       the offender is present, with purpose to commit in the structure or in the

       separately secured or separately occupied portion of the structure any

       criminal offense[.]

       {¶ 25} “Trespass” is defined under R.C. 2911.21(A), and it occurs when a person

“without privilege to do so, * * * [k]nowingly enter[s] or remain[s] on the land or premises

of another[.]”   R.C. 2911.21(A)(1).     “ ‘Privilege is the distinguishing characteristic

between unlawful trespass and lawful presence on the land or premises of another.’ ”

State v. Metcalf, 2d Dist. Montgomery No. 24338, 2012-Ohio-6045, ¶ 19, quoting State v.

Russ, 12th Dist. Clermont No. CA99-07-074, 2000 WL 864989, *3 (June 26, 2000).

(Other citation omitted.) “The state has the burden to prove lack of privilege.” Id., citing
                                                                                           -10-

State v. Newell, 93 Ohio App.3d 609, 611, 639 N.E.2d 513 (1st Dist.1994).

       {¶ 26} “Privilege” is defined as “an immunity, license, or right conferred by law,

bestowed by express or implied grant, arising out of status, position, office, or relationship,

or growing out of necessity.” R.C. 2901.01(A)(12). “A person has a privilege to enter a

business establishment when it is ‘open to the public.’ ”         State v. Kilgore, 2d Dist.

Montgomery No. 17880, 2000 WL 770530, *3 (June 16, 2000), quoting State v. Clark,

10th Dist. Franklin No. 98AP-1650, 1999 WL 993151 (Sept. 28, 1999). Accord State v.

Cooper, 168 Ohio App.3d 378, 2006-Ohio-4004, 860 N.E.2d 135, ¶ 14 (2d Dist.).

       {¶ 27} In this case, Shouse contends the State failed to establish that he

trespassed into Mixon’s home because he claims her living room area was sometimes

used as a rental office that was open to the public. Accordingly, Shouse claims that he

was not without privilege to enter Mixon’s side of the duplex. We, however, find that

there was sufficient evidence in the record for the trial court to find that Mixon’s side of

the duplex was not open to the public, but rather a private residence that Shouse was not

privileged to enter.

       {¶ 28} This finding is supported by Smart’s testimony that Mixon’s residence

“wasn’t really a rental office” and that there was no signage on Mixon’s property indicating

that her residence was a rental office with business hours. Trial Trans. (Mar. 17, 2014),

p. 155, 169.    Mixon also testified that 358 Kenwood Avenue was her home, not a

business. In addition, both Smart and Mixon testified that tenants had to knock on

Mixon’s door and were not otherwise permitted to walk in unannounced.

       {¶ 29} While Smart claimed that she and Shouse once had a key to access Mixon’s

residence for purposes of using her refrigerator, Smart’s testimony indicates that this
                                                                                          -11-


alleged privilege was no longer in effect during the time of the altercation, as she testified

that they had the key until Acre provided them with their own refrigerator, which occurred

prior to the altercation.   In addition, Mixon denied ever giving Shouse a key to her

property.

       {¶ 30} Furthermore, while the record indicates that that Mixon acted as an agent

for Acre when she carried out certain functions such as collecting rent, showing the

property, and taking tenant complaints, none of these actions expressly conferred a

privilege for the other tenants to enter Mixon’s home at any time or for any purpose.

       {¶ 31} Most importantly, at the time of the altercation with Shouse, Mixon claimed

that her door was locked, she did not let Shouse into her home, told him multiple times to

go away, and that Shouse forced his way into her living room by banging on her door.

The trial court found Mixon’s account of events credible and we will not disturb that finding

on appeal, as it is well established that “[t]he credibility of the witnesses and the weight

to be given to their testimony are matters for the trier of facts to resolve.” State v.

Hammad, 2d Dist. Montgomery No. 26057, 2014-Ohio-3638, ¶ 13, citing State v. DeHass,

10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).

       {¶ 32} For the foregoing reasons, we find there was sufficient evidence to establish

that Shouse’s entry into Mixon’s home was without privilege, thus satisfying the trespass

element of burglary, and that such finding was not against the manifest weight of the

evidence.

       {¶ 33} Shouse’s First and Second Assignments of Error are overruled.



                               Third Assignment of Error
                                                                                         -12-


       {¶ 34} Shouse’s Third Assignment of Error is as follows:

       THE TRIAL COURT’S IMPOSITION OF AN ADDITIONAL PRISON TERM

       OF EIGHT HUNDRED THIRTY EIGHT DAYS TO THE DEFENDANT’S

       SENTENCE FOR VIOLATION OF POST[-]RELEASE CONTROL WAS

       CONTRARY TO LAW.

       {¶ 35} Under his Third Assignment of Error, Shouse contends the trial court erred

in sentencing him to serve an additional 838 days in prison for violating his post-release

control sanctions imposed in prior Montgomery County Case Nos. 2011-CR-1889 and

2012-CR-1395.     In support of this claim, Shouse argues: (1) there was inadequate

support for the trial court to find that he had 838 days of post-release control remaining

on his prior cases; and (2) he was not properly placed on post-release control for either

of those cases. We again disagree.

       {¶ 36} Initially, we note that Shouse did not object to the trial court’s decision to

impose 838 days in prison, thus waiving all but plain error with regards to the sentence

imposed. See State v. Anderson, 2d Dist. Montgomery No. 26056, 2014-Ohio-4699, ¶ 8,

citing State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826, 844 N.E.2d 372, ¶ 22 (2d

Dist.), and State v. Wickline, 50 Ohio St.3d 114, 120, 552 N.E.2d 913 (1990). “Plain

error does not exist unless the record indicates that [Shouse’s] sentence would clearly

have been different but for the error.” (Citations omitted.) Id.

       {¶ 37} R.C. 2929.141 addresses sentencing for a felony committed by a person

under post-release control at the time of the offense. The statute provides, in relevant

part that:

       Upon the conviction of or plea of guilty to a felony by a person on post-
                                                                                          -13-


       release control at the time of the commission of the felony, the court may

       terminate the term of post-release control, and the court may do either of

       the following regardless of whether the sentencing court or another court of

       this state imposed the original prison term for which the person is on post-

       release control:

       (1) In addition to any prison term for the new felony, impose a prison term

       for the post-release control violation. The maximum prison term for the

       violation shall be the greater of twelve months or the period of post-release

       control for the earlier felony minus any time the person has spent under

       post-release control for the earlier felony. In all cases, any prison term

       imposed for the violation shall be reduced by any prison term that is

       administratively imposed by the parole board as a post-release control

       sanction. A prison term imposed for the violation shall be served

       consecutively to any prison term imposed for the new felony. The imposition

       of a prison term for the post-release control violation shall terminate the

       period of post-release control for the earlier felony.

(Emphasis added.) R.C. 2929.141(A)(1).

       {¶ 38} Shouse first claims that there was inadequate evidence for the trial court to

find that he had 838 days of post-release control remaining on his prior cases. The

transcript of the sentencing hearing indicates that in reaching that decision, the trial court

relied on a letter from the Ohio Department of Rehabilitation and Correction that was

attached to the State’s sentencing memorandum. The letter indicates that as of March

31, 2014, Shouse had 841 days of post-release control remaining in Case No. 12-CR-
                                                                                        -14-


1395. Therefore, as of the April 3, 2014 sentencing hearing, Shouse would have had

838 days of post-release control remaining, which was the same amount of days imposed

by the trial court for his post-release control violation.

       {¶ 39} Evid.R. 101(C) provides that the Ohio Rules of Evidence do not apply to

miscellaneous criminal proceedings such as sentencing hearings. State v. Estepp, 2d

Dist. Montgomery No. 17985, 2001 WL 43104, *4 (Jan. 19, 2001); State v. Cook, 83 Ohio

St.3d 404, 425, 700 N.E.2d 570 (1998). Furthermore, a trial court may rely on reliable

hearsay in its sentencing decision. State v. Maas, 2d Dist. Greene No. 06-CA-117,

2007-Ohio-6265, ¶ 24, citing State v. Hyland, 12th Dist. Butler No. CA2005-05-103, 2006-

Ohio-339, ¶ 18. Accordingly, it was not inappropriate for the trial court to rely on the

letter in reaching its sentencing decision.

       {¶ 40} Moreover, Shouse has not indicated what further proof he believes is

necessary to establish the amount of time left on his post-release control, nor is there

anything in the record to indicate the trial court’s calculation was improper. As a result,

we find that the letter from the Ohio Department of Rehabilitation and Correction was

sufficient. Accordingly, there was no error, let alone plain error, in that regard.

       {¶ 41} Next, Shouse contends the additional 838-day sentence for violating post-

release control is contrary to law because the trial court’s imposition of post-release

control in Case Nos. 2011-CR-1889 and 2012-CR-1395 was void as a result of the court

failing to properly advise him of the consequences for violating post-release control. In

support of this claim, Shouse attached to his appellate brief the sentencing entries and

plea waiver forms from Case Nos. 2011-CR-1889 and 2012-CR-1395, and argued that it

is “plain and clear” from these documents that he was not properly advised of the
                                                                                          -15-


consequences of violating post-release control. Shouse does not further elaborate on

the alleged failure.

       {¶ 42} At this juncture, we note that attachments to appellate briefs that are not a

part of the record cannot be considered on appeal, as “[a] reviewing court cannot add

matter to the record before it, which was not a part of the trial court’s proceedings, and

then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d

402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. Shouse filed a motion to

supplement the record of appeal with the prior sentencing entries and plea waiver forms,

which we subsequently denied under the authority of Ishmail. See Decision and Entry

(May 27, 2015), 2d Dist. Montgomery App. Case No. 26172.

       {¶ 43} Upon further review, we find the sentencing entry in Case No. 2012-CR-

1395 was made a part of the record since it was attached as an exhibit to the State’s

sentencing memorandum and reviewed by the trial court. Nevertheless, upon reviewing

the sentencing entry in Case No. 2012-CR-1395, we find that it satisfied the notification

requirement in R.C. 2929.19(B)(2)(e), which requires a trial court to advise offenders who

are given a prison sentence that a violation of post-release control could result in a prison

term “of up to one-half of the stated prison term originally imposed upon the offender.”

Specifically, the sentencing entry in Case No. 2012-CR-1395 states the following:

       Should the defendant violate any post-release control sanction, or any law,

       the adult parole board may impose a more restrictive sanction. The parole

       board may increase the length of the post-release control. The parole

       board also could impose up to an additional nine (9) month prison term for

       each violation for a total of up to fifty (50%) of the original sentence imposed
                                                                                           -16-

      by the court. If the violation of the sanction is a felony, in addition to being

      prosecuted and sentenced for the new felony, the defendant may receive

      from the court a prison term for the violation of the post-release control itself.

(Emphasis added.) State’s Sentencing Memorandum: Exhibit I—July 5, 2012 Termination

Entry in Case No. 2012-CR-1395 (Mar. 31, 2014), Montgomery County Common Pleas

Court Case No. 2013-CR-2901, Docket No. 61, p. 2.

      {¶ 44} We also find that the case law cited by Shouse on the notification issue has

no bearing on this case. Shouse first cites to State v. Adkins, 2d Dist. Greene No. 2010-

CA-69, 2011-Ohio-2819, a decision in which this court held that the post-release control

portion of the defendant’s sentence was void because the trial court made the defendant’s

post-release control mandatory for “up to” a certain period of time. Id. at ¶ 13. We held

that the “up to” language gives the erroneous impression that the parole board had

discretion to impose less than the mandatory term. Id. at ¶ 5-6.

      {¶ 45} In the present case, however, there is no “up to” language in the sentencing

entry from Case No. 2012-CR-1395. Rather, the trial court properly stated in the entry

that “the defendant will be supervised by the Parole Board for a period of Three years

Post-Release Control after the defendant’s release from imprisonment.”                 State’s

Sentencing Memorandum: Exhibit I—July 5, 2012 Termination Entry in Case No. 2012-

CR-1395 at p. 1. Accordingly, we fail to see how Adkins applies to this case.

      {¶ 46} Shouse also cites to our decision in State v. Landgraf, 2d Dist. Clark No.

2104 CA 12, 2014-Ohio-5448.         Our holding in Landgraf discusses the notification

required by Crim.R. 11 when a defendant pleads guilty to a felony offense while the

defendant was on post-release control for a prior felony.             Id. at ¶ 23.     In that
                                                                                           -17-

circumstance, Landgraf held that before pleading guilty the accused must be notified that

pursuant to R.C. 2929.141, the trial court is authorized to impose an additional

consecutive prison sentence for the post-release control violation, as well as inform the

accused of the maximum possible sentence for such a violation. Id. However, without

the record and transcripts from Case Nos. 2011-CR-1889 and 2012-CR-1395, we must

presume regularity in the proceedings before the trial court regarding the court’s

compliance with Crim.R. 11. State v. Miller, 2d Dist. Montgomery No. 25893, 2014-Ohio-

4508, ¶ 26.     Therefore, Landgraf does not advance Shouse’s argument that the

imposition of post-release control was void in his prior cases.

       {¶ 47} That said, Shouse points out, and the State concedes, that the trial court

erroneously cited to Case No. 2012-CR-1396 as opposed to Case No. 2012-CR-1395 as

part of its sentencing entry when referencing Shouse’s prior cases in which post-release

control was imposed. This is a clerical error that may be corrected via a nunc pro tunc

sentencing entry.

       {¶ 48} Shouse’s Third Assignment of Error is overruled.



                                        Conclusion

       {¶ 49} Having overruled all three assignments of error raised by Shouse, the

judgment of the trial court is affirmed. However, finding a clerical error in the trial court’s

sentencing entry, this matter is remanded for the limited purpose of allowing the trial court

to issue a nunc pro tunc sentencing entry in accordance with this opinion.

                                       .............
                                 -18-


FAIN, J. and HALL, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Christina E. Mahy
Marshall G. Lachman
Hon. Dennis J. Langer
