[Cite as State v. Conn, 2020-Ohio-2757.]




                          IN THE COURT OF APPEALS OF OHIO
                             FOURTH APPELLATE DISTRICT
                                   ADAMS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 19CA1104
                               :
     vs.                       :
                               :    DECISION AND
JUSTIN CONN,                   :    JUDGMENT ENTRY
                               :
     Defendant-Appellant.      :
_____________________________________________________________
                          APPEARANCES:

Timothy Young, Ohio Public Defender, and Jeremy Masters, Assistant State Public
Defender, Columbus, Ohio, for Appellant.

C. David Kelley, Adams County Prosecuting Attorney, and Kris. D. Blanton,
Adams County Assistant Prosecuting Attorney, West Union, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

        {¶1} This is an appeal from an Adams County Common Pleas Court

judgment that denied Appellant, Justin Conn’s, motion to vacate a judicial-sanction

sentence imposed after a post-release control violation. On appeal, Conn contends

that the trial court erred by failing to vacate his void judicial sanction. Because we

conclude the trial court satisfied all of the statutorily mandated terms to impose

post-release control, we reject the arguments raised under Conn’s sole assignment
Adams App. 19CA1104                                                                                                  2

of error. Accordingly, the assignment of error is overruled and the judgment of the

trial court is affirmed.

                                                    FACTS

        {¶2} A review of the record before us reveals that Conn was originally

sentenced on July 24, 2002, to twelve years in prison for felonious assault and

escape in Adams County Common Pleas Court Case No. 20020030. That

sentencing entry contained the following language regarding post-release control:

        The Court has further notified the defendant that post release control is

        MANDATORY in this case up to a maximum of five (5) years. If the

        defendant violates a Post Release Control Sanction or any condition

        imposed by the Parole Board under Revised Code Section 2967.28, the

        Parole Board may impose a more restrictive sanction, a prison term not

        to exceed nine (9) months or a maximum cumulative prison term for all

        violations not to exceed one-half of the stated prison term originally

        imposed. The defendant is ordered to serve as part of this sentence any

        term of post release control imposed by the Parole Board, and any

        prison term for violation of that post release control.1 (Emphasis

        added.)




1
  On December 29, 2004, the trial court issued a nunc pro tunc entry in Case No. 20020030 that contained identical
language to the July 24, 2002 sentencing entry.
Adams App. 19CA1104                                                                                                    3

The record before us contains nothing to indicate Conn directly appealed his

2002 convictions and/or sentences, however, the record does indicate that

Conn was released from prison and placed on post-release control in 2013.

         {¶3} In September of 2014, Conn was indicted by the Adams County Grand

Jury in Case No. 20140187 for one count of breaking and entering, one count of

vandalism, one count of theft, and one count of complicity.2 Subsequently on

October 2, 2014, a bill of information was filed in Case No. 20140190 charging

Conn with five different counts of fifth-degree-felony breaking and entering, all of

which involved separate victims.3 At the time these charges were filed in 2014,

Conn remained on post-release control from his convictions in Case No. 20020030.

         {¶4} Although these two cases were not formally consolidated at the trial

court level, they were handled together. Conn entered into a plea agreement with

the State on October 3, 2014, whereby he pled guilty to the breaking and entering

charge in Case No. 20140187 in exchange for the dismissal of the remaining

counts in that indictment. The agreement further provided that Conn would plead

guilty to all five breaking and entering charges contained in Case No. 20140190 by

way of a bill of information. The agreement also contained a provision for a

recommended aggregate prison term of forty-two months “PLUS any sentence for


2
 We take this information and additional information contained in the facts portion of this decision from our recent
decision issued in connection with Conn’s appeal from Case No. 20140187, identified as State v. Conn, 4th Dist.
Adams No. 19CA1094, 2020-Ohio-370.
3
  Conn’s present appeal is from the judicial-sanction sentence imposed in Case No. 20140190.
Adams App. 19CA1104                                                                     4

post release control violation (consecutive 1487 days)[.]” There is no indication

from the record before us that Conn appealed these convictions or sentences.

      {¶5} On December 16, 2016, Conn filed a motion to vacate the judicial-

sanction sentence of 1,487 days that was imposed in Case No. 20140187.

Subsequently, on June 10, 2019, Conn also filed a motion to vacate the judicial-

sanction sentence of 1,487 days in Case No. 20140190, which was the same

judicial-sanction sentence imposed in Case No. 20140187 as part of the plea

agreement Conn entered into with the State. Citing State v. Burns, 4th Dist.

Highland No. 11CA19, 2012-Ohio-1626 in support, Conn argued that because the

trial court did not properly impose post-release control in Case No. 20020030, his

post-release control sanction is void and he cannot be subject to a judicial-sanction

sentence. In both of his motions to vacate, Conn argued that the trial court should

have notified him of mandatory post-release control for five years, not for “up to”

five years. The trial court denied the motion to vacate filed in Case No. 20140187

on April 22, 2019. Conn immediately appealed the trial court’s denial of that

motion to this Court. The trial court thereafter denied the motion to vacate filed in

Case No. 20140190 on October 28, 2019.

      {¶6} In its decision, the trial court specifically noted that the signed change

of plea documentation in Case No. 20020030 provided, under the post-release

control section, as follows:
Adams App. 19CA1104                                                                    5

      “[i]f I am sentenced to prison for a Felony I or Felony sex offense, after

      my prison release, I will have 5 years of post release control under

      conditions determined by the Parole Board. * * * If the violation is a

      new felony, I could receive a prison term of the greater of one year or

      the time remaining on post release control, in addition to any other

      prison term imposed for the offense.”

The trial court further noted that Conn was also mandatorily informed at the time

of his release from prison that he was under mandatory post-release control

supervision for a period of five years. The trial court acknowledged the dispute

over the “up to” versus “a period of” language and indicated that it hoped that this

Court would “revisit” the analysis included in State v. Burns, supra, State v.

Adkins, 4th Dist. Lawrence No. 14CA29, 2015-Ohio-2830, (overruled by State v.

Mozingo, 2016-Ohio-8292, 72 N.E.2d 661 (4th Dist.), and State v. Mozingo, supra.

The trial court granted Conn’s appeal bond and the present appeal followed.

      {¶7} The record indicates that although Conn filed a motion with this Court

requesting that the two appeals be consolidated, the motion was denied because the

appeal from Case No. 20140187 had already been submitted for a decision. In

fact, as noted above, this Court already issued its decision on that matter in State v.

Conn, supra. Thus, the present appeal proceeded through the appellate process

separately and is now before us for decision. In his current appeal, Conn raises a
Adams App. 19CA1104                                                                   6

single assignment of error, and it is identical to the assignment of error raised in his

first appeal.

                             ASSIGNMENT OF ERROR

       I.       “THE TRIAL COURT ERRED BY FAILING TO VACATE
                JUSTIN CONN’S VOID JUDICIAL SANCTION.”

                                 LEGAL ANALYSIS

       {¶8} In his sole assignment of error, Conn contends that the trial court erred

by failing to vacate the void judicial-sanction sentence imposed in underlying Case

No. 20140190. More specifically, Conn argues that his sentence is void because

the 2002 sentencing entry (Case No. 20020030) did not properly impose post-

release control because it used the language “post release control is

MANDATORY in this case up to a maximum of five years.” (Emphasis added).

       {¶9} In one of its more recent decisions in a long line of cases addressing

post-release control, the Supreme Court of Ohio stated in State v. Grimes, 151

Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, as follows:

       It is settled that ‘a trial court has a statutory duty to provide notice of

       postrelease control at the sentencing hearing’ and that ‘any sentence

       imposed without such notification is contrary to law.’ State v. Jordan,

       104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23.

       Concomitantly, because a court is generally said to speak only through
Adams App. 19CA1104                                                                      7

      its journal, id. at ¶ 6, the trial court is ‘required to incorporate that notice

      into its journal entry imposing sentence,’ id. at ¶ 17.

Grimes at ¶ 8.

      {¶10} The sentencing entry must also contain the following information:

      (1) whether the postrelease control is discretionary or mandatory, (2)

      the duration of the postrelease-control period, and (3) a statement to the

      effect that the Adult Parole Authority * * * will administer the

      postrelease control pursuant to R.C. 2967.28 and that any violation by

      the offender of the conditions of postrelease control will subject the

      offender to the consequences set forth in that statute.

Grimes at ¶ 1.

      {¶11} “When a court fails to properly impose post-release control for a

particular offense, the offending portion of the sentence is void, must be set aside,

and is subject to review and correction.” State v. Taylor, 4th Dist. Lawrence No.

15CA12, 2016-Ohio-2781, ¶ 41, citing State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, ¶ 27-29; State v. Triplett, 4th Dist. Lawrence No.

10CA35, 2011-Ohio-4628, ¶ 4. This Court has previously held that the use of the

phrase “up to” instead of “a period of” when imposing a mandatory term of post-

release control results in a failure to properly impose post-release control that

renders the imposition void. State v. Burns, supra, ¶ 9, 11. However, in the
Adams App. 19CA1104                                                                         8

decision issued by this Court from Conn’s appeal from the 20140187 case, which

is essentially factually identical to this case and raised this identical legal

argument, we departed from our prior reasoning in Burns in favor of a “totality-of-

the-circumstances approach.” Conn at ¶ 20.

       {¶12} In determining to depart from our prior precedent, we relied on cases

from our sister districts, primarily the Seventh and Tenth Districts, which have

held “that the use of the ‘up to’ language does not render the post-release control

provision of the sentence void.” Conn at ¶ 13. In Conn, we noted that the Tenth

District “follows an approach that appears to be a ‘totality-of-the-circumstances-

test[,]’ ” in that it “concludes that a ‘trial court sufficiently fulfilled its statutory

obligations when its oral and written notifications, taken as a whole, properly

informed the defendant of post-release control.’ ” Id. at ¶ 13, quoting State v.

Boone, 2012-Ohio-3653, 975 N.E.2d 546, ¶ 18 (10th Dist.); State v. Mays, 10th

Dist. Franklin No. 10AP-113, 2010-Ohio-4609, appeal not allowed, 127 Ohio

St.3d 1535, 2011-Ohio-376, 940 N.E.2d 987; State v. Townsend, 10th Dist.

Franklin No. 10AP-983, 2011-Ohio-5056. In Conn, we observed that the Tenth

District considers all of the following when determining whether a defendant was

properly informed of post-release control: “(1) judgment entries that alone may be

insufficient to properly impose post-release control; (2) other documents, such as

plea agreements; and (3) sentencing hearing transcripts.” Conn at ¶ 13, citing
Adams App. 19CA1104                                                                 9

Boone at ¶ 25. See also State v. Maser, 10th Dist. Franklin No. 15AP-129, 2016-

Ohio-211, ¶ 16 (concluding that post-release control was properly imposed despite

the use of the phrase “up to” where the defendant signed a form during the

sentencing hearing informing him he was subject to a mandatory five-year term of

post-release control).

      {¶13} Ultimately, after our review of Boone, Mays, Townsend, Maser, and

many more cases, we stated in State v. Conn, supra, that “we now believe that the

totality-of-the-circumstances approach is the better approach in these cases” and

thus we held that:

      we should depart from our previous ruling in State v. Burns, 4th Dist.

      Highland No. 11CA19, 2012-Ohio-1626, and, instead, hold that a mere

      technical deficiency in the sentencing entry, such as the inclusion of the

      “up to” language, does not automatically render the post-release control

      sanction void when the record, as a whole, reveals that the trial court

      sufficiently complied with the statutory requirements to impose post-

      release control.

Conn at ¶ 20, additionally relying on State v. Sullivan, 10th Dist. Franklin No.

17AP-94, 2017-Ohio-2943; State v. Williams, 10th Dist. Franklin No. 10AP-1135,

2011-Ohio-6231, ¶ 21; Strong v. Ohio State Adult Parole Auth., 10th Dist. Franklin

No. 11AP-52, 2011-Ohio-5615, ¶ 21; State v. Zechar, 7th Dist. Mahoning No. 17
Adams App. 19CA1104                                                                   10

MA 0111, 2018-Ohio-3731, ¶ 20; State v. Smith, 7th Dist. Mahoning No.

17MA0174, 2018-Ohio-4562, ¶ 10; State v. Bartee, 8th Dist. Cuyahoga No. 97411,

2012-Ohio-3944, ¶ 17.

      {¶14} Just as in Conn’s first appeal, the record currently before us reveals

that the trial court’s decision states that Conn signed a plea agreement in Case No.

20020030 that stated: “[i]f I am sentenced to prison for a Felony I or Felony sex

offense, after my prison release, I will have 5 years of post-release control under

conditions determined by the Parole Board.” Although the judgment entry from

Case No. 20020030 is part of the record before us, neither the sentencing transcript

nor the change of plea documentation in Case No. 20020030 is a part of the record

before us. Without the transcript we presume that the trial court properly notified

Conn of his post-release control obligations. See State v. Grimes, 2017-Ohio-2927,

¶ 20, citing Natl. City Bank v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d 711

(2000); State v. Gann, 12th Dist. Butler No. CA2010-07-153, 2011-Ohio-895,

¶ 18; State v. Hernandez, 12th Dist. Warren No. CA2009-09-123, 2010-Ohio-

2056, ¶ 12. See also, State v. Brown, 8th Dist. Cuyahoga No. 95086, 2011-Ohio-

345, ¶ 9 (finding the court must presume the defendant was properly notified of

post-release control obligations when not provided with the transcript of the

sentencing hearing) and State v. Bunn, 7th Dist. Mahoning No. 17MA0125, 2019-

Ohio-2703, ¶ 19 (“The judgment entry from that case was properly made a part of
Adams App. 19CA1104                                                                   11

the record before us. However, the sentencing transcript in that case is not a part

of our record and there is no claim that the advisement at the sentencing hearing

was inadequate”).

         {¶15} In light of our foregoing discussion, and consistent with our prior

holding in State v. Conn, supra, we conclude that the trial court’s sentencing

entry’s “up to” language at issue in the present appeal does not require the

conclusion that the trial court improperly imposed the post-release control

sanction. This is because we believe that the record, when taken as a whole,

indicates that the trial court sufficiently complied with all requirements and placed

Conn on notice that he was subject to a mandatory five-year post-release control

term. Conn, supra, at ¶ 22. Thus, because we believe that the trial court satisfied

all of the statutorily mandated terms to impose post-release control, Conn’s sole

assignment of error is overruled. Accordingly, we affirm the judgment of the trial

court.



                                                      JUDGMENT AFFIRMED.
Adams App. 19CA1104                                                                   12



                               JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
      The Court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this Court directing the
Adams County Common Pleas Court to carry this judgment into execution.
       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. & Hess, J. concur in Judgment and Opinion.
                                 For the Court,
                                 __________________________________
                                 Jason P. Smith
                                 Presiding Judge


                             NOTICE TO COUNSEL
Adams App. 19CA1104                                                        13

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the Clerk.
