 [Cite as State v. Berry, 2014-Ohio-132.]




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

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 DONTA E. BERRY

         Defendant-Appellant


 Appellate Case No.        2013-CA-34

 Trial Court Case No. 2012-CR-541


 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                                Rendered on the 17th day of January, 2014.

                                              ...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Greene County Prosecutor, 55 Greene
Street, 1st Floor, Xenia, Ohio 45385
        Attorney for Plaintiff-Appellee

DAVID M. MORRISON, Atty. Reg. No. 0087487, P.O. Box 750383, Dayton, Ohio 45475
     Attorney for Defendant-Appellant

                                              .............
                                                                                              2


WELBAUM, J.

         {¶ 1}     Defendant-Appellant, Donta Berry, appeals from his conviction and sentence on

 charges of one count of Theft from an Elderly Person and two counts of Theft. After Berry pled

 guilty to the charges, the trial court indicated that the charges were allied offenses, and the State

 elected to proceed with the charge of Theft from an Elderly Person. The trial court then

 sentenced Berry to one year in prison and to restitution.

         {¶ 2}     Berry contends that the trial court erred in denying his motion to withdraw his

 plea. Berry also contends that the court erred in disapproving Intensive Prison Programs without

 providing an adequate factual basis, and in prematurely disapproving of Berry’s transfer to

 transitional control.

         {¶ 3}     We conclude that the trial court did not abuse its discretion in denying Berry’s

 motion to withdraw his guilty plea. Under standards pertaining to post-sentence motions to

 withdraw, Berry failed to establish manifest injustice. Even if Berry’s motion were considered a

 pre-sentence motion to withdraw a plea, the trial court did not abuse its discretion in denying the

 motion.

         {¶ 4}     We further conclude that the trial court erred in failing to make a finding

 regarding its disapproval of Berry’s placement in Intensive Prison Programs. The trial court also

 erred in prematurely disapproving Berry’s transfer to transitional control.        Accordingly, the

 judgment of the trial court will be affirmed in part and reversed in part, and will be remanded for

 further proceedings consistent with our opinion.



                                I. Facts and Course of Proceedings
                                                                                             3


       {¶ 5}        In November 2012, Berry was indicted on one count of Theft from an Elderly

Person, two counts of Theft, and five counts of Receiving Stolen Property. The charges arose

from Berry having taken a purse that the owner inadvertently left in a shopping cart in a parking

lot.

       {¶ 6}        After initially pleading not guilty, Berry was released on bond. As part of his

bond agreement, Berry acknowledged that any re-involvement in criminal activity would violate

his bond release.

       {¶ 7}        Berry subsequently entered into a plea agreement with the State in January 2013.

 In exchange for Berry’s guilty plea to Theft from an Elderly Person and two counts of Theft, the

State agreed to dismiss the five counts of Receiving Stolen Property. In addition, the State

agreed to recommend that Berry receive community control.

       {¶ 8}        At the plea hearing, which occurred on January 24, 2013, the trial court fully

discussed all the matters required by Crim.R. 11, and explained Berry’s rights.                After

determining that the Crim.R. 11 plea form was correct, the court discussed the form with Berry.

The court ascertained that Berry had gone over the form with his attorney and understood the

content of the form. Berry also told the court that there were no other deals, conditions, or

promises present between Berry and the State that the court had not discussed.

       {¶ 9}        During the plea hearing, Berry indicated that he was 22 years old, was in his

second year of college, and could read, write, and understand the English language. Berry also

verified that he was not under the influence of any drugs, alcohol, or medicine, that he understood

the proceedings, and that he was satisfied with the legal services he had received.

       {¶ 10}       In particular, the trial court advised Berry that the State and police were bound
                                                                                                                                 4


by the agreement and recommendation of community control, but that the court, itself, was not

bound contractually by the agreement. Specifically, the court stated that it could follow the

recommendation or it might choose not to do so. In response, Berry said that he understood.

Transcript of January 24, 2013 Proceedings, pp. 12-13.

         {¶ 11}        The trial court then told Berry that the disposition of the case would be

continued, so that the court could become informed about Berry before rendering a decision. In

this regard, the court also stated that:

                    I want your decision to plead guilty, likewise, to be an informed decision

         as well. What I mean by that is, I want you to know what you’re facing as a result

         of the decision you’re making here today.

                    Simply put, what you’re facing is one of two options, either prison or

         community control. So, I’m going to discuss both of those in some detail, and the

         reason why I’m giving both of them to you is they’re both on the table. I mean, I

         can’t tell you today which one I’m going to impose. You could both receive

         community control, you could both receive prison. I don’t know. So I’m going

         to discuss them both and if you have any questions about it, you can let me know.

         Id. at p. 13.1

         {¶ 12}        The trial court then told Berry that if it decided to impose prison, it could

impose a sentence within the range previously discussed (thirty-six months). Berry said he

understood that and had no questions about it. Id. at p. 15. After explaining both the potential


           1
               The use of the words “you could both receive prison” is based on the fact that the court was addressing Berry and a defendant
 in another case at the same time.
                                                                                             5


prison term and community control, the trial court said, “Now understanding these are the

options, appreciating that as of this moment in time, both of them are on the table, is it your

desire for me to proceed and accept your guilty plea?”            Id. at p. 16.    Berry responded

affirmatively.

        {¶ 13}   After Berry pled guilty, the trial court found that the wavier and plea were

voluntarily, knowingly, and intelligently made, and that the court had complied with Crim.R. 11.

The court then found Berry guilty, and asked him to schedule an interview promptly with the

probation department, and be “clean, sober, and law-abiding” in the interim. Transcript of

January 24, 2013 Proceedings, pp. 17-18. In this regard, the court explained that “[o]ne of the

reasons I ask you to do all of this is that part of that PSI is going to be a recommendation to me as

to which of these two options I should impose in your case, and your participation in this process

could have some bearing on that recommendation.” Id. at p.18. Berry indicated that he could

follow the court’s orders. Id.

        {¶ 14}   In February, 2013, the adult probation department filed a motion asking the

court to issue a capias for Berry’s arrest, and to increase the bond amount to $10,000, based on

Berry’s failure to appear for an interview. The probation department also noted that it had not

been able to contact Berry. The court issued a capias for Berry’s arrest and also increased his

bond.

        {¶ 15}   On March 12, 2013, the trial court reassigned the final disposition hearing to

April 3, 2013. At the time, Berry was incarcerated, and the court issued an order to the Greene

County Sheriff to convey Berry from the Warren County Jail for the hearing.

        {¶ 16}   At the sentencing hearing, which occurred on April 3, 2013, Berry learned that
                                                                                             6


the trial court intended to impose a one-year prison sentence, rather than community control. On

the same date, Berry filed a pro se motion, seeking to “fire” his public defender, and claiming

that his attorney had promised him that he would receive probation if he pled guilty. Berry also

filed a motion for a jury trial, based on the fact that he had been misled about his plea.

        {¶ 17}   On May 23, 2013, the trial court held a hearing on Berry’s motion to withdraw

his guilty plea. At the time, Berry was represented by a different attorney. Berry testified, and

claimed that his former attorney had promised him that if he pled guilty, he would receive

community control. Berry stated that his attorney told him that “no matter what,” he would not

go to jail, and that he should just sign the plea agreement and take the community control.

Transcript of May 23, 2013 Proceedings, p. 4.

        {¶ 18}   Berry also testified that he did not understand when he signed the plea

agreement that the trial court might not be bound by the agreement that he had with the

prosecutor. Berry stated that once he found out that he would be going to prison, he wanted to

change his plea. If the court had imposed probation, he would not have asked to withdraw the

guilty plea.

        {¶ 19}   Berry’s former attorney also testified at the hearing. The attorney denied telling

Berry that he would not be going to jail, no matter what. Instead, what Berry’s attorney told him

was that if he did not have any problems, he would more likely than not be getting probation.

This was based on what the attorney knew at the time about Berry’s record, H.B. 86, and the

status of the law in Ohio. Berry’s attorney believed that Berry was subject to H.B. 86 at the time

he entered his plea and would be sentenced in accordance with H.B. 86. Under that law, courts

have discretion not to award community control based on actions that happen between a plea and
                                                                                           7


the time of sentencing. Thus, if defendants violate the terms of their bonds, courts can impose a

prison term.

       {¶ 20}    Berry’s attorney also stated that after the plea hearing, Berry informed him that

he had pending felony charges in Hamilton County, Ohio. The attorney told Berry that this

could change the situation.     The attorney had no further conversations with Berry until

sentencing, because Berry was incarcerated. On the date of disposition, which was April 3,

2013, the attorney told Berry that the trial court intended to sentence him to prison. Before that

time, Berry had not indicated that he wished to withdraw his plea. That is something that

happened during the sentencing hearing.

       {¶ 21}    After hearing the evidence, the trial court noted that community control would

have been required at the time of the plea hearing, based on H.B. 86. However, after the plea,

Berry committed a violation of his bond, which would remove him from the requirements of H.B.

86, and allowed the court to impose a prison term.

       {¶ 22}    The trial court chose to believe Berry’s former attorney regarding what had

happened, and concluded that the attorney had given Berry correct advice. After applying

various factors, the trial court concluded that Berry failed to demonstrate manifest injustice, and

denied the motion to withdraw the guilty plea. The court then merged the charges and sentenced

Berry to one year in prison and $647.31 in restitution. Berry appeals from his conviction and

sentence.



                                   II. Did the Trial Court Err

                         in Overruling the Motion to Withdraw the Plea?
                                                                                          8


       {¶ 23}    Berry’s First Assignment of Error is as follows:

                The Trial Court Abused Its Discretion in Overruling Appellant’s Motion to

       Withdraw His Guilty Plea as Such Plea Was Not Made Knowingly, Voluntarily,

       and Intelligently.

       {¶ 24}    Under this assignment of error, Berry contends that his guilty plea was not made

knowingly, voluntarily, and intelligently because he was following the advice of his first trial

counsel, who promised him that he would receive community control in exchange for his plea.

Berry also relies on his former counsel’s mistake at the plea hearing regarding whether the

offenses to which he intended to plead guilty would merge.

       {¶ 25}    The record indicates that both the defense and the State believed at the plea

hearing that Berry’s offenses were not subject to merger. By the time of the actual disposition in

May 2013, both the defense and State agreed that the offenses would merge.

       {¶ 26}    Although “a presentence motion to withdraw a guilty plea should be freely and

liberally granted[,] * * * a defendant does not have an absolute right to withdraw a plea prior to

sentencing.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). In such situations,

“the trial court must conduct a hearing to determine whether there is a reasonable and legitimate

basis for the withdrawal of the plea.” Id. Furthermore, “[a]bsent an abuse of discretion on the

part of the trial court in making the ruling, its decision must be affirmed.” Id.

       {¶ 27}    In contrast, “[a] defendant who seeks to withdraw a plea of guilty after the

imposition of sentence has the burden of establishing the existence of manifest injustice.” State

v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. The

Supreme Court of Ohio has defined “manifest injustice” as “ ‘a clear or openly unjust act.’ ”
                                                                                              9


State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998), quoting

Webster's Third New International Dictionary 1164, 1375 (1986).

        {¶ 28}   The Supreme Court of Ohio has also stressed that post-sentence withdrawal “is

allowable only in extraordinary cases.” (Citation omitted.) Smith at 264. Furthermore, “[a]

motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court, and

the good faith, credibility and weight of the movant's assertions in support of the motion are

matters to be resolved by that court.” Id. at paragraph two of the syllabus.

        {¶ 29}   In the case before us, the trial court analyzed the withdrawal issue under both

pre-sentence and post-sentence standards. However, we conclude that post-sentence standards

apply. Berry moved to withdraw his plea during the sentencing hearing, after finding out that the

court intended to send him to prison. In such circumstances, we have considered motions to

withdraw as having been made post-sentencing, because “ ‘it was only after counsel learned of

the court's sentence that he sought to vacate his client's guilty plea.’ ” State v. Sylvester, 2d Dist.

Montgomery No. 22289, 2008-Ohio-2901, ¶ 9, quoting State v. Long, 2d Dist. Montgomery No.

13285, 1993 WL 155662, *6 (May 13, 1993). In this regard, we have reasoned that “a defendant

cannot test the sentencing waters and then move to vacate his plea just before sentencing if he

receives an unpleasant surprise.”        State v. Simpson, 2d Dist. Montgomery No. 24266,

2011-Ohio- 6181, ¶ 8, citing State v. Wallen, 2d Dist. Montgomery No. 21688, 2007-Ohio-2129,

¶ 22.

        {¶ 30}   Based on the facts in the record, we conclude that Berry failed to meet his

burden of establishing manifest injustice. The evidence indicates that Berry suffered a change of

heart after learning of his sentence, and this does not arise to the level of manifest injustice.
                                                                                         10


Long at *7. See, also, Sylvester at ¶ 18.

       {¶ 31}    At the plea hearing, the trial court clearly explained the following facts: (1)

Berry was subject to a potential prison sentence; (2) the court had not yet made up its mind

whether to impose a prison sentence or community control; and (3) Berry’s conduct would assist

the court in deciding what it would do. Berry offered nothing in the way of evidence at the

motion hearing, other than his own statements, which were contradicted by the attorney who had

assisted him at the plea hearing. The trial court found Berry’s attorney credible, and we must

defer to the trial court’s determination of credibility. See, e.g., Xie, 62 Ohio St.3d at 525, 584

N.E.2d 715, citing Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324. Accord State v. Hess, 2d Dist.

Montgomery No. 24453, 2012-Ohio-961, ¶ 22. (Citations omitted.)

       {¶ 32}    Based on the preceding discussion, we conclude that the trial court did not abuse

its discretion in refusing to let Berry withdraw his plea. Furthermore, even if we considered the

motion under pre-sentence standards, our opinion would remain the same.

       {¶ 33}    As was noted, trial courts have discretion in deciding whether to grant

pre-sentence motions to withdraw. Xie at 527. In denying pre-sentence motions to withdraw,

trial courts do not abuse their discretion when:

                (1) the accused is represented by competent counsel; (2) the accused was

       afforded a full Crim.R. 11 hearing before he entered his plea; (3) the accused is

       given a complete, impartial hearing on the motion to withdraw; and (4) the court

       gave full and fair consideration to the request to withdraw. Hess at ¶ 18, citing

       State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980),

       paragraph three of the syllabus.
                                                                                          11


       {¶ 34}    Our review of the record indicates that all these factors have been met.

Although Berry relies on his former counsel’s error in concluding that the offenses were not

allied, the State was also under a similar impression at the time of the plea hearing. By the final

disposition, both sides agreed that the offenses should be merged. Furthermore, the issue of

whether the offenses were allied is irrelevant to the matter upon which counsel’s plea advice was

based – the application of H.B. 86. As the trial court noted, counsel’s advice on that point was

“right on the money.” Transcript of May 23, 2013 Proceedings, p. 38. The trial court also

noted that Berry’s former counsel had been practicing in its court for a significant amount of time

and had handled many motion hearings, sentences, and trials. There is nothing in the record to

indicate otherwise about counsel’s experience.

       {¶ 35}    The record also demonstrates that Berry was given a full Crim.R. 11 hearing

before entering his plea, and a complete, fair, and impartial hearing on the motion to withdraw.

The trial court allowed Berry to present testimony and documents, and to fully cross-examine the

State’s witness. And finally, the trial court’s decision immediately after the hearing is very

thorough, and reveals that the court gave serious consideration to the motion to withdraw.

       {¶ 36}    In State v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995), the First

District Court of Appeals added several factors to the Peterseim analysis, including:            “(5)

whether the motion was made within a reasonable time, (6) whether the motion sets out specific

reasons for the withdrawal, (7) whether the accused understood the nature of the charges and

possible penalties, and (8) whether the accused was perhaps not guilty of or had a complete

defense to the charge or charges.” (Citations omitted.) Id. at 240. The First District Court of

Appeals stressed that this list is not exhaustive. Id.
                                                                                            12


       {¶ 37}    The trial court specifically discussed these factors in its decision. In particular,

the court noted that while Berry’s motion was made within the time frame contemplated by the

rule, the court was required, by our authority, to apply a manifest injustice standard. We agree

with this statement. The trial court also observed that Berry’s understanding of the nature of the

charges and potential sentences was not an issue, because these matters were addressed at the

time of the plea. Again, we agree.

       {¶ 38}    Concerning the eighth factor, Berry never indicated that he was not guilty or that

he had a complete defense to the charges; in fact, this item was not mentioned at all during the

plea hearing. Finally, regarding the sixth factor, the trial court discussed Berry’s specific reasons

for bringing the motion, which included Berry’s assertion that he was told he would receive

community control. The trial court indicated that it believed the testimony of Berry’s former

counsel, who told Berry that he would probably receive community control as long as he was

compliant. Again, the record supports this finding, and we defer to the trial court’s credibility

determinations. Hess, 2d Dist. Montgomery No. 24453, 2012-Ohio-961, at ¶ 22.

       {¶ 39}    Accordingly, the trial court did not abuse its discretion when it denied Berry’s

motion to withdraw his plea. Berry’s First Assignment of Error is overruled.



           III. Did the Trial Court Err in Disapproving of Intensive Prison Programs?

       {¶ 40}    Berry’s Second Assignment of Error states that:

                The Trial Court Erred When It Disapproved of Intensive Prison Programs

       Without Providing An Adequate Factual Basis for the Denial.

       {¶ 41}    Under this assignment of error, Berry contends that he was statutorily eligible
                                                                                            13


for Intensive Prison Programs (IPP) under R.C. 5120.032(B)(2), and that the trial court erred by

failing to make specific findings giving its reasons for disapproving IPP.

        {¶ 42}   The trial court did not discuss IPP at the sentencing hearing. The sentencing

entry contains the following statement: “IPP is approved/not approved, sentence given is

appropriate.” On the entry, the trial court crossed off “is approved” and circled “not approved.”

May 23, 2013 Judgment Entry, Doc. # 56, p. 5.

        {¶ 43}   The State does not challenge Berry’s eligibility for IPP under R.C. 5120.032.

Instead, the State contends that the trial court provided a sufficient factual basis for its decision.

In this regard, the State relies on State v. Jackson, 5th Dist. Knox Nos. 05 CA 46, 05 CA 47,

2006-Ohio-3994.

        {¶ 44}   In Jackson, the trial court did not make any findings to support denial of IPP.

However, the Fifth District Court of Appeals concluded that “the record, viewed in its entirety,

provides sufficient reasons to support the court's denial of an intensive prison program, even if

such reasons were also applicable to other sentencing requirements under R.C. Chapter 2929.”

Id. at ¶ 15.

        {¶ 45}   We have previously distinguished the Fifth District’s opinion in Jackson. See

State v. Allender, 2d Dist. Montgomery No. 24864, 2012-Ohio-2963, ¶ 25. In Allender, the trial

court disapproved of IPP at the sentencing hearing, stating that “You are eligible for shock

incarceration or intensive program prison; however, based on the purposes and principles of

sentencing, and the seriousness and recidivism factors in the Revised Code, the Court will

disapprove of your placement in such programs.” Id. at ¶ 13, The trial court also made the

following statement in its sentencing entry:
                                                                                               14


                  “After reviewing the criminal history of the defendant, the pre-sentence

       investigation, the facts and circumstances of the offense, and any victim impact

       statement [there was one], the Court disapproves of the defendant's placement in a

       program of shock incarceration under Section 5120.031 of the Revised Code, or in

       the intensive program prison under Section 5120.032 of the Revised Code.” Id.

       at ¶ 14.

       {¶ 46}       We concluded that this was insufficient, and reversed the trial court’s judgment

on this basis. In doing so, we rejected the theory of “implied findings,” stating that:

                  In the case before us, the State argues that “[t]his record provides sufficient

       reasons to support shock incarceration and IPP disapproval.” That may well be,

       but R.C. 2929.19(D) requires more than that reasons can be found in the record to

       support the trial court's disapproval of the programs; the statute requires that the

       trial court, if it shall make a recommendation, must “make a finding that gives its

       reasons for its recommendation or disapproval.”             This statutory requirement,

       imposed on the trial court, is not satisfied by an appellate court finding in the

       record reasons that the trial court could have given, or might have given, for

       disapproval. Id. at ¶ 22.

       {¶ 47}       We also distinguished other cases, like the decision of the Twelfth District Court

of Appeals in State v. Tucker, 12th Dist. Butler No. CA2011-04-067, 2012-Ohio-50, ¶ 24,

because the trial court in Allender had “referred to various general principles that it considered,

and to various sources of information that it reviewed, [but] * * * did not refer to any specific

facts in deciding to disapprove Allender for shock incarceration or the intensive program prison.”
                                                                                           15


 Allender at ¶ 23.

       {¶ 48}    In the case before us, the trial court stated, when disapproving IPP, that “the

sentence is appropriate.” May 23, 2013 Judgment Entry, Doc. # 56, p. 5. This is similar to

what occurred in Allender, and is not a factual finding. We also see little difference between this

comment and the trial court’s observation in State v. Blessing, 2d Dist. Clark No. 2011 CA 56,

2013-Ohio-392, that “ ‘In the interest of justice and truth in sentencing, it is hereby Ordered that

the defendant serve her entire stated prison term in the Ohio State Penitentiary.’ ” Id. at ¶ 45.

We concluded that this was insufficient and remanded for resentencing. Id. at ¶ 48.

       {¶ 49}    There may be facts in the record justifying disapproval of IPP, but the trial court

did not refer to them when deciding to disapprove Berry for placement in IPP. Accordingly, the

judgment of the trial court will be reversed, insofar as the designation of IPP status is concerned,

and will be remanded to the trial court for further proceedings on this issue.

       {¶ 50}    Berry’s Second Assignment of Error is sustained.



                     IV. Did the Trial Court Err in Prematurely Disapproving

                                of Transfer to Transitional Control?

       {¶ 51}    Berry’s Third Assignment of Error is as follows:

                The Trial Court Erred When It Prematurely Disapproved of Appellant’s

       Transfer to Transitional Control in the Sentencing Judgment Entry.

       {¶ 52}    Under this assignment of error, Berry contends that the trial court erred by

disapproving, at the time of sentencing, of Berry’s transfer to a transitional control program under

R.C. 2967.26.     According to Berry, the court’s action was premature, because a furlough
                                                                                           16


recommendation does not occur until after a prisoner has been confined.

        {¶ 53}     R.C. 2967.26 allows for transfer of prisoners to transitional control during the

final one-hundred eighty days of their confinement. In this regard, R.C. 2967.26(A)(2) states

that:

                 At least sixty days prior to transferring to transitional control under this

        section a prisoner who is serving a term of imprisonment or prison term for an

        offense committed on or after July 1, 1996, the division of parole and community

        services of the department of rehabilitation and correction shall give notice of the

        pendency of the transfer to transitional control to the court of common pleas of the

        county in which the indictment against the prisoner was found and of the fact that

        the court may disapprove the transfer of the prisoner to transitional control and

        shall include the institutional summary report prepared by the head of the state

        correctional institution in which the prisoner is confined. The head of the state

        correctional institution in which the prisoner is confined, upon the request of the

        division of parole and community services, shall provide to the division for

        inclusion in the notice sent to the court under this division an institutional

        summary report on the prisoner's conduct in the institution and in any institution

        from which the prisoner may have been transferred. The institutional summary

        report shall cover the prisoner's participation in school, vocational training, work,

        treatment, and other rehabilitative activities and any disciplinary action taken

        against the prisoner. If the court disapproves of the transfer of the prisoner to

        transitional control, the court shall notify the division of the disapproval within
                                                                                                17


        thirty days after receipt of the notice. If the court timely disapproves the transfer

        of the prisoner to transitional control, the division shall not proceed with the

        transfer. If the court does not timely disapprove the transfer of the prisoner to

        transitional control, the division may transfer the prisoner to transitional control.

        {¶ 54}    We have routinely held that a trial court errs when it prematurely disapproves of

transitional control in its judgment entry. See, e.g., State v. Bates, 2d Dist. Montgomery No.

23707, 2012-Ohio-6039, ¶ 47, and State v. Howard, 190 Ohio App.3d 734, 2010–Ohio–5283,

944 N.E.2d 258, ¶ 44 (2d Dist.). We have also concluded that this error “can be cured by

remanding this cause to the trial court for the limited purpose of amending the judgment entry to

delete the disapproval of [the defendant] for transitional control.” (Citations omitted.) Bates at

¶ 47.

        {¶ 55}    In the case before us, the State argues that the trial court did not disapprove

transitional control in the judgment entry, because the court failed to place marks around the

phrase in the entry. This argument is frivolous.

        {¶ 56}    The pertinent wording in the judgment entry originally stated that “Transfer to

Transitional control is approved/not approved.” May 23, 2013 Judgment Entry, Doc. # 56, p. 5.

The trial court crossed out “is approved,” and the only remaining words are “Transitional control

* * * not approved.” Id. The only possible interpretation of these words is that the trial court

disapproved transitional control.

        {¶ 57}    Accordingly, Berry’s Third Assignment of Error is sustained. This case will be

remanded so that the trial court can correct its entry with respect to transitional control.
                                                                                         18




                                         V. Conclusion

       {¶ 58}    Berry’s First Assignment of Error having been overruled, and his Second and

Third Assignments of Error having been sustained, the judgment of the trial court is affirmed in

part and reversed in part, and this cause is remanded for further proceedings consistent with this

opinion.



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

FROELICH, P.J., and DONOVAN, J., concur.




Copies mailed to:

Nathaniel R. Luken
David M. Morrison
Hon. Stephen Wolaver
