[Cite as State v. Lincoln, 2019-Ohio-4560.]


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

STATE OF OHIO,                  :
                                :   Case No. 18CA22
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
WESLEY D. LINCOLN,              :
                                :
     Defendant-Appellant.       :   Released: 10/30/19
_____________________________________________________________
                          APPEARANCES:

Angela Miller, Jupiter, Florida, for Appellant.

Nicole Tipton Coil, Washington County Prosecuting Attorney, Marietta,
Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} This is an appeal from a Washington County Court of Common

Pleas judgment entry finding Appellant, Wesley Lincoln, guilty of

trafficking heroin and imposing a seven-year, four-day aggregate prison

sentence.

        {¶2} Here, Appellant asserts (1) “The trial court erred by treating the

balance of Appellant Lincoln’s post-release control period as a mandatory

sentence in violation of the Fifth and Fourteenth Amendments to the United

States Constitution and Article I, Section 10 of the Ohio Constitution and
Washington App. No. 18CA22                                                    2

R.C. 2929.141(A),” (2) he was denied effective assistance of counsel in

violation of the Sixth and Fourteenth Amendments of the United States

Constitution and Article I, Section 10 of the Ohio Constitution when his

counsel failed to object to the definite sentence language set forth in the

sentencing entry, and (3) “Appellant Lincoln’s guilty plea was obtained in

violation of the Fifth and Fourteenth Amendments to the United States

Constitutions, Article I, Section 10 of the Ohio Constitution and Crim.R.

11(C).”

      {¶3} Based upon our review, we affirm the judgment of the trial court.

                         PROCEDURAL HISTORY

      {¶4} In 2016, the State charged Appellant with “one count of

possession of heroin in violation of R.C. 2925.11(A) & (C)(6)(d) and one

count of trafficking in heroin in violation of R.C. 2925.03(A)(2) & (C)(6)(e),

both second degree felonies.” State v. Lincoln, 4th Dist. Washington No.

17CA14, 2018-Ohio-1816, 111 N.E.3d 359, ¶ 8. The jury “found

[Appellant] guilty as charged in the indictment” and “further found the

amount of the drug involved was at least 10 grams but less than 50 grams.”

Id. at ¶ 10. The trial court merged the two offenses and imposed an eight-

year prison term for trafficking “plus an additional one year and 355 days for

the post-release control violation. The sentences were ordered to run
Washington App. No. 18CA22                                                        3

consecutive to one another.” Id. at ¶ 11.

      {¶5} Appellant asserted in pertinent part that the trial court abused its

discretion when it failed to exclude a laboratory report submitted by the

State that identified the substance that Appellant possessed was 23 grams of

heroin that was not provided to Appellant's counsel until the morning of

trial, in violation of Crim.R. 16. Lincoln, 4th Dist. Washington No.

17CA14, 2018-Ohio-1816, 111 N.E.3d 359, ¶ 13. In a 2-1 decision, this

court held that the trial court abused its discretion when it refused to either

exclude the lab report or grant a meaningful continuance as a sanction for

the State's failure to comply with Appellant's discovery request. Id. at ¶ 34.

Consequently, we reversed Appellant’s convictions and remanded the cause

for a new trial. Id. at ¶ 38.

      {¶6} On August 20, 2018, the day of Appellant’s scheduled retrial,

Appellant signed a written plea agreement that stated he would “[p]lead

guilty to count two (trafficking) and the specifications, dismiss count one,

receive a 5-year prison sentence, and 2 years and 4 days for the violation of

PRC consecutive to the 5 years, concurrent with the two-year sentence in 17

CR 124.” The court held a Change of Plea hearing during which the judge

found Appellant guilty of trafficking in heroin and of committing the

trafficking offense while on post-release control from a prior offense. At the
Washington App. No. 18CA22                                                       4

hearing, the trial judge stated that Appellant would serve “a mandatory

sentence of five years for the offense of trafficking heroin, a second degree

felony; specification number 4, a sentence of two years and four days, which

is the balance of [Appellant’s] post release control period,” which was to run

consecutively to the sentence for trafficking. The trial court’s sentencing

entry stated that Appellant was to serve the following prison terms: “a

definite period of five (5) years” for the trafficking offense and “a definite

period of two (2) years and four (4) days” for violating his post-release

control by trafficking in heroin. (Emphasis added.) The court ordered both

prison terms to be served consecutively “for a definite period of seven (7)

years and four (4) days.” (Emphasis added.)

      {¶7} It is from this judgment entry that Appellant appeals, asserting

three assignments of error.

                        ASSIGNMENTS OF ERROR

   “I. THE TRIAL COURT ERRED BY TREATING THE BALANCE OF
       APPELLANT LINCOLN’S POST-RELEASE CONTROL PERIOD
       AS A MANDATORY SENTENCE IN VIOLATION OF THE
       FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF
       THE OHIO CONSTITUTION AND R.C. 2929.141(A).

   II. APPELLANT LINCOLN WAS DENIED EFFECTIVE
       ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH
       AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
       CONSTITUTION WHEN HIS COUNSEL FAILED TO OBJECT TO
Washington App. No. 18CA22                                                      5

       THE “DEFINITE SENTENCE” LANGUAGE SET FORTH IN THE
       SENTENCING ENTRY.

   III. APPELLANT LINCOLN’S GUILTY PLEA WAS OBTAINED IN
        VIOLATION OF THE FIFTH AND FOURTEENTH
        AMENDMENTS TO THE UNITED STATES CONSTITUTION,
        ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND
        CRIM.R. 11(C).”

      {¶8} All three of Appellant’s assignments of error are predicated upon

his assertion that the trial court erred by imposing a mandatory sentence for

violating post release control, which is contrary to law. Appellant argues

that the judgment entry’s description of his two-year, four-day sentence for

violating post-release control as “definite” meant that the sentence was

mandatory. Therefore, our analysis involves a two-step process: whether

R.C. 2929.141 authorizes a mandatory sentence for violating post-release

control, and whether the language in the trial court entry in fact imposed a

mandatory sentence.

                             Standard of Review

      {¶9} “An appellate court may reverse a sentence only if it is clearly

and convincingly not supported by the sentencing court's findings, or it is

otherwise contrary to law.” State v. Fisher, 4th Dist. Athens No. 18CA27,

2019-Ohio-2420, ¶ 23, citing State v. Abner, 4th Dist. Adams Nos.

18CA1061, 18CA1062, 2018-Ohio-4506, ¶ 10, State v. Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.
Washington App. No. 18CA22                                                      6

      {¶10} Clear and convincing evidence has been defined as:

       “[t]he measure or degree of proof that will produce in the

       mind of the trier of fact a firm belief or conviction as to the

       allegations sought to be established. It is intermediate, being

       more than a mere preponderance, but not to the extent of

       such certainty as required beyond a reasonable doubt as in

       criminal cases. It does not mean clear and unequivocal.” Id.

       quoting In re I.M., 4th Dist. Athens No. 10CA35, 2011-

       Ohio-560, ¶ 6, quoting In re McCain, 4th Dist. Vinton No.

       06CA654, 2007-Ohio-1429, at ¶ 8.

A sentence imposed for a post-release control violation is not contrary to law

if it comports with the requirements of R.C. 2929.141. State v. Lehman, 2nd

Dist. Champaign No. 2014-CA-17, 2015-Ohio-1979, ¶ 17.

      {¶11} Appellant asserts that it is contrary to law for a court to impose

a mandatory prison term for a violation of post-release control pursuant to

R.C. 2929.141(A)(1). Appellant claims that the trial court orally imposed a

five-year sentence for trafficking and a two-year, four-day sentence for

violating post-release control at his plea hearing. But Appellant argues that

trial court’s entry added the term “definite period” to describe Appellant’s

two-year, four-day sentence making it contrary to law because sentences for
Washington App. No. 18CA22                                                       7

a violation of post-release control cannot be mandatory. Appellant asserts

that being improperly subjected to a mandatory sentence will preclude him

from seeking judicial release under R.C. 2929.20.

      {¶12} The State agrees that a court cannot impose a mandatory prison

term for the violation of post-release control. But, the State argues that the

trial court’s entry never stated that the two-year, four-day sentence is

mandatory, and contrary to Appellant’s argument, the trial court’s use of the

term “definite period” to describe that sentence does not cause Appellant’s

sentence to be mandatory.

      {¶13} R.C. 2929.141, which addresses the actions a court may take if

a person violates their post-release control by committing a felony, states:

        (A) Upon the conviction of or plea of guilty to a felony by a

        person on post-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
Washington App. No. 18CA22                                                     8

       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.

      {¶14} The General Assembly delineates certain sentences as

“mandatory.” See, e.g., R.C. 2929.14(B)(7)(a) (If an offender is convicted

of kidnapping of a minor with a human trafficking specification, he or she is

subject to a “mandatory prison term.”). While R.C. 2929.141 does require

that a prison term imposed for a violation of post-release control “shall be

served consecutively to any prison term imposed for the new felony,” it does

not indicate that any such prison term is “mandatory.” In fact, the term

“mandatory” is not found in the text of R.C. 2929.141. “Courts
Washington App. No. 18CA22                                                       9

may not add words to statutes or enlarge or construe specific statutory

language in any manner other than that which the words demand.” Bartley

v. State, 4th Dist. Pike No. 02CA686, 2002-Ohio-3592, ¶ 36, citing Kneisley

v. Lattimer-Stevens Co., 40 Ohio St.3d 354, 357, 533 N.E.2d 743 (1988).

Therefore, we find that R.C. 2929.141 does not authorize a mandatory

prison term for a violation of post-release control. See State v. Gilbert, 2nd

Dist. Clark No. 2015-Ohio-117, 2016-Ohio-5539 (“Gilbert is correct that the

language of R.C. 2929.141 does not provide for a mandatory prison term.”).

      {¶15} Consequently, the question becomes, even though R.C.

2929.141 does not authorize mandatory sentences, did the trial court

nevertheless intend Appellant’s two-year, four-day prison sentence to be

mandatory when it described the sentence as “definite”? A court speaks

only through its journal entries. Infinite Sec. Sols., L.L.C. v. Karam

Properties, II, Ltd , 143 Ohio St.3d 346, 2015-Ohio-1101, 353, 37 N.E.3d

1211, ¶ 29, citing State ex rel. Worcester v. Donnellon, 49 Ohio St.3d 117,

118, 551 N.E.2d 183 (1990). Therefore, we must look to the language of the

trial court’s sentencing entry to determine the court’s intent, as opposed to

what was said during the sentencing hearing.

      {¶16} Historically, the terms “definite” and “indefinite” have been

used by courts to describe the duration of a prison sentence. A definite
Washington App. No. 18CA22                                                   10

sentence is “ ‘[a] sentence for a fixed length of time rather than for an

unspecified duration[,]’ ” while “[a]n indefinite sentence is ‘[a] sentence of

an unspecified duration, such as one for a term of 10 to 20 years.’ ” State v.

Radcliff, 4th Dist. Vinton No. 99CA535, 2000-Ohio-2012, fn. 3, quoting

Black’s Law Dictionary 1367 (7th Ed.1999), see also Yonkings v. Wilkinson,

1999-Ohio-98, 86 Ohio St.3d 225, 225-29, 714 N.E.2d 394, State v. Perry,

8th Dist. Cuyahoga No. 104751, 2018-Ohio-1760, ¶ 29, 111 N.E.3d 746,

752 (Recognizing that a sentence can be delineated by a “definite period of

time” or “within a range.”). For example, in State v. Anderson, 4th Dist.

Washington No. 03CA3, 2004-Ohio-1033, ¶ 12, the trial court imposed a

75-year aggregate prison sentence with “four (4) months definite time and

four years to 25 years indefinite time in prison.” See also R.C. 2929.14

(authorizes indefinite and definite prison terms for criminal offenses).

      {¶17} We have found no legal authority in Ohio that holds using the

term “definite” to describe a sentence means that the sentence is mandatory.

Rather, cases have recognized the distinction between a mandatory sentence

and a definite sentence. See, e.g., State v. Perry, 6th Dist. Lucas Nos. L-11-

1126, L-11-1127, 2012-Ohio-1566, ¶ 10. (“R.C. 2929.14(A) provides that

the court shall impose a definite prison term within the range determined by

statute for felonies of the first degree. While the court used the term
Washington App. No. 18CA22                                                    11

“mandatory,” when it indicated appellant's 18-year sentence, it is clear that

the court was referring to the fact that appellant would serve a definite term

of 18 years of imprisonment.”), State v. Ellington, 65 Ohio App.3d 473, 475,

584 N.E.2d 784 (1989), (“Defendant, in the case sub judice, was not eligible

for a three-year mandatory sentence on the gun specification since he was

sentenced to a definite term of six months pursuant to R.C.

2929.11(D)(2).”).

      {¶18} As such, we find that when the term “definite” is used to

describe a sentence, it means that the sentence involves a “fixed length of

time rather than for an unspecified duration.” And when the term

“mandatory” is used to describe a criminal sentence, it means that the

sentence for that offense is compulsory and the defendant is not subject to

early release. We have no reason to believe that the trial court would have

deviated from the well-settled definition ascribed to the term “definite”

when it is used to describe a prison sentence. Accordingly, we find that the

trial court’s use of the term “definite” to describe Appellant’s sentence was

to make clear that the court imposed a two-year and four-day “fixed length

of time” sentence after calculating it from the range of possible time of

incarceration as directed by R.C. 2929.141, not to impose a mandatory

prison term.
Washington App. No. 18CA22                                                  12

      {¶19} Because Appellant’s sentence of two years and four days for his

violation of post-release control is not mandatory, it complies with R.C.

2929.141. After review, we hold that Appellant’s sentence is not clearly and

convincingly contrary to law. This makes Appellant’s second and third

assignments of error (ineffective assistance of counsel and Appellant’s guilty

plea was not knowing and intelligent), which are predicated on Appellant’s

argument that his sentence is contrary to law, moot. Accordingly, we affirm

the judgment of the trial court.

                                                JUDGMENT AFFIRMED.
Washington App. No. 18CA22                                                     13

                           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 Washington 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.

Smith, P.J. & Hess, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      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.
