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

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99895

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

ERIC KISH

DEFENDANT-APPELLANT 

JUDGMENT: 

REVERSED AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-431285 

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

RELEASED AND JOURNALIZED: February 27, 2014 
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Cuyahoga County Public Defender 

By: John T. Martin 

Assistant Public Defender 

310 Lakeside Avenue, Suite 200 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Adam M. Chaloupka 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
KATHLEEN ANN KEOUGH, J.: 

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

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

affirm. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

control could not be imposed on either. 

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

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

CR-431285.1

 Accordingly, the state requested that the mandatory term of five-years 

postrelease control be imposed on CR-431285. 

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

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

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

of five-years postrelease control in CR-431285 

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

out of order and together where appropriate. 

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

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

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

[CR-]432975.” 

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

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

assignment of error is overruled. 

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

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

 1

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

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

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

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

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

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

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

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

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

overruled. 

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

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

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

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

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

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

sentence is to be served first. 

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

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

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

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

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

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

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

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

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

sentence is to be served first. See generally Cvijetinovic. 

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

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

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

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

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

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

postrelease control on his remaining unserved sentence. 

{¶14} Judgment reversed, case remanded. 

It is ordered that the parties share equally the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. Case remanded to the trial court for 

execution of sentence. 

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

the Rules of Appellate Procedure. 
KATHLEEN ANN KEOUGH, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR 

KEY WORDS: 

99895 

postrelease control, consecutive sentences, reciprocal Hearing warranted to determine 

the sequence of a defendant’s consecutive prison sentence on two separate cases. A trial 

court’s sentencing journal entry dictates how a sentence is to be served. Postrelease 

control can only be imposed on unserved prison sentences.