[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

v. 

RODNEY SHOUSE 

Defendant-Appellant 

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Appellate Case No. 26172 

Trial Court Case No. 2013-CR-2901 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

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. 
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{¶ 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, 
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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 
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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. 
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{¶ 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, 
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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 
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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 postrelease 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 
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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 
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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 
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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 
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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 
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{¶ 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-
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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 postrelease 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-
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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 postrelease 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 
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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-CR1395 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 
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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 
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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-Ohio4508, ¶ 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. 

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

Copies mailed to: 

Mathias H. Heck, Jr. 

Christina E. Mahy 

Marshall G. Lachman 

Hon. Dennis J. Langer