[Cite as State v. Evans, 2017-Ohio-2767.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

LEONARD EVANS, 

 Defendant-Appellant. 

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APPEAL NO. C-160419 

TRIAL NO. B-0510014 

 

 O P I N I O N.

 

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

 

Date of Judgment Entry on Appeal: May 12, 2017 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Raymond L. Katz, for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

2

MYERS, Judge.

{¶1} Defendant-appellant Leonard Evans appeals the Hamilton County 

Common Pleas Court’s judgment imposing postrelease control and correcting a 

clerical error. 

{¶2} Evans was convicted in 2006 of murder and an accompanying firearm 

specification, having a weapon while under a disability, and carrying a concealed 

weapon. The trial court imposed an aggregate term of 24 1⁄2 years to life in prison. 

In addition, the court notified Evans at sentencing that upon his release from prison 

he would be subject to a mandatory five-year period of postrelease control, and 

incorporated that notification into the judgment of conviction. 

{¶3} Evans unsuccessfully challenged his convictions on direct appeal. 

State v. Evans, 1st Dist. Hamilton No. C-060392 (Jan. 23, 2008). In 2014, Evans 

appealed the trial court’s judgments overruling three postconviction motions. We 

modified the judgments appealed from to reflect dismissals of the motions and 

affirmed the judgments as modified. State v. Evans, 1st Dist. Hamilton No. C140503, 2015-Ohio-3208, ¶ 13. But because postrelease control could not be 

imposed for a special felony like murder, and because only a discretionary three-year 

period of postrelease control could be imposed for the weapons offenses, we held 

that Evans’s sentences were void to the extent that postrelease control had not been 

properly imposed. Id. at ¶ 10-11. We remanded the matter for correction of the 

offending portions of the sentences. The sentencing entry also mistakenly stated that 

the sentence was 24 1⁄2 years rather than 24 1⁄2 years to life. We remanded the 

matter for correction of this clerical error as well. Id. at ¶ 14. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶4} At the March 2016 hearing, the trial court notified Evans that upon his 

release he may be subject to a three-year period of postrelease control for the 

weapons offenses and incorporated that notification into the judgment of conviction. 

The court also corrected the clerical error in its entry to reflect that the sum of 

Evans’s prison sentences was 24 1⁄2 years to life. Evans now appeals. 

{¶5} In his first assignment of error, Evans argues that the trial court erred 

by imposing a discretionary three-year period of postrelease control for the weaponunder-disability and concealed-weapon offenses because he had already served the 

stated prison terms for those offenses. He claims that the court’s sentencing entry 

directed that those sentences were to be served prior to the sentence imposed for the 

murder offense. He is mistaken. The sentencing entry does not state that the prison 

terms for the weapons charges should be served first. Rather, it states, as required 

by law, that the mandatory term for the three-year gun specification be served prior 

to the 15 years to life for the murder. 

{¶6} A trial court cannot add a term of postrelease control as a sanction for 

an offense after the defendant has already served the prison term for that offense, 

even if the defendant remains in prison for other offenses. State v. Holdcroft, 137 

Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, paragraph three of the syllabus. In 

Holdcroft, the trial court ordered that the defendant’s arson sentence be served 

consecutively to his sentence for aggravated arson. Id. at ¶ 3. The Supreme Court of 

Ohio held that once the defendant completed his prison term for aggravated arson, 

the trial court lost the authority to impose a postrelease-control sanction for that 

offense, even though the defendant was still serving a prison term for arson. Id. at 

¶ 4. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶7} Unlike the sentencing entry in Holdcroft, the entry in this case did not 

set forth the sequence in which each of the consecutive sentences was to be served. 

Contrary to Evans’s representation, the court did not order the sentences for the 

weapon-under-disability and concealed-weapon offenses to be served prior to the 

sentence for the murder offense, for a total of 24 1⁄2 years to life. 

{¶8} When Evans was sentenced in 2006, the trial court imposed an 

indefinite term of 15 years to life for the murder offense. See former R.C. 2929.02(B) 

(now R.C. 2929.02(B)(1)). The court imposed a three-year prison term for the 

firearm specification, to be served consecutively to and prior to the prison term 

imposed for the underlying murder offense. See former R.C. 2929.14(D)(1)(a)(ii) 

and (E)(1)(a) (now R.C. 2929.14(B)(1)(a)(ii) and (C)(1)(a)). In addition, the court 

imposed a five-year term for the weapon-under-disability offense and an 18-month 

term for the concealed-weapon offense. See former R.C. 2929.14(A)(3) and (4) (now 

R.C. 2929.14(A)(3)(b) and (4)). The court ordered that the sentences for the murder, 

weapon-under-disability, and concealed-weapon offenses be served consecutively to 

each other. 

{¶9} Where, as here, a sentencing entry fails to explicitly set forth the 

sequence in which consecutive sentences are to be served, courts have found Ohio 

Adm.Code 5120-2-03.1(M) instructive in determining the sequence of sentences. See 

State v. Ford, 2d Dist. Montgomery No. 25796, 2014-Ohio-1859, ¶ 19; State v. Peace, 

3d Dist. Hancock No. 5-13-32, 2014-Ohio-2126. Ohio Adm.Code 5120-2-03.1(M) 

sets forth the sequence that sentences are to be served when an offender is serving 

stated prison terms consecutively to life terms or to certain firearm specifications: 
OHIO FIRST DISTRICT COURT OF APPEALS 

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When an offender is serving any stated prison terms consecutively to 

any life terms of imprisonment and/or to any one, three, five and/or 

six-year mandatory prison terms imposed pursuant to division 

(B)(1)(a)(i) of section 2929.14 [of] the Revised Code, for using a 

firearm in the commission of an offense, and/or division (B)(1)(a)(ii) 

of section 2929.14 of the Revised Code, for committing a felony by 

discharging a firearm from a motor vehicle, the aggregate of all such 

one, three, five and/or six-year mandatory prison terms shall be served 

first, then the aggregate of all other mandatory prison terms shall be 

served, and then the aggregate of the non-mandatory portion of the 

stated prison terms shall be served, and then the aggregate of the nonmandatory portion of the life terms of imprisonment shall be served. 

{¶10} R.C. 2929.01(FF) defines “stated prison term” as “the prison term, 

mandatory prison term, or combination of all prison terms imposed by the 

sentencing court pursuant to section 2929.14, 2929.142, or 2971.03 of the Revised 

Code or under section 2919.25 of the Revised Code.” In this case, the “stated prison 

term” included the terms imposed pursuant to R.C. 2929.14 for the weapon-underdisability and concealed-weapon offenses, and for the firearm specification, and did 

not include the sentence imposed pursuant to R.C. 2929.02 for murder. 

{¶11} A “mandatory prison term” is defined in R.C. 2929.01(X) to include 

the term in prison that must be imposed for the offenses set forth in R.C. 

2929.13(F)(1) to (8) or (F)(12) to (18) and 2929.14(B). Pursuant to R.C. 

2929.13(F)(1), murder is an offense for which the court must impose a prison term 

under R.C. 2929.02. Under R.C. 2929.02, a person convicted of murder must be 
OHIO FIRST DISTRICT COURT OF APPEALS 

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imprisoned for an indefinite term of 15 years to life. And, under R.C. 

2929.14(B)(1)(a)(ii), a court must impose a three-year prison term where, as here, a 

person is convicted of a firearm specification that charges the offender with 

displaying, brandishing, or indicating possession of a firearm, or using a firearm to 

facilitate the offense. Therefore, in this case, the prison terms for murder and the 

firearm specification were mandatory. See State v. Wolfe, 2d Dist. Montgomery Nos. 

26681, 26729 and 26983, 2016-Ohio-4897, ¶ 13. On the other hand, the prison 

terms imposed for the weapon-under-disability and concealed-weapon offenses are 

nonmandatory terms. 

{¶12} Pursuant to Ohio Adm.Code 5120-2-03.1(M), Evans’s consecutive 

sentences are to be served in the following sequence: 

(1) the mandatory prison term for using a firearm in the commission of an 

offense (3 years); 

(2) the mandatory prison term for murder (15 years); 

(3) the aggregate of the nonmandatory stated terms for the weapon-underdisability and concealed-weapon offenses (6 1⁄2 years); 

(4) the aggregate of the nonmandatory portion of the life term (what is 

commonly referred to as the “life tail”). 

{¶13} The Ohio Administrative Code makes it clear by using the language 

“stated terms” only with respect to nonmandatory terms, that it intends the 

mandatory terms (whether part of a stated term or an indefinite term) to be served 

prior to the nonmandatory stated terms. This is further bolstered by the 

requirement that the aggregate of the nonmandatory portion of a life term be served 
OHIO FIRST DISTRICT COURT OF APPEALS 

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last. There would be no reason to include this language if the entire murder sentence 

of 15 years to life was to be served last. 

{¶14} Therefore, after Evans completed the three-year term for the firearm 

specification in 2009, he began serving the mandatory 15-year portion of his life 

term. Consequently, Evans had not completed either of the terms for the weaponunder-disability or concealed-weapon offenses at the time of the March 2016 

hearing, so the trial court properly imposed postrelease control for those offenses. 

And while Ohio Adm.Code 5120-2-03.1(M) does not provide an order within 

categories (i.e., whether the five years for the weapon-under-disability or 18 months 

for the concealed-weapon offenses is to be served first), we need not address this 

issue since Evans has not completed his 15-year mandatory term. We overrule the 

first assignment of error. 

{¶15} In his second assignment of error, Evans argues that the trial court 

erred by failing to ensure that he was effectively represented at the March 2016 

hearing. He contends that counsel prevented him from arguing that, under 

Holdcroft, the trial court the lacked authority to impose postrelease control for the 

sentences he had completed. 

{¶16} To prevail on an ineffective-assistance claim, an appellant must 

demonstrate that his counsel’s performance was deficient, and that, in the absence of 

counsel’s errors, there is a reasonable probability that the result of the trial would 

have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 

80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 

(1989). 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶17} Because the trial court correctly imposed postrelease control, counsel’s 

performance was not deficient. Moreover, the record reflects that Evans was not 

prevented from making his Holdcroft argument. He argued to the court that, 

pursuant to Holdcroft, it could not impose postrelease control because he had 

completed the prison sentences for the weapon-under-disability and concealedweapon offenses. Evans has not demonstrated that his counsel’s representation fell 

below an objective standard of reasonableness or that, but for counsel’s 

unprofessional errors, the results of the proceeding would have been otherwise. 

Therefore, he has failed to meet his burden to show ineffective assistance of counsel. 

See Strickland at 687-689; Bradley at 143. We overrule the second assignment of 

error. 

{¶18} In his third assignment of error, Evans argues that the trial court erred 

by resentencing him to the same aggregate term because it failed to consider the 

appropriate statutory factors. However, this court determined that Evans’s 

sentences were only void to the extent that they were not imposed in conformity with 

the statutory mandates concerning postrelease control. Evans, 1st Dist. Hamilton 

No. C-140503, 2015-Ohio-3208, at ¶ 14. As a result, the trial court’s authority was 

limited to informing Evans about postrelease control for the weapon-under-disability 

and concealed-weapon offenses. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio6238, 942 N.E.2d 332, paragraph two of the syllabus. Consequently, we overrule the 

third assignment of error. 

{¶19} In his fourth assignment of error, Evans argues that the trial court 

erred “when it did not limit its decision to the proper imposition of postrelease 

control.” He claims that the court had no authority to correct the sentencing entry to 
OHIO FIRST DISTRICT COURT OF APPEALS 

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state that his aggregate sentence was 24 1⁄2 years “to life,” rather than 24 1⁄2 years as 

reflected in the 2006 sentencing entry. 

{¶20} This argument is without merit. This court determined that the 

original judgment’s misstatement of the sum of Evans’s prison sentences constituted 

a clerical error subject to correction under Crim.R. 36. Evans at ¶ 12. Accordingly, 

we ordered the trial court to correct the error. Id. at ¶ 14. The trial court did just 

that. The trial court did not exceed its authority, and we overrule the fourth 

assignment of error. We affirm the trial court’s judgment. 

 Judgment affirmed. 

CUNNINGHAM, P.J., concurs. 

MILLER, J., concurs separately. 

MILLER, J., concurring separately. 

{¶21} I concur in the disposition of this appeal. I write separately to 

highlight a separation of powers issue that arises between the judicial and executive 

branches should a reviewing court look to an administrative code provision to 

determine the order of service of consecutive terms of confinement imposed in a 

single entry. The issue is avoided here, as the administrative code provision and the 

sentencing entry align. 

{¶22} As set forth in the opinion of the court, the Department of 

Rehabilitation and Correction (“DRC”) has promulgated Ohio Adm.Code 5120-2-

03.1, a regulation regarding how it measures and attributes the time an inmate 

serves for the purposes of determining whether that inmate can qualify for earned 

credit for productive program participation under Ohio Adm.Code 5120-02-06. The 

regulations are stated to amplify R.C. 5120.15, which authorizes DRC to “regulate the 

admission and discharge of inmates” committed to it. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶23} There appears to be no statute authorizing DRC to control the order in 

which a court imposes sentences. Nevertheless, the two appellate districts cited by 

this court, the Second in State v. Ford and the Third in State v. Peace, have 

purported to follow the DRC regulation. See Ford, 2d Dist. Montgomery No. 25796, 

2014-Ohio-1859; Peace, 3d Dist. Hancock No. 5-13-32, 2014-Ohio-2126. I say 

purportedly because the Peace court reached a different result than we do. It found 

that no portion of the mandatory sentence with the life tail began to run until after 

the nonmandatory stated terms were served. Peace held that because the defendant 

had served sufficient time to complete the nonmandatory terms, postrelease control 

could not be imposed upon him. Peace at ¶ 11. This conflicts with our reading of the 

regulation that the mandatory portion of the life sentence is counted first. 

{¶24} Our reading of the regulation, however, is arguably unnecessary 

according to the Eighth and Eleventh Districts, which both reject the regulation in 

favor of the order the sentences are stated by the trial court in the sentencing entry. 

See State v Kish, 8th Dist. Cuyahoga No. 99895, 2014-Ohio-699, ¶ 12 (“No revised or 

administrative code dictates how multiple case sentences are to be served. Rather, it 

is the court’s sentencing journal entry [that] dictates how a sentence is to be 

served.”); State v. Sealey, 11th Dist. Lake No. 2016-L-034, 2017-Ohio-338 (finding 

“the sequence of appellant’s sentence [to be] clear” based on the sentencing entry). 

{¶25} Here, Evans was sentenced first on the conviction for murder, with the 

firearm specification, then on the concealed-weapon count, and finally on the 

weapons-under-disability count. The entry further stated that, “The sentences in 

counts #1, #3, and #4 are to be served consecutively to each other.” The plain 

meaning of this language is that the sentences are to be served in the stated order, 
OHIO FIRST DISTRICT COURT OF APPEALS 

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count 1 (murder), followed by count 3 (concealed weapon), and finally count 4 

(weapons under disability). 

{¶26} For the purposes of this appeal, the order of the sentences imposed by 

the trial court aligns with the order set forth in Ohio Adm.Code 5120-02-03.1. 

Accordingly, there is no occasion to determine which controls. In either event, the 

postrelease-control sanction was timely imposed under R.C. 2929.191(C). 

 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.