[Cite as State v. Burroughs, 2014-Ohio-4688.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 101123

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

RICHARD BURROUGHS

DEFENDANT-APPELLANT 

JUDGMENT: 

REVERSED AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-07-496450-B 

BEFORE: McCormack, J., Keough, P.J., and Kilbane, J. 

RELEASED AND JOURNALIZED: October 23, 2014 
ATTORNEYS FOR APPELLANT

Michael E. Stepanik 

Charles J. Wilkins 

Jack W. Bradley Co., L.P.A. 

520 Broadway – 3rd Floor 

Lorain, OH 44052 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: KatherineMullin 

Daniel T. Van 

Assistant County Prosecutors 

8th Floor, Justice Center 

1200 Ontario Street 

Cleveland, OH 44113 
TIM McCORMACK, J.: 

{¶1} This case came to be heard upon the accelerated calendar pursuant to 

App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Richard Burroughs, appeals the trial 

court’s judgment denying his motion to terminate postrelease control. For the reasons 

that follow, we reverse. 

{¶2} On February 11, 2008, Burroughs pleaded guilty to drug trafficking in 

violation of R.C. 2925.03, a first-degree felony that carries a mandatory term of three to 

ten years incarceration. In consideration of the plea agreement, the parties agreed to a 

six-year term of incarceration. 

{¶3} At the sentencing hearing, the trial court sentenced Burroughs to the 

agreed-upon sentence of six-years incarceration and advised Burroughs that he is subject 

to postrelease control for a mandatory period of five years after incarceration. The court 

also advised Burroughs of the consequences of violating the terms of postrelease control, 

stating that he may receive an “additional time of up to half of the original sentence or a 

charge of felony escape.” With respect to postrelease control, the sentencing entry 

stated: “(Agreed and mandatory) Post release control is part of this prison sentence for 5 

years for the above felony(s) under R.C. 2967.28.” 

{¶4} According to Burroughs, he completed serving his entire sentence and was 

released from prison on May 4, 2013. Upon his release, Burroughs was placed on 

postrelease control. On February 10, 2014, Burroughs filed with the trial court a motion 

to terminate his postrelease control based upon the fact that his original sentencing entry 
failed to state the consequences for a violation of postrelease control. The court denied 

the motion, and Burroughs now appeals. 

{¶5} In his sole assignment of error, Burroughs contends that the trial court erred 

when it refused to terminate his postrelease control, stating that he was improperly 

sentenced to postrelease control because the sentencing entry did not include the 

consequences for violation of postrelease control. He argues that because that portion of 

his sentence is void and he has completed his sentence, the trial court could not 

retrospectively impose postrelease control. 

{¶6} In its response, the state essentially concedes the law in this district. 

However, the state argues that there is a conflict among Ohio’s districts and it wishes to 

preserve for further appellate review its argument that the trial court did not err when it 

denied Burroughs’s motion to terminate postrelease control. The state contends, in 

accordance with the law as stated in other districts, that Burroughs was properly advised 

of postrelease control because the trial court orally notified Burroughs at the sentencing 

hearing of the consequences of postrelease control and the language contained in the 

journal entry that references the postrelease control statute satisfies the imposition of 

postrelease control. The state therefore urges this court to follow the law of other 

districts, as stated in State v. Clark, 2d Dist. Clark No. 2012 CA 16, 2013-Ohio-299 (the 

sentencing entry that noted the term “consequences” in connection with R.C. 2967.28 was 

sufficient notice of the consequences for violation of postrelease control), State v. Darks, 

10th Dist. Franklin No. 12AP-578, 2013-Ohio-176 (the journal entry that included a 
reference to the sentencing statute, R.C. 2929.19(B)(3), was sufficient notice); and State 

v. Murray, 6th Dist. Lucas No. L-10-1059, 2012-Ohio-4996 (the sentencing entry that 

included reference to R.C. 2953.08 and 2967.28 was sufficient for purposes of notice of 

postrelease control sanction).1

 We decline to do so. 

{¶7} This court has repeatedly held that where a trial court properly advised the 

defendant of postrelease control at the sentencing hearing, but the corresponding journal 

entry did not include the consequences for violating postrelease control, that failure to 

incorporate the notice of consequences for violation in the sentence entry rendered void 

any action to impose postrelease control. State v. Lawson, 8th Dist. Cuyahoga No. 

100626, 2014-Ohio-3498; State v. Pyne, 8th Dist. Cuyahoga No. 100580, 

2014-Ohio-3037; Elliott; Mills; State v. Middleton, 8th Dist. Cuyahoga No. 99979, 

2013-Ohio-5591; State v. Viccaro, 8th Dist. Cuyahoga No. 99816, 2013-Ohio-3437. 

And where the defendant has already served his prison term for the charges underlying 

the postrelease control, the court is barred from taking any action to reimpose postrelease 

control, correct any sentencing errors by resentencing, or correct its sentencing entry nunc 

pro tunc. Mills at ¶ 14; Elliott at ¶ 12. 

 1

 In State v. Elliott, 8th Dist. Cuyahoga No. 100404, 2014-Ohio-2062, and State v. Mills, 8th 

Dist. Cuyahoga No. 100417, 2014-Ohio-2188, the state filed a motion to certify a conflict pursuant to 

App.R. 25 and Article IV, Section 3(B)(4) of the Constitution, requesting conflict certification with 

the decisions in Darks and Clark. On June 30, 2014, the state appealed the Elliott decision to the 

Ohio Supreme Court, seeking review of whether a sentencing entry that imposes postrelease control 

but does not journalize the consequences for violating postrelease control invalidates the imposition of 

postrelease control. This court denied the state’s motions to certify on July 1, 2014, and July 8, 

2014, respectively. And on October 8, 2014, the Supreme Court declined to accept the state’s appeal 

for review. State v. Elliott, 10/08/2014 Case Announcements, 2014-Ohio-4414. 
{¶8} More specifically, we have held that the mere reference to the postrelease 

control statute, R.C. 2967.28, in the sentencing entry is not adequate notice of the 

consequences of violating postrelease control. See Elliott; Mills. In Elliott, the trial 

court properly advised the defendant of postrelease control at his sentencing hearing, 

informing him that he would be subject to a five-year period of postrelease control upon 

his release from prison and that a violation of postrelease control could result in his return 

to prison for up to one-half of the time he was receiving. The sentencing entry, however, 

simply stated: “postrelease control is part of this prison sentence for 5 years for the above 

felony(s) under R.C. 2967.28.” Elliott at ¶ 5. We found that this language, which is 

nearly identical to the language in the Burroughs entry, did not provide the defendant with 

sufficient notice of the consequences of violating postrelease control. Id. at ¶ 12. While 

verbal notification of the consequences “is the best proof that the defendant understands 

the notice, * * * the court is not excused from incorporating that same notice into its 

sentencing entry.” Id. at ¶ 11, citing State v. Jordan, 104 Ohio St.3d 21, 

2004-Ohio-6085, 817 N.E.2d 864, ¶ 9; Mills (finding the same language and reference to 

R.C. 2967.28 in the sentencing entry insufficient notice of the consequences of violating 

postrelease control such that the sentence was void). 

{¶9} In light of the foregoing precedent in this district, we find that the trial court 

erred in denying Burroughs’s motion to terminate postrelease control. Because 

postrelease control sanctions were not properly included in his sentencing entry, 

particularly with respect to the failure to state the consequences for violation of 
postrelease control, and Burroughs has served his prison term for the charges underlying 

the postrelease control, any attempt to impose postrelease control was void. 

{¶10} Accordingly, Burroughs’s sole assignment of error is sustained. 

{¶11} The case is reversed and remanded to the trial court with instructions to 

release Burroughs from further postrelease control supervision. 

It is ordered that appellant recover of said appellee 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. 

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

the Rules of Appellate Procedure. 

______________________________________________ 

TIM McCORMACK, JUDGE 

KATHLEEN ANN KEOUGH, P.J., and 

MARY EILEEN KILBANE, J., CONCUR