[Cite as State v. Cantwell, 2019-Ohio-5395.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsBRIAN W. CANTWELL 

 Defendant-Appellant 

JUDGES: 

: Hon W. Scott Gwin, P.J. 

: Hon. Craig R. Baldwin, J. 

: Hon. Earle E. Wise, J. 

: 

: 

: Case No. 2018 CA 00107 

: 

: 

: OPINION 

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County 

Court of Common Pleas, Case 

No.18CR199 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: December 24, 2019 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CLIFFORD MURPHY LISA TOME 

Assistant Prosecutor 511 South High Street 

20 South Second Street Columbus, OH 43215 

Newark, OH 43055 
Licking County, Case No. 2018 CA 00107 2 

Gwin, P.J. 

{¶1} Defendant-appellant Brian W. Cantwell [“Cantwell”] appeals his conviction 

and sentence after a negotiated guilty plea in the Licking County Court of Common Pleas. 

Facts and Procedural History 

{¶2} The Licking County Grand Jury returned a Fifteen Count Indictment against 

Cantwell, on March 29, 2018. A pre-trial conference was held on April 27, 2018. Cantwell 

filed a notice to enter pleas to ten of the fifteen counts and a forfeiture specification. A 

presentence investigation was ordered and the matter was set for a change of plea on 

July 2, 2018. The Trial Court sentenced Cantwell to an aggregate prison sentence of 

eight years that included one year of Post Release Control time Cantwell was under from 

his conviction in Licking County Common Pleas Case number 2015-CR-00514. 

Assignment of Error 

{¶3} Cantwell raises one Assignment of Error, 

{¶4} “I. THE TRIAL COURT COMMITS PREJUDICIAL ERROR WHEN IT FAILS 

TO INTRODUCE ANY EVIDENCE, DOCUMENTARY OR OTHERWISE, TO SUPPORT

CLAIM THAT APPELLANT HAD BEEN PLACED ON AND SUBSEQUENTLY VIOLATED 

ANY TERM OF POST RELEASE CONTROL.” 

Law and Analysis 

{¶5} In his sole assignment of error, Cantwell contends that because the record 

in this matter is devoid of any evidence that Cantwell was placed on post-release control 

following his release from prison as a result from a previous case, the trial court erred in 

imposing a one-year sentence upon him pursuant to R.C. 2929.141. [Appellant’s Brief at 

8]. 
Licking County, Case No. 2018 CA 00107 3 

STANDARD OF APPELLATE REVIEW. 

{¶6} When reviewing the sufficiency of the evidence, an appellate court does 

not ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574 

N.E.2d 492 (1991), paragraph two of the syllabus; Walker, at ¶30. “The relevant inquiry 

is whether, after viewing the evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of the crime proven beyond 

a reasonable doubt.” Jenks at paragraph two of the syllabus. State v. Poutney, 152 Ohio 

St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency 

we do not second-guess the jury's credibility determinations; rather, we ask whether, ‘if 

believed, [the evidence] would convince the average mind of the defendant's guilt beyond 

a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), 

quoting Jenks at paragraph two of the syllabus (emphasis added); Walker at ¶31. We 

will not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could 

not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d 

70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 

430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio5487, 71 N.E.3d 180, ¶74. 

ISSUE FOR APPEAL 

Whether, after viewing the evidence in the light most favorable to the prosecution, 

the evidence, if believed, would convince the average mind of the fact that Cantwell was 

placed on post-release control following his release from prison on a previous case. 

{¶7} In support of his argument, Cantwell cites State v. Johnson, 9th Dist. 

Summit No. 25525, 2011-Ohio-3941 wherein the Court concluded that the state failed to 
Licking County, Case No. 2018 CA 00107 4 

present any evidence that Johnson was placed on, or violated post-release control. In 

State v. Jordan, 124 Ohio St.3d 397, 2010-Ohio-281, 922 N.E.2d 951, the Court 

parenthetically noted a list of the types of evidence that the Supreme Court found 

acceptable in establishing that a defendant was on post-release control for purposes of 

the crime of escape. The fact of post-release control can be shown by: the initial 

sentencing entry; the fact that the defendant was aware of the post-release control terms 

upon release from prison; the fact that the defendant signed forms detailing the postrelease control conditions; or a defendant's contact with his or her parole officer. Jordan,

124 Ohio St.3d 397, ¶8-¶11. 

{¶8} The Ninth District Court of Appeals has clarified the decision in Johnson. In 

State v. Blackert, the Court distinguished Johnson, 

 This matter is unlike State v. Johnson, 9th Dist. Summit No. 25525, 

2011–Ohio–3941, ¶ 23–25, wherein we concluded that the State failed to 

present any evidence that Mr. Johnson was placed on, or violated postrelease control. In Johnson, we cited to State v. Jordan, 124 Ohio St.3d 

397, 2010–Ohio–281, ¶ 6–15, which involved the evidence necessary to 

prove the crime of escape. Johnson at ¶ 25. In citing Jordan, we 

parenthetically noted a list of types of evidence that the Supreme Court 

found acceptable in establishing a defendant was on post-release control 

for purposes of escape. Johnson at ¶ 25. However, in Johnson, we did not 

limit the types of acceptable evidence or even hold what evidence would be 

sufficient to establish whether a defendant was on post-release control at 

the time of the commission of felony for purposes of R.C. 2929.141. Given 
Licking County, Case No. 2018 CA 00107 5 

the record before us, we conclude that Mr. Blackert has failed to 

demonstrate that the State offered no evidence that he was on post-release 

control at the time he committed the new felony. 

9th Dist. Summit Nos. 27314, 27315, 2015-Ohio-2248, ¶21 (emphasis added). 

{¶9} In Blackert, the Court noted that Blackert’s attorney acknowledged that 

Blackert was on post-release control. 2015-Ohio-2248, ¶17; ¶20. Further, the PreSentence Investigation Report in Blackert contained information about post-release 

control. 2015-Ohio-2248, ¶18; ¶20. The Court further noted that Blackert was serving 

post-release control for a second degree felony in the previous case and, therefore, his 

term of post-release control was for three-years pursuant to R.C. 2967.28(B)(2). 2015-

Ohio-2248, ¶20. Therefore, it could not have expired before he committed the crime in 

the present case. Id. 

{¶10} In the case at bar, the state’s recitation of facts in support of the plea 

included the fact that “The Defendant was on parole at the time with Joe Buck.” Change 

of Plea and Sentencing Transcript, filed Mar. 21, 2019 at 10. Cantwell’s attorney agreed 

to all the facts presented except for the money amounts. Id. at 14. Cantwell admitted to 

the judge that, “I’m on PRC, sir.” Id. at 20. Neither Cantwell nor his attorney argued to 

the trial court that he was not on post-release control or that the imposition of a sentence 

for the post-release control time was in error. 

{¶11} Accordingly, we find that the record contains competent, credible evidence 

that Cantwell was under post-release control from another felony case at the time of his 

plea in the case at bar. 

{¶12} Cantwell’s sole assignment of error is overruled. 
Licking County, Case No. 2018 CA 00107 6 

{¶13} The judgment of the Licking County Court of Common Pleas is affirmed. 

By Gwin, P.J., 

Baldwin, J., and 

Wise, Earle, J., concur