[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 Count y 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 43055Licking 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 Coun ty Court of Common Pleas. Facts and Procedural History {¶2} The Licking County Grand Jury returned a Fifteen Count Indictme nt against Cantwell, on March 29, 2018. A pre-trial conference was held o n 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 fo r a change of plea on July 2, 2018. The Trial Court sentenced Cantwell to an aggrega te 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 VIOLAT ED

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 plac ed on post-release control following his release from prison as a result from a previous c ase, 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 c ourt 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 favora ble 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; r ather, we ask whether, ‘ if

believed , [the evidence] would convince the average mind of the defenda nt'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 un less ‘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 th at the state failed toLicking County, Case No. 2018 CA 00107 4

present any evidence that Johnson was placed on, or violated po st-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-releas e 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 fo rms detailing the postrelease control conditions; or a defendant's contact with his o r 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 fa iled to present any evidence that Mr. Johnson was placed on, or violate d postrelease control. In Johnson , we cited to State v. Jordan , 124 Ohio St.3d 397, 2010–Ohio–281, ¶ 6–15, which involved the evidence necessa ry to prove the crime of escape. Johnson at ¶ 25. In citing Jordan , we parenthetically noted a list of types of evidence that the Supr eme Court found acceptable in establishing a defendant was on post-releas e 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. GivenLicking 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 p ost-release control at the time he committed the new felony. 9th Dist. Summit Nos. 27314, 27315, 2015-Ohio-2248, ¶21 (emphas is 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 th at 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. a t 14. Cantwell admitted to the judge that, “I’m on PRC, sir.” Id. at 20. Neither Cantwel l 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 cont rol time was in error. {¶11} Accordingly, we find that the re cord contains competent, credib le evidence that Cantwell was under post-release control from another felon y 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 aff irmed.

By Gwin, P.J., Baldwin, J., and Wise, Earle, J., concur