[Cite as State v. Conn , 2020-Ohio-2757.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 19CA1104 : vs. : : DECISION AND JUSTIN CONN, : JUDGMENT ENTRY : Defendant-Appellant. :

_____________________________________________________________ APPEARANCES: Timothy Young, Ohio Public Defender, and Jeremy Masters, Assist ant State Public Defender, Columbus, Ohio, for Appellant. C. David Kelley, Adams County Prosecuting Attorney, and Kris. D . Blanton, Adams County Assistant Prosecuting Attorney, West Union, Ohio, for Appellee.

_____________________________________________________________ Smith, P.J. {¶1} This is an appeal from an Adams County Common Pleas Court judgment that denied Appellant, Justin Conn’s, motion to vacate a judicial-sanction sentence imposed after a post-release control violation. On ap peal, Conn contends that the trial court erred by failing to vacate his void judici al sanction. Because we conclude the trial court satisfied all of the statutorily manda ted terms to impose post-release control, we reject the arguments raised under Conn ’s sole assignmentAdams App. 19CA1104 2 of error. Accordingly, the assignment of error is overruled an d the judgment of the

trial court is affirmed.

FACTS {¶2} A review of the record before us reveals that Conn was or iginally sentenced on July 24, 2002, to twelve years in prison for felon ious assault and escape in Adams County Common Pleas Court Case No. 20020030. T hat sentencing entry contained the following language regarding pos t-release control: The Court has further notified the defendant that post release control is

MANDATORY in this case up to a maximum of five (5) years . If the defendant violates a Post Release Control Sanction or any condi tion imposed by the Parole Board under Revised Code Section 2967.28, the Parole Board may impose a more restrictive sanction, a prison t erm not to exceed nine (9) months or a maximum cumulative prison term f or all violations not to exceed one-half of the stated prison term ori ginally imposed. The defendant is ordered to serve as part of this sen tence any term of post release control imposed by the Parole Board, and a ny prison term for violation of that post release control. 1 (Emphasis added.)

1 On December 29, 2004, the trial court issued a nunc pro tunc e ntry in Case No. 20020030 that contained identical language to the July 24, 2002 sentencing entry.Adams App. 19CA1104 3 The record before us contains nothing to indicate Conn directly appealed his 2002 convictions and/or sentences, however, the record does ind icate that Conn was released from prison and placed on post-release contro l in 2013. {¶3} In September of 2014, Conn was indicted by the Adams Coun ty Grand Jury in Case No. 20140187 for one count of breaking and enterin g, one count of vandalism, one count of theft, and one count of complicity. 2 Subsequently on October 2, 2014, a bill of information was filed in Case No. 20 140190 charging Conn with five different counts of fifth-degree-felony breaking and entering, all of which involved separate victims. 3 At the time these charges were filed in 2014, Conn remained on post-release control from his convictions in C ase No. 20020030. {¶4} Although these two cases were not formally consolidated a t the trial court level, they were handled together. Conn entered into a p lea agreement with the State on October 3, 2014, whereby he pled guilty to the bre aking and entering charge in Case No. 20140187 in exchange for the dismissal of th e remaining counts in that indictment. The agreement further provided that Conn would plead guilty to all five breaking and entering charges contained in C ase No. 20140190 by way of a bill of information. The agreement also contained a p rovision for a recommended aggregate prison term of forty-two months “PLUS any sentence for

2 We take this information and additional information contained i n the facts portion of this decision from our recent decision issued in connection with Conn’s appeal from Case No. 20140187, identified as State v. Conn , 4th Dist. Adams No. 19CA1094, 2020-Ohio-370. 3 Conn’s present appeal is from the judicial-sanction sentence i mposed in Case No. 20140190.Adams App. 19CA1104 4 post release control violation (consecutive 1487 days)[.]” The re is no indication from the record before us that Conn appealed these convictions or sentences. {¶5} On December 16, 2016, Conn filed a motion to vacate the j udicialsanction sentence of 1,487 days that was imposed in Case No. 20 140187. Subsequently, on June 10, 2019, Conn also filed a motion to vac ate the judicialsanction sentence of 1,487 days in Case No. 20140190, which was the same judicial-sanction sentence imposed in Case No. 20140187 as part of the plea agreement Conn entered into with the State. Citing State v. Burns , 4th Dist. Highland No. 11CA19, 2012-Ohio-1626 in support, Conn argued tha t because the trial court did not properly impose post-release control in Cas e No. 20020030, his post-release control sanction is void and he cannot be subject to a judicial-sanction sentence. In both of his motions to vacate, Conn argued that t he trial court should have notified him of mandatory post-release control for five ye ars, not for “up to” five years. The trial court denied the motion to vacate filed in Case No. 20140187 on April 22, 2019. Conn immediately appealed the trial court’s denial of that

motion to this Court. The trial court thereafter denied the mo tion to vacate filed in Case No. 20140190 on October 28, 2019. {¶6} In its decision, the trial court specifically noted that the signed change of plea documentation in Case No. 20020030 provided, under the post-release control section, as follows:Adams App. 19CA1104 5 “[i]f I am sentenced to prison for a Felony I or Felony sex off ense, after my prison release, I will have 5 years of post release control under conditions determined by the Parole Board. * * * If the violati on is a new felony, I could receive a pri son term of the greater of one year or the time remaining on post release control, in addition to any other prison term imposed for the offense.” The trial court further noted that Conn was also mandatorily in formed at the time of his release from prison that he was under mandatory post-rel ease control supervision for a period of five years. The trial court acknow ledged the dispute over the “up to” versus “a period of” language and indicated th at it hoped that this Court would “revisit” the analysis included in State v. Burns , supra , State v.

Adkins , 4th Dist. Lawrence No. 14CA29, 2015-Ohio-2830, (overruled by State v. Mozingo , 2016-Ohio-8292, 72 N.E.2d 661 (4th Dist.), and State v. Mozingo , supra

. The trial court granted Conn’s appeal bond and the present appe al followed. {¶7} The record indicates that although Conn filed a motion wi th this Court requesting that the two appeals be consolidated, the motion was denied because the appeal from Case No. 20140187 had already been submitted for a decision. In fact, as noted above, this Court already issued its decision on that matter in State v. Conn, supra . Thus, the present appeal proceeded through the appellate pro cess separately and is now before us for decision. In his current a ppeal, Conn raises aAdams App. 19CA1104 6 single assignment of error, and it is identical to the assignme nt of error raised in his first appeal.

ASSIGNMENT OF ERROR

I. “THE TRIAL COURT ERRED BY FAILING TO VACATE JUSTIN CONN’S VOID JUDICIAL SANCTION.”

LEGAL ANALYSIS {¶8} In his sole assignment of error, Conn contends that the t rial court erred by failing to vacate the void judicial-sanction sentence impose d in underlying Case No. 20140190. More specifically, Conn argues that his sentence is void because the 2002 sentencing entry (Case No. 20020030) did not properly impose postrelease control because it used the language “post release cont rol is

MANDATORY in this case up to a maximum of five years.” (Emphasis added). {¶9} In one of its more recent decisions in a long line of cas es addressing post-release control, the Supreme Court of Ohio stated in State v. Grimes , 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, as follows: It is settled that ‘a trial court has a statutory duty to provi de notice of postrelease control at the sentencing hearing’ and that ‘any se ntence imposed without such notification is contrary to law.’ State v. Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23. Concomitantly, because a court is generally said to speak only throughAdams App. 19CA1104 7 its journal, id. at ¶ 6, the trial court is ‘required to incorporate that notic e into its journal entry imposing sentence,’ id. at ¶ 17.

Grimes at ¶ 8. {¶10} The sentencing entry must also contain the following inf ormation: (1) whether the postrelease control is discretionary or mandato ry, (2) the duration of the postrelease-control period, and (3) a state ment to the effect that the Adult Parole Authority * * * will administer th e postrelease control pursuant to R.C. 2967.28 and that any viola tion by the offender of the conditions of postrelease control will subj ect the offender to the consequences set forth in that statute. Grimes at ¶ 1. {¶11} “When a court fails to properly impose post-release cont rol for a particular offense, the offending portion of the sentence is vo id, must be set aside, and is subject to review and correction.” State v. Taylor , 4th Dist. Lawrence No. 15CA12, 2016-Ohio-2781, ¶ 41, citing State v. Fischer , 128 Ohio St.3d 92, 2010- Ohio-6238, 942 N.E.2d 332, ¶ 27-29; State v. Triplett , 4th Dist. Lawrence No. 10CA35, 2011-Ohio-4628, ¶ 4. This Court has previously held th at the use of the phrase “up to” instead of “a period of” when imposing a mandato ry term of postrelease control results in a failure to properly impose post-re lease control that renders the imposition void. State v. Burns , supra , ¶ 9, 11. However, in theAdams App. 19CA1104 8 decision issued by this Court from Conn’s appeal from the 20140 187 case, which is essentially factually identical to this case and raised this identical legal argument, we departed from our prior reasoning in Burns in favor of a “totality-ofthe-circumstances approach.” Conn at ¶ 20. {¶12} In determining to depart from our prior precedent, we re lied on cases from our sister districts, primarily the Seventh and Tenth Dist ricts, which have held “that the use of the ‘up to’ language does not render the post-release control provision of the sentence void.” Conn at ¶ 13. In Conn , we noted that the Tenth District “follows an approach that appears to be a ‘totality-of-the-circumstancestest[,]’ ” in that it “concludes that a ‘trial court sufficient ly fulfilled its statutory obligations when its oral and written notifications, taken as a whole, properly informed the defendant of post-release control.’ ” Id. at ¶ 13, quoting State v.

Boone , 2012-Ohio-3653, 975 N.E.2d 546, ¶ 18 (10th Dist.); State v. Mays , 10th Dist. Franklin No. 10AP-113, 20 10-Ohio-4609, appeal not allowed , 127 Ohio St.3d 1535, 2011-Ohio-376, 940 N.E.2d 987; State v. Townsend , 10th Dist. Franklin No. 10AP-983, 2011-Ohio-5056. In Conn , we observed that the Tenth District considers all of the following when determining whethe r a defendant was properly informed of post-release control: “(1) judgment entri es that alone may be insufficient to properly impose post-release control; (2) other documents, such as plea agreements; and (3) sentencing hearing transcripts.” Conn at ¶ 13, citingAdams App. 19CA1104 9

Boone at ¶ 25. See also State v. Maser , 10th Dist. Franklin No. 15AP-129, 2016- Ohio-211, ¶ 16 (concluding that post-release control was proper ly imposed despite the use of the phrase “up to” where the defendant signed a form during the sentencing hearing informing him he was subject to a mandatory five-year term of post-release control). {¶13} Ultimately, after our review of Boone , Mays , Townsend , Maser , and many more cases, we stated in State v. Conn , supra , that “we now believe that the totality-of-the-circumstances approach is the better approach i n these cases” and

thus we held that: we should depart from our previous ruling in State v. Burns , 4th Dist. Highland No. 11CA19, 2012-Ohio-1626, and, instead, hold that a mere technical deficiency in the sentencing entry, such as the inclu sion of the “up to” language, does not automatically render the post-releas e control sanction void when the record, as a whole, reveals that the tri al court sufficiently complied with the statutory requirements to impose postrelease control.

Conn at ¶ 20, additionally relying on State v. Sullivan , 10th Dist. Franklin No. 17AP-94, 2017-Ohio-2943; State v. Williams , 10th Dist. Franklin No. 10AP-1135, 2011-Ohio-6231, ¶ 21; Strong v. Ohio State Adult Parole Auth ., 10th Dist. Franklin No. 11AP-52, 2011-Ohio-5615, ¶ 21; State v. Zechar , 7th Dist. Mahoning No. 17Adams App. 19CA1104 10 MA 0111, 2018-Ohio-3731, ¶ 20; State v. Smith , 7th Dist. Mahoning No. 17MA0174, 2018-Ohio-4562, ¶ 10; State v. Bartee , 8th Dist. Cuyahoga No. 97411, 2012-Ohio-3944, ¶ 17. {¶14} Just as in Conn’s first appeal, the record currently bef ore us reveals that the trial court’s decision states that Conn signed a plea agreement in Case No. 20020030 that stated: “[i]f I am sentenced to prison for a Fel ony I or Felony sex offense, after my prison release, I will have 5 years of post-r elease control under conditions determined by the Parole Board.” Although the judgm ent entry from Case No. 20020030 is part of the record before us, neither the sentencing transcript nor the change of plea documentation in Case No. 20020030 is a part of the record before us. Without the transcript we presume that the trial co urt properly notified Conn of his post-release control obligations. See State v. Grimes , 2017-Ohio-2927, ¶ 20, citing Natl. City Bank v. Beyer , 89 Ohio St.3d 152, 160, 729 N.E.2d 711 (2000); State v. Gann , 12th Dist. Butler No. CA2010-07-153, 2011-Ohio-895, ¶ 18; State v. Hernandez , 12th Dist. Warren No. CA2009-09-123, 2010-Ohio2056, ¶ 12. See also, State v. Brown , 8th Dist. Cuyahoga No. 95086, 2011-Ohio345, ¶ 9 (finding the court must presume the defendant was prop erly notified of post-release control obligations when not provided with the tra nscript of the sentencing hearing) and State v. Bunn , 7th Dist. Mahoning No. 17MA0125, 2019- Ohio-2703, ¶ 19 (“The judgment entry from that case was properl y made a part ofAdams App. 19CA1104 11 the record before us. However, the sentencing transcript in th at case is not a part

of our record and there is no claim that the advisement at the sentencing hearing was inadequate”). {¶15} In light of our foregoing discussion, and consistent wit h our prior holding in State v. Conn, supra , we conclude that the trial court’s sentencing entry’s “up to” language at issue in the present appeal does no t require the conclusion that the trial court improperly imposed the post-rel ease control sanction. This is because we believe that the record, when tak en as a whole, indicates that the trial court sufficiently complied with all r equirements and placed Conn on notice that he was subject to a mandatory five-year pos t-release control

term. Conn, supra , at ¶ 22. Thus, because we believe that the trial court satis fied all of the statutorily mandated terms to impose post-release co ntrol, Conn’s sole assignment of error is overruled. Accordingly, we affirm the j udgment of the trial

court.

JUDGMENT AFFIRMED.Adams App. 19CA1104 12

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be asses sed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting the Adams County Common Pleas Court to carry this judgment into exe cution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRA NTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exc eed sixty days upon the bail previously posted. The purpose of a continued st ay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is contin ued by this entry, it will terminate at the earlier of the expiration of the sixty da y period, or the failure of the Appellant to file a notice of appeal with the Supreme Co urt of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will ter minate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. & Hess, J. concur in Judgment and Opinion. For the Court,

__________________________________ Jason P. Sm ith Presiding Judge

NOTICE TO COUNSELAdams App. 19CA1104 13 Pursuant to Local Rule No. 14, this document constitutes a fin al judgment entry and the time period for further appeal commences from the date of filing with the Clerk.