State v. Cantwell , 2019 Ohio 5395 ( 2019 )

[Cite as State v. Cantwell, 2019-Ohio-5395.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon W. Scott Gwin, P.J.
: Hon. Craig R. Baldwin, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2018 CA 00107
BRIAN W. CANTWELL :
:
Defendant-Appellant : 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-Ohio-
5487, 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 post-
release 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 post-
release 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 Pre-
Sentence 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