State v. Woods

[Cite as State v. Woods, 2022-Ohio-2295.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1166
L-21-1167
Appellee
Trial Court No. CR0201102209
CR0202101683
v.
Marcus Woods DECISION AND JUDGMENT
Appellant Decided: June 30, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
ZMUDA, J.
I. Introduction
{¶ 1} In this consolidated appeal, appellant, Marcus Woods, appeals the
September 8, 2021 judgment of the Lucas County Court of Common Pleas finding him
guilty of attempted trespass in a habitation and imposing a prison term for his
commission of a felony while serving a term of postrelease control for a prior conviction.
Because appellant alleges an error which is not part of the record before us, we overrule
appellant’s assignment of error and affirm the judgment of the trial court. We remand the
matter to the trial court for a nunc pro tunc order correcting an error in the judgment
entry.
A. Facts and Procedural Background
{¶ 2} On May 17, 2021, appellant was indicted on one count of aggravated
burglary in violation of R.C. 2911.11(A)(1) and (B), a first degree felony. The charges
arose from appellant’s attempt to enter an inhabited residence through a closed window
screen on the night of January 6, 2021. At his May 20, 2021 arraignment, appellant was
determined to be indigent, was appointed counsel, and entered a not guilty plea.
{¶ 3} Following negotiations with the state, appellant appeared for an August 17,
2021 change of plea hearing. At that time, the state asked the court to accept appellant’s
no contest plea to the lesser included offense of attempted trespass in a habitation in
violation of R.C. 2923.02 and 2911.12(B) and (E), a fifth degree felony. The trial court
agreed and appellant entered his no contest plea. The trial court then found appellant
guilty and ordered him to participate in the preparation of a presentence investigation
report.
2.
{¶ 4} Appellant appeared for sentencing on September 8, 2021. The presentence
investigation report showed that at the time appellant committed the attempted trespass
offense he was serving a term of postrelease control from a previous burglary conviction
in 2011. The postrelease control was imposed in Lucas County Court of Common Pleas
case No. 2011CR2209. The report, prepared September 1, 2021, indicated that appellant
had 459 days remaining on postrelease control. Appellant argued that the presentence
investigation report was inaccurate. Specifically, he alleged that the report inaccurately
stated the amount of time remaining on his postrelease control. He argued that the
postrelease control term began running upon his release from prison on September 8,
2018. Therefore, since the attempted trespass occurred on January 6, 2021, the time
remaining was less than a year rather than the 459 days identified in the report. The trial
court stated that the amount of time remaining had been confirmed by the Adult Parole
Authority (“APA”) and proceeded with the sentencing.
{¶ 5} The trial court imposed a prison term of 11 months on appellant’s attempted
trespass charge. Pursuant to R.C. 2929.141, the trial court imposed an additional prison
term of 452 days as a sanction for committing a felony while on postrelease control.1
Pursuant to R.C. 2929.141(A)(1), appellant’s sentence for the attempted trespass
conviction was ordered to run consecutive to the postrelease control sanction by
1
The trial court gave appellant credit towards service of his postrelease control for the
seven days that elapsed between the September 1, 2021 preparation of the report and the
September 8, 2021 sentencing, reducing the total prison term imposed for the postrelease
control violation to 452 days.
3.
operation of law. The trial court memorialized appellant’s sentence for the attempted
trespass conviction in its September 8, 2021 judgment entry in Lucas County Court of
Common Pleas case No. 2021CR1683. Rather than incorporate the sentence for
committing a felony while on postrelease control in that entry, the trial court executed a
separate judgment entry in Lucas County Court of Common Pleas case No. 2011CR2209,
the case in which the postrelease control was originally imposed.
B. Assignment of Error
{¶ 6} Appellant timely appealed the trial court’s orders and asserts the following
error for our review:
The trial court committed plain error when it sentenced appellant to
eleven months for the instant offense, plus 452 days for a [post-release
control] sanction which was arguably incorrectly computed.
II. Law and Analysis
{¶ 7} Appellant’s conduct underlying his attempted trespass conviction occurred
while he was serving a term of postrelease control for a prior felony conviction. R.C.
2929.141 states, in relevant part:
(A) Upon the conviction of or plea of guilty to a felony by a person
on postrelease control at the time of the commission of the felony, the court
may terminate the term of postrelease control, and the court may do either
of the following regardless of whether the sentencing court or another court
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of this state imposed the original prison term for which the person is on
postrelease control:
(1) In addition to any prison term for the new felony, impose a
prison term for the post-release control violation. The maximum prison
term for the violation shall be the greater of twelve months or the period of
post-release control for the earlier felony minus any time the person has
spent under post-release control for the earlier felony. In all cases, any
prison term imposed for the violation shall be reduced by any prison term
that is administratively imposed by the parole board as a post-release
control sanction. A prison term imposed for the violation shall be served
consecutively to any prison term imposed for the new felony. The
imposition of a prison term for the post-release control violation shall
terminate the period of post-release control for the earlier felony.
{¶ 8} The amount of time remaining on an offender’s term of postrelease control
is not determined by the trial court at sentencing. Instead, the Ohio Department of
Corrections, through the APA, is tasked with determining the amount of time remaining
on the postrelease control term. R.C. 2967.28; Ohio Adm. Code 5120:1-1-41. That
amount is reported to the trial court through the presentence investigation report. R.C.
2951.03. That amount is then imposed as a prison term upon an offender’s conviction for
a felony while serving the original postrelease control. R.C. 2929.141.
5.
{¶ 9} In accordance with the statute, the trial court ordered appellant to serve a
452-day prison term—the time remaining on his postrelease control—consecutive to the
prison term imposed on the attempted trespass conviction. Appellant does not challenge
the imposition of a prison term equaling the residual balance of his postrelease control.
Instead, appellant argues that the time remaining on his postrelease control was
incorrectly calculated. This, in turn, resulted in the imposition of a prison term which
exceeded the amount authorized by R.C. 2929.141. For the following reasons, we
overrule appellant’s argument pursuant to App.R. 12(A)(2).
{¶ 10} Initially, we note that both appellant and the state attached documents to
their briefs which were not part of the record below. Appellant attached judgment entries
from two of his previous felony convictions and a parole violation report from the
Michigan Department of Corrections. Appellant argues that these documents support his
argument regarding the improper calculation of the remaining time on his postrelease
control. The state, in turn, seeks to confirm the accuracy of the presentencing
investigation report by attaching emails exchanged between two officials from the Ohio
Department of Corrections.
{¶ 11} Neither the documents attached to appellant’s brief nor the emails attached
to the state’s brief—notably, exchanged more than two months after appellant was
sentenced—are part of the trial court’s record. “[A] reviewing court can only reverse the
judgment of the trial court if it finds error in the proceedings of such court[.]” State v.
6.
Ballard, 6th Dist. Lucas No. L-19-1089, 2020-Ohio-2967, ¶ 6, citing State v. Ishmail, 54
Ohio St.2d 402, 405, 377 N.E.2d 500 (1978). Therefore, “it follows that a reviewing
court should be limited to what transpired in the trial court as reflected by the record
made of the proceedings.” Id. at 405-406. “A reviewing court cannot add matter to the
record before it, which was not part of the trial court’s proceedings, and then decide the
appeal on the basis of the new matter.” State v. Wallace, 6th Dist. Wood No. WD-11-
031, 2012-Ohio-2675, ¶ 15, citing Ishmail at syllabus. Since the attachments to the
parties’ briefs were not part of the proceedings in the trial court, they cannot be added to
the record for our review or serve as the basis for our affirming or reversal of the trial
court’s judgment.
{¶ 12} Having determined the parties’ attachments are not part of the record and
not subject to our review, we find that the remainder of appellant’s brief fails to assign
any cognizable error or reference any portion of the trial court record to show how it
committed reversible error. App.R. 16(A)(3) requires appellants to include in their briefs
“[a] statement of the assignments of error presented for review, with reference to the
place in the record where each error is reflected.” App.R. 12(A)(2) states “[t]he court
may disregard an assignment of error presented for review if the party raising it fails to
identify in the record the error on which the assignment of error is based or fails to argue
the assignment separately in the brief, as required under App.R. 16(A).”
7.
{¶ 13} Appellant argues that the “information” available to the APA shows that he
was previously released from prison on September 8, 2018. Further, he argues that since
a term of postrelease control begins to run on the day following an offender’s release,
pursuant to R.C. 2967.28, that his three-year postrelease control period would have ended
on September 9, 2021. Using that completion date, appellant argues that he only had 270
days left to serve on his postrelease control term, not the 459 days identified in the
presentence investigation report. This conclusion is not supported by the record.
{¶ 14} The presentence investigation report does reflect appellant’s release from
prison on September 8, 2018. Further, it is undisputed that a period of postrelease control
begins the day after an offender is release from prison. R.C. 2967.28. However, the
report indicates that appellant’s postrelease control for the prior offense does not end
until December 4, 2022, that is, 459 days from the date the report was prepared. The
amount of time remaining on postrelease control is determined by the APA. R.C.
2967.28; Ohio Adm. Code 5120:1-1-41. The APA is also responsible for any
modifications to the duration of the postrelease control term, any additional sanctions to
be imposed, or the tolling of time served due to the offender’s absconding from the
authority’s supervision while the offender is under its supervision. R.C. 2967.15; R.C.
2967.28. Any of these factors could have resulted in an extension of appellant’s
postrelease control period to a date more than three years after his release from prison.
Appellant does not identify any portion of the record showing that the APA’s calculation
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of time was erroneous other than citing a static, three-year calculation from his
September 8, 2018 release from prison.
{¶ 15} Put simply, calculating the duration of an offender’s term of postrelease
control is the responsibility of the APA, not the trial court. The trial court merely
imposed a prison term in the amount of 452 days based on the APA’s calculation of the
end date of appellant’s postrelease control, which is clearly reflected in the record.
Therefore, appellant’s claim that additional “information” was available to the APA
which should have resulted in a different amount of days remaining would not constitute
an error in the proceedings below but in the APA’s calculation of the remaining term.
{¶ 16} As an additional basis for our decision, when a sentence is challenged
based on application of Ohio Department of Corrections guidelines, the appropriate
procedural vehicle to correct the alleged error is a declaratory judgment action. See
Hinton v. Ohio Bureau of Sentence Computation, 2018-Ohio-237, 105 N.E.3d 457 (10th
Dist.); State ex rel. Earl v. Shafer, 85 Ohio St.3d 370, 708 N.E.2d 714 (1999); Nicholson
v. North Central Correctional Institution, 3d Dist. No. 9-02-44, 2003-Ohio-303. In that
instance, the offender is not challenging the underlying judgment of the trial court but is
instead mounting a collateral civil attack against the application of the relevant
regulations. Hinton at ¶ 10-11. Appellant did not challenge the APA’s calculation of his
postrelease control term through a declaratory judgment action and cannot do so in this
appeal. This, coupled with his reliance only on additional “information” available to the
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APA but not part of the record, shows that appellant has not identified any error
committed by the trial court which would permit our review of his claimed error pursuant
to App.R. 12.
{¶ 17} In sum, appellant’s alleged error was the result of a determination made by
the APA and not the trial court. As a result, he has not identified any error committed by
the trial court which is subject to our review. Therefore, we overrule his assignment of
error pursuant to App.R. 12(A)(2) and affirm the judgment of the trial court. See Mtge
Electronic Registration Sys. v. Mullins, 161 Ohio App.3d 12, 2005-Ohio-2303, 829
N.E.2d 326, ¶ 22 (4th Dist.).
{¶ 18} Notwithstanding that conclusion, we find that the trial court committed
error when it memorialized appellant’s sentence in two separate judgment entries. R.C.
2929.141 states that “[u]pon the conviction of or plea of guilty by a person on post-
release control at the time of the commission of the felony, the court may * * *
regardless of whether the sentencing court or another court of this state imposed the
original prison term for which the person is on post-release control * * * terminate the
term of post-release control and * * * impose a prison term for the post-release control
violation.” (emphasis added). The statute, then, authorizes the trial court sentencing an
offender to impose a prison term for both the felony committed while on postrelease
control and for the violation of their postrelease control by committing a felony. Flora v.
State of Ohio, 7th Dist. No. 04 BE 51, 2005-Ohio-2383, ¶ 16. The sentence imposed
10.
under R.C. 2929.141 is part of the sentencing in the underlying felony case. Id. (holding
that R.C. 2929.141 authorizes the sentencing court to also impose the additional sanction
for committing a felony while on postrelease control as part of the same proceedings
despite not having imposed the original postrelease control term). This comports with
well-established authority that “[a]s a general matter, only one document can constitute a
final appealable order.” State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23
N.E.3d 1096 (emphasis added).
{¶ 19} Here, the trial court did not err in imposing the postrelease control prison
term at appellant’s sentencing hearing. It is merely the trial court’s execution of separate
judgment entries, apparently because the trial court had been assigned both the 2011 and
2021 cases, which constitutes error. In other words, the trial court correctly
memorialized appellant’s sentence for the underlying felony in case No. 2021CR1683,
but that judgment entry does not include the trial court’s proper imposition of the
additional 452-day prison term pursuant to R.C. 2929.141.
{¶ 20} When a judgment entry fails to record a valid judgment imposed on the
record by the court, the proper remedy is the issuance of a nunc pro tunc order correcting
the error. See In re. Doe, 149 Ohio App.3d 717, 2002-Ohio-4470, 778 N.E.2d 1053, ¶ 61
(“Nunc pro tunc orders are employed to make the record speak the truth, and the function
of such entries is the correction of judgments rendered to the extent that they fail to
record or improperly record, the judgment rendered by the court.”). Therefore, we
11.
remand this matter to the trial court so that it may enter a single judgment entry in Lucas
County Court of Common Pleas case No. 2021CR1683 reflecting both the prison term
imposed for appellant’s conviction for attempted trespass and the imposition of a prison
term pursuant to R.C. 2929.141. The trial court’s judgment is otherwise affirmed.
III. Conclusion
{¶ 21} Appellant’s assignment of error is overruled. We remand this matter to the
trial court for the sole purpose of entering a nunc pro tunc order as described herein.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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