[Cite as State v. Ballard, 2020-Ohio-2967.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1089
Appellee Trial Court No. CR0201803286
v.
Donald Ballard DECISION AND JUDGMENT
Appellant Decided: May 15, 2020
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
ZMUDA, P.J.
{¶ 1} Appellant, Donald Ballard, appeals the March 14, 2019 judgment of the
Lucas County Court of Common Pleas finding him guilty of breaking and entering as
well as determining he committed a felony while subject to postrelease control from a
prior sentence. Because appellant alleges an error which is not part of the record before us, we summarily overrule appellant’s assignment of error and affirm the judgment of the
trial court.
I. Background
{¶ 2} On December 21, 2018, appellant was indicted on one count of breaking and
entering in violation of R.C. 2911.13 (A) and (C), a fifth-degree felony. At his January 2,
2019 arraignment, appellant entered a not guilty plea. The trial court set appellant’s bond
at $10,000, appointed him trial counsel based on his affidavit of indigency, and remanded
him to custody with the Lucas County Sherriff’s Department.
{¶ 3} On February 26, 2019, appellant appeared before the trial court for a change
of plea hearing. At that time, appellant withdrew his not guilty plea and entered a plea of
no contest. The trial court found appellant guilty and ordered him to participate in the
preparation of a presentence investigation report.
{¶ 4} Appellant appeared for sentencing on March 14, 2019. At sentencing, the
trial court imposed a prison term of 10 months on appellant’s breaking and entering
charge. The trial court also determined that appellant was on postrelease control at the
time he committed the breaking and entering offense. The trial court, therefore, imposed
an additional prison term of 106 days as a sanction pursuant to R.C. 2929.141 for
appellant’s commission of a felony while on postrelease control. Pursuant to R.C.
2929.141(A)(1), appellant’s conviction for breaking and entering was ordered to run
consecutive to the postrelease control sanction by operation of law.
2. {¶ 5} Appellant, proceeding pro se, filed an untimely notice of appeal on April 23,
2019. Contemporaneous with the notice of appeal, appellant filed a motion with the trial
court for the appointment of appellate counsel. The trial court granted appellant’s motion
and on April 26, 2019, appellant’s newly appointed counsel filed a motion for leave to
file a delayed appeal. We granted appellant’s motion on May 17, 2019. Appellant then
filed an amended notice of appeal on May 28, 2019. Appellant asserts the following
assignment of error for our review:
Appellant’s judicial sanction was increased after sentencing by the
trial court in violation of R.C. 2953.08(G)(2), by plain error, or in violation
of the double jeopardy clause of the fifth amendment to the U.S.
Constitution.
II. Law and Analysis
{¶ 6} Appellant’s entire argument on appeal is based on his contention that the
trial court permitted the Ohio Department of Rehabilitation and Corrections (“ODRC”) to
alter his sentence after final judgment. Specifically, he alleges the date for his release
from prison as determined by ODRC is not consistent with the sentence imposed by the
trial court. In support of his argument, appellant attached to his brief a document
identified as “Exhibit A” and represented to be a printout from the ODRC website
reflecting his stated prison term as “1 year and 10 months.” The document does appear
to show a prison term exceeding the aggregate prison term the trial court imposed on
appellant for his conviction for breaking and entering and the sanction for his violation of
3. postrelease control—10 months and 106 days, respectively. However, appellant fails to
identify any portion of the record which suggests the trial court committed, or permitted,
an error in calculating his release date.
{¶ 7} Moreover, we note that Exhibit A to appellant’s brief is not part of the trial
court’s record. Appellant first introduced this document on appeal as evidence of the trial
court’s purported error. “[A] reviewing court can only reverse the judgment of a trial
court if it finds error in the proceedings of such court[.]” 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 a 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 printout from the ODRC’s website was
not part of the proceedings in the trial court, it can neither be added to the record for our
review nor serve as the basis for our reversal of the trial court’s judgment.
{¶ 8} Having determined appellant’s Exhibit A is 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 the trial
court 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
4. 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).”
{¶ 9} Appellant’s assignment of error alleges the trial court permitted an improper
increase of his sentence after final judgment was entered. Appellant fails to demonstrate,
however, that he raised this release date calculation error with the trial court. Moreover,
he fails to demonstrate exactly how the trial court is responsible for this miscalculation.
The record is devoid of any evidence the trial court had an opportunity to rule upon his
contention regarding his release date. Further, appellant concedes that the trial court’s
judgment in imposing sentence was valid and noted he had no objection to his sentence.
It is entirely unclear, then, what error appellant alleges the trial court committed when he
agrees that the sentence imposed was valid.
{¶ 10} Ohio Adm.Code 5120-2-03 et seq. establishes the procedure by which
ODRC determines an imprisoned offender’s release date. When an offender serving a
properly imposed prison term believes ODRC has miscalculated their release date, the
recalculation of that date is accomplished through 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.
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[Cite as State v. Ballard, 2020-Ohio-2967.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1089
Appellee Trial Court No. CR0201803286
v.
Donald Ballard DECISION AND JUDGMENT
Appellant Decided: May 15, 2020
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
ZMUDA, P.J.
{¶ 1} Appellant, Donald Ballard, appeals the March 14, 2019 judgment of the
Lucas County Court of Common Pleas finding him guilty of breaking and entering as
well as determining he committed a felony while subject to postrelease control from a
prior sentence. Because appellant alleges an error which is not part of the record before us, we summarily overrule appellant’s assignment of error and affirm the judgment of the
trial court.
I. Background
{¶ 2} On December 21, 2018, appellant was indicted on one count of breaking and
entering in violation of R.C. 2911.13 (A) and (C), a fifth-degree felony. At his January 2,
2019 arraignment, appellant entered a not guilty plea. The trial court set appellant’s bond
at $10,000, appointed him trial counsel based on his affidavit of indigency, and remanded
him to custody with the Lucas County Sherriff’s Department.
{¶ 3} On February 26, 2019, appellant appeared before the trial court for a change
of plea hearing. At that time, appellant withdrew his not guilty plea and entered a plea of
no contest. The trial court found appellant guilty and ordered him to participate in the
preparation of a presentence investigation report.
{¶ 4} Appellant appeared for sentencing on March 14, 2019. At sentencing, the
trial court imposed a prison term of 10 months on appellant’s breaking and entering
charge. The trial court also determined that appellant was on postrelease control at the
time he committed the breaking and entering offense. The trial court, therefore, imposed
an additional prison term of 106 days as a sanction pursuant to R.C. 2929.141 for
appellant’s commission of a felony while on postrelease control. Pursuant to R.C.
2929.141(A)(1), appellant’s conviction for breaking and entering was ordered to run
consecutive to the postrelease control sanction by operation of law.
2. {¶ 5} Appellant, proceeding pro se, filed an untimely notice of appeal on April 23,
2019. Contemporaneous with the notice of appeal, appellant filed a motion with the trial
court for the appointment of appellate counsel. The trial court granted appellant’s motion
and on April 26, 2019, appellant’s newly appointed counsel filed a motion for leave to
file a delayed appeal. We granted appellant’s motion on May 17, 2019. Appellant then
filed an amended notice of appeal on May 28, 2019. Appellant asserts the following
assignment of error for our review:
Appellant’s judicial sanction was increased after sentencing by the
trial court in violation of R.C. 2953.08(G)(2), by plain error, or in violation
of the double jeopardy clause of the fifth amendment to the U.S.
Constitution.
II. Law and Analysis
{¶ 6} Appellant’s entire argument on appeal is based on his contention that the
trial court permitted the Ohio Department of Rehabilitation and Corrections (“ODRC”) to
alter his sentence after final judgment. Specifically, he alleges the date for his release
from prison as determined by ODRC is not consistent with the sentence imposed by the
trial court. In support of his argument, appellant attached to his brief a document
identified as “Exhibit A” and represented to be a printout from the ODRC website
reflecting his stated prison term as “1 year and 10 months.” The document does appear
to show a prison term exceeding the aggregate prison term the trial court imposed on
appellant for his conviction for breaking and entering and the sanction for his violation of
3. postrelease control—10 months and 106 days, respectively. However, appellant fails to
identify any portion of the record which suggests the trial court committed, or permitted,
an error in calculating his release date.
{¶ 7} Moreover, we note that Exhibit A to appellant’s brief is not part of the trial
court’s record. Appellant first introduced this document on appeal as evidence of the trial
court’s purported error. “[A] reviewing court can only reverse the judgment of a trial
court if it finds error in the proceedings of such court[.]” 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 a 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 printout from the ODRC’s website was
not part of the proceedings in the trial court, it can neither be added to the record for our
review nor serve as the basis for our reversal of the trial court’s judgment.
{¶ 8} Having determined appellant’s Exhibit A is 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 the trial
court 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
4. 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).”
{¶ 9} Appellant’s assignment of error alleges the trial court permitted an improper
increase of his sentence after final judgment was entered. Appellant fails to demonstrate,
however, that he raised this release date calculation error with the trial court. Moreover,
he fails to demonstrate exactly how the trial court is responsible for this miscalculation.
The record is devoid of any evidence the trial court had an opportunity to rule upon his
contention regarding his release date. Further, appellant concedes that the trial court’s
judgment in imposing sentence was valid and noted he had no objection to his sentence.
It is entirely unclear, then, what error appellant alleges the trial court committed when he
agrees that the sentence imposed was valid.
{¶ 10} Ohio Adm.Code 5120-2-03 et seq. establishes the procedure by which
ODRC determines an imprisoned offender’s release date. When an offender serving a
properly imposed prison term believes ODRC has miscalculated their release date, the
recalculation of that date is accomplished through 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 ODRC’s application of Ohio Adm.Code
5. 5120-2-03 et seq. Hinton at ¶ 10-11. Here, appellant seeks to obtain recalculation of his
release date through direct appeal of the trial court’s judgment rather than by initiating a
declaratory judgment action. By foregoing the proper vehicle for the remedy he seeks,
appellant has failed to identify any error committed by the trial court which would permit
our review of his claimed error pursuant to App.R. 12.
{¶ 11} Put simply, appellant believes his release date has been incorrectly
calculated by ODRC, but he makes no reference to the record, as required by App.R.
16(A)(3), indicating how the trial court made or permitted that miscalculation.
Therefore, we summarily 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.).
III. Conclusion
{¶ 12} Appellant’s assignment of error is overruled. We therefore affirm the
March 14, 2019 judgment of the Lucas County Court of Common Pleas. Appellant is
ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
6. State v. Ballard C.A. No. L-19-1089
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Gene A. Zmuda, P.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/.
7.