State v. Cantwell

2019 Ohio 5395

• Court: Ohio Court of Appeals
• Decided: December 24, 2019
• Docket: 2018 CA 00107
• Status: Published

Opinion

[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