[Cite as State v. Shouse, 2015-Ohio-3918.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 26172 : v. : Trial Court Case No. 2013-CR-2901 : RODNEY SHOUSE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 25th day of September, 2015.
MATHIAS H. HECK, JR., by CHRISTINA E. MAHY, Atty. Reg. No. 0092671, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard, Springboro, Ohio 45066 Attorney for Defendant-Appellant
.............
WELBAUM, J. -2-
{¶ 1} Defendant-appellant, Rodney Shouse, appeals from the conviction and
sentence he received in the Montgomery County Court of Common Pleas after he was
found guilty of burglary following a bench trial. Specifically, Shouse challenges the legal
sufficiency and manifest weight of the evidence with respect to the trespass element of
burglary. In addition, Shouse challenges the trial court’s decision to impose an additional
838 days of prison time consecutive to the three-year prison sentence he received for
burglary as a result of violating his post-release control sanctions. For the reasons
outlined below, the judgment of the trial court will be affirmed, but the matter will be
remanded for the limited purpose of allowing the trial court to issue a nunc pro tunc entry
to correct a clerical error in its sentencing entry.
Facts and Course of Proceedings
{¶ 2} On October 8, 2013, Shouse was indicted on one count of burglary in
violation of R.C. 2911.12(A)(1), a felony of the second degree, with an underlying offense
of aggravated menacing and/or disorderly conduct. The charge stemmed from a
September 11, 2013 altercation between Shouse and his neighbor, Cindy Mixon.
Shouse pled not guilty to the burglary charge and the matter proceeded to a bench trial.
At trial, the State presented testimony from Mixon; Mixon’s neighbor, Nevin Smith; and
the investigating police officer, Nathan Speelman. The defense presented testimony
from Shouse’s fiancé, Melissa Smart.
{¶ 3} It is undisputed that Mixon and her children have resided at 358 Kenwood
Avenue in Dayton, Ohio since June 2013. The residence is a duplex owned by Jeff Acre, -3-
to whom Mixon and other tenants pay rent. Mixon’s side of the property is a single
occupancy, whereas the other side, 356 Kenwood Avenue, houses multiple tenants who
rent rooms and share common areas. It is undisputed that sometime prior to September
2013, Shouse and his fiancé, Smart, entered into a month-to-month lease for one of the
rooms inside 356 Kenwood Avenue.
{¶ 4} At trial, Mixon testified that she would sometimes collect rent for Acre when
he was unavailable; however, Mixon claimed this was a rare occurrence. Mixon also
testified that she would relay complaints to Acre if tenants were unable to contact him, as
well as show prospective tenants the available rooms for rent inside the property.
According to Mixon, she showed Smart the room that Smart and Shouse eventually
rented, and had them fill out a lease agreement, which she later gave to Acre. Despite
assisting Acre with his rental business, Mixon testified that her side of the property was
not a business, but her home, and that the other tenants had to knock on her door if they
wanted to speak to her. Mixon also denied allowing Shouse to enter her home as he
pleased or giving Shouse a key to her property.
{¶ 5} As for the burglary, Mixon testified that she was inside her home during the
early evening hours of September 11, 2013, when she heard Shouse yelling and
screaming obscenities at her from the backyard. After hearing Shouse’s outburst, Mixon
testified that she looked out her window and saw Shouse walking toward the front of the
property. As Shouse walked around the property, Mixon testified that he continued
threatening her and yelling for her come outside. Specifically, Mixon heard Shouse state
that “[h]e was going to whoop [her] ass.” Trial Trans. (Mar. 17, 2014), p. 56. According
to Mixon, Shouse was threatening her because she had called the police a few days -4-
earlier due to Shouse and Smart constantly fighting with each other.
{¶ 6} When Shouse reached the front of the property, Mixon testified that he went
to her side of the porch, opened her screen door, and began banging on her locked inner
door and jiggling the door knob. During this time, Mixon was in a late stage of pregnancy
and babysitting Acre’s two-year-old daughter. Mixon testified that she was concerned
about her safety and the safety of Acre’s daughter, so she called 9-1-1 for assistance and
reported Shouse’s behavior, noting that he appeared intoxicated. After speaking with
the police, Mixon informed Shouse that she had called 9-1-1.
{¶ 7} Continuing, Mixon testified that Shouse eventually went to his side of the
property, sat on the front porch, and drank from a six-pack of beer. While Shouse was
sitting on the porch drinking, Mixon testified that he continued yelling threats at her, as
well as yelling at people walking by, challenging them to fight. Mixon then testified that
Shouse began pounding on her door again and yelled “I’m going to kill you.” Id. at 58,
61. Frightened, Mixon testified that she called 9-1-1 a second time and told Shouse to
go away. However, Mixon claimed that instead of leaving, Shouse continued to bang on
her door so hard that the door opened.
{¶ 8} Once the door opened, Mixon testified that Shouse stepped through the
doorway into her living room. According to Mixon, Shouse then began yelling in her face
saying “I’m going to beat your ass. Teach you to call the police on me.” Trial Trans.
(Mar. 17, 2014), p. 66. In response, Mixon told Shouse to get out of her house and
pushed the door shut, forcing him out and locking the door behind him. Thereafter,
Mixon claimed that Shouse remained on the front porch until approximately ten minutes
before the police arrived some two hours later. -5-
{¶ 9} Nevin Smith, a resident of 356 Kenwood Avenue, testified that Shouse was
one of the tenants on his side of the duplex and that Shouse was drinking heavily on the
day in question. Smith also testified that on the same day, he heard a male voice
shouting loudly from the front of the property while he was inside taking a shower.
Specifically, Smith heard the voice threaten to kill Mixon.
{¶ 10} After hearing the shouting, Smith testified that he went outside to Mixon’s
side of the property and observed Mixon frightened and in tears. According to Smith,
Mixon told him that Shouse had broken into her home and threatened Acre’s daughter.
Smith claimed that when the police arrived approximately two hours later, he assisted the
officers in locating Shouse inside their shared portion of the duplex. Smith testified that
Shouse was intoxicated when the police made contact with him.
{¶ 11} Smith further testified that he never paid rent to Mixon nor raised any
complaints with her regarding the duplex. He claimed that Mixon was just another
tenant, whereas Acre was the sole party responsible for the property. However, Smith
testified that he had seen Mixon take prospective tenants through the property for Acre.
{¶ 12} Officer Nathan Speelman of the Dayton Police Department testified that on
September 11, 2013, he was dispatched to 358 Kenwood Avenue where he encountered
Smith and Mixon. Upon his arrival, Speelman testified that Smith approached him and
spoke to him about what had occurred. Thereafter, Speelman testified that he spoke
with Mixon and noted that she appeared very distraught. Speelman further testified that
he examined Mixon’s doorframe and found it plausible that the door had been forced open
in the manner Mixon had described.
{¶ 13} Upon confronting Shouse, Speelman testified that Shouse was upset, -6-
uncooperative, belligerent, highly intoxicated, and used profane language. Speelman
also recalled Shouse using a racial slur to identify another officer at the scene.
According to Speelman, Shouse denied doing anything wrong; however, based on his
investigation, Speelman arrested Shouse for burglary and aggravated menacing.
{¶ 14} The State rested its case after the foregoing testimony and the admission
of its exhibits, which included a recording of Mixon’s two 9-1-1 calls and photographs of
the property. Shouse then moved for acquittal, claiming that the State had failed to
establish the trespass element of burglary. In so moving, Shouse attempted to
characterize Mixon’s home as a rental office that was open to the public. The trial court
overruled the motion and Shouse thereafter called his fiancé, Smart, as his sole defense
witness.
{¶ 15} Smart, who was not at the property during the altercation at issue, testified
that she found the vacancy at 356 Kenwood Avenue on the internet and contacted Acre
to set up a time to view the property. Once a viewing was scheduled, Smart testified that
Mixon showed her the room for rent and had her fill out a lease while they were in Mixon’s
living room. According to Smart, it was her understanding that Mixon was the live-in
manager of the building who collected rent for Acre when he was unavailable. Smart
also testified that she had paid her deposit and rent to Mixon.
{¶ 16} Smart further testified that Mixon’s side of the duplex “wasn’t really a rental
office.” Trial Trans. (Mar. 17, 2014), p. 155. In addition, although Smart claimed that
Mixon had told her she could come over anytime to talk about issues with the property,
Smart testified that there was never a sign outside Mixon’s home advertising it as a rental
office, nor any posting regarding hours of operation. Smart also explained that the public -7-
could not just walk into Mixon’s home, but had to knock. However, Smart claimed that
she and Shouse had a key to Mixon’s back door so that they could use her refrigerator
until Acre purchased them a refrigerator of their own.
{¶ 17} Following Smart’s testimony, Shouse introduced a letter written by a local
locksmith, James Nolen, which was admitted into evidence. In the letter, Nolen indicated
there was no damage to Mixon’s front door or doorframe and opined that the door could
not have been forced open without some sign of damage. Nolen also discussed the
door’s locks and their potential for failure.
{¶ 18} After hearing all the evidence, the trial court found Shouse guilty of burglary.
In so holding, the court found that Mixon’s portion of the duplex was not open to the public,
but a private residence. The trial court then sentenced Shouse to three years in prison
for the burglary plus an additional consecutive 838 days in prison for violating his post-
release control sanctions imposed in Montgomery County Case Nos. 2011-CR-1889 and
2012-CR-1395.
{¶ 19} Shouse now appeals from his conviction and sentence, raising three
assignments of error for review.
First and Second Assignments of Error
{¶ 20} For purposes of convenience, we will address Shouse’s first two
assignments of error together. They are as follows:
I. THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S
MOTION FOR ACQUITTAL SINCE THE STATE FAILED TO SUPPLY
SUFFICIENT EVIDENCE AS TO ALL THE ELEMENTS NECESSARY -8-
TO SUPPORT THE CHARGE AGAINST THE DEFENDANT.
II. THE TRIAL COURT’S VERDICT SHOULD BE REVERSED AS IT WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 21} Under his First and Second Assignments of Error, Shouse contends his
conviction for burglary was not supported by sufficient evidence and was against the
manifest weight of the evidence. Specifically, Shouse contends the evidence did not
establish that he committed the trespass element of burglary because his entry into
Mixon’s home was privileged and lawful. We disagree.
{¶ 22} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant
inquiry is whether any rational factfinder viewing the evidence in a light most favorable to
the state could have found the essential elements of the crime proven beyond a
reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683
N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds
that reasonable minds could not reach the conclusion reached by the trier-of-fact.”
(Citations omitted.) Id.
{¶ 23} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating
whether a conviction is against the manifest weight of the evidence, the appellate court -9-
must review the entire record, weigh the evidence and all reasonable inferences, consider
witness credibility, and determine whether, in resolving conflicts in the evidence, the trier
of fact “clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” Thompkins at 387, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the
evidence is subject to different interpretations does not render the conviction against the
manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013 CA 61,
2013 CA 62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.
{¶ 24} As noted earlier, Shouse was convicted of burglary in violation of R.C.
2911.12(A)(1). Pursuant to that statute:
No person, by force, stealth, or deception, shall * * * [t]respass in an
occupied structure or in a separately secured or separately occupied portion
of an occupied structure, when another person other than an accomplice of
the offender is present, with purpose to commit in the structure or in the
separately secured or separately occupied portion of the structure any
criminal offense[.]
{¶ 25} “Trespass” is defined under R.C. 2911.21(A), and it occurs when a person
“without privilege to do so, * * * [k]nowingly enter[s] or remain[s] on the land or premises
of another[.]” R.C. 2911.21(A)(1). “ ‘Privilege is the distinguishing characteristic
between unlawful trespass and lawful presence on the land or premises of another.’ ”
State v. Metcalf, 2d Dist. Montgomery No. 24338, 2012-Ohio-6045, ¶ 19, quoting State v.
Russ, 12th Dist. Clermont No. CA99-07-074, 2000 WL 864989, *3 (June 26, 2000).
(Other citation omitted.) “The state has the burden to prove lack of privilege.” Id., citing -10-
State v. Newell, 93 Ohio App.3d 609, 611, 639 N.E.2d 513 (1st Dist.1994).
{¶ 26} “Privilege” is defined as “an immunity, license, or right conferred by law,
bestowed by express or implied grant, arising out of status, position, office, or relationship,
or growing out of necessity.” R.C. 2901.01(A)(12). “A person has a privilege to enter a
business establishment when it is ‘open to the public.’ ” State v. Kilgore, 2d Dist.
Montgomery No. 17880, 2000 WL 770530, *3 (June 16, 2000), quoting State v. Clark,
10th Dist. Franklin No. 98AP-1650, 1999 WL 993151 (Sept. 28, 1999). Accord State v.
Cooper, 168 Ohio App.3d 378, 2006-Ohio-4004, 860 N.E.2d 135, ¶ 14 (2d Dist.).
{¶ 27} In this case, Shouse contends the State failed to establish that he
trespassed into Mixon’s home because he claims her living room area was sometimes
used as a rental office that was open to the public. Accordingly, Shouse claims that he
was not without privilege to enter Mixon’s side of the duplex. We, however, find that
there was sufficient evidence in the record for the trial court to find that Mixon’s side of
the duplex was not open to the public, but rather a private residence that Shouse was not
privileged to enter.
{¶ 28} This finding is supported by Smart’s testimony that Mixon’s residence
“wasn’t really a rental office” and that there was no signage on Mixon’s property indicating
that her residence was a rental office with business hours. Trial Trans. (Mar. 17, 2014),
p. 155, 169. Mixon also testified that 358 Kenwood Avenue was her home, not a
business. In addition, both Smart and Mixon testified that tenants had to knock on
Mixon’s door and were not otherwise permitted to walk in unannounced.
{¶ 29} While Smart claimed that she and Shouse once had a key to access Mixon’s
residence for purposes of using her refrigerator, Smart’s testimony indicates that this -11-
alleged privilege was no longer in effect during the time of the altercation, as she testified
that they had the key until Acre provided them with their own refrigerator, which occurred
prior to the altercation. In addition, Mixon denied ever giving Shouse a key to her
property.
{¶ 30} Furthermore, while the record indicates that that Mixon acted as an agent
for Acre when she carried out certain functions such as collecting rent, showing the
property, and taking tenant complaints, none of these actions expressly conferred a
privilege for the other tenants to enter Mixon’s home at any time or for any purpose.
{¶ 31} Most importantly, at the time of the altercation with Shouse, Mixon claimed
that her door was locked, she did not let Shouse into her home, told him multiple times to
go away, and that Shouse forced his way into her living room by banging on her door.
The trial court found Mixon’s account of events credible and we will not disturb that finding
on appeal, as it is well established that “[t]he credibility of the witnesses and the weight
to be given to their testimony are matters for the trier of facts to resolve.” State v.
Hammad, 2d Dist. Montgomery No. 26057, 2014-Ohio-3638, ¶ 13, citing State v. DeHass,
10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
{¶ 32} For the foregoing reasons, we find there was sufficient evidence to establish
that Shouse’s entry into Mixon’s home was without privilege, thus satisfying the trespass
element of burglary, and that such finding was not against the manifest weight of the
evidence.
{¶ 33} Shouse’s First and Second Assignments of Error are overruled.
Third Assignment of Error -12-
{¶ 34} Shouse’s Third Assignment of Error is as follows:
THE TRIAL COURT’S IMPOSITION OF AN ADDITIONAL PRISON TERM
OF EIGHT HUNDRED THIRTY EIGHT DAYS TO THE DEFENDANT’S
SENTENCE FOR VIOLATION OF POST[-]RELEASE CONTROL WAS
CONTRARY TO LAW.
{¶ 35} Under his Third Assignment of Error, Shouse contends the trial court erred
in sentencing him to serve an additional 838 days in prison for violating his post-release
control sanctions imposed in prior Montgomery County Case Nos. 2011-CR-1889 and
2012-CR-1395. In support of this claim, Shouse argues: (1) there was inadequate
support for the trial court to find that he had 838 days of post-release control remaining
on his prior cases; and (2) he was not properly placed on post-release control for either
of those cases. We again disagree.
{¶ 36} Initially, we note that Shouse did not object to the trial court’s decision to
impose 838 days in prison, thus waiving all but plain error with regards to the sentence
imposed. See State v. Anderson, 2d Dist. Montgomery No. 26056, 2014-Ohio-4699, ¶ 8,
citing State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826, 844 N.E.2d 372, ¶ 22 (2d
Dist.), and State v. Wickline, 50 Ohio St.3d 114, 120, 552 N.E.2d 913 (1990). “Plain
error does not exist unless the record indicates that [Shouse’s] sentence would clearly
have been different but for the error.” (Citations omitted.) Id.
{¶ 37} R.C. 2929.141 addresses sentencing for a felony committed by a person
under post-release control at the time of the offense. The statute provides, in relevant
part that:
Upon the conviction of or plea of guilty to a felony by a person on post- -13-
release control at the time of the commission of the felony, the court may
terminate the term of post-release control, and the court may do either of
the following 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:
(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.
(Emphasis added.) R.C. 2929.141(A)(1).
{¶ 38} Shouse first claims that there was inadequate evidence for the trial court to
find that he had 838 days of post-release control remaining on his prior cases. The
transcript of the sentencing hearing indicates that in reaching that decision, the trial court
relied on a letter from the Ohio Department of Rehabilitation and Correction that was
attached to the State’s sentencing memorandum. The letter indicates that as of March
31, 2014, Shouse had 841 days of post-release control remaining in Case No. 12-CR- -14-
1395. Therefore, as of the April 3, 2014 sentencing hearing, Shouse would have had
838 days of post-release control remaining, which was the same amount of days imposed
by the trial court for his post-release control violation.
{¶ 39} Evid.R. 101(C) provides that the Ohio Rules of Evidence do not apply to
miscellaneous criminal proceedings such as sentencing hearings. State v. Estepp, 2d
Dist. Montgomery No. 17985, 2001 WL 43104, *4 (Jan. 19, 2001); State v. Cook, 83 Ohio
St.3d 404, 425, 700 N.E.2d 570 (1998). Furthermore, a trial court may rely on reliable
hearsay in its sentencing decision. State v. Maas, 2d Dist. Greene No. 06-CA-117,
2007-Ohio-6265, ¶ 24, citing State v. Hyland, 12th Dist. Butler No. CA2005-05-103, 2006-
Ohio-339, ¶ 18. Accordingly, it was not inappropriate for the trial court to rely on the
letter in reaching its sentencing decision.
{¶ 40} Moreover, Shouse has not indicated what further proof he believes is
necessary to establish the amount of time left on his post-release control, nor is there
anything in the record to indicate the trial court’s calculation was improper. As a result,
we find that the letter from the Ohio Department of Rehabilitation and Correction was
sufficient. Accordingly, there was no error, let alone plain error, in that regard.
{¶ 41} Next, Shouse contends the additional 838-day sentence for violating post-
release control is contrary to law because the trial court’s imposition of post-release
control in Case Nos. 2011-CR-1889 and 2012-CR-1395 was void as a result of the court
failing to properly advise him of the consequences for violating post-release control. In
support of this claim, Shouse attached to his appellate brief the sentencing entries and
plea waiver forms from Case Nos. 2011-CR-1889 and 2012-CR-1395, and argued that it
is “plain and clear” from these documents that he was not properly advised of the -15-
consequences of violating post-release control. Shouse does not further elaborate on
the alleged failure.
{¶ 42} At this juncture, we note that attachments to appellate briefs that are not a
part of the record cannot be considered on appeal, as “[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. Ishmail, 54 Ohio St.2d
402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. Shouse filed a motion to
supplement the record of appeal with the prior sentencing entries and plea waiver forms,
which we subsequently denied under the authority of Ishmail. See Decision and Entry
(May 27, 2015), 2d Dist. Montgomery App. Case No. 26172.
{¶ 43} Upon further review, we find the sentencing entry in Case No. 2012-CR-
1395 was made a part of the record since it was attached as an exhibit to the State’s
sentencing memorandum and reviewed by the trial court. Nevertheless, upon reviewing
the sentencing entry in Case No. 2012-CR-1395, we find that it satisfied the notification
requirement in R.C. 2929.19(B)(2)(e), which requires a trial court to advise offenders who
are given a prison sentence that a violation of post-release control could result in a prison
term “of up to one-half of the stated prison term originally imposed upon the offender.”
Specifically, the sentencing entry in Case No. 2012-CR-1395 states the following:
Should the defendant violate any post-release control sanction, or any law,
the adult parole board may impose a more restrictive sanction. The parole
board may increase the length of the post-release control. The parole
board also could impose up to an additional nine (9) month prison term for
each violation for a total of up to fifty (50%) of the original sentence imposed -16-
by the court. If the violation of the sanction is a felony, in addition to being
prosecuted and sentenced for the new felony, the defendant may receive
from the court a prison term for the violation of the post-release control itself.
(Emphasis added.) State’s Sentencing Memorandum: Exhibit I—July 5, 2012 Termination
Entry in Case No. 2012-CR-1395 (Mar. 31, 2014), Montgomery County Common Pleas
Court Case No. 2013-CR-2901, Docket No. 61, p. 2.
{¶ 44} We also find that the case law cited by Shouse on the notification issue has
no bearing on this case. Shouse first cites to State v. Adkins, 2d Dist. Greene No. 2010-
CA-69, 2011-Ohio-2819, a decision in which this court held that the post-release control
portion of the defendant’s sentence was void because the trial court made the defendant’s
post-release control mandatory for “up to” a certain period of time. Id. at ¶ 13. We held
that the “up to” language gives the erroneous impression that the parole board had
discretion to impose less than the mandatory term. Id. at ¶ 5-6.
{¶ 45} In the present case, however, there is no “up to” language in the sentencing
entry from Case No. 2012-CR-1395. Rather, the trial court properly stated in the entry
that “the defendant will be supervised by the Parole Board for a period of Three years
Post-Release Control after the defendant’s release from imprisonment.” State’s
Sentencing Memorandum: Exhibit I—July 5, 2012 Termination Entry in Case No. 2012-
CR-1395 at p. 1. Accordingly, we fail to see how Adkins applies to this case.
{¶ 46} Shouse also cites to our decision in State v. Landgraf, 2d Dist. Clark No.
2104 CA 12, 2014-Ohio-5448. Our holding in Landgraf discusses the notification
required by Crim.R. 11 when a defendant pleads guilty to a felony offense while the
defendant was on post-release control for a prior felony. Id. at ¶ 23. In that -17-
circumstance, Landgraf held that before pleading guilty the accused must be notified that
pursuant to R.C. 2929.141, the trial court is authorized to impose an additional
consecutive prison sentence for the post-release control violation, as well as inform the
accused of the maximum possible sentence for such a violation. Id. However, without
the record and transcripts from Case Nos. 2011-CR-1889 and 2012-CR-1395, we must
presume regularity in the proceedings before the trial court regarding the court’s
compliance with Crim.R. 11. State v. Miller, 2d Dist. Montgomery No. 25893, 2014-Ohio-
4508, ¶ 26. Therefore, Landgraf does not advance Shouse’s argument that the
imposition of post-release control was void in his prior cases.
{¶ 47} That said, Shouse points out, and the State concedes, that the trial court
erroneously cited to Case No. 2012-CR-1396 as opposed to Case No. 2012-CR-1395 as
part of its sentencing entry when referencing Shouse’s prior cases in which post-release
control was imposed. This is a clerical error that may be corrected via a nunc pro tunc
sentencing entry.
{¶ 48} Shouse’s Third Assignment of Error is overruled.
Conclusion
{¶ 49} Having overruled all three assignments of error raised by Shouse, the
judgment of the trial court is affirmed. However, finding a clerical error in the trial court’s
sentencing entry, this matter is remanded for the limited purpose of allowing the trial court
to issue a nunc pro tunc sentencing entry in accordance with this opinion.
............. -18-
FAIN, J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr. Christina E. Mahy Marshall G. Lachman Hon. Dennis J. Langer