[Cite as State v. Gilbert,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2015-CA-117 : v. : Trial Court Case No. 2015-CR-524 : DENNIS GILBERT : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 26th day of August, 2016.

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MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

ADRIAN KING, Atty. Reg. No. 0081882, P. O. Box 302, Xenia, Ohio 45385 Attorney for Defendant-Appellant

.............

WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Dennis Gilbert, appeals from the sentence he received

in the Clark County Court of Common Pleas for violating post-release control. Gilbert

contends that in sentencing him for the violation, the trial court misapplied the

requirements set forth in R.C. 2929.141(A) by treating the maximum possible prison term

as a mandatory sentence. For the reasons outlined below, the judgment of the trial court

will be affirmed.

{¶ 2} On October 13, 2015, Gilbert was indicted on two counts of forgery and one

count of theft with a specification that the victim was an elderly or disabled adult. The

charges stemmed from Gilbert allegedly stealing checks from the victim, forging the

victim’s signature, and then attempting to cash the checks for various amounts at the

Security National Bank in Clark County, Ohio.

{¶ 3} Following his indictment, Gilbert entered a plea agreement in which he

agreed to plead guilty to one count of forgery in exchange for the dismissal of the

remaining charges. At the time of his offense, Gilbert was on post-release control for a

prior felony conviction committed in Clark County Case Nos. 2012-CR-156 and 2012-CR-

167. During the plea hearing, Gilbert admitted that he was on post-release control and

the trial court thereafter advised Gilbert that the court, at sentencing, “could impose an

additional penalty upon [him] as a result of violating post-release control.” Plea Trans.

(Nov. 5, 2015), p. 7.

{¶ 4} At the sentencing hearing, the trial court stated that it had considered the pre-

sentence investigation report, which indicates that Gilbert has a high risk of recidivism per

the Ohio Risk Assessment System. The trial court also considered that Gilbert has -3-

served eight prior prison terms for breaking and entering, receiving stolen property,

burglary, and domestic violence. In addition, the trial court considered the short time

lapse between Gilbert’s date of release from his most recent imprisonment and the date

of the forgery offense. Following these considerations, the trial court imposed a 12-

month prison term and $380 in restitution for the forgery offense.

{¶ 5} After imposing the forgery sentence, the trial court advised Gilbert that it

would also impose a sanction for his post-release control violation. The trial court noted

that Gilbert had been placed on five years of post-release control on August 23, 2015,

and that he had four years, eight months and twenty-four days remaining. The trial court

stated that since it was choosing to impose a sanction for the violation, it “[didn’t] think it

[had] any choice but to order that [Gilbert] be sentenced to the amount of time [he had]

remaining on post-release control or one year, whichever is greater, and that that time be

consecutive to the [forgery] sentence[.]” Disposition Trans. (Nov. 30, 2015), p. 7.

Accordingly, the trial court revoked Gilbert’s post-release control in Cases No. 2012-CR-

156 and No. 2012-CR-167 and ordered him to serve the remaining time on his post-

release control in prison consecutively to the 12 months imposed for the forgery offense.

{¶ 6} Gilbert now appeals from the sentence he received for violating his post-

release control, raising the following single assignment of error for review:

WHEN THE COURT SENTENCED MR. GILBERT, THE COURT ERRED

WHEN IT TREATED THE MAXIMUM SENTENCE FOR A PAROLE

VIOLATION (NEW FELONY) AS REQUIRED BY LAW.

{¶ 7} Under his sole assignment of error, Gilbert asserts that the trial court

improperly deferred to the maximum prison sentence provided for in R.C. 2929.141 when -4-

sentencing him for the post-release control violation. Gilbert claims that the trial court

had discretion to impose a prison sentence that was equal to or shorter than the maximum

term defined in the statute because the statute defines only the maximum term and is

mute on lesser sentences. Therefore, Gilbert essentially contends that the trial court

incorrectly treated the maximum prison term in R.C. 2929.141 as a mandatory sentence.

In support of this claim, Gilbert points to the trial court’s statement that upon choosing to

impose a sanction it “[didn’t] think it [had] any choice but to order that [Gilbert] be

sentenced to the amount of time [he had] remaining on post-release control or one year,

whichever is greater[.]”

{¶ 8} R.C. 2929.141 provides, in relevant part, as follows:

(A) Upon the conviction of or plea of guilty to a felony by a person on

post-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 -5-

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).

{¶ 9} Under R.C. 2929.141(A)(1), a trial court is authorized to terminate post-

release control and impose a sentence representing the time remaining on his term of

post-release control. State v. Barron, 2d Dist. Montgomery No. 25059,

. Only the trial court itself may make the decision to sentence for a post-release

control violation. State v. Branham, 2d Dist. Clark No. 2013-CA-49,

.

Once the court decides to impose a sentence for such a violation, it is bound by R.C.

2929.141 when determining the time to be served.

The court is not required by the

statute to make any findings prior to terminating post-release control. Barron at ¶ 16.

The court also is not required to explain or justify why it has elected to impose a prison

sentence for the violation.

{¶ 10} The Supreme Court of Ohio recently held that pursuant to the plain

language of R.C. 2953.08(G)(2), “an appellate court may vacate or modify a felony

sentence on appeal only if it determines by clear and convincing evidence that the record

does not support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-

1002, ¶ 1. In addition, the court explained that “an appellate court may vacate or modify

any sentence that is not clearly and convincingly contrary to law only if the appellate court

finds by clear and convincing evidence that the record does not support the sentence.” -6-

Id., at ¶ 7.

{¶ 11} A sentence for a post-release control violation is not contrary to law so long

as it comports with the requirements of R.C. 2929.141. State v. Lehman, 2d Dist.

Champaign No. 2014-CA-17,

, ¶ 17. However, a sentence is clearly and

convincingly contrary to law if the trial court misreads an applicable statute to incorrectly

conclude that a prison term is mandatory. See State v. Duka, 11th Dist. Lake No. 2012-

L-106,

.

{¶ 12} In this case, the prison sentence imposed by the trial court for Gilbert’s post-

release control violation is expressly authorized by R.C. 2929.141. While Gilbert is

correct that the language of R.C. 2929.141 does not provide for a mandatory prison term,

his claim that the trial court misinterpreted the statute to provide for a mandatory prison

term is mere speculation. Under the specific circumstances of this case, the trial court’s

statement at the sentencing hearing that it “had no choice” but to impose the remainder

of the post-release control as the prison term can be interpreted to mean that the trial

court knew it had discretion to determine the prison term, but felt, given Gilbert’s extensive

criminal history, that it had no choice but to impose the maximum sentence. In fact, the

trial court’s understanding of its discretion in sentencing Gilbert under R.C. 2929.141 is

demonstrated by the trial court’s statement at the plea hearing that it “could impose an

additional penalty upon [him] as a result of violating post-release control.” (Emphasis

added.) Plea Trans. (Nov. 5, 2015), p. 7. Regardless, it is a well-settled rule of law that

we presume the regularity of the proceedings below and the validity of the trial court’s

judgment. Beach v. Sweeney,

,

(1958). Accordingly,

given the ambiguity in the record as to the statement at issue, we presume regularity, i.e., -7-

that the trial court correctly interpreted R.C. 2929.141 when sentencing Gilbert.

{¶ 13} Since the prison sentence imposed by the trial court for Gilbert’s post-

release control violation is expressly authorized by R.C. 2929.141, the sentence is not

clearly and convincingly contrary to law. Accordingly, this court may vacate the sentence

and remand the matter for resentencing only if there is clear and convincing evidence that

the record does not support the sentence imposed by the trial court. We cannot say that

is the case here, as there is no evidence that the record does not support the sentence.

We again note that Gilbert has an extensive criminal history, a high risk of recidivism, and

that he committed his most recent offense just over a month after he was released from

prison.

{¶ 14} Because we presume the regularity of the lower court’s judgment, and

because Gilbert’s sentence for violating post-release control is not clearly and

convincingly contrary to law and there is no clear and convincing evidence that the record

does not support the sentence, Gilbert’s sentence must stand. Therefore, Gilbert’s sole

assignment of error is overruled and the judgment of the trial court is affirmed.

.............

FAIN, J. concurs.

FROELICH, J., dissenting.

{¶ 15} Pursuant to R.C. 2929.141(A)(1), the trial court was authorized to terminate

Gilbert’s post-release control and impose a maximum sentence of one year or the time

remaining of his post-release control, whichever was greater. However, R.C.

2929.141(A)(1) does not require the trial court to impose any sentence, let alone the -8-

maximum sentence, for a post-release control violation, leaving the trial court with

discretion to determine the appropriate sentence for the violation.

{¶ 16} Upon sentencing Gilbert for his post-release control violation, the trial court

stated that it “[didn’t] think it [had] any choice but to order that [Gilbert] be sentenced to

the amount of time [he had] remaining on post-release control or one year, whichever is

greater, and that that time be consecutive to the [forgery] sentence[.]” On its face, the

phrase “I don’t think it [the court] has any choice” indicates that the trial court did not

exercise the discretion that R.C. 2929.141 conferred, and that Gilbert may have been

sentenced to a term of imprisonment that was longer than the trial court, upon the exercise

of its discretion, might have imposed.

{¶ 17} As the majority concludes, the trial court might have understood that it had

discretion to determine a sentence for the post-release control violation, yet found that

Gilbert’s new offenses and criminal history “left it no choice,” in its discretion, but to

impose the maximum sentence. In affirming the trial court’s judgment, the majority

stated that it presumes the regularity of the trial court proceedings and, based on that

doctrine, accepted this alternative interpretation of the trial court’s statements.

{¶ 18} Under the presumption of regularity, a court “presume[s] that a public official

means what he says and that he [or she] is duly performing the function that the law calls

upon him [or her] to perform.” Westerville City Schools Bd. Of Edn. v. Franklin Cty. Bd.

Of Revision, Ohio Sup. Ct. Slip Opinion No.

, quoting Toledo v.

Levin,

,

,

, ¶ 28; see also L.J. Smith,

Inc. v. Harrison Cty. Bd. of Revision,

,

,

. -9-

{¶ 19} “A presumption of regularity attaches to all judicial proceedings.” State v.

Raber,

,

,

. Courts have

generally employed the presumption of regularity in the absence of a record of the judicial

proceeding or of the relevant portion of the judicial proceeding. Appellate courts

presume that the lower courts “predicated their merits rulings upon a proper jurisdictional

basis.” AERC Saw Mill Village, Inc. v. Franklin Cty. Bd. Of Revision,

,

,

.

{¶ 20} Here, the issue is not the absence of a record or a silent record on the

relevant ruling. Rather, the issue is the trial court’s express statement that it “[didn’t]

think it [had] any choice” but to impose the maximum sentence. “Discretion” means “the

power or right to decide or act according to one’s own judgment; freedom of judgment or

choice.” www. dictionary. com /browse/ discretion (accessed Aug. 11, 2016). The

record here says, literally, that the court believed it had no freedom of choice.

{¶ 21} To construe the trial court’s language to mean that Gilbert’s poor criminal

record did not give the trial court any meaningful choice as to his sentence would require

us to speculate about the trial court’s intent and to ignore the plain meaning of the trial

court’s clear statement. Accordingly, I would reverse the trial court’s sentence on

Gilbert’s post-release control violation and remand for resentencing on that violation.

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Copies mailed to:

Megan M. Farley Adrian King Hon. Douglas M. Rastatter