[Cite as State v. Spencer,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-22 : v. : Trial Court Case No. 2017-CR-33 : BRIAN L. SPENCER : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 9th day of March, 2018.

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ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, 4th Floor, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

DAVID R. MILES, Atty. Reg. No. 0013841, 125 West Main Street, Suite 201, Fairborn, Ohio 45324 Attorney for Defendant-Appellant

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HALL, J.

{¶ 1} Brian L. Spencer appeals from his conviction and sentence following a guilty

plea to one count of involuntary manslaughter, a first-degree felony.

{¶ 2} Spencer advances two assignments of error. First, he contends the trial court

erred in imposing a statutory maximum sentence for the involuntary-manslaughter

conviction. Second, he claims the trial court erred in imposing an additional 735-day

prison sentence as a sanction for violating post-release control in a prior case by the

commission of a new felony.

{¶ 3} The record reflects that Spencer pled guilty to a bill of information charging

him with involuntary manslaughter in lieu of the prosecutor seeking a murder indictment

from a grand jury. At the plea hearing, the prosecutor made the following factual recitation:

The facts that support the single count or the single charge contained

in the bill of information are that back between October 5th, 2016 and

October 6th, 2016 this Defendant was the biological father of a six-week old

child named [L.S.]. The Defendant and the child’s biological mother and the

child were staying at the Drake Motel here in Clark County, Ohio. At some

point, between the late evening hours of October 5th, 2016 and the early

morning hours of October 6th, 2016, this Defendant was responsible for

inflicting serious physical harm upon the little baby.

The Defendant knew that the baby was injured, as [sic] his biological

duty to seek care or medical intervention or help for this child. They failed

to do that. He failed to do that until the next morning when it was too late,

and as a result of this violation and the Defendant’s actions and inactions, -3-

the little baby died. Those are the facts that support the single count of this

bill of information.

(Plea Tr. at 6-7).

{¶ 4} During a Crim.R. 11 plea colloquy, Spencer admitted the truth of the facts

recited by the prosecutor and pled guilty. The trial court accepted his guilty plea, made a

finding of guilt, and ordered a presentence investigation.

{¶ 5} At Spencer’s sentencing hearing, the trial court heard a victim-impact

statement from relatives. It also heard from defense counsel, the prosecutor, and

Spencer. The trial court additionally considered the PSI report and autopsy results, which

showed that the child had multiple skull fractures and extensive bodily bruising. The trial

court noted that twenty-one-year old Spencer had a prior juvenile record, prior adult

misdemeanor convictions, and a prior adult felony conviction for burglary, which resulted

in a one-year prison sentence. The trial court explicitly addressed several of the statutory

“seriousness” and “recidivism” factors before imposing an eleven-year prison term for

involuntary manslaughter. The trial court also noted that Spencer was on post-release

control for the burglary conviction at the time of the child’s death. As a result, it imposed

a consecutive 735-day prison sentence for Spencer’s commission of a felony while on

post-release control. This appeal followed.

{¶ 6} In his first assignment of error, Spencer challenges his eleven-year prison

sentence for involuntary manslaughter. While acknowledging that the sentence is not

contrary to law, he contends the record does not support it. His entire substantive

argument is as follows:

* * * In the case sub judice, appellee’s trial counsel’s position was -4-

that appellant had committed a murder. Appellant being responsible for

murdering his child was an unproven charge. The trial court appeared to

have accepted appellee’s argument in pronouncing a near murder

conviction sentence. The trial court failed to take into account that appellant

accepted responsibility for what he pled guilty to, i.e., failing to provide

medical treatment for his child. The trial court did not take into consideration

his youth (21) and the recommendation of treatment (McKinley Hall) for his

substance abuse issues.

(Appellant’s Brief at 5).

{¶ 7} Upon review, we find Spencer’s argument to be unpersuasive. Under R.C.

2953.08(G)(2), we cannot vacate or otherwise alter his sentence unless we clearly and

convincingly find that the record fails to support it. Spencer has not met this standard.

Contrary to his argument, the record supports a finding that he beat and killed his child.

While it is true that Spencer was not convicted of murder, the trial court was entitled to

consider information in the PSI report strongly suggesting that he beat his child to death.

See, e.g., State v. Jordan, 2d Dist. Champaign No. 2016-CA-17,

(recognizing that a trial court at sentencing may consider hearsay evidence contained in

a PSI report and facts beyond those strictly related to the offense of conviction).

{¶ 8} Information accompanying the PSI report, including law-enforcement

investigation notes based on interviews with Spencer and the child’s mother, establish

that Spencer “huffed” paint and then brutally beat the child in a motel room while the

child’s mother was out shopping. The investigation notes reference “massive bruising” all

over the child’s body as well as autopsy findings including “massive head trauma” with -5-

the child’s skull “split at least three different ways.” During his interviews with

investigators, Spencer denied engaging in any abuse but admitted hearing the child

“grunting” and making “weird noises” that night. During his PSI interview, he

acknowledged that when the child “would breath[e] his lip would shiver, kind of like he

was gasping a little bit.” The next morning the child was dead. The trial court acted within

its discretion in considering the foregoing facts when deciding to impose a statutory-

maximum sentence for involuntary manslaughter.

{¶ 9} As for the other issues Spencer mentions, the trial court expressly referenced

his age, his substance-abuse problems, and “information from McKinley Hall,” which

included a recommendation of substance-abuse treatment. The trial court also found “no

genuine remorse” for the present offense. Therefore, we reject Spencer’s argument that

the trial court failed to consider these things. Having reviewed the record, we do not find

that it clearly and convincingly fails to support an eleven-year prison sentence for

involuntary manslaughter. The first assignment of error is overruled.

{¶ 10} In his second assignment of error, Spencer challenges the trial court’s

imposition of a 735-day prison sentence for committing a felony while on post-release

control. Specifically, he contends post-release control was not properly imposed in

connection with his 2015 burglary conviction, rendering the post-release-control portion

of his sentence in that case void. Therefore, he asserts that he was not properly on post-

release control when he committed involuntary manslaughter.

{¶ 11} Upon review, we find Spencer’s argument to be persuasive. After pleading

guilty to burglary in 2015, he appeared for sentencing and received a one-year prison

sentence. A transcript of his sentencing hearing in that case, which is included in the -6-

record, reflects that the trial court also briefly addressed post-release control with him. It

stated only that “[u]pon your release from prison you could be placed on post-release

control for three-years.” (Feb. 26, 2015 Sentencing Tr. at 5). The trial court in the burglary

case did not advise Spencer at sentencing of the consequences of violating post-release

control. The lack of such an advisement rendered the trial court’s imposition of post-

release control void, and the error is not correctable because Spencer has completed his

one-year sentence. See, e.g., State v. Qualls,

,

,

, ¶ 18, 23; State v. Tanksley, 2d Dist. Clark No. 2015-CA-80,

. Because the imposition of post-release control in the burglary case is void, the trial

court lacked authority in the present involuntary-manslaughter case to sanction Spencer

for committing a felony while on post-release control. Tanksley at ¶ 24.

{¶ 12} We note too that the trial court ordered Spencer to serve his 735-day prison

sentence for violating post-release control “prior to and consecutively to the 11 years

imposed for the involuntary manslaughter.” (Doc. #3 at 3). Because that 735-day

sentence resulted from Spencer’s involuntary-manslaughter conviction, the time he

already has served for the non-existent post-release-control-violation shall be credited

toward his eleven-year sentence for involuntary manslaughter.

Spencer’s second

assignment of error is sustained.

{¶ 13} Based on the reasoning set forth above, we affirm in part and reverse in

part the judgment of the Clark County Common Pleas Court. The trial court’s judgment is

affirmed with respect to its imposition of an eleven-year prison sentence for involuntary

manslaughter. The trial court’s judgment is reversed with respect to its imposition of a

735-day prison sentence for committing a felony while on post-release control, and the -7-

735-day prison sentence is vacated. This matter is remanded to the trial court for the

limited purpose of issuing a revised judgment entry consistent with our judgment herein

and to notify the appropriate prison officials of the revised judgment entry.

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DONOVAN, J. and FROELICH, J., concur.

Copies mailed to:

Andrew P. Pickering David R. Miles Hon. Richard J. O’Neill