[Cite as State v. Maxwell,
2019-Ohio-2191.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 18AP-341
(C.P.C. No. 17CR-2728)
v. :
(REGULAR CALENDAR)
Robert H. Maxwell, :
Defendant-Appellant. :
D E C I S I O N
Rendered on June 4, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Law Offices of Mark J. Miller, LLC, and Mark J.
Miller, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Robert H. Maxwell, appeals from a judgment entry of
the Franklin County Court of Common Pleas finding him guilty, pursuant to guilty plea, of
one count of felonious assault. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed May 18, 2017, plaintiff-appellee, State of Ohio, charged
Maxwell with one count of felonious assault in violation of R.C. 2903.11, a second-degree
felony. The charges related to Maxwell's assault of his wife in front of a grocery store. After
initially entering a plea of not guilty, Maxwell entered a guilty plea on January 23, 2018. At
the plea hearing, the state entered the facts into the record and stated Maxwell punched his
wife in the face two times with a closed fist, causing his wife to suffer extensive physical
injuries. The trial court ordered a presentence investigation and scheduled a sentencing
hearing.
No. 18AP-341 2
{¶ 3} At the April 12, 2018 sentencing hearing, the trial court stated it had reviewed
several letters from the victim's family and friends as well as a letter from the victim, who
did not appear at the hearing. Following the hearing, the trial court sentenced Maxwell to
five years in prison and informed him he would be placed on post-release control for up to
three years. The trial court journalized Maxwell's conviction and sentence in an April 12,
2018 judgment entry. Maxwell timely appeals.
II. Assignments of Error
{¶ 4} Maxwell assigns the following errors for our review:
[1.] The Appellant's felony sentence is not supported by the
record and is contrary to law, as the trial court did not fully
consider the factors contained in R.C. 2929.12 and improperly
imposed post-release control.
[2.] The trial court committed reversible error by considering
victim-impact statements at the Appellant's sentencing.
III. First Assignment of Error – Sentence
{¶ 5} In his first assignment of error, Maxwell argues the trial court erred in
imposing his sentence. More specifically, Maxwell argues the trial court erred in failing to
consider R.C. 2929.11 and 2929.12 at the sentencing hearing, and he asserts the trial court
improperly imposed post-release control.
{¶ 6} An appellate court will not reverse a trial court's sentencing decision unless
the evidence is clear and convincing that either the record does not support the sentence or
that the sentence is contrary to law. State v. Chandler, 10th Dist. No. 04AP-895, 2005-
Ohio-1961, ¶ 10, citing State v. Maxwell, 10th Dist. No. 02AP-1271, 2004-Ohio-5660, ¶ 27,
citing State v. Comer,
99 Ohio St.3d 463,
2003-Ohio-4165, ¶ 10. See also State v. Marcum,
146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 1 ("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"). "In determining whether a sentence is contrary to law, an
appellate court must review the record to determine whether the trial court considered the
appropriate statutory factors, made the required findings, gave the reasons for its findings,
and properly applied the statutory guidelines." Maxwell at ¶ 27, citing State v. Altalla, 10th
Dist. No. 03AP-1127,
2004-Ohio-4226, ¶ 7.
No. 18AP-341 3
A. Consideration of R.C. 2929.11 and 2929.12
{¶ 7} Maxwell argues the trial court erred in failing to state at the sentencing
hearing that it considered the factors in R.C. 2929.11 and 2929.12 in determining Maxwell's
sentence. This court has noted, however, that a trial court need not use any specific
language at the sentencing hearing as proof that it considered the factors outlined in R.C.
2929.12. State v. Fisher, 10th Dist. No. 13AP-995, 2014-Ohio-3887, ¶ 16, citing State v.
Saur, 10th Dist. No. 10AP-1195,
2011-Ohio-6662, ¶ 44, citing State v. Arnett,
88 Ohio St.3d
208, 215 (2000). Additionally, the trial court wrote in its judgment entry imposing
Maxwell's sentence that it "considered the purposes and principles of sentencing set forth
in R.C. 2929.11 and the factors set forth in R.C. 2929.12." (Apr. 12, 2018 Jgmt. Entry at 1.)
"The inclusion of such language in a judgment entry belies a defendant's claim that the trial
court failed to consider the R.C. 2929.12 factors." State v. Anderson, 10th Dist. No. 16AP-
810,
2017-Ohio-7375, ¶ 11.
{¶ 8} Maxwell argues the trial court sentenced him solely based on the severity of
injuries his wife suffered in the attack without affording proper consideration to the factors
in R.C. 2929.12, including any mitigating factors. However, the trial court has discretion to
assign weight to each particular statutory factor. Fisher at ¶ 16, citing Saur at ¶ 46.
Maxwell's sentence was within the range of permissible sentences for his conviction of
felonious assault as a felony of the second degree; that the trial court imposed more than
the minimum sentence does not render the trial court's imposition of sentence contrary to
law. State v. Robinson, 10th Dist. No. 15AP-910, 2016-Ohio-4638, ¶ 18 (a trial court does
not abuse its discretion in imposing the maximum sentence where that sentence is within
the statutory range of permissible sentences), citing State v. Salinas, 10th Dist. No. 09AP-
1201,
2010-Ohio-4738, ¶ 65. Thus, the trial court did not err in imposing Maxwell's
sentence pursuant to R.C. 2929.11 and 2929.12.
B. Imposition of Post-Release Control
{¶ 9} Maxwell additionally argues that the trial court improperly imposed post-release control.
{¶ 10} " '[A] trial court has a statutory duty to provide notice of postrelease control
at the sentencing hearing' " and " 'any sentence imposed without such notification is
contrary to law.' " State v. Grimes, 151 Ohio St.3d 19,
2017-Ohio-2927, ¶ 8, quoting State v.
No. 18AP-341 4
Jordan,
104 Ohio St.3d 21,
2004-Ohio-6085, ¶ 23, superseded by statute on separate
grounds. Adequate notification that complies with the statutory requirements directs that
a trial court must notify the defendant "of the details of the postrelease control and the
consequences of violating postrelease control." State v. Qualls,
131 Ohio St.3d 499, 2012-
Ohio-1111, ¶ 18.
{¶ 11} In addition to notifying a defendant at the sentencing hearing, the trial court
must also incorporate post-release control into its sentencing entry. Grimes at ¶ 11, citing
Jordan at ¶ 22. "[T]o validly impose postrelease control, a minimally compliant entry must
provide the [Adult Parole Authority] the information it needs to execute the postrelease-control portion of the sentence." Grimes at ¶ 13. Thus, in order to "validly impose
postrelease control when the court orally provides all the required advisements at the
sentencing hearing," the sentencing entry must specifically note "(1) whether postrelease
control is discretionary or mandatory, (2) the duration of the postrelease-control period,
and (3) a statement to the effect that the Adult Parole Authority ('APA') will administer the
postrelease control pursuant to R.C. 2967.28 and that any violation by the offender of the
conditions of postrelease control will subject the offender to the consequences set forth in
that statute." Grimes at ¶ 1.
{¶ 12} Pursuant to R.C. 2967.28(B)(2), an offender convicted of a second-degree
felony and sentenced to a prison term is subject to a mandatory three-year period of post-release control. Maxwell asserts, however, that the trial court erroneously indicated his
post-release control was discretionary and erroneously indicated that the term of post-release control could be less than three years.
{¶ 13} At the sentencing hearing, the trial court stated:
Because you are being sent to prison you will be placed on post-release control whereby the Adult Parole Authority will
supervise your behavior upon your release for up to three years.
If you were to violate the terms of your release, the Adult Parole
Authority can extend your time on post-release control, return
you to prison for up to one half of your original sentence or
impose additional conditions on your post-release control.
(Apr. 12, 2018 Sentencing Tr. at 12.)
{¶ 14} Maxwell argues that the trial court's statement that he would be subject to
"up to" three years on post-release control conveyed to Maxwell that the imposition of post-
No. 18AP-341 5
release control was discretionary. However, when read in context, the trial court states,
using affirmative, mandatory language, that Maxwell will be placed on post-release control,
not that he may be. Further, R.C. 2967.28(B)(2) specifically provides that the three-year
term is mandatory "unless reduced by the parole board pursuant to division (D) of this
section." Turning to R.C. 2967.28(D)(3), "[i]f the [APA] recommends that the board or
court reduce the duration of control for an offense described in division (B) or (C) of this
section, the board or court shall review the releasee's behavior and … may reduce the
duration of the period of control imposed by the court." Thus, the court used appropriate
language at the sentencing hearing to convey, pursuant to the statutory guidelines, that the
imposition of post-release control was mandatory but that the term was subject to the
discretion of the APA.
{¶ 15} Although we conclude the trial court properly advised Maxwell of the
imposition of post-release control at the sentencing hearing, the sentencing entry
erroneously states that the trial court notified Maxwell that he "may receive an optional
period of post-release control of up to 3 years, to be determined by the [APA] as it relates
to R.C. 2967.28." (Emphasis omitted.) (Jgmt. Entry at 2.) This statement erroneously
indicates that the imposition of post-release control was discretionary rather than
mandatory, in violation of the test outlined in Grimes. Grimes at ¶ 1. The state concedes
the judgment entry contains this error.
{¶ 16} Having found the trial court's judgment entry fails to comply with Grimes,
we next consider the appropriate remedy. "We have previously found that where a
defendant is properly notified of post-release control at the sentencing hearing, but the trial
court's judgment entry insufficiently incorporates such notice, the appropriate remedy is
'that a nunc pro tunc entry be issued correcting the deficiency in the judgment entry as
defined in Grimes.' " State v. Bell, 10th Dist. No. 17AP-645, 2018-Ohio-3576, ¶ 12, quoting
State v. Harper, 10th Dist. No. 17AP-762,
2018-Ohio-2529, ¶ 19. Thus, because the trial
court adequately informed Maxwell at the sentencing hearing that the imposition of the
post-release control was mandatory but the sentencing entry erroneously indicated it was
discretionary, we overrule in part and sustain in part Maxwell's first assignment of error,
and we remand the matter to the trial court for the limited purpose of issuing a nunc pro
tunc entry to correct the judgment entry in compliance with Grimes.
No. 18AP-341 6
IV. Second Assignment of Error – Victim Impact Statements
{¶ 17} In his second and final assignment of error, Maxwell argues the trial court
erred in relying on the victim impact statement and letters from the victim's family and
friends in crafting a sentence. The letters included statements from the authors urging the
trial court to impose the maximum sentence.
{¶ 18} Maxwell asserts victim impact statements cannot be considered when they
opine as to the sentence the offender should receive. Maxwell relies on the Supreme Court
of Ohio's decision in State v. Fautenberry, 72 Ohio St.3d 435 (1995), which stated it is error
for a sentencing court, in a capital case, to admit portions of victim impact statements that
include "expressions of opinion relating to the appropriate sentence to be imposed."
Fautenberry at 439. We are mindful, however, that this is not a capital case, and that
sentencing in capital cases is fundamentally different than non-capital cases. See State v.
Hufnagel, 7th Dist. No. 12 MA 195,
2014-Ohio-1799, ¶ 25. Moreover, Maxwell ignores the
broader holding in Fautenberry that finds that even if it was error to admit the portion of
victim impact statements opining on the duration of the sentence, such error does not
warrant reversal because the court is presumed to consider only the relevant, admissible
evidence.
Fautenberry at 439; see also State v. Hale,
119 Ohio St.3d 118,
2008-Ohio-3426,
¶ 148 ("[t]his court will presume that a trial court considered only the relevant, material,
and competent evidence in arriving at its judgment, unless the contrary affirmatively
appears from the record").
{¶ 19} Here, though the trial court stated it reviewed and considered the victim
impact statement and letters from the victim's family and friends, the trial court did not
impose the maximum sentence. Thus, it appears from the record that the trial court did
not unduly consider, nor was it unduly influenced by, the portions of the statements urging
the court to impose the maximum sentence. Accordingly, Maxwell cannot demonstrate
error from the trial court's consideration of the victim impact statements. We overrule his
second and final assignment of error.
V. Disposition
{¶ 20} Based on the foregoing reasons, the trial court did not err in imposing
Maxwell's sentence or in imposing post-release control, and the trial court did not err in its
consideration of the victim impact statements. However, the judgment entry erroneously
No. 18AP-341 7
reflects that the imposition of post-release control was discretionary rather than
mandatory. Having overruled in part and sustained in part Maxwell's first assignment of
error and having overruled Maxwell's second assignment of error, we affirm the judgment
of the Franklin County Court of Common Pleas but remand to that court for the limited
purpose of issuing a nunc pro tunc entry correcting Maxwell's sentencing entry.
Judgment affirmed; cause remanded.
BROWN and DORRIAN, JJ., concur.
