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COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
-vsCase No. 18CA118
SCOTT BUTNER
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Case No. 1992-CR-0002
JUDGMENT: Affirmed in Part, Vacated in Part, Final
Judgment Entered
DATE OF JUDGMENT ENTRY: June 27, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP R. JOSHUA BROWN
Prosecuting Attorney 32 Lutz Avenue
Richland County, Ohio Lexington, Ohio 44902
JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 18CA118 2
Hoffman, P.J.
{¶1} Appellant Scott Butner appeals the judgment entered by the Richland
County Common Pleas Court sentencing him to seven years incarceration and imposing
a five year term of mandatory post-release control for violation of his probation. Appellee
is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On February 14, 1992, Appellant entered a combination of pleas of guilty
and no contest to five counts of rape (R.C. 2907.02) and five counts of gross sexual
imposition (R.C. 2907.05). The remaining twenty-seven counts in the indictment against
him were dismissed.
{¶3} Appellant was sentenced to a term of incarceration of eight to twenty-five
years on each of the rape counts, with five years of mandatory incarceration on each
count, to be served concurrently. He was sentenced to two years incarceration on each
count of gross sexual imposition, to be served consecutively to each other and
consecutively to the rape counts. The prison sentences on the gross sexual imposition
counts were suspended and Appellant was placed on probation, to begin immediately
upon his release from incarceration.
{¶4} After serving the time on the sentences for rape, Appellant was released
from prison and placed on probation. A probation violation was filed against Appellant on
August 20, 2018, and an addendum to the violation was filed August 30, 2018. Appellant
admitted the allegations set forth in the request for revocation of his probation.
1 A rendition of the facts is unnecessary to our disposition of this appeal.
Richland County, Case No. 18CA118 3
{¶5} The trial court sentenced Appellant to an aggregate term of incarceration of
seven years on the five convictions of gross sexual imposition for which his sentences
had previously been suspended, and also imposed a five year mandatory term of post-
release control.
{¶6} It is from the October 22, 2018, Community Control Violation Journal Entry
Appellant prosecutes this appeal, assigning as error:
THE TRIAL COURT ERRED IN IMPOSING POST-RELEASE
CONTROLS [SIC] UPON THE DEFENDANT.
{¶7} Appellant argues the trial court did not have authority to place him on post-
release control, as post-release control did not exist when he committed the offenses of
gross sexual imposition for which his probation was revoked and sentence imposed. The
State concedes the error, citing this Court’s decision in State v. Ferrell, 5th Dist. Stark No.
2013CA00121,
2013-Ohio-5521
. See also State v. Jackson, 8th Dist. Cuyahoga No.
105228,
2017-Ohio-4191
.
{¶8} The assignment of error is sustained.
Richland County, Case No. 18CA118 4
{¶9} The judgment of the Richland County Common Pleas Court is affirmed with
the exception of the imposition of five years mandatory post-release control. Pursuant to
App. R. 12(B), we hereby enter final judgment vacating that portion of the sentence
imposing five years of post-release control on Appellant.
By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur
