State v. Batty

[Cite as State v. Batty, 2014-Ohio-2826.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

ROSS COUNTY

STATE OF OHIO, :

:

Plaintiff-Appellee, : Case No. 13CA3398

:

vs. :

: DECISION AND JUDGMENT

AMANDA M. BATTY, : ENTRY

:

Defendant-Appellant. : Released: 06/18/14

_____________________________________________________________

APPEARANCES:

Timothy Young, Ohio State Public Defender, and Carrie Wood, Assistant

State Public Defender, Columbus, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C.

Marks, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for

Appellee.

_____________________________________________________________

McFarland, J.

{¶1} Amanda Batty (Appellant) appeals her conviction in the Ross

County Court of Common Pleas after she pled guilty to five counts of

complicity to theft, violations of R.C. 2923.03, each count a felony of the

fifth degree. On appeal, Appellant contends: (1) the trial judge was not

qualified to preside over the trial court proceedings because he had been a

prosecutor in the case; and (2) the trial court committed plain error when it

imposed a prison sentence for a community control violation without being

Ross App. No. 13CA3398 2

authorized to do so by the most recent Crim.R. 32(C) judgment entry. Upon

review, we find we have no jurisdiction to address the merits of Appellant’s

argument regarding recusal. We also find Appellant’s prison sentence is not

clearly and convincingly contrary to law. Accordingly, we overrule both

assignments of error and affirm the judgment of the trial court.

FACTS

{¶2} In July 2009, Appellant was indicted on five counts of

complicity to theft, R.C. 2923.03. The indictment is set forth on letterhead

of the Ross County Prosecutor’s Office. At the time of her indictment, the

Ross County Prosecuting Attorney was Michael M. Ater. The indictment

also bears Prosecutor’s Ater’s signature. On July 10, 2009, Prosecutor Ater

requested a warrant on the indictment. Appellant was arraigned on the

charges on July 13, 2009. The presiding judge was Judge William J.

Corzine, III. The State of Ohio was represented by Assistant Prosecuting

Attorney Richard Clagg. Pretrial discovery and other proceedings ensued.

Three praecipes filed in the case bear Prosecutor Ater’s signature and are set

forth on the prosecutor’s office letterhead.

{¶3} On January 13, 2010, Appellant pled guilty to each offense

contained in the indictment. The State of Ohio was again represented by

Assistant Prosecuting Attorney Clagg. On February 23, 2010, Appellant

Ross App. No. 13CA3398 3

was placed on community control for a period of two years. At the

sentencing hearing, the trial judge stated: “If you violate any of these

community control sanctions you will be subject to more restrictive sanction,

a longer duration under supervision, or you could do twelve (12) months in

prison on each charge.” The subsequent judgment entry of sentence dated

March 21, 2010 notified Appellant that if the conditions of community

control were violated, the Court could impose a longer time under the same

sanctions, more restrictive sanctions, or “a specific prison term of twelve

(12) months.”

{¶4} In February 2011, Prosecutor Ater became a common pleas

judge in Ross County and Appellant’s case was assigned to his docket. No

one objected to the assignment and Judge Ater did not recuse himself.

{¶5} On January 9, 2012, Appellant was brought before the court to

face allegations she had violated her community control. Judge Ater set

bond for Appellant at the preliminary violation hearing and established a

final hearing date of February 6, 2012. At the final violation hearing,

Appellant admitted to the violations. Judge Ater addressed Appellant as

follows:

“Commit one more theft, one more theft while you are out,

you’re going to prison. And it’s not just one year, I’ve got two

years hanging on you for prison. That’s twelve months on

each…I’ll run them consecutive. One more theft, you go it?”

Ross App. No. 13CA3398 4

{¶6} The judgment entry filed subsequent to the violation hearing,

dated February 14, 2012, does not indicate Appellant faced the possibility of

a prison sentence if she violated the terms of her community control.

{¶7} Appellant was again brought before Judge Ater on July 25, 2013,

for a second preliminary hearing alleging violations of her community

control. Appellant immediately admitted to the violations and was

sentenced. Judge Ater addressed Appellant as follows:

“You know, the Court has gone out of its way to help you.

We’ve sent you to CBCF. We’ve helped you with counseling.

We’ve done everything possibly that we can. You’re a drug

addict. You’re a danger to yourself, but more importantly,

you’re a danger to society. You’re just a person that’s bad.

There’s nothing about you that’s going to help society out.

What needs to happen is you need to be locked away, not to

help yourself, it has nothing to do with you, but to protect

people from you. Therefore, I will impose consecutive

sentences in this case. I will impose on Count One the twelve

months sentence. On Count Two, I will impose a twelve

months sentence, both of those to be run consecutive to each

other. Counts Three, Four, and Five will be a one-year

sentence as well. They will all run concurrent to the previous

two sentences, so you’ve got about a year and a month hanging

over your head.

{¶8} The Court imposed the twelve-month prison sentences on each

of the five counts. He first indicated counts one and two were consecutive to

each other and counts three, four and five were concurrent to the two year

sentence. Judge Ater subsequently changed the sentence to running counts

Ross App. No. 13CA3398 5

one, two, and three all consecutive to each other, without only counts four

and five running concurrently to the three year sentence.

{¶9} On August 5, 2013, Appellant filed a notice of appeal. On

August 21, 2013, Judge Ater issued a corrected Criminal Rule 36 judgment

entry which provides “the Court * * * may impose a specific prison term of

twelve (12) months on each count” for a community control violation.”

{¶10} On August 30, 2013, appellant filed a motion for bond pending

resolution of her appeal in the trial court. Judge Ater denied the motion. On

September 13, 2012, Appellant filed a motion for bond in this Court which

was denied. Appellant filed an amended motion for bond on September 27,

2013. On October 9, 2013, Appellant filed a notice of additional facts after

discovery Judge Ater had acted as prosecutor in her case. On October 29,

2013, this court denied Appellant’s motion for bond.

ASSIGNMENT OF ERROR I

I. JUDGE ATER WAS NOT QUALIFIED TO PRESIDE

OVER THE TRIAL COURT PROCEEDINGS BECAUSE HE

WAS A PROSECUTOR IN THE CASE. THEREFORE, MS.

BATTY’S SENTENCE SHOULD BE VACATED. JUD.

COND.R. 2.11(A)(7)(a); FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION; SECTIONS 10 AND 16, ARTICLE I OF

THE OHIO CONSTITUTION. (JAN. 9, 2012 PRELIMINARY

HEARING; FEB.6, 2012 HEARING; JULY 31, 2013

HEARING; FEBRUARY 14, 2012 JUDGMENT ENTRY;

JULY 31, 2013 JUDGMENT ENTRY; AUG. 21, 2013

CORRECTED CRIMINAL RULE 36 JUDGMENT ENTRY.)

Ross App. No. 13CA3398 6

A. STANDARD OF REVIEW

{¶11} “[A] court of appeals lacks jurisdiction to review [recusal]

decisions.” Citizen of Hocking County v. Ohio Power Co., 4th Dist. Hocking

No. 11CA24, 2012-Ohio-4985, ¶18, quoting State ex rel. Hough v. Saffold,

131 Ohio St.3d 54, 2012-Ohio-28, 960 N.E.2d 451, ¶2. The Supreme Court

of Ohio has explained that “only the Chief Justice or [the Chief Justice’s]

designee may hear disqualification matters[.]” Ohio Power, supra, quoting

Beer v. Griffith, 54 Ohio St.2d 440, 441, 377 N.E.2d 775 (1978).

Consequently, a “Court of Appeals [is]without authority to pass upon

disqualification or to void the judgment of the trial court upon that basis.

Ohio Power, supra, quoting Beer, supra, at 441-442.

B. LEGAL ANALYSIS

{¶12} Under Appellant’s first assignment of error, she contends that

Judge Ater was not qualified to preside over the trial court proceedings

because he had been a prosecutor in the case. Appellant contends Judge

Ater was required to disqualify himself. However, neither Appellant nor her

counsel raised any issue or any alleged impropriety with regard to Judge

Ater’s presiding over her case. Nor was any affidavit of bias filed in the

matter. “A judge is presumed to follow the law and not to be biased, and the

appearance of bias or prejudice must be compelling to overcome these

Ross App. No. 13CA3398 7

presumptions. In re Disqualification of Batchelor, 136 Ohio St.3d 1211,

2013-Ohio-2626, 991 N.E.2d 242, ¶9, citing In re Disqualification of

George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶5.

{¶13} Appellant cites Jud.R. Cond.R.2.11(A)(7)(a) which

states:

“(A) A judge shall disqualify himself or herself in any

proceeding in which the judge’s impartiality might reasonably

be questioned, including but not limited to the following

circumstances:

(7) The judge meets any of the following criteria:

(a) The judge served as a lawyer in the matter in controversy or

was associated with a lawyer who participated substantially as a

lawyer in the matter during such association….”

{¶14} Appellant contends the record establishes that Judge Ater

actively participated in her prosecution by signing the indictment, signing

the request warrant, and signing three subsequent praecipes when he was the

county prosecutor. Appellant further points to three instances of impartiality

at or subsequent to the July 2013 violations hearing: (1) when the Judge

changed her two-year sentence to a three-year sentence without explanation;

(2) when he launched a “personal attack” on her before imposing sentence;

and (3) when he summarily denied her motion for bond pending resolution

of the appeal. Appellant concludes that her sentence must be vacated and

the case remanded for a new sentencing hearing before a new judge.

Ross App. No. 13CA3398 8

{¶15} Due process affords appellant the right to a fair trial before an

impartial tribunal. State v. Sauer 4th Dist. Pickaway No. 96CA14, 1997 WL

457470, at *1, citing In re Murchinson, 349 U.S. 133, 75 S.Ct. 623 (1955).

In Sauer, the appellant argued he was denied his right to an impartial judge

because the trial judge did not impartially consider appellant’s mitigation

evidence presented at a probation revocation hearing. Sauer had pled guilty

to multiple felony counts in 1991. At the time of appellant’s convictions, P.

Randall Knece was serving as a prosecuting attorney. By the time of

appellant’s probation revocation hearing in 1995, Prosecutor Knece had

been elected to the common pleas court bench and presided over appellant’s

case. Appellant argued Judge Knece was not “neutral and detached” because

of his prior service as county prosecutor.

{¶16} In Sauer, we noted that appellant failed to raise any

due process concerns or object to any comments made by the trial judge

during the revocation hearing . As a result, Sauer effectively waived the

right to challenge the judge’s alleged impartiality. Sauer, supra at *2, citing

State v. Henderson, 62 Ohio App.3d 848, 853, 577 N.E.2d 710 (1st

Dist.1989). See, also, Dressler Coal Co. v. Div. of Reclamation, Ohio Dept.

of Natural Resources, 5th Dist. Muskingum No. CA-85-35, 1986 WL 4773

(April 18, 1986). We reviewed Sauer’s arguments under a plain error

Ross App. No. 13CA3398 9

standard of review pursuant to Crim.R. 52(B) and found that no plain error

occurred.

{¶17} More recently, in Citizen of Hocking County v. Ohio Power

Co., supra, at ¶19, this court explained that “R.C. 2701.03 sets forth the

procedure by which a party may seek disqualification. The statute requires

the party seeking disqualification to file an affidavit of prejudice with the

Ohio Supreme Court. This court, therefore, has no jurisdiction to pass upon

this issue[.]” State v. Ramos, 88 Ohio App.3d 394, 398, 623 N.E.2d 1336

(9th Dist. 1993); see also, Goddard v. Children’s Hosp. Med. Ctr., 141 Ohio

App.3d 647, 473, 751 N.E.2d 1062 (1st Dist. 2000).1

{¶18} In Citizen of Hocking County v. Ohio Power Co., supra,

Melanie Ogle appealed the judgment of the Hocking County Court of

Common Pleas which denied her motion to vacate judgment and demand for

recusal. Ogle and Ohio Power Company had engaged in various legal

disputes which arose when Ohio Power sought to construct a

telecommunications tower near Ogle’s property.2 One of Ogle’s arguments

in the above-referenced appeal was that after the trial court judge, Judge

Thomas Gerken, imposed sanctions against her, Attorney Charles Gerken,

1

(“[T]he Goddards urge us to review the trial court’s refusal to recuse itself from the case. We have no

jurisdiction to do so. Only the Chief Justice of the Ohio Supreme Court, or any judge of that court

designated by the Chief Justice, has jurisdiction to determine a common pleas disqualification.”).

2

The litigation between Ogle and Ohio Power has extended over several years and both parties have filed

various appeals.

Ross App. No. 13CA3398 10

the trial judge’s brother filed documents in the case on behalf of Ohio

Power. Ogle contended the involvement of the trial judge’s brother

demonstrated that the trial judge had a conflict of interest. In the above-

referenced case, Ogle had filed a demand for recusal with the trial court.

{¶19} In the case before us, we note Appellant did not raise any

objection at her pretrial hearing, during plea negotiations, nor at her

sentencing. However, the real deficiency is that she did not seek recusal via

the proper avenue, by filing an affidavit of prejudice with the Supreme Court

of Ohio. As in the Citizen of Hocking County v. Ohio Power Co., case, we

are without jurisdiction to address her argument that the trial judge erred by

failing to recuse himself. As such, Appellant’s first assignment of error is

dismissed.

II. THE TRIAL COURT COMMITTED PLAIN ERROR

WHEN IT IMPOSED A PRISON SENTENCE FOR A

COMMUNITY CONTROL VIOLATION WITHOUT BEING

AUTHORIZED TO DO SO BY THE FEBRUARY 2012

JUDGMENT ENTRY. THEREFORE, MS. BATTY’S

PRISON SENTENCE SHOULD BE VACATED. FIFTH

AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION; SECTIONS 10 AND 16;

ARTICLE I OF THE OHIO CONSTITUTION. (FEB. 6, 2012

TR.3; FEB.14, 2012 JUDGMENT ENTRY; JULY 31, 2013

JUDGMENT ENTRY.

A. STANDARD OF REVIEW

Ross App. No. 13CA3398 11

{¶20} In the past, this court has reviewed felony sentences under the

two-step process set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-

4912, 896 N.E.2d 124, ¶4; see, also, State v. McClintock, 4th Dist. Meigs

No. 13CA4, 2013-Ohio-5598,¶4; State v. Evans, 4th Dist. Washington No.

11CA16, 2012-Ohio-850, ¶5; State v. Moman, 4th Dist. Adams No.

08CA876, 2009-Ohio-2510, ¶6. Pursuant to Kalish, an appellate court first

determines whether the trial court complied with all applicable rules and

statutes. Kalish, supra, at ¶4. If it did, the appellate court then reviews the

sentence under the abuse of discretion standard. Id; State v. Roach, 4th Dist.

Lawrence No. 11CA12, 2012-Ohio-1295, ¶4.

{21} However, a growing number of appellate districts have

abandoned Kalish’s second-step “’abuse of discretion” standard of review.

State v. Brewer, 4th Dist. Meigs No. 14CA1, _______________, ¶33.3

3

Former R.C. 2953.08(G)(2) authorized a court of appeals to take any action if it clearly and convincingly

found either of the following: (a) That the record did not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (E)(4) of section 2929.14, or division (H) of section

2929.20 of the Revised Code, whichever, if any, was relevant; and (b) That the sentence was otherwise

contrary to law.” Kalish, 896 N.E.2d 124, ¶ 10; 2004 Am. Sub. H.B. No. 473, 150 Ohio Laws, Part IV,

5814. In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶99, the Supreme Court of

Ohio declared certain provisions of the felony sentencing statutes unconstitutional. Brewer, supra, at ¶ 27.

The Supreme Court held that insofar as former R.C. 2953.08(G) referred to the unconstitutional provisions,

it no longer applied. Id.; Foster, supra at ¶99. Following Foster, appellate districts applied different

standards of review in felony sentencing cases. Brewer, supra, at ¶ 28. In Kalish, the Supreme Court of

Ohio attempted to resolve the conflicting standards, and a three-judge plurality held that based on the

court’s previous opinion in Foster, “appellate courts must apply a two-step approach when reviewing

felony sentences.” Brewer, supra, at ¶28, quoting Kalish, at ¶26. However, following Kalish, the United

States Supreme Court decided Oregon v. Ice, 555 U.S. 160, 164, 129 S. Ct. 711 (2009), in which it held,

contrary to Foster, that it is constitutionally permissible for states to require judges rather than juries to

make findings of fact before imposing consecutive sentences. Then in State v. Hodge, 128 Ohio St. 3d 1,

2010-Ohio-6320, 941 N.E.2d 768, paragraphs two and three of the syllabus, the Supreme Court of Ohio

then held that the sentencing provisions it ruled unconstitutional in Foster remained invalid following Ice

Ross App. No. 13CA3398 12

When the General Assembly reenacted R.C. 2953.08(G)(2), it expressly

stated that “[t]he appellate court’s standard of review is not whether the

sentencing court abused its discretion.” Id. See generally State v. White, 1st

Dist. Hamilton No. C-130114, 2013-Ohio-4225, ¶9 (“we cannot justify

applying an abuse of discretion standard where the legislature has explicitly

told us that the standard of review is not an abuse of discretion. Thus,

henceforth, we will apply the statutory standard rather than the Kalish

plurality framework to our review of felony sentences”).4 Pursuant to R.C.

2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate

and remand a challenged felony sentence if the court clearly and

convincingly finds either that “the record does not support the sentencing

court’s findings” under the specified statutory provisions, or “the sentence is

otherwise contrary to law.” Brewer, supra, at ¶37.

unless the General Assembly enacted new legislation requiring the judicial findings. Thereafter, the

General Assembly enacted 2011 Am.Sub. H.B. No. 86 (“H.B. 86”), which revised some of the judicial fact-

finding requirements for sentences and reenacted the felony sentencing standard of review in R.C.

2953.08(G). Brewer, supra, at¶30.

4

See, also, State v. Scates, 2d Dist. Clark No. 2013-CA-36, 2014-Ohio-418, ¶11 (“Kalish’s two-step

approach no longer applies to appellate review of felony sentences”); State v. Tammerine, 6th Dist. Lucas

No. L-13-1081, 2014-Ohio-425, ¶10 (“Given recent legislative action in Ohio, culminating in the passage

of a new statute directly addressing appellate court felony sentence review and a growing body of recent

appellate cases applying the new statutory parameters, we are no longer utilizing the former Kalish

approach”); State v. Venes, 2013-Ohio-1891, 992 N.E.2d453 (8th Dist.), ¶10 (“With the basis for the

decision in Kalish no longer valid and given that Kalish had questionable precedential value in any event,

we see no viable reasoning for continuing to apply the standard of review used in that case”)’ State v.

Ayers, 10th Dist. Franklin No. 13AP-371, 2014-Ohio-276, ¶8, quoting State v. Allen, 10th Dist. Franklin

No. 10AP-487, 2011-Ohio-1757, ¶21 (“ ‘since Kalish, this court has * * *only applied the contrary-to-law

standard of review’”); State v. Waggoner, 12th Dist. Butler No. CA2013-27-027, 2013-Ohio-5204, ¶6,

quoting State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶6 (“we recently

stated that ‘rather than continue to apply the two-step approach as provided by Kalish’ in reviewing felony

sentencing, ‘the standard of review set forth in R.C. 2953.08 (G)(2) shall govern all felony sentences.’”).

Ross App. No. 13CA3398 13

B. LEGAL ANALYSIS

{¶22} Appellant has not specifically brought her appeal under the

provisions of R.C. 2953.08(G)(2). Appellant argues only that the trial court

could not impose a prison sentence on her because the oral advisement did

not adequately specify the term of incarceration that she faced. We therefore

begin our analysis by determining, pursuant to R.C. 2953.08(G)(2), if we

can find that her sentence is clearly and convincingly contrary to law. When

a sentence fails to include a mandatory provision, such as the notification

provision under R.C. 2929.19(B)(4), it may be appealed because such a

sentence is “contrary to law” and is also not “authorized by law. State v.

Underwood, 124 Ohio St.3d 365, 922 N.E.2d 293, ¶21.

{23} Under Ohio law, the trial court has three options for punishing

offenders who violate community control sanctions. McClintock, supra, at

¶5. The court may: (1) lengthen the term of the community control sanction;

(2) impose a more restrictive community control sanction; or (3) impose a

prison term on the offender. Id; State v. Guilkey, 4th Dist. Scioto No.

04CA2932, 2005-Ohio-3501, ¶5; R.C. 2929.15(B)(1)(a)-(c). If the court

elects to impose a prison sentence upon a violator of community control

sanctions, it “shall be within the range of prison terms available for the

offense for which the sanction that was violated was imposed and shall not

Ross App. No. 13CA3398 14

exceed the prison term specified in the notice provided to the offender at the

sentencing hearing pursuant to division (B)(2) of section 2929.10 of the

Revised Code.” R.C. 2929.15(B)(2).

{¶24} Currently, R.C. 2929.19(B)(4) provides:

“If the sentencing court determines at the sentencing hearing

that a community control sanction should be imposed and the

court is not prohibited from imposing a community control

sanction, the court shall impose a community control sanction.

The court shall notify the offender that, if the conditions of the

sanction are violated, * * * the court may impose a longer time

under the same sanction, may impose a more restrictive

sanction, or may impose a prison term on the offender and shall

indicate the specific prison term that may be imposed as a

sanction for the violation, as selected by the court from the

range of prison terms for the offense pursuant to section

2929.14 of the Revised Code.”

{¶25} In McClintock, we discussed the decision of the Supreme Court

of Ohio in State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814

N.E.2d 837. There, the Court addressed the statutory notice requirements

under R.C. 2929.19(B)(5) and R.C. 2929.15. The Brooks court examined

the elements of full compliance under R.C. 2929.19(B)(5). Brooks, supra, at

¶12. The first element examined was “time of notification” and the second

was “the exact language used in the notification.” Id. at 13. Construing the

above statutes, the Brooks court ultimately held that “a trial court sentencing

an offender to a community control sanction must, at the time of the

sentencing, notify the offender of the specific prison term that may be

Ross App. No. 13CA3398 15

imposed for a violation of the conditions of the sanction, as a prerequisite to

imposing a prison term on the offender for a subsequent violation.”

McClintock, supra, at ¶8; Brooks, at paragraph two of the syllabus. The

Brooks court reiterated the dominant purpose of current sentencing

procedures is truth in sentencing, which aims to eliminate indefinite

sentences in favor of specific terms, to increase certainty and predictability

in sentencing. Brooks, supra, at 25; see, also, Woods v. Telb, 89 Ohio St.3d

504, 508, 733 N.E.2d 1103 (2000).5

{¶26} Appellant contends the trial court failed to notify her that she

faced the possibility of a three-year sentence, and only notified her that she

faced a twelve-month sentence. At Appellant’s hearing on community

control violations on February 6, 2012, the trial court advised: “Commit one

more theft, one more theft while you are out, you’re going to prison. And

it’s not just one year, I’ve got two years hanging on you for prison. That’s

twelve months on each…I’ll run them consecutive. One more theft, you got

it?” Appellant argues the court’s advisement at the February 2012 violations

hearing was insufficient as truth in sentencing required exact, precise

notification that fully informed her she faced the three-year prison sentence

she was given in July 2013.

5

After Brooks was released, R.C. 2929.19 was amended without any relevant substantive changes, and

R.C. 2929.19(B)(5) was moved to R.C. 2929.19(B0(4). McClintock, supra, at ¶7; State v. Marshall, 6th

Dist. Erie No. E-12-022, 2013-Ohio-1481, ¶9.

Ross App. No. 13CA3398 16

{¶27} Appellee however, points out at the time of Appellant’s original

sentence, she was informed of the possible prison sanction she could face if

she violated the terms and conditions of her community control.

Specifically, at Appellant’s original sentencing hearing on February 23,

2010, the trial court informed her if she violated any of the community

control sanctions, she would be subject to a “more restrictive sanction, a

longer duration under supervision or you could do twelve (12) months in

prison on each charge.” Appellee argues this language satisfies the notice

requirements set forth by law, and is consistent with Brooks. Appellant was

told specifically that she was subject to a twelve (12) month term of

imprison on each count of which she was found guilty.6

{¶28} Both parties have directed our attention to State v. Fraley, 105

Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, wherein the Supreme

Court of Ohio addressed the requirements of the sentencing court when there

is a subsequent sentencing for a community control violation between the

original sentencing and the eventual imposition of the prison sanction. In

Fraley, the Court determined that when the offender is sentenced following

a finding that he or she violated the terms and conditions of community

6

The subsequent judgment entry of sentence filed March 21, 2010 advised Appellant that if the conditions

of the community control were violated, the Court “may impose a specific prison term of twelve (12)

months.” Thus, the entry was deficient in that it did not state, as did the trial court at the original

sentencing hearing, that Appellant was subject to a twelve (12) month term of imprisonment “as to each

charge.”

Ross App. No. 13CA3398 17

control, this is a new sentence which requires the same compliance as the

original sentencing. The Fraley court held:

“We therefore hold that pursuant to R.C. 2929.19(B)(5) and

2929.15(B), a trial court sentencing an offender upon a

violation of the offender’s community control sanction must, at

the time of such sentencing, notify the offender of the specific

prison terms that may be imposed for an additional violation of

the conditions the sanction, as a prerequisite to imposing a

prison term on the offender for such a subsequent violation.”

The holding in Fraley arguably requires an offender to be notified at

each violations hearing.

{¶29} We find the case at bar to contain some significant procedural

similarities to those in State v. Oulhint, 8th Dist. Cuyahoga No. 99296,

2013-Ohio-3250. There, Oulhint was indicted for one count of grand theft.

In September 2011, he pleaded guilty. The matter was continued for

presentence investigation. In October 2011, Oulhint was sentenced to 18

months of community control with conditions. The trial court advised

Oulhint if he violated the terms of his community control sanctions, he was

looking at the imposition of a prison term up to eighteen months.

{¶30} Oulhint violated his community control in January 2012.

However, the trial court decided to continue it with the same conditions.

Oulhint again violated the terms of community control and in November

2012, a hearing was conducted. Oulhint was sentenced to eight months in

prison.

Ross App. No. 13CA3398 18

{¶31} On appeal, Oulhint argued the trial court erred by imposing a

prison sentence for his violation of community control because the court

failed to notify him at the first violation hearing or in the journal entry that

he could be sentenced to a prison term if he continued to violate. The

appellate court noted Oulhint was properly advised at his original sentencing

hearing, however, the entry from the first community control violation

hearing did not appear to advise Oulhint that a prison term would be

imposed if he continued to violate. The appellate court found as follows:

“[A]t Oulhint’s original sentencing hearing and in the original

sentencing entry, the trial court advised Oulhint that he could be

sentenced to 18 months in jail if he violated the conditions of

his community control. Therefore, Oulhint was well aware that

he could be sentenced up to 18 months in prison if he violated

the conditions of his community control.”

{¶32} The Eighth District Appellate Court noted that the cases on

which Oulhint relied, as does Appellant here, State v. Goforth, 8th Dist.

Cuyahoga No. 90653, 2008-Ohio 5596, and State v. Fraley, supra, were

distinguishable. The appellate court noted in both cases the trial court failed

to advise the defendant at the original sentencing hearing regarding the

specific prison term the court could impose. However, in those cases, the

courts held that no error occurred because the court advised the defendants

at subsequent violation hearings the terms that could be imposed. The

Ross App. No. 13CA3398 19

Eighth District Court, citing its decision in State v. Hodge, 8th Dist.

Cuyahoga No. 93245, 2010-Ohio-78, instructed:

“We construe the holding of the Supreme Court in Fraley

narrowly to mean that a trial court that fails to notify a

defendant of the specific penalty he will face upon violation of

community control sanctions at the initial sentencing, may

“cure” that failure at a subsequent violation hearing by then

advising the defendant of the definite term of imprisonment that

may be imposed upon any subsequent finding of violation. We

find nothing in the statute or Fraley that requires a legally

adequate notification in the first instance to be given over and

over again.”

{¶33} We find the reasoning the appellate court in Oulhint to be

equally persuasive and applicable here. Appellant was properly notified at

the original sentencing hearing in February 2010 that if she violated the

terms of her community control sanction, she risked imposition of a twelve

(12) month prison term on each charge. That notification was legally

sufficient and the trial court was not required to notify her over and over

again.

{¶34} Furthermore, Appellant’s argument that the judgment entry of

sentence from the original sentencing hearing (which we have already noted

was deficient) controls our determination herein, has no merit.7 The

7

Appellant appears to raise the issue of the entry from the original sentencing hearing as an alternative

argument. Her second assignment of error asserts only that the trial court committed plain error when it

imposed sentence without being authorized to do so by the most recent Crim.R. 32(C) judgment entry.

Crim.R. 32(C) provides that the judgment of conviction shall set forth the fact of conviction and the

sentence.

Ross App. No. 13CA3398 20

transcript from the original sentencing hearing, specifically, the trial court’s

notification which was set forth above on page 3 under “Facts,” makes clear

that any discrepancy in the entry is clerical in nature.

{¶35} It is generally true that a trial court speaks only through its

journal entries. State v. Guilkey, 4th Dist. Scioto No. 04CA9432, 2005-

Ohio-3501, ¶10; Wilkins v. Wilkins, 116 Ohio App.3d 315, 318, 688 N.E.2d

27 (1996), citing State v. King, 70 Ohio St.3d 158, 162, 1994-Ohio-412, 637

N.E.2d 903. However, pursuant to Brooks, a trial court must inform a

defendant at the sentencing hearing of the sentence to be imposed if he

violates the community control sanctions. Brooks, supra, at 22. Provision

of this information in the judgment entry is insufficient. Id. In Guilkey, the

court noted that although it was trouble by erroneous language in the

sentencing entry, it did not affect the validity of Guilkey’s sentence. In this

matter, Appellant was properly notified at the original sentencing hearing in

2010 and the omission in the 2010 sentencing entry does not affect the

validity of Appellant’s notification and sentence.

{¶36} Based on our analysis above, we find the trial court gave valid

notice to Appellant at her original sentencing hearing that she faced a

specific prison term if she violated her conditions of community control.

We therefore find the trial court complied with all applicable rules and

Ross App. No. 13CA3398 21

statutes. As such, we further find Appellant’s sentence is not clearly and

convincingly contrary to law. We hereby overrule Appellant’s second

assignment of error and affirm the judgment of the trial court.

JUDGMENT AFFIRMED.

Ross App. No. 13CA3398 22

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be

assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing

the Ross County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL

COURT OR THIS COURT, it is temporarily continued for a period not to

exceed sixty days upon the bail previously posted. The purpose of a

continued stay is to allow Appellant to file with the Supreme Court of Ohio

an application for a stay during the pendency of proceedings in that court. If

a stay is continued by this entry, it will terminate at the earlier of the

expiration of the sixty day period, or the failure of the Appellant to file a

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the

appeal prior to expiration of sixty days, the stay will terminate as of the date

of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

Abele, P.J. and Harsha, J.: Concur in Judgment Only.

For the Court,

BY: __________________________________

Matthew W. McFarland

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final

judgment entry and the time period for further appeal commences from

the date of filing with the clerk.