State v. Brown

[Cite as State v. Brown, 2018-Ohio-88.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

Nos. 105211 and 106278

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DEMETRIUS BROWN

DEFENDANT-APPELLANT

JUDGMENT:

VACATED AND REMANDED

Criminal Appeal from the

Cuyahoga County Court of Common Pleas

Case Nos. CR-13-581262-A, CR-12-568782-A, CR-12-568784-A,

CR-12-568786-A, and CR-12-568930-A

BEFORE: E.T. Gallagher, J., E.A. Gallagher, A.J., and Boyle, J.

RELEASED AND JOURNALIZED: January 11, 2018

ATTORNEY FOR APPELLANT

Rachel A. Kopec

1360 E. 9th Street, Suite 910

Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Michael C. O’Malley

Cuyahoga County Prosecutor

BY: Gregory J. Ochocki

Assistant Prosecuting Attorney

The Justice Center, 8th Floor

1200 Ontario Street

Cleveland, Ohio 44113

EILEEN T. GALLAGHER, J.:

{¶1} Defendant-appellant, Demetrius Brown (“Brown”), appeals from the

30-month prison sentence he received in the Cuyahoga County Court of Common Pleas

for violating the conditions of his community control. He raises the following

assignments of error for review:

1. The trial court erred when it sentenced appellant to prison without

properly advising him of how much of the prison sentence would be

imposed if he violated probation.

2. Even if the trial court was proper in holding that appellant violated his

community control sanctions, the trial court erred when it sentenced

appellant to consecutive prison terms.

{¶2} After careful review of the record and relevant case law, we vacate Brown’s

sentence and remand for further proceedings consistent with this opinion.

I. Procedural and Factual History

{¶3} In March 2014, Brown pleaded guilty in Cuyahoga C.P. Nos.

CR-12-568782-A, CR-12-568784-A, CR-12-568786-A, and CR-12-568930-A to a total

of nine counts of criminal nonsupport in violation of R.C. 2919.21(B), felonies of the

fifth degree. In Cuyahoga C.P. No. CR-13-581262-A, Brown pleaded guilty to a single

count of theft in violation of R.C. 2913.02(A)(3), a felony of the fifth degree.

{¶4} In April 2014, the trial court held a joint sentencing hearing in Cuyahoga C.P.

Nos. CR-12-568782-A, CR-12-568784-A, CR-12-568786-A, CR-12-568930-A, and

CR-13-581262-A. Following an extensive discussion on the record, the trial court

imposed six-month prison terms in each case, to run consecutively to each other, for an

aggregate 30-month prison term. The trial court suspended Brown’s prison sentence and

placed him on a five-year period of community control sanctions.

{¶5} In October 2016, Brown was found to have violated the terms and conditions

of his community control sanctions. As a result, the trial court ordered Brown to serve

the aggregate 30-month prison term, with credit for time served.

{¶6} Brown now appeals from his aggregate sentence.1

II. Law and Analysis

{¶7} In his first assignment of error, Brown argues that the trial court erred in

imposing a term of imprisonment when the court failed to advise him at sentencing that a

term of imprisonment may be imposed if he violated the terms and conditions of his

community control sanctions.

{¶8} Pursuant to R.C. 2929.19(B)(4):

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, if the offender commits a

violation of any law, or if the offender leaves this state without the

permission of the court or the offender’s probation officer, 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

1 On September 19, 2017, this court granted Brown leave to file a delayed appeal pursuant

to App.R. 5. In addition, this court consolidated 8th Dist. Cuyahoga Nos. 105211 and 106278 in

order to adequately address the legality of the sentences imposed in Cuyahoga C.P. Nos.

CR-12-568782-A, CR-12-568784-A, CR-12-568786-A, CR-12-568930-A, and CR-13-581262-A.

violation, as selected by the court from the range of prison terms for the

offense pursuant to section 2929.14 of the Revised Code.

(Emphasis added.)

{¶9} The Ohio Supreme Court has addressed the obligations set forth under R.C.

2929.19(B)(4) (interpreting former analogous R.C. 2929.19(B)(5)), stating:

Pursuant to R.C. 2929.19(B)([4]) and 2929.15(B), 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

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.

State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 29.

Furthermore, “[s]uch notification must also be contained in the accompanying sentencing

journal entry.” State v. Goforth, 8th Dist. Cuyahoga No. 90653, 2008-Ohio-5596, ¶ 20,

citing State v. McWilliams, 9th Dist. Summit No. 22359, 2005-Ohio-2148.

{¶10} In this case, the state concedes that “the transcript establishes that the trial

court did not properly notify Brown of the potential prison term he faced for violating the

terms and conditions of his community control sanctions.” Thus, the state “respectfully

requests that this court vacate [Brown]’s prison sentences in [Cuyahoga C.P. Nos.]

CR-12-568782-A, CR-12-568784-A, CR-12-568786-A, CR-12-568930-A, and

CR-13-581262-A, and remand those matters back to the trial court for resentencing.”

{¶11} Following an independent review of the record, we agree that the trial court

failed to notify Brown, at the time of the March 2014 sentencing hearing, of the specific

prison term that would be imposed if he violated the conditions of his community control

sanctions. Moreover, the record reflects that the trial court failed to incorporate the

required notification into the accompanying sentencing journal entries. Accordingly, we

find that the trial court erred in imposing a term of imprisonment for the community

control violation based on its failure to make the necessary advisements under R.C.

2929.19(B)(4).

{¶12} With respect to the remedy an appellate court must afford an appealing

offender, the Ohio Supreme Court has stated, “when a trial court judge gives no notice

whatsoever * * * to an offender being sentenced to community control of any prison term

that may be imposed if the conditions of community control are violated, a prison term

may not be imposed for violation of the conditions.” Brooks, 103 Ohio St.3d 134,

2004-Ohio-4746, 814 N.E.2d 837, ¶ 8. The court explained:

When a trial court makes an error in sentencing a defendant, the usual

procedure is for an appellate court to remand to the trial court for

resentencing. In community control sentencing cases in which the trial

court failed to comply with R.C. 2929.19(B)([4]), however, a straight

remand can cause problems. Due to the particular nature of community

control, any error in notification cannot be rectified by “renotifying” the

offender. When an offender violates community control conditions and

that offender was not properly notified of the specific term that would be

imposed, an after-the-fact reimposition of community control would totally

frustrate the purpose behind R.C. 2929.19(B)([4]) notification, which is to

make the offender aware before a violation of the specific prison term that

he or she will face for a violation. Consequently, where no such

notification was supplied, and the offender then appeals after a prison term

is imposed under R.C. 2929.15(B), the matter must be remanded to the trial

court for a resentencing under that provision with a prison term not an

option.

(Emphasis added.) Id. at ¶ 33.

{¶13} Because this case involves a direct appeal from the imposition of a prison

term under R.C. 2929.15(B), we find the trial court’s failure to give the proper

notification at the original sentencing hearing prohibits it from sentencing Brown to a

prison term as a result of his subsequent community control sanction violations.

Accordingly, we vacate Brown’s sentence and remand for a resentencing hearing. At

the resentencing, the trial court must choose between the only options remaining under

R.C. 2929.15(B): (1) impose a longer time under the same sanction if the total time under

the sanctions does not exceed the five-year limit specified in R.C. 2929.15(A), or (2)

impose a more restrictive sanction. Id. at ¶ 142, fn. 2. See also State v. Harper, 8th

Dist. Cuyahoga No. 95718, 2011-Ohio-2041, ¶ 6, citing State v. Hayes, 8th Dist.

Cuyahoga No. 87642, 2006-Ohio-5924, ¶ 7. Here, we note that the trial court has

already imposed the maximum five-year period of community control sanctions permitted

under R.C. 2929.15(A) in each case.

{¶14} Based on the foregoing, Brown’s first assignment of error is sustained. His

second assignment of error is rendered moot.

{¶15} Judgment vacated and remanded for further proceedings consistent with

this opinion.

It is ordered that appellant recover of said appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, A.J., and

MARY J. BOYLE, J., CONCUR