State v. Theile ( 2012 )

[Cite as State v. Theile, 2012-Ohio-3837.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. CA 24898
vs. : T.C. CASE NO. 04-CR-780
TRAVIS THEILE : (CRIMINAL APPEAL FROM
COMMON PLEAS COURT)
Defendant-Appellant :
.........
OPINION
Rendered on the 24th day of August, 2012.
.........
Mathias H. Heck, Jr., Prosecuting Attorney, Michele D. Phipps, Assistant Prosecuting
Attorney, Atty. Reg. No. 0069829, P.O. Box 972, 301 West Third Street, Dayton, Ohio
45422
Attorneys for Plaintiff-Appellee
Adrian King, Atty. Reg. No. 0081882, 36 North Detroit Street, Suite 104, Xenia, Ohio
45385
Attorney for Defendant-Appellant
.........
GRADY, P.J.:
{¶ 1} Defendant, Travis Theile, appeals from two consecutive six-month sentences
imposed for violation of his community control sanctions
{¶ 2} In 2004, Theile entered guilty pleas to five counts of failure to support
dependents. R.C. 2919.21(B). The court sentenced Defendant to a term of five years of
community control. At that time, the court notified Defendant:
You must understand that if you violate any condition of the
community control, the Court can impose a longer time on community control
or a harsher penalty which, since you have not been to prison before and given
the other facts contained in the report, would be six months concurrent on each
one of the two cases.
(Tr. 10).
{¶ 3} The court’s judgment entry of conviction (Dkt. 14) states:
“If you violate any condition of this sanction, or if you violate any law, the court can
impose a longer time under the same sanction, impose a more restricted sanction, or a prison
term of 6 months CRC to be served consecutively or concurrently.”
{¶ 4} In 2011, the court revoked Defendant’s community control for violations that
occurred during his five-year term. The court sentenced Theile to six-month sentences on
each count of non-support of dependents, to be served consecutively, for an aggregate term of
one year. Theile filed a timely notice of appeal.
{¶ 5} Assignment of Error:
THE COURT ERRED IN SENTENCING MR. THEILE TO SERVE A ONE-YEAR
PRISON TERM (CONSECUTIVE SIX-MONTH SENTENCES) FOLLOWING A
VIOLATION OF APPELLANT’S COMMUNITY CONTROL WHEN THE COURT HAD
PROVIDED NOTICE THAT A VIOLATION WOULD RESULT IN A SIX-MONTH
PRISON TERM (CONCURRENT SIX-MONTH SENTENCES).
{¶ 6} When the court imposes community control sanctions at the sentencing
hearing, the court must notify the defendant that for a violation of a sanction or sanctions the
court “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.” R.C. 2929.19(B)(5). If a prison term for
a violation of community control sanctions is later imposed, the term “shall not exceed the
prison term specified in the notice provided to the offender at the sentencing hearing.” R.C.
2929.15(B)(2). The effect of that provision is to “set a ceiling on the potential prison term,
leaving the court with the discretion to impose a lesser term than the offender was notified of
when a lesser term is appropriate.” State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746,
814 N.E.2d 837, ¶ 23.
{¶ 7} The State argues that Theile’s egregious behavior merits a sentence longer than
the concurrent six-month sentences of which he was notified. It appears that the trial court
was so persuaded. We cannot disagree with the merits of that proposition. Nevertheless, the
court lacked discretion to impose any prison term longer than the two six-month concurrent
terms of which Defendant was notified at the sentencing hearing. R.C. 2929.15(B)(2).
{¶ 8} The two consecutive six-month sentences the court imposed exceeded the
concurrent six-month term of which Defendant was notified. The sentences are therefore
clearly and convincingly contrary to law and must be reversed. State v. Kalish, 120 Ohio St.
3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
{¶ 9} As a final matter, while the 2004 judgment entry of conviction authorized
either consecutive or concurrent six-month terms, that variance would not allow the court to
later impose consecutive terms instead of the concurrent terms of which Defendant was
notified at the sentencing hearing. The concurrent terms the judgment entry authorizes is
consistent with the notice defendant was given. Being inconsistent with that notice, the
potential consecutive terms set out in the judgment entry can have no force or effect.
{¶ 10} Pursuant to the authority conferred on us by Article IV, Section 3(B)(2) of the
Ohio Constitution, we modify Defendant’s six-month sentences to concurrent rather than
consecutive sentences. As modified, the judgment of the trial court will be affirmed. The
case is remanded to the trial court for the limited purpose of forthwith notifying authorities
responsible for Defendant’s incarceration of the ordered modification of his sentences.
DONOVAN, J., And HALL, J., concur.
Copies mailed to:
Adrian King, Esq.
Michele D. Phipps, Esq.
Hon. Connie S. Price