State v. Bartlett , 2012 Ohio 103 ( 2012 )

[Cite as State v. Bartlett, 2012-Ohio-103.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96501
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARCUS J. BARTLETT
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-533887
BEFORE: Blackmon, A.J., Cooney, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: January 12, 2012
-i-
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ATTORNEY FOR APPELLANT
Gregory T. Stralka
Crown Center, Suite 600
5005 Rockside Road
Cleveland, Ohio 44131
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Diane Russell
Daniel T. Van
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:
{¶ 1} Appellant Marcus Bartlett appeals the trial court’s imposition of a prison
term after finding that he violated his community control sanctions. Bartlett assigns the
following error for our review:
“I. The trial court erred in the imposition of a prison sentence when it
failed to inform the defendant of possible incarceration at the time of
the original sentencing.”
{¶ 2} Having reviewed the record and pertinent law, we dismiss this appeal as
moot. The apposite facts follow.
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{¶ 3} On May 10, 2010, Bartlett pleaded guilty to one count of criminal damaging
and one count of possession of criminal tools. The trial court imposed an 11-month jail
sentence, subsequently suspended the sentence, and placed Bartlett on two years of
community control sanctions. The community control sanctions required Bartlett to
submit to drug testing and to participate in drug counseling.
{¶ 4} On October 14, 2010, Bartlett tested positive for drugs. At a hearing on
November 10, 2010, Bartlett admitted that he violated the terms of his community control
sanctions. Thereafter, the trial court sentenced Bartlett to jail for 11 months. Bartlett
has served the imposed jail sentence.
Imposition of Imprisonment
{¶ 5} In his sole assignment of error, Bartlett argues that the trial court erred in
imposing a term of imprisonment when the court failed at sentencing to advise him that a
term of imprisonment may be imposed if he violated community control sanctions. The
state concedes this issue.
{¶ 6} Pursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court sentencing an
offender to a community control sanction must, at the time of 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. Harper, Cuyahoga App. No. 95718, 2011-Ohio-2041, citing
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State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, paragraph two of
the syllabus.
{¶ 7} In the instant case, the record is devoid of any advisement that Bartlett
could be sentenced to a specific prison term if he violated the terms of his community
control sanctions. Said advisement is also absent from the trial court’s journal entry.
When the trial court fails to comply with R.C. 2929.19(B)(5) and 2929.15 regarding
community control sanctions, the court may not impose a prison sentence at a subsequent
violation hearing. See State v. Hayes, Cuyahoga App. No. 87642, 2006-Ohio-5924.
{¶ 8} We conclude that the trial court erred in imposing a term of imprisonment
for Bartlett’s community control violation, having failed to advise Bartlett at his original
sentencing that he would be subject to prison time if he violated the community control
sanctions. However, since Bartlett has completed the imposed sentence, there is no
remedy that we can apply that would have any effect in the absence of a reversal of the
underlying conviction. State v. Verdream, 7th Dist. No. 02 CA 222, 2003-Ohio-7284,
citing State v. Beamon, 11th Dist. No. 2000-L-160, 2001-Ohio-8712. Given that Bartlett
is not challenging his underlying conviction, but rather questioning whether the sentence
was correct, the instant appeal is thereby rendered moot.
Appeal dismissed.
It is ordered that appellant recover of appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR