State v. McClurg , 2020 Ohio 4228 ( 2020 )


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  • [Cite as State v. McClurg, 
    2020-Ohio-4228
    .]
    COURT OF APPEALS
    RICHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                 JUDGES:
    Hon. William B. Hoffman, P.J.
    Plaintiff-Appellee                    Hon. W. Scott Gwin, J.
    Hon. Patricia A. Delaney, J.
    -vs-
    Case No. 2017 CA 0098
    JAMES McCLURG
    Defendant-Appellant                    O P I N IO N
    CHARACTER OF PROCEEDINGS:                     Appeal from the Richland County Court of
    Common Pleas, Case No. 2012-CR-0339
    JUDGMENT:                                     Affirmed
    DATE OF JUDGMENT ENTRY:                       August 25, 2020
    APPEARANCES:
    For Plaintiff-Appellee                        For Defendant-Appellant
    GARY BISHOP                                   JEFFREY P. UHRICH
    Prosecuting Attorney                          P.O. Box 1977
    Richland County, Ohio                         Westerville, Ohio 43086
    JOSEPH C. SNYDER
    Assistant Prosecuting Attorney
    38 South Park Street
    Mansfield, Ohio 44902
    Richland County, Case No. 2017 CA 0098                                                     2
    Hoffman, P.J.
    {¶1}   This   case    is   before   us   based    upon     the   remand issued     by
    the Supreme Court of Ohio in State v. McClurg, --- Ohio St.3d ---, 
    2020-Ohio-3696
    , ---
    N.E.3d --- , in which the Court reversed our decision in State v. McClurg, 5th Dist.
    Richland No. 17CA98, 
    2018-Ohio-3840
     (“McClurg I”), on the authority of State v. Howard,
    --- Ohio St.3d ---, 
    2020-Ohio-3195
    , --- N.E.3d ---.
    STATEMENT OF THE CASE
    {¶2}   On June 28, 2012, Appellant pled guilty to a Bill of Information charging him
    with one count of burglary, in violation of R.C. 2911.12(A)(1), a felony of the third degree.
    Appellant appeared before the trial court for sentencing on August 8, 2012. The trial court
    imposed a two year prison term, but suspended the sentence and placed Appellant on
    community control for 30 months.        The trial court advised Appellant a violation of
    community control could lead to the imposition of the two year prison term. As part of his
    community control sanctions, Appellant was ordered to successfully complete
    CROSSWAEH Community Based Correctional Facility (“CBCF”).                   The trial court
    memorialized Appellant’s sentence via Sentencing Entry filed August 9, 2012.
    {¶3}   On February 4, 2013, a notice was filed with the trial court, alleging
    Appellant had violated his community control sanctions. Specifically, Appellant failed to
    successfully complete VOA Halfway House. Appellant entered VOA Halfway House on
    October 3, 2012, as CROSSWAEH CBCF had a long wait list.                     Appellant was
    unsuccessfully terminated from the program on January 30, 2013. Appellant appeared
    before the trial court on February 15, 2013, and admitted the violation. Via Community
    Control Violation Journal Entry filed February 15, 2013, the trial court continued Appellant
    Richland County, Case No. 2017 CA 0098                                                  3
    on community control “with the following conditions: enter and successfully complete a
    CBCF.” February 15, 2013 Community Control Violation Journal Entry.
    {¶4}   On December 23, 2013, a notice was filed with the trial court, alleging
    Appellant had again violated his community control sanctions. Appellant appeared before
    the trial court of March 24, 2014, and admitted the violations. The trial court extended
    Appellant's probation, but tolled the term until he was released from prison on an
    unrelated case (“Case No. 2013-CR-839”). The trial court filed a Community Control
    Violation Journal Entry on March 24, 2014. The entry did not specify the length of the
    original suspended prison term which could be imposed upon a subsequent violation.
    {¶5}   On March 29, 2017, the trial court filed an entry captioned, “Additional
    Community Control Sanctions”, which ordered Appellant to successfully complete a
    program at CROSSWAEH CBCF. On September 11, 2017, after Appellant completed his
    prison term in Case No. 2013-CR-839, a notice of probation violation was filed, alleging
    Appellant failed to complete CBCF. Appellant filed a Motion and Memorandum Contra
    Imposition of Prison Sanction on October 5, 2017. Therein, Appellant argued the trial
    court failed to notify him of the specific prison sentence at his last probation violation
    sentencing, and, as such, was prohibited from imposing a prison sanction for the current
    community control violation. The state filed a response on October 20, 2017.
    {¶6}   Appellant admitted the probation violation at a hearing on October 25, 2017.
    Via Community Control Violation Journal Entry filed October 27, 2017, the trial court
    sentenced Appellant to the original two year prison term.
    {¶7}   Appellant appealed his sentence to this Court, raising the following
    assignments of error:
    Richland County, Case No. 2017 CA 0098                                                     4
    I.   THE    TRIAL     COURT      ERRED       IN   OVERRULING          THE
    APPELLANT'S        10/5/17   MOTION       AND    MEMORANDUM           CONTRA
    IMPOSITION        OF     PRISON       SANCTION,          AND     THEREAFTER
    SENTENCING DEFENDANT TO SERVE A TWO YEAR PRISON
    SENTENCE, ALTHOUGH NO PRISON SENTENCE WAS SPECIFIED IN
    PREVIOUS          COMMUNITY        CONTROL         VIOLATION        SANCTION
    SENTENCING ENTRY.
    II. THE TRIAL COURT ERRED WHEN IT ADDED AN ADDITIONAL
    COMMUNITY CONTROL VIOLATION TO CONDITIONS PREVIOUSLY
    IMPOSED       THREE     YEARS      PRIOR,     WITHOUT       AN    ADDITIONAL
    VIOLATION OR HEARING.
    {¶8}   In McClurg I, we sustained Appellant’s first assignment of error, vacated his
    sentence, and remanded the matter to the trial court for resentencing. We found “the trial
    court erred in imposing the suspended prison term in October, 2017, because it failed to
    specifically inform Appellant of the possible two year prison sentence which could be
    imposed upon a community control violation at his sentencing hearing in March, 2014.”
    McClurg, 
    2018-Ohio-3840
     at ¶ 18. We found Appellant’s second assignment of error to
    be moot in light of our disposition of his first assignment of error. 
    Id.
     at ¶ 20
    {¶9}   The state appealed our decision to the Ohio Supreme Court, which
    reversed and remanded the matter to us “for application of State v. Howard, --- Ohio St.3d
    ---, 
    2020-Ohio-3195
    , --- N.E.3d ---.” State v. McClurg, --- Ohio St.3d ---, 2020 -Ohio- 3696,
    --- N.E.3d ----, ¶ 1. The matter is now before us.
    Richland County, Case No. 2017 CA 0098                                                    5
    I
    {¶10} Pursuant to the Ohio Supreme Court's decision and remand, we must
    reexamine Appellant's first assignment of error applying State v. Howard, 
    supra.
    {¶11} In State v. Howard, the Ohio Supreme Court addressed the issue of
    “whether appellant, John M. Howard, received sufficient notice of the specific prison terms
    that the trial court could impose before the court revoked his community-control sentence
    and imposed the prison terms.” Id. at ¶ 1.           The Howard Court held neither R.C.
    2929.19(B) nor R.C. 2929.15(B) require a trial court to repeat notice of the specific prison
    term a defendant could face for a violation of his community control when the defendant
    was provided such notice at his initial sentencing hearing. Id. at ¶ 21.
    {¶12} Upon application of Howard, as mandated by the remand order of
    the Supreme Court of Ohio, we find Appellant received sufficient notice of the specific
    prison term the trial court could impose before the court revoked his community-control
    and imposed the prison term. Like the appellant in Howard, Appellant herein was properly
    notified at his initial sentencing hearing of the prison term he could face if he were to
    violate his community control and the potential prison term did not change between his
    initial sentencing and the subsequent revocation hearing at which the court imposed the
    prison term. Further, like the appellant in Howard, Appellant was not convicted of any
    new offense in the intervening period for which additional prison time could have been
    imposed and Appellant was aware throughout the period of his community control a
    violation could result in a prison term of two years.
    {¶13} Accordingly, we overrule Appellant’s first assignment of error.
    Richland County, Case No. 2017 CA 0098                                                 6
    II
    {¶14} In his second assignment of error, Appellant contends the trial court erred
    in imposing additional community control conditions without Appellant having committed
    a new violation and without conducting a hearing.
    {¶15} On August 8, 2012, the trial court sentenced Appellant to a two year prison
    term, but suspended the sentence and placed Appellant on community control for 30
    months.    As part of his community control sanctions, Appellant was ordered to
    successfully complete CROSSWAEH CBCF.
    {¶16} As Appellant failed to successfully complete VOA Halfway House, the state
    filed a probation violation on February 4, 2013. Appellant admitted the violation and the
    trial court continued him on community control “with the following conditions: enter and
    successfully complete a CBCF.” February 15, 2013 Community Control Violation Journal
    Entry. On December 23, 2013, the state again filed a probation violation. Appellant
    admitted he violated his community control. The trial court extended Appellant's
    probation, but tolled the term until he was released from prison on an unrelated case.
    March 24, 2014 Community Control Violation Journal Entry. Thereafter, on March 29,
    2017, the trial court filed an entry captioned, “Additional Community Control Sanctions”,
    which ordered Appellant to successfully complete a program at CROSSWAEH CBCF.
    {¶17} On September 11, 2017, after Appellant completed his prison term in Case
    No. 2013-CR-839, a probation violation was filed, alleging Appellant failed to complete
    CBCF. Appellant filed a Motion and Memorandum Contra Imposition of Prison Sanction,
    arguing the trial court failed to notify him of the specific prison sentence at his last
    probation violation sentencing, and, as such, was now prohibited from imposing a prison
    Richland County, Case No. 2017 CA 0098                                                   7
    sanction for the current community control violation. Appellant appeared before the trial
    court on October 25, 2017, and admitted the violation. The trial court sentenced Appellant
    to the original two year prison term. October 27, 2017 Community Control Violation
    Journal Entry.
    {¶18} Appellant’s argument relies upon the trial court’s March 29, 2014 entry
    captioned “Additional Community Control Sanctions”. Appellant asserts this entry places
    additional conditions on him and such was erroneous as there was no new violation and
    the trial court failed to conduct a hearing. We find Appellant’s reliance on the caption of
    the March 29, 2014 entry misplaced.
    {¶19} The March 29, 2014 entry is a pre-printed form.          Although captioned
    “Additional Community Control Sanctions”, the entry does not place a new condition on
    Appellant’s community control. To the contrary, the entry restates the condition Appellant
    continually failed to complete, to wit: successfully completing CBCF. This condition was
    part of Appellant’s original sentence imposed on April 8, 2012, and memorialized in a
    Sentencing Entry filed August 9, 2012.
    Richland County, Case No. 2017 CA 0098                                            8
    {¶20} Based upon the foregoing, we find Appellant’s second assignment of error
    is not well taken and overrule the same.
    {¶21} The judgment of the Richland County Court of Common Pleas is affirmed.
    By: Hoffman, P.J.
    Gwin, J. and
    Delaney, J. concur
    

Document Info

Docket Number: 2017CA0098

Citation Numbers: 2020 Ohio 4228

Judges: Hoffman

Filed Date: 8/25/2020

Precedential Status: Precedential

Modified Date: 8/27/2020