State v. Williams , 2011 Ohio 995 ( 2011 )

[Cite as State v. Williams, 2011-Ohio-995.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO, CASE NO. 5-10-02
PLAINTIFF-APPELLEE,
v.
CHRISTOPHER M. WILLIAMS, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2008-CRB-0255
Judgment Reversed and Cause Remanded
Date of Decision: March 7, 2011
APPEARANCES:
Deborah Kovac Rump for Appellant
Drew Wortman for Appellee
Case No. 5-10-02
ROGERS, P.J.
{¶1} Defendant-Appellant, Christopher Williams, appeals from the
judgment of the Court of Common Pleas of Hancock County revoking his
community control and imposing a twenty-eight-month prison term. On appeal,
Williams argues that the trial court erred in revoking his community control, in
imposing a twenty-eight-month prison term that was greater than that of his
accomplices, and in failing to grant him jail-time credit for the thirty days he spent
on electronic home monitoring while on community control. Based on the
following, we reverse the judgment of the trial court and remand for resentencing.
{¶2} In October 2008, the Hancock County Grand Jury indicted Williams
on three counts of breaking and entering in violation of R.C. 2911.13(A), felonies
of the fifth degree; one count of safecracking in violation of R.C. 2911.31(A), a
felony of the fourth degree; and, one count of receiving stolen property in
violation of R.C. 2913.51(A), a felony of the fifth degree. The indictment arose
from multiple incidents during which Williams and several other accomplices
entered multiple churches and stole various items. Subsequently, Williams
entered a not guilty plea to all counts in the indictment.
{¶3} In March 2009, Williams withdrew his not guilty pleas to all counts in
the indictment and entered guilty pleas to all counts. In May 2009, the case
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proceeded to sentencing, at which the trial court imposed one lump five-year term
of community control and reserved a twenty-eight-month prison term.
{¶4} In August 2009, the trial court filed an “Order to Execute Deferred
Community Control Sanction,” stating that Williams failed to abide by the
condition of his community control mandating that he not possess, sell, distribute,
use, or have in his residence or automobile any controlled substance, or be in the
company of any person in possession of a controlled substance. The trial court
then ordered that he serve a ten-day term of electronic monitoring.
{¶5} In December 2009, a notice of community control violations was
filed, stating that Williams failed to notify his probation officer of his change of
residence; that he failed to report to his probation officer as instructed; that he
failed to abide by his curfew; that he was not complying with substance treatment
requirements; and, that he used a controlled substance.
{¶6} Subsequently, a hearing on the community control violations was
held, at which Williams admitted to the violation. The trial court then found
Williams in violation of the terms of his community control, revoked his
community control, and imposed an eleven-month prison term on each count of
breaking and entering and the receiving stolen property counts, and imposed a
seventeen-month prison term on the safecracking count, with the eleven-month
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prison terms to be served concurrently with each other, and consecutively to the
seventeen-month prison term, for a total prison term of twenty-eight months.
{¶7} It is from the trial court’s revocation of his community control and
imposition of a twenty-eight-month prison term that Williams appeals, presenting
the following assignments of error for our review.
Assignment of Error No. I
WILLIAMS COOPERATED WITH AUTHORITIES, AND HE
WAS NOT A LEADER OR ORGANIZER OF THE THEFT
RING, YET THE TRIAL COURT IMPOSED A SENTENCE
THAT WAS SIGNIFICANTLY GREATER THAN HIS CO-
DEFENDANTS. THE TRIAL COURT ABUSED ITS
DISCRETION BY DOING THIS.
Assignment of Error No. II
THE TRIAL COURT ABUSED ITS DISCRETION BY
REVOKING WILLIAMS’ COMMUNITY CONTROL AND
BY IMPOSING THE ENTIRE SENTENCE.
Assignment of Error No. III
THE TRIAL COURT ERRED BY NOT GIVING WILLIAMS
30 DAYS CREDIT FOR THE TIME HE SPENT ON
ELECTRONIC HOME MONITORING WHILE ON
COMMUNITY CONTROL.
{¶8} Due to the nature of Williams’ arguments, we elect to address his
second assignment of error first.
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Assignment of Error No. II
{¶9} In his second assignment of error, Williams argues that the trial court
abused its discretion by revoking his community control and imposing a twenty-
eight-month prison term. Specifically, he contends that the trial court should not
have imposed such a harsh sentence where his community control violations were
minor, and that the trial court was not fair and objective in sentencing him.
{¶10} Before addressing Williams’ assignments of error, we would usually
first determine whether jurisdiction exists to hear this appeal.
{¶11} Appellate jurisdiction is limited to review of the lower court’s final
judgment. Section 3(B)(2), Article IV of the Ohio Constitution. To be a final
appealable order, a judgment entry must meet the requirements of R.C. 2505.02
and, if applicable, Crim.R. 32(C). Chef Italiano Corp. v. Kent State Univ. (1989),
44 Ohio St.3d 86, 88; State v. Teague, 3d Dist. No. 9-01-25, 2001-Ohio-2286.
Additionally, the issue of whether a judgment is a final appealable order is a
jurisdictional question, which an appellate court may raise sua sponte. Chef
Italiano Corp., 44 Ohio St.3d at 87.
{¶12} In a criminal case, “‘[t]he necessity of journalizing an entry in
accordance with Crim.R. 32(C) is jurisdictional. Without a properly journalized
judgment of conviction, this court has no power to hear [an] appeal.’” State v.
Moore, 3d Dist. No. 14-06-53, 2007-Ohio-4941, ¶7, quoting Teague, 2001-Ohio-
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2286. Where a trial court fails to impose a sentence on each count of a conviction,
the order is merely interlocutory. Id., citing State v. Hoelscher, 9th Dist. No.
05CA0085-M, 2006-Ohio-3531, ¶10; State v. Waters, 8th Dist. No. 85691, 2005-
Ohio-5137, ¶16; State v. Taylor, 4th Dist. No. 94 CA 585, 1995 WL 329581; State
v. Brown (1989), 59 Ohio App.3d 1, 2. Specifically, a trial court’s failure to
impose a term of community control on each conviction violates Crim.R. 32(C)
and renders the appellate court without jurisdiction to decide the case. Id. at ¶¶17-
18.
{¶13} Here, in March 2009, Williams pled guilty to five separate counts, to
wit: three counts of breaking and entering, one count of safecracking, and one
count of receiving stolen property. In May 2009, the trial court imposed one lump
five-year term of community control without specifying a specific community
control sentence for each of the five counts of which Williams was convicted.
Although Williams subsequently admitted to a community control violation and
the trial court imposed a twenty-eight-month prison term, it does not negate the
trial court’s original sentencing error in May 2009 of imposing one term of
community control for all five counts of which Williams was convicted, and
failing to sentence separately on each count.
{¶14} Our preference would be to treat the original sentencing as contrary
to law and not a final order, thereby depriving this Court of jurisdiction, because
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the trial court did not properly impose community control, meaning that it cannot
now revoke community control. However, where we previously found that there
was no final order in a similar case, the Supreme Court of Ohio reversed our
decision and required this Court to rule on the merits of the appeal. See State v.
Goldsberry, 3d Dist. No. 14-07-06, 2007-Ohio-5493 (Goldsberry I), reversed by
State v. Goldsberry, 120 Ohio St.3d 275, 2008-Ohio-6103 (Goldsberry II).
{¶15} In Goldsberry II, the Supreme Court of Ohio issued its reversal
without opinion, without comment on the original sentence, and without
instruction. It is this author’s opinion that the Supreme Court was concerned that
the defendant was imprisoned and in need of review of the trial court’s orders. On
remand, this Court then affirmed the sentence imposed by the trial court. See
State v. Goldsberry, 3d Dist. No. 14-07-06, 2009-Ohio-6026 (Rogers, J.,
dissenting) (Goldsberry III).
{¶16} Due to the Supreme Court’s reversal of Goldsberry I, we are now
compelled to consider the current order of the trial court. Accordingly, we find it
necessary to reiterate the reasoning behind our conclusion in Goldsberry I that a
trial court must separately dispose of each count of which a defendant is
convicted.
{¶17} In 1995, the General Assembly enacted Senate Bill 2 (effective July
1, 1996), which eliminated felony probation and modified the procedure by which
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trial courts impose sentences for felony offenses. See State v. Wolfe, 5th Dist. No.
2008-CA-00064, 2009 Ohio 830, ¶¶15-16, citing Griffin & Katz, Ohio Felony
Sentencing Law (1998 Ed.) 394-396, Section S.2-T5.4. Prior to the effective date
of Senate Bill 2, a trial court would sentence an offender to specific terms of
imprisonment on each individual count of which the offender was convicted. If
the trial court deemed probation appropriate for the offender, it would then
suspend the prison terms and place the offender on probation. Id. at ¶17. Senate
Bill 2, however, radically altered this procedure. Trial courts now have the option
of sentencing offenders to either a term of imprisonment or to community control.
State v. Hoy, 3d Dist. Nos. 14-04-13, 14-04-14, 2005 Ohio 1093, ¶18. It is truly
an either/or situation. The sentence imposed is either a specific term of
imprisonment on each count, or a specific term of community control on each
count.
{¶18} If imposing community control under the new system, a trial court
may choose to impose different lengths of time on each count, depending on the
degree of the offense. See R.C. 2929.15, 2929.16, 2929.17, 2929.18. For example,
a one-year term of community control may be sufficient for a conviction on a
felony of the fifth degree, while a trial court may wish to impose a three-year term
or longer for a conviction on a felony of the third degree. However, the total of all
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terms imposed may not exceed the statutory maximum of five years. R.C.
2929.15(A)(1).
{¶19} R.C. 2929.15 governs imposition of community control and
provides, in pertinent part:
If in sentencing an offender for a felony the court is not required
to impose a prison term, a mandatory prison term, or a term of
life imprisonment upon the offender, the court may directly
impose a sentence that consists of one or more community
control sanctions authorized pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code. * * * The duration of
all community control sanctions imposed upon an offender
under this division shall not exceed five years.
R.C. 2929.15(A)(1). This language chosen by the General Assembly refers to
sentencing "an offender for a felony." The word "a", in this context, clearly may
be equated with the word "each" and expresses the General Assembly's intent to
require the trial court to impose community control on "a" felony; in other words,
separately on each count. Additionally, as R.C. 2929.15(A)(1) provides that "the
court may directly impose a sentence that consists of one of more community
control sanctions * * *" (emphasis added), we believe that the General Assembly
intended community control to be a sentence, not a status or some other constraint
not a part of Ohio's felony-sentencing scheme. As such, we find no distinction
between an error in imposing a "lump" prison term sentence for multiple felonies
and in imposing a "lump" community control sentence for multiple felonies.
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{¶20} Finally, the Supreme Court of Ohio has repeatedly emphasized that
Ohio's felony-sentencing scheme focuses on each offense and sentence
individually and not as a group or "sentencing package." Recently, the Court
observed that:
Ohio's felony-sentencing scheme is clearly designed to focus the
judge's attention on one offense at a time. Under R.C.
2929.14(A), the range of available penalties depends on the
degree of each offense. For instance, R.C. 2929.14(A)(1)
provides that "[f]or a felony of the first degree, the prison term
shall be three, four, five, six, seven, eight, nine, or ten years."
(Emphasis added.) R.C. 2929.14(A)(2) provides a different
range for second-degree felonies. In a case in which a defendant
is convicted of two first-degree felonies and one second-degree
felony, the statute leaves the sentencing judge no option but to
assign a particular sentence to each of the three offenses,
separately. (Emphasis added.) The statute makes no provision
for grouping offenses together and imposing a single, "lump"
sentence for multiple felonies. Although imposition of
concurrent sentences in Ohio may appear to involve a "lump"
sentence approach, the opposite is actually true. Instead of
considering multiple offenses as a whole and imposing one,
overarching sentence to encompass the entirety of the offenses as
in the federal sentencing regime, a judge sentencing a defendant
pursuant to Ohio law must consider each offense individually
and impose a separate sentence for each offense. See R.C.
2929.11 through 2929.19. Only after the judge has imposed a
separate prison term for each offense may the judge then
consider in his discretion whether the offender should serve
those terms concurrently or consecutively. See State v. Foster,
109 Ohio St.3d 1, 2006 Ohio 856, 845 N.E.2d 470, paragraph
seven of the syllabus, P 100, 102, 105; R.C. 2929.12(A); State v.
Mathis, 109 Ohio St.3d 54, 2006 Ohio 855, 846 N.E.2d 1,
paragraph three of the syllabus. Under the Ohio sentencing
statutes, the judge lacks the authority to consider the offenses as a
group and to impose only an omnibus sentence for the group of
offenses. (Emphasis added.)
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State v. Saxon, 109 Ohio St.3d 176, 2006 Ohio 1245, ¶¶8-9.
{¶21} As the General Assembly intended community control to be a
sentence and a part of Ohio's felony-sentencing scheme, we believe that the
principles requiring the trial court to focus on one offense at a time and prohibiting
an omnibus sentence for a group of offenses apply equally to terms of community
control. In summary, we believe that, pursuant to the prior decisions of this Court
as well as other courts of appeal, the language of the applicable statutes, and the
principles of Ohio's felony-sentencing scheme, trial courts must separately dispose
of each count of which a defendant is convicted--including setting forth specific
terms of community control on each count.1
{¶22} The Supreme Court of Ohio has consistently found that, prior to the
enactment of R.C. 2929.191, a sentence that failed to include a required term of
post-release control or provide notice of post-release control was contrary to law,
and, therefore, void, requiring a remand to the trial court for a de novo sentencing
hearing.2 State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085; State v. Simpkins,
117 Ohio St.3d 420, 2008-Ohio-1197, State v. Singleton, 124 Ohio St.3d 173,
2009-Ohio-6434. See also State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-32501
The preceding discussion, beginning at paragraph #17, originally appeared in my dissent in Goldsberry,
3d Dist. No. 14-07-06, 2009-Ohio-6026, at ¶¶24-28 (Rogers, J., dissenting) (Goldsberry III).
2
We are aware of the recent modification of this stance in the Supreme Court’s decision of State v. Fischer,
2010-Ohio-6238; however that change does not cure a trial court’s failure to sentence separately on each
individual count of which a defendant has been convicted.
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(Although the defendant [Bezak] was entitled to a de novo resentencing hearing
based upon the trial court’s failure to impose post-release control at his original
sentencing, he could not be subject to resentencing because he has already served
the prison term ordered by the trial court).
{¶23} Even after the enactment of R.C. 2929.191, the Court found that the
statute cannot have a retroactive application and, where a trial court failed to
properly impose or provide notice of a term of post-release control prior to the
statute’s effective date, the proper remedy was a de novo resentencing hearing.
Singleton, 124 Ohio St.3d 173. Likewise, it logically follows that a trial court’s
failure to properly impose a term of community control on each count would
render the sentence void as being contrary to law and would require a de novo
resentencing hearing to impose a sentence on each count. See State v. Cox, 3d
Dist. Nos. 2-09-31, 2-09-32, 2010-Ohio-3799, ¶20.
{¶24} Accordingly, we find that, because the trial court failed to originally
sentence Williams to community control on each separate count of which he was
convicted, and instead sentenced him to one lump term of community control, it
was error for the trial court to impose a sentence on each count upon revocation of
one term of community control.
{¶25} We note that the majority in Goldsberry III chose to avoid the issue
of the original sentence being a non-final order by finding that it was barred by res
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judicata because there was no appeal of the original sentence. See Goldsberry III,
2009-Ohio-6026, at ¶16. We now find that a non-final order cannot become res
judicata simply because it was not appealed. See generally State v. Mitchell, 187
Ohio App.3d 315, 2010-Ohio-1766, ¶¶16-17. Had Goldsberry attempted to appeal
the original sentence, this Court would have found no jurisdiction. Therefore it is
illogical to argue that such an order becomes res judicata by failure to appeal,
when no appeal would have been allowed.
{¶26} The dissent is satisfied with the original sentencing, arguing that the
trial court properly apprised Williams of the terms of imprisonment that would be
imposed if he violated the terms of his community control. However, that view
presupposes that Williams had first been properly sentenced on each count. R. C.
2929.19(B)(5) states as follows:
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 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.]
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R. C. 2929.19(B)(5). In other words, the trial court must first sentence a defendant
to a term of community control on each offense, and then advise the defendant of
the specific term of imprisonment that will be imposed on each offense if
community control is revoked. In this case the trial court undeniably failed to
impose a sentence each count on which Williams was convicted.
{¶27} We therefore vacate both the sentence imposed upon revocation of
community control in December 2009, and the trial court’s original sentence
imposed in May 2009. We further remand the case to the trial court with
instructions to resentence Williams on each count of which he was convicted.
{¶28} Accordingly, we sustain Williams’ second assignment of error.
Assignments of Error Nos. I and III
{¶29} In his first assignment of error, Williams argues that the trial court
erred imposing a sentence that was significantly greater than that of his
accomplices.
{¶30} In his third assignment of error, Williams argues that the trial court
erred in failing to grant him thirty days of jail-time credit for the time he spent on
electronic home monitoring while on community control.
{¶31} Our resolution of Williams’ second assignment of error renders his
first and third assignments of error moot, and we decline to address them. App.R.
12(A)(1)(c).
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{¶32} Having found error prejudicial to the appellant herein, in the
particulars assigned and argued in his second assignment of error, we reverse the
judgment of the trial court and remand the matter for further proceedings
consistent with this opinion.
Judgment Reversed and Cause Remanded
WILLAMOWSKI, J., concurs in Judgment Only.
/jnc
SHAW, J., dissents.
{¶33} Contrary to the assertion of the lead opinion, the trial court did not
fail to specify a sentence for each of the five counts in this case. Nor did the trial
court simply order an aggregate term of imprisonment for all of the felony
convictions upon a potential violation of community control. On the contrary, the
trial court expressly sentenced the defendant, both at the sentencing hearing and in
its final judgment entry of sentence, to specific and separate terms of
imprisonment corresponding to each felony for which the defendant was
convicted.
{¶34} The trial court also sentenced the defendant to five years of
community control with eleven enumerated conditions. The trial court then
specifically informed the defendant and ordered that "any violation of this
sentence shall lead to a more restrictive sanction, a longer sanction, or a prison
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term of eleven (11) months as to each Count One, Count Two, Count Three and
Count Five; and a prison term of seventeen (17) months as to Count Four ***."
(Emphasis added.)
{¶35} The trial court then further Ordered that "[t]he sentences as to
Counts One, Two, Three and Five shall be served concurrently, one with the other,
and that this concurrent sentence shall be served consecutively with the sentence
imposed as to Count Four." The trial court then concluded its sentence with the
statement that "it is the Court's specific intention that the Defendant serves a term
of twenty-eight (28) months in prison." (Emphasis added.)
{¶36} Subsequently, upon the defendant's violation of the community
control, the trial court sentenced the defendant exactly as the trial court stated it
would in its original judgment entry of sentence as to each of the five counts and
in conformity with the intended aggregate prison term for all five counts as set
forth in that judgment. Under the provisions of the trial court's judgment of
sentence, the defendant could not have been more clearly apprised of the terms of
his community control and the exact prison terms that would be imposed upon him
for each of the five counts, if he violated the terms of his community control.
{¶37} For these reasons, I do not concur with the majority opinion and I
respectfully dissent. I would overrule the second assignment of error and proceed
to address the remaining assignments of error in this case.
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