State v. Harris ( 2013 )

[Cite as State v. Harris, 2013-Ohio-2721.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120531
TRIAL NOS. B-0705705
Plaintiff-Appellee, : B-0802251
B-1006851B
vs. :
O P I N I O N.
DARIUS HARRIS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: June 28, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Judge.
{¶1} Defendant-appellant Darius Harris was originally convicted in three
separate cases of one count of escape under R.C. 2921.34(A) and two one counts of
trafficking in cocaine under R.C. 2925.03(A)(1). He was sentenced to serve a term of
community control in each case.
{¶2} Subsequently, Harris pleaded guilty to violating the terms of his
community control. The trial court sentenced him to one year of imprisonment in
each case. It ordered the sentences in the cases numbered B-0705705 and B-
1006851B to be served consecutively to each other. It ordered the sentence in the
case numbered B-0802251 to be served concurrently to the other two sentences for a
total of two years’ imprisonment. This appeal followed.
I. Consecutive Sentences
{¶3} Harris presents two assignments of error for review. In his first
assignment of error, he contends that the consecutive sentences are contrary to law.
He argues that the trial court failed to make the findings required by R.C.
2929.14(C). This assignment of error is well taken.
{¶4} Following a community-control violation, a trial court conducts a new
sentencing hearing at which it sentences the offender anew. At that hearing, it must
comply with the relevant sentencing statutes. State v. Fraley, 105 Ohio St.3d 13,
2004-Ohio-7110, 821 N.E.2d 995, ¶ 17; State v. Baccus, 1st Dist. No. C-040028,
2005-Ohio-3704, ¶ 11.
{¶5} The General Assembly has revived the requirement that a trial court
make certain findings before imposing consecutive sentences. State v. Chapman, 1st
Dist. Nos. C-120645, C-120646, C-120647 and C-120648, 2013-Ohio-2161, ¶ 3; State
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OHIO FIRST DISTRICT COURT OF APPEALS
v. Erkins, 1st Dist. No. C-110675, 2012-Ohio-5372, ¶ 56. R.C. 2929.14(C) now
requires the court to engage in a three-step analysis and make certain findings before
imposing consecutive sentences. Chapman at ¶ 3. While the court need not use
“talismanic words,” it must be clear from the record that the trial court actually made
the findings required by the statute. Erkins at ¶ 56.
{¶6} In this case, the record does not show that the court made the
required findings before imposing consecutive sentences. Consequently, the
sentences in the cases numbered B-0705705 and B-1006851B are contrary to law
and must be vacated. See Chapman at ¶ 5; Erkins at ¶ 57. We sustain Harris’s first
assignment of error. We vacate the sentences imposed in those cases, and remand
this cause to the trial court for resentencing.
II. Community-Service Notification
{¶7} In his second assignment of error, Harris contends that the sentences
in all three cases are contrary to law. He argues that the trial court failed to inform
him that court costs may be paid through community service as required by R.C.
2947.23(A). This assignment of error is well taken.
{¶8} The Ohio Supreme Court has held that a sentencing court’s failure to
notify the defendant of the possibility that it could order the defendant to perform
community service in lieu of paying court costs as required by R.C. 2947.23(A) is ripe
for review on direct appeal regardless of whether the defendant has failed to pay the
costs. State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781, 964 N.E.2d 423, syllabus;
State v. Reynolds, 1st Dist. No. C-120241, 2012-Ohio-5153, ¶ 11. The proper remedy
for a trial court’s failure to comply with R.C. 2947.23(A) when imposing costs is to
vacate the imposition of costs and remand the case for proper community-service
notification. State v. Dillard, 1st Dist. No. C-120058, 2012-Ohio-4018, ¶ 8.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} The trial court imposed court costs in all three cases without notifying
Harris of the possibility of community service in lieu of paying costs. Therefore, we
sustain his second assignment of error. We vacate that portion of the trial court’s
judgments imposing court costs in all three cases, and we remand the cause to the
trial court to properly notify Harris as required by R.C. 2947.23(A) when imposing
costs.
III. Summary
{¶10} In sum, we vacate the sentences in the cases numbered B-0705705
and B-1006851B, and remand the cause to the trial court for resentencing so that the
trial court can make the proper findings justifying the imposition of consecutive
sentences. We vacate the imposition of costs in all three cases, and remand the cause
to the trial court so that it can notify Harris that he may be ordered to serve
community service in lieu of paying costs. We affirm the trial court’s judgments in
all other respects.
Affirmed in part, sentences vacated in part, and cause remanded.
H ILDEBRANDT , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry this date.
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