State v. Thompson ( 2023 )

[Cite as State v. Thompson, 2023-Ohio-4805.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 22AP-321
v. : (C.P.C. No. 09CR-1170)
David A. Thompson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 28, 2023
On brief: [Janet Grubb, First Assistant Prosecuting
Attorney], and Kimberly M. Bond, for appellee. Argued:
Kimberly M. Bond.
On brief: Yeura R. Venters, Public Defender, and Leon J.
Sinoff, for appellant. Argued: Leon J. Sinoff.
APPEAL from the Franklin County Court of Common Pleas
LELAND, J.
{¶ 1} Defendant-appellant, David A. Thompson, appeals from a May 6, 2022
judgment of the Franklin County Court of Common Pleas issued following remand from
this court. For the reasons that follow, we affirm in part and reverse in part.
I. Facts and Procedural History
{¶ 2} The present case is appellant’s fourth appeal to this court stemming from his
felony convictions for engaging in a pattern of corrupt activity, theft, tampering with
records, money laundering, forgery, and filing incomplete, false, and fraudulent tax returns.
Because the procedural history of the case is relevant to the issues in the present appeal, we
explain that history in some detail.
No. 22AP-321 2
{¶ 3} In 2009, plaintiff-appellee, the State of Ohio, charged appellant with 23 felony
counts. The charges arose from appellant’s actions during his tenure as pastor of the World
of Pentecost Church (the “church”) from 1995 to 2007. Following a bench trial, the court
acquitted appellant of one count, found him guilty of a lesser-included offense on another
count, and found him guilty of the remaining counts charged in the indictment.
{¶ 4} On December 8, 2010, the trial court issued its judgment entry imposing
sentence. The court sentenced appellant to “a period of Community Control for Five (5)
YEARS” on Counts 1 and 3 of the indictment and notified appellant he would “serve a prison
sentence of Six (6) Years” if he violated his community control. (Dec. 8, 2010 Sentencing
Entry at 2-3.) The court sentenced appellant to a 5-year term of imprisonment on Counts
4 through 16, and a 12-month term of imprisonment on Counts 17 through 23. The court
ordered Counts 1 and 3 to run concurrent to each other and Counts 4 through 23 to run
concurrent to each other but ordered Counts 1 and 3 to be served consecutive to Counts 4
through 23. The court specified that the 5-year term of community control on Counts 1 and
3 would “begin[] upon release from Ohio Department of Rehabilitation and Correction.”
(Dec. 8, 2010 Sentencing Entry at 3.) The court ordered appellant to pay restitution to the
church in the amount of $733,048.86.
{¶ 5} Appellant appealed his conviction and sentence. In State v. Thompson, 10th
Dist. No. 10AP-1004, 2011-Ohio-5169 (“Thompson I”), this court affirmed the judgment of
conviction but reversed and remanded for the trial court to reduce the amount of
restitution. Appellant did not raise any issue concerning his sentence to a consecutive term
of community control in Thompson I.
{¶ 6} On November 12, 2014, after serving nearly four years of his five-year prison
sentence, appellant filed a R.C. 2929.20 motion for judicial release. At a January 16, 2015
hearing, the trial court stated it would grant the motion for judicial release and suspend the
“six-year prison sentence” on Counts 1 and 3 as well as the prison sentence on Counts 4
through 23. (Jan. 16, 2015 Tr. at 10.) The court further stated that, because it originally
sentenced appellant to “a split sentence,” the “community control portion of that sentence
[as to Counts 1 and 3 would] begin as well as well as [sic] community control for the judicial
release time.” (Jan. 16, 2015 Tr. at 11.) On January 20, 2015, the court issued an entry
granting appellant’s motion for judicial release. The entry stated that the “remainder of the
No. 22AP-321 3
Eleven (11) Years (Five years Prison and Six years suspended for Community Control)” was
“suspended and Defendant [was] placed on Community Control for a period of Five (5)
years under Intensive Supervision.” (Jan. 20, 2015 Entry Granting Mot. for Judicial
Release at 1-2.) The court imposed community control sanctions and ordered appellant to
pay restitution to the church in the amount of $625,727.86.
{¶ 7} On March 13, 2019, appellant’s probation officer filed a statement of violations
with the trial court alleging that appellant violated his community control by failing to make
appropriate restitution payments. The statement indicated that the balance remaining on
appellant’s restitution was $621,377.50. The court held a revocation hearing on April 26,
2019, and appellant stipulated to the community control violation at the hearing. Defense
counsel argued at the hearing that appellant’s sentence to a consecutive term of community
control following a prison term was “contrary to law.” (Apr. 26, 2019 Hearing Tr. at 7.)
{¶ 8} On May 2, 2019, the trial court issued an entry finding appellant “to be in
violation” of his community control but concluding that appellant’s community control
“need not be revoked at this time.” (May 2, 2019 Entry.) The trial court restored appellant
to community control with the same sanctions and conditions imposed on January 16,
2015.
{¶ 9} Appellant appealed the May 2, 2019 entry to this court. In State v. Thompson,
10th Dist. No. 19AP-359, 2020-Ohio-6756 (“Thompson II”), decided December 17, 2020,
we resolved the appeal and affirmed the court’s May 2, 2019 entry. Relying on State v.
Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, appellant argued in the appeal that the
trial court erred by sentencing him to a period of community control on Counts 1 and 3 to
be served consecutive to his prison sentence on the other counts. In Hitchcock, the
Supreme Court of Ohio held that a trial court “may not impose community-control
sanctions on one felony count to be served consecutively to a prison term imposed on
another felony count,” because “no provision of the Revised Code authorizes trial courts to
impose” such a sentence. Hitchcock at ¶ 24. See State v. Peoples, 10th Dist. No. 21AP-45,
2022-Ohio-953, ¶ 24 (referring to a sentence of community control on one felony count to
be served consecutively to a prison term on another felony count as a “split sentence”).
{¶ 10} In Thompson II, appellant alleged that the Hitchcock error rendered his
sentence void and subject to collateral attack. We explained that, because the trial court
No. 22AP-321 4
possessed subject-matter jurisdiction over appellant’s case and personal jurisdiction over
appellant, any error in the exercise of the court’s jurisdiction rendered appellant’s sentence
voidable, not void. Thompson II at ¶ 11-12. See State v. Harper, 160 Ohio St.3d 480, 2020-
Ohio-2913, ¶ 42; State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, ¶ 1. Because
appellant could have, but did not, raise an argument regarding his sentence to a consecutive
term of community control in his direct appeal, res judicata barred appellant’s claims in
Thompson II. Id. at ¶ 13.
{¶ 11} On October 23, 2019, while Thompson II was pending, appellant filed a
motion in the trial court asserting that his sentence to a consecutive term of community
control on Counts 1 and 3 was void pursuant to Hitchcock. On November 8, 2019,
appellant’s probation officer filed a statement of violations with the court alleging that
appellant violated his community control by failing to make adequate payments toward
restitution. The balance remaining on appellant’s restitution as of November 8, 2019 was
$620,175.
{¶ 12} The trial court held a community control revocation hearing on December 20,
2019. The court noted that there were “a couple of issues” before the court at the hearing,
including the “revocation as it relates to the judicial release * * *, and then the revocation
as it relates to the original sentence in which the Court imposed a split sentence of
community control.” (Dec. 20, 2019 Tr. at 3.) The court noted appellant’s October 23, 2019
motion and found appellant’s sentence to a consecutive term of community control on
Counts 1 and 3 to be “a void sentence.” (Dec. 20, 2019 Tr. at 3-4.) As such, the court
concluded that appellant “[could not] be revoked on that” and “would have to be
resentenced” on Counts 1 and 3. (Dec. 20, 2019 Tr. at 4.) Based on testimony from
appellant’s probation officer, the court revoked appellant’s judicial release community
control due to appellant’s failure to make sufficient payments toward his restitution.
{¶ 13} On January 23, 2020, the court held a hearing to address appellant’s ability
to pay restitution. Following the hearing, the court issued a judgment entry finding
appellant willfully or intentionally failed to pay restitution by not making a bona fide effort
to acquire the resources to pay.
{¶ 14} The trial court held a sentencing hearing on June 25, 2020 to address both
the “revocation as to Counts 4 through 23 and sentencing as to Counts 1 and 3.” (June 25,
No. 22AP-321 5
2020 Tr. at 3.) The court noted the pending appeal in Thompson II but stated that it
wanted to “move forward” with the revocation and resentencing. (June 25, 2020 Tr. at 7.)
The court stated that, “with respect to Counts 4 through 23,” it had revoked appellant’s
community control and was “impos[ing] the remaining days on the [five-year] sentence.”
(June 25, 2020 Tr. at 12, 14.) The court noted that appellant had “1,520 days jail and prison
time.” (June 25, 2020 Tr. at 14.) The court sentenced appellant to concurrent five-year
terms of imprisonment on Counts 1 and 3. (June 25, 2020 Tr. at 15.)
{¶ 15} On July 10, 2020, the trial court issued a judgment entry imposing sentence.
The court stated that appellant’s sentence on Counts 1 and 3 was “void under State v.
Hitchcock,” and the court resentenced appellant to concurrent six-year terms of
imprisonment on Counts 1 and 3. (July 10, 2020 Entry at 2.) The court reimposed the
aggregate five-year prison sentence on Counts 4 through 23 and stated that the sentence on
Counts 4 through 23 would run “consecutively to Counts One and Three, for a total of
Eleven (11) years.” (July 10, 2020 Entry at 3.) The court ordered appellant to pay
restitution in the amount of $625,727.86 to the church. On July 22, 2020, the court granted
appellant’s motion to stay sentence pending appeal.
{¶ 16} Appellant appealed the July 10, 2020 entry to this court. In State v.
Thompson, 10th Dist. No. 20AP-352, 2021-Ohio-4491 (“Thompson III”), decided
December 21, 2021, we resolved the appeal and affirmed in part and reversed in part the
trial court’s July 10, 2020 entry. We agreed with appellant that the trial court lacked
jurisdiction to resentence him on Counts 1 and 3 while Thompson II was pending. As such,
we held that the portion of the July 10, 2020 entry “resentencing appellant to a prison term
on Counts 1 and 3 [was] void” and that “[a]ppellant’s sentence on Counts 1 and 3 remain[ed]
the sentence originally imposed in 2010: 5-year terms of community control to be served
concurrently to each other and consecutive to the sentence on Counts 4 through 23.”
Thompson III at ¶ 33, citing Harper at ¶ 42. We also clarified that, when the trial court
granted appellant judicial release in 2015, it could only release him from the non-
mandatory prison sentence he was serving on Counts 4 through 23; it could not grant
appellant judicial release from his term of community control on Counts 1 and 3.
Thompson III at ¶ 26. Because appellant had to serve the remainder of his prison term on
Counts 4 through 23 due to the revocation of his judicial release community control, and
No. 22AP-321 6
because the trial court originally sentenced appellant to serve Counts 1 and 3 consecutive
to Counts 4 through 23, we noted that the five-year term of community control on Counts
1 and 3 would begin after appellant completed “the approximate 11-month prison term
remaining on Counts 4 through 23.” Thompson III at ¶ 34.
{¶ 17} In Thompson III, appellant also argued the trial court erred by finding he did
not make a sufficient bona fide effort to acquire the resources to pay his restitution. We
reviewed the evidence presented at the January 23, 2020 ability to pay hearing and
determined that the record “supported the court’s conclusion that appellant willfully or
intentionally failed to pay restitution by not making a bona fide effort to acquire the
resources to do so.” Thompson III at ¶ 45. See Bearden v. Georgia, 461 U.S. 660 (1983).
In Thompson III, we reversed the portion of the court’s July 10, 2020 entry resentencing
appellant on Counts 1 and 3 but affirmed the court’s decision to revoke appellant’s judicial
release community control and impose the remainder of the prison sentence on Counts 4
through 23. We remanded the case to the trial court for proceedings consistent with our
decision.
{¶ 18} On March 25, 2022, the trial court held a sentence enforcement hearing. At
the hearing, defense counsel asked the court to “exercise a degree of discretion and mercy,”
and place appellant “on community control now” rather than imposing the “ten months of
imprisonment followed by five more years of [community control].” (Mar. 25, 2022
Hearing Tr. at 6.) Appellant and appellant’s wife personally addressed the court. The
prosecutor noted that the court did not have “the authority to do anything but enforce * * *
the 305 days that [appellant] ha[d] left” on his prison sentence on Counts 4 through 23.
(Mar. 25, 2022 Hearing Tr. at 23.) The court initially stated that it had to “enforce” the five-
year prison sentence on Counts 1 and 3, but the prosecutor “clarif[ied]” that the court was
“sending [appellant] back” to serve the rest of his five-year prison sentence on Counts 4
through 23. (Mar. 25, 2022 Hearing Tr. at 24, 26-27.) The court agreed with the prosecutor
and stated that appellant’s sentence consisted of a five-year term of imprisonment on
Counts 4 through 23 “running consecutive to Counts 1 and 3 which he is placed on
community control for the split sentence.” (Mar. 25, 2022 Hearing Tr. at 27-28.)
{¶ 19} On May 6, 2022, the trial court issued a judgment entry imposing sentence.
The court noted appellant’s original 2010 sentence and noted that on December 20, 2019,
No. 22AP-321 7
the court revoked appellant’s community control and found appellant’s sentence on Counts
1 and 3 void pursuant to Hitchcock. The court stated that on June 26, 2020, appellant
appeared in court represented by counsel and the court afforded appellant an opportunity
to make a statement on his own behalf in mitigation. The court then stated as follows:
As to Counts One and Three, the Court hereby imposes the
following sentence: Six (6) YEARS as to Count One and
Six (6) YEARS as to Count Three, to run currently and
to be served at the OHIO DEPARTMENT OF
REHABILITATION AND CORRECTIONS. As to the
remaining Counts, based on all the foregoing, the Court
hereby imposes the following sentence: Sixty (60) months
as to Counts Four, Five, Six, Seven, Eight, Nine, Ten,
Eleven, Twelve, Thirteen, Fourteen, Fifteen, and
Sixteen; Twelve (12) months as to Counts Seventeen,
Eighteen, Nineteen, Twenty, Twenty-one, and
Twenty-two. Said sentence is to be served at the
OHIO DEPARTMENT OF REHABILITATION AND
CORRECTIONS. Counts Four through Twenty-three
are to run concurrently to each other, but
consecutively to Counts One and Three, for a total of
Eleven (11) years. The sentence is to be enforced
July 24, 2020.
(Emphasis sic.) (May 6, 2022 Entry at 3.)
{¶ 20} The trial court further stated that appellant “appealed the Court’s decision,”
resulting in Thompson III. (May 6, 2022 Entry at 3.) The court noted it held a sentence
enforcement hearing on March 25, 2022, where it “addressed [appellant] personally,
affording him an opportunity to make a statement in his own behalf in the form of
mitigation.” (May 6, 2022 Entry at 3.) The court stated that it “hereby imposes a period of
Community Control for Five (5) YEARS, for Counts One and Three” to be served “after the
prison term imposed on the other counts.” (May 6, 2022 Entry at 4.) The court imposed
community control sanctions and ordered appellant to “pay restitution of $625,727.86.”
(May 6, 2022 Entry at 4.) On June 6, 2022, the court granted appellant’s motion to stay
sentence pending appeal.
II. Assignments of Error
{¶ 21} Appellant appeals and assigns the following four assignments of error for our
review:
No. 22AP-321 8
[I.] The Trial Court’s Judgment Entry of May 6, 2022, Violates
Appellant’s Constitutional Rights to Due Process of Law and
Contravenes Crim.R. 32(C).
[II.] Imposing a Prison Sentence Upon Appellant Solely For
Insufficient Payment Towards Financial Obligations, When
Appellant Habitually Paid on Those Obligations as Directed
By His Probation Officer, Violates Appellant’s Constitutional
Rights to Equal Protection and Due Process of Law.
[III.] The Portion of Appellant’s Sentence Which Imposed
Delayed Community Control on Counts One and Three May
Not Be Actually Imposed, Because It Was Illegal at Its
Inception, Has Been Termed “Void” By the Trial Court, and it
Would Violate Constitutional Due Process and Thwart R.C.
2929.15(A) to Begin a New Term of Community Control
Thirteen Years After Original Imposition of Sentence.
[IV.] Appellant May Not Have His Community Control
Revoked on Counts One and Three Because That Directly
Contradicts the Explicit Prior Ruling of This Court in
Thompson III.
III. First & Fourth Assignments of Error – The May 6, 2022 Entry
{¶ 22} For ease of analysis, we address appellant’s first and fourth assignments of
error jointly. Appellant’s first assignment of error asserts the trial court’s May 6, 2022 entry
contravenes Crim.R. 32(C) and his right to due process because the entry is ambiguous
regarding his sentence. Appellant’s fourth assignment of error asserts the trial court erred
by sentencing him to a term of imprisonment on Counts 1 and 3 in the May 6, 2022 entry.
{¶ 23} A judgment of conviction must “set forth the fact of conviction and the
sentence.” Crim.R. 32(C). A sentence is defined as “the sanction or combination of
sanctions imposed by the sentencing court on an offender who is convicted of or pleads
guilty to an offense.” R.C. 2929.01(EE). The Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution, applicable to the states through the
Fourteenth Amendment to the United States Constitution, “ ‘protects against multiple
punishments for the same offense.’ ” United States v. DiFrancesco, 449 U.S. 117, 129
(1980), quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Accord State v. Ruff,
143 Ohio St.3d 114, 2015-Ohio-995, ¶ 10.
No. 22AP-321 9
{¶ 24} The May 6, 2022 entry states both that the court “hereby imposes the
following sentence: Six (6) YEARS as to Count One and Six (6) YEARS as to Count Three,”
and that the court “hereby imposes a period of Community Control for Five (5) YEARS, for
Counts One and Three.” (Emphasis omitted.) (May 6, 2022 Entry at 3-4.) Accordingly, the
May 6, 2022 entry appears to sentence appellant to both a term of imprisonment and a
term of community control on Counts 1 and 3.
{¶ 25} We are cognizant the trial court was detailing the history of the case in the
May 6, 2022 entry, and that the court’s reference to the six-year term of imprisonment on
Counts 1 and 3 likely referred to the sentence the court imposed on July 10, 2020. Indeed,
the May 6, 2022 entry states that the prison sentence on Counts 1 and 3 “is to be enforced
July 24, 2020” and that appellant “appealed the Court’s decision.” (Emphasis omitted.)
(May 6, 2022 Entry at 3.) However, by using the present tense and stating that the court
“hereby imposes” both the six-year prison term and the five-year term of community
control on Counts 1 and 3, the May 6, 2022 entry is ambiguous regarding appellant’s
sentence. (May 6, 2022 Entry at 3.)
{¶ 26} It is axiomatic that “[a] court of record speaks only through its journal
entries.” State ex rel. Geauga Cty. Bd. of Commrs. v. Milligan, 100 Ohio St.3d 366, 2003-
Ohio-6608, ¶ 20. When a court’s sentencing entry is unclear and ambiguous, an appellate
court may remand for clarification. See State v. Small, 10th Dist. No. 00AP-1149 (May 1,
2001) (stating that the case had to be remanded “for clarification of appellant’s sentence”
because the “sentence [was] unclear”). See also State v. Marbury, 10th Dist. No. 03AP-
233, 2004-Ohio-3373, ¶ 67, quoting State v. Nye, 10th Dist. No. 95APA11-1490 (June 4,
1996) (stating that “ ‘a defendant [is] entitled to have ambiguous language construed in his
favor, if the court’s oral pronouncement of the sentence differed from the journal entry’ ”).
{¶ 27} However, the trial court did accurately state appellant’s sentence at the end
of the March 25, 2020 hearing. Although the court initially indicated appellant’s sentence
on Counts 1 and 3 was a term of imprisonment, the court corrected itself and stated that
appellant’s sentence consisted of a five-year term of imprisonment on Counts 4 through 23
and a consecutive term of community control on Counts 1 and 3. (Mar. 25, 2022 Hearing
Tr. at 24, 27-28.) The court told the prosecutor he was “correct” when the prosecutor stated
that appellant’s sentence consisted of a “five-year prison term” on “Counts 4 through 23”
No. 22AP-321 10
and a “five-year term of community control” on “Counts 1 and 3” to be served “consecutive
to his being revoked on Counts 4 through 23.” (Mar. 25, 2022 Hearing Tr. at 27.)
{¶ 28} “It is well settled that courts possess the authority to correct errors in
judgment entries so that the record speaks the truth.” State v. Lester, 130 Ohio St.3d 303,
2011-Ohio-5204, ¶ 18, citing State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 163-64,
(1995); Crim.R. 36. Nunc pro tunc entries “are used to make the record reflect what the
court actually decided and not what the court might or should have decided or what the
court intended to decide.” Lester at ¶ 18, citing State v. Miller, 127 Ohio St.3d 407, 2010-
Ohio-5705, ¶ 15. Clerical errors subject to correction through a nunc pro tunc entry include
any “error, mistake, or omission that is mechanical in nature and apparent on the record
and does not involve a legal decision or judgment.” Id., citing Miller at ¶ 15. See State v.
Taylor, 3d Dist. No. 13-10-49, 2011-Ohio-5080, ¶ 52-53 (stating that “[d]espite the
innumerable errors in the verdict forms and judgment entries” the errors were “clerical”
and correctable through a nunc pro tunc entry); State v. Davids, 8th Dist. No. 110890,
2022-Ohio-2272, ¶ 55. Because the trial court accurately stated appellant’s sentence at the
end of the March 25, 2022 hearing, the court may correct the clerical errors in the May 6,
2022 entry through a nunc pro tunc entry.
{¶ 29} Additionally, although defense counsel asked the trial court to exercise
discretion regarding appellant’s sentence at the March 25, 2022 hearing, we note that the
trial court did not have such discretion. “It is well settled that ‘[a] trial court must follow the
mandate of the appellate court and, in the case of a partial remand, the trial court may not
try any issue other than that set forth in the [appellate court’s] mandate.’ ” Pingue v.
Hyslop, 10th Dist. No. 01AP-1000, 2002-Ohio-2879, ¶ 22, quoting Oliver v. Empire Equip.
Co., 8th Dist. No. 48686 (Apr. 11, 1985). Accord State v. Bass, 10th Dist. No. 14AP-992,
2015-Ohio-3979, ¶ 9; State v. Zell, 6th Dist. No. E-14-013, 2014-Ohio-4973, ¶ 12. A trial
court must “proceed on remand from the point at which the error occurred.” State v. Chinn,
85 Ohio St.3d 548, 565 (1999). See also State v. Gales, 9th Dist. No. C.A. 30532, 2023-
Ohio-2753, ¶ 5-6. In Thompson III, we held that the trial court’s July 10, 2020 resentencing
on Counts 1 and 3 was void, that appellant’s sentence on Counts 1 and 3 remained the
sentence originally imposed in 2010, and that appellant had to serve the balance of his
prison sentence remaining on Counts 4 through 23 due to the revocation of his judicial
No. 22AP-321 11
release community control. Thus, following Thompson III, the trial court did not have
discretion to consider whether to revoke appellant’s judicial release community control,
whether to reimpose the prison sentence on Counts 4 through 23, or to otherwise
reconsider appellant’s sentence on Counts 1 and 3.
{¶ 30} Our review of the May 6, 2022 entry reveals additional clerical errors in the
entry. Although the trial court stated the sentence for Count 23 at the March 25, 2022
hearing, the May 6, 2022 entry does not identify the sentence for Count 23. The May 6,
2022 entry states that appellant had “27 days of jail time credit,” but the prosecutor
informed the court at the March 25, 2022 hearing that appellant had just “305 days * * *
left” to serve on Counts 4 through 23, and the trial court previously noted that appellant
had “1,520 days of jail and prison time.” (May 6, 2022 Entry at 4; Mar. 25, 2022 Hearing
Tr. at 23; June 25, 2020 Tr. at 14.) The May 6, 2022 entry also identified appellant’s
restitution balance as $625,727.86. At the March 25, 2022 hearing, the court recognized
that $625,727.86 was the “original amount” of restitution. (Mar. 25, 2022 Hearing Tr. at
28.) The record demonstrates that appellant’s restitution balance was $625,727.86 in
2015, and that the balance had decreased since that time. Accordingly, in the nunc pro tunc
entry, the court must accurately state appellant’s sentence on all counts, accurately credit
appellant with time served on Counts 4 through 23, and accurately state appellant’s current
restitution balance.
{¶ 31} Under his first assignment of error, appellant also asks this court to terminate
his sentence to community control on Counts 1 and 3. Appellant contends that, pursuant
to his term of judicial release community control, he has “already served, practically
speaking, much more than the [five-year] maximum term of community control available
under” R.C. 2929.15(A)(1). (Appellant’s Brief at 35.) We disagree.
{¶ 32} In Thompson III, we explained that, when the trial court granted appellant
judicial release, it could only release him from the prison sentence he was serving on Counts
4 through 23. During his term of judicial release community control, appellant was “still
effectively serving his sentence on Counts 4 through 23.” Thompson III at ¶ 30. Because
the trial court originally sentenced appellant to serve his community control sentence on
Counts 1 and 3 consecutive to his sentence on Counts 4 through 23, “appellant’s sentence
on Counts 1 and 3 could not begin until appellant completed his sentence on Counts 4
No. 22AP-321 12
through 23,” either by “successfully complet[ing] the term of his judicial release community
control or complet[ing] the prison term on Counts 4 through 23.” Thompson III at ¶ 31.
{¶ 33} Appellant now contends that, because he served nearly all his five-year term
of judicial release community control before the trial court revoked his judicial release, he
cannot serve his five-year sentence to community control on Counts 1 and 3. R.C.
2929.15(A)(1) provides, in relevant part, as follows:
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 on
an offender under this division shall not exceed five years.
(Emphasis added.)
{¶ 34} However, appellant has not served any of his sentence to community control
under R.C. 2929.15. Rather, he has only served his term of judicial release community
control under R.C. 2929.20. R.C. 2929.20(K) provides, in relevant part, as follows:
If the court grants a motion for judicial release under this
section, the court shall order the release of the eligible
offender or state of emergency-qualifying offender, shall place
the offender under an appropriate community control
sanction, under appropriate conditions, and under the
supervision of the department of probation serving the court
and shall reserve the right to reimpose the sentence that it
reduced if the offender violates the sanction. If the court
reimposes the reduced sentence, it may do so either
concurrently with, or consecutive to, any new sentence
imposed on the eligible offender or state of emergency-
qualifying offender as a result of the violation that is a new
offense. Except as provided in division (N)(5)(b) of this
section [pertaining to offenders who are in imminent danger
of death, medically incapacitated, or terminally ill], the period
of community control shall be no longer than five years. The
court, in its discretion, may reduce the period of community
control by the amount of time the offender spent in jail or
prison for the offense and in prison.
No. 22AP-321 13
{¶ 35} Accordingly, the plain language of R.C. 2929.15 and 2929.20 demonstrate
that each statute contains a five-year limitation “but as it pertains to the subject matter of
each of the statutory sections.” State v. Briggs, 8th Dist. No. 99980, 2014-Ohio-705, ¶ 13.
Compare R.C. 2929.20(N)(5)(b) (stating that if a court grants a terminally ill offender
judicial release, the court must place the offender on community control but the “period of
community control is not subject to the five-year limitation described in division (K) of this
section”) (emphasis added); with R.C. 2929.15(B)(1)(a) (stating that if an offender violates
their community control imposed pursuant to R.C. 2929.15, the sentencing court my
impose a longer time under the same sanction so long as “the total time under the sanctions
does not exceed the five-year limit specified in division (A) of this section”) (Emphasis
added.).
{¶ 36} “Courts have consistently found that R.C. 2929.15 and R.C. 2929.20 are
independent statutes and serve different purposes.” State v. Justice, 4th Dist. No. 12CA11,
2013-Ohio-2049, ¶ 11. See State v. Jones, 3d Dist. No. 10-07-26, 2008-Ohio-2117, ¶ 12.
Indeed, “[w]hile community control sanctions are imposed when judicial release is granted,
judicial release is different from and not synonymous with community control.” (Emphasis
sic.) State v. Arm, 3d Dist. No. 14-14-03, 2014-Ohio-3771, ¶ 1, fn. 1. Accord State v.
Lammie, 3d Dist. No. 3-21-12, 2022-Ohio-419, ¶ 10; Thompson III at ¶ 28.
{¶ 37} In State v. Jenkins, 4th Dist. No. 10CA3389, 2011-Ohio-6924, the court
rejected the contention that R.C. 2929.15(A)(1) and 2929.20(K) should be read together to
impose a single five-year limitation on both types of community control. The court
concluded that “the plain language” of the statutes demonstrated “R.C. 2929.15(A)(1) and
R.C. 2929.20(K) should be read separately, not together.” Id. at ¶ 16. The court noted that
the language in R.C. 2929.15(A)(1), stating the five-year limitation applicable to community
control sanctions imposed “under this division,” clearly “limit[ed] R.C. 2929.15(A)(1)’s five-
year maximum to community control imposed under R.C. 2929.15(A)(1).” Id. at ¶ 16. The
court further noted that, while R.C. 2929.20(K) expressly permitted a court to reduce the
term of judicial release community control by the amount of time the offender spent in jail
or prison, “having served community control under R.C. 2929.15 is not listed as something
that may reduce community-control time under R.C. 2929.20(K).” (Emphasis sic.) Id. at
¶ 16. The court found “no statutory language to suggest that the five-year maximums under
No. 22AP-321 14
R.C. 2929.15(A)(1) and R.C. 2929.20(K) should be combined.” Id. at ¶ 14. Accord Briggs
at ¶ 14-15.
{¶ 38} We agree with Jenkins. The plain language of R.C. 2929.15 and 2929.20
demonstrate that each statute imposes a five-year limitation on the term of community
control imposed under each respective division. Thus, an offender may serve a five-year
term of community control under R.C. 2929.15 and a five-year term of judicial release
community control under R.C. 2929.20. There is no language in either statute indicating
that the General Assembly intended for R.C. 2929.15 and 2929.20 to impose a collective
five-year limitation on both a sentence of community control and a term of community
control imposed pursuant to judicial release. Such a finding would contravene the well-
established principle that R.C. 2929.15 and 2929.20 are separate statutes with different
purposes and would add language to the statutes by judicial construction. See Gabbard v.
Madison Local School Dist. Bd. of Edn., 165 Ohio St.3d 390, 2021-Ohio-2067, ¶ 13 (holding
that a court must “give effect to the words the General Assembly has chosen, and * * *
neither add to nor delete from the statutory language”).
{¶ 39} Accordingly, appellant’s term of judicial release community control on
Counts 4 through 23 may not reduce appellant’s sentence to community control on Counts
1 and 3. Because appellant has yet to serve any of his original sentence to community
control on Counts 1 and 3, appellant has not exceeded the maximum duration of
community control under R.C. 2929.15(A)(1).
{¶ 40} We acknowledge that the present case presents the unusual situation where
appellant is serving an unlawful split sentence. Appellant could have, but did not, raise an
argument regarding his sentence to a consecutive term of community control in his direct
appeal. Although the trial court sentenced appellant in 2010, and the Supreme Court
decided Hitchcock in 2019, nothing prevented appellant from raising an argument
regarding his split sentence in his direct appeal. See State v. Reynolds, 79 Ohio St.3d 158,
161-62 (1997) (holding that, although applicable case law would have defeated the
defendant’s arguments, nothing “precluded [the defendant] from directly appealing the
issues” and, by failing to raise the issues in his direct appeal, res judicata barred the
defendant from raising the issues in a subsequent proceeding); State v. Braden, 10th Dist.
No. 17AP-321, 2018-Ohio-1807, ¶ 13 (explaining that a “change in case law after final
No. 22AP-321 15
judgment does not prevent the application of res judicata”); State v. Ayala, 10th Dist. No.
12AP-1071, 2013-Ohio-1875, ¶ 14, quoting State v. Szefcyk, 77 Ohio St.3d 93, 95 (1996). See
also Harper at ¶ 5 (holding that when a sentencing court has jurisdiction to act, sentencing
errors render the sentence “voidable, not void, and it is not subject to collateral attack”). As
such, res judicata barred appellant’s claims regarding his split sentence in each proceeding
following his direct appeal. Thompson II at ¶ 13.
{¶ 41} Based on the foregoing, we sustain appellant’s fourth assignment of error, and
sustain in part and overrule in part appellant’s first assignment of error.
IV. Second Assignment of Error – Revocation of Community Control
{¶ 42} Appellant’s second assignment of error asserts the trial court erred by
revoking his community control due to his insufficient payments toward restitution.
Appellant claims he did not receive “clear notice or fair warning” that his restitution
payments of $200 per month from July 2019 onward would result in revocation of his
community control. (Appellant’s Brief at 47-48.) See United States v. Twitty, 44 F.3d 410,
412 (6th Cir.1995), citing United States v. Gallo, 20 F.3d 7, 11 (1st Cir.1994) (stating that
due process requires “notice or fair warning of what conduct might result in revocation” of
probation).
{¶ 43} The trial court revoked appellant’s judicial release community control at the
December 20, 2019 hearing and reimposed the prison term on Counts 4 through 23 at the
June 25, 2020 sentencing hearing. Accordingly, appellant could have raised his present
argument regarding the revocation of his community control in Thompson III. “Res
judicata may be applied to bar further litigation of issues that were raised previously or
could have been raised previously in an appeal.” State v. Houston, 73 Ohio St.3d 346, 347
(1995). Accord State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus
(holding that a final judgment of conviction bars a defendant from “raising and litigating in
any proceeding except an appeal from that judgment, any defense or any claimed lack of
due process that was raised or could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or on an appeal from that judgment”) (emphasis
sic); State v. Martin, 10th Dist. No. 07AP-362, 2008-Ohio-3299, ¶ 7; State v. Bridgewater,
10th Dist. No. 22AP-417, 2023-Ohio-1211, ¶ 11. Res judicata “requires a plaintiff to present
every ground for relief in the first action, or be forever barred from asserting it.” Natl.
No. 22AP-321 16
Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62 (1990). The doctrine “promotes the
principles of finality and judicial economy by preventing endless relitigation of an issue on
which a defendant has already received a full and fair opportunity to be heard.” State v.
Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 18.
{¶ 44} Although appellant did not raise in Thompson III the precise argument he
raises now, “res judicata bars someone from raising a claim that could have been raised and
litigated in a prior proceeding.” State v. Blanton, 171 Ohio St.3d 19, 2022-Ohio-3985, ¶ 2,
citing Perry. Accordingly, because appellant could have raised an argument in Thompson
III that the revocation of his community control failed to comply with due process, res
judicata bars appellant from raising this claim in the present appeal.
{¶ 45} Appellant contends that applying res judicata to bar his present argument
would be unjust. (Appellant’s Brief at 49-51.) “The binding effect of res judicata has been
held not to apply when fairness and justice would not support it.” State ex rel. Estate of
Miles v. Piketon, 121 Ohio St.3d 231, 2009-Ohio-786, ¶ 30. While exceptions to res judicata
“may apply in some extraordinary situations,” courts will not find an exception to the
doctrine “when the parties had a full and fair opportunity to be heard on an issue, the trial
court issued a final, appealable order determining that issue, the parties failed to pursue a
direct appeal or other available remedies to challenge that court's order,” and the record
contains no evidence of “bad-faith acts” by the parties. AJZ’s Hauling, L.L.C. v. Trunorth
Warranty Programs of N. Am., ___ Ohio St.3d ___, 2023-Ohio-3097, ¶ 18, 19. See also
Natl. Amusements, Inc. at 62-63, citing Friedenthal, Kane & Miller, Civil Procedure, 656,
Section 14.8 (1985). Appellant had the opportunity to raise the argument he now presents
in Thompson III, and the record contains no evidence of bad-faith acts by the parties. As
such, appellant does not convince this court that the application of res judicata would be
unjust in the present case.
{¶ 46} Although appellant’s present contentions are barred by res judicata, appellant
has yet to serve his five-year term of community control on Counts 1 and 3. Considering the
history of this case, we find the trial court should establish a specific monthly amount
appellant must pay toward his restitution to comply with his community control sanctions.
The “monthly restitution amount should not exceed the percentage of [appellant’s] wages
allowed to be garnished under R.C. 2716.02 and R.C. 2929.18(D)(2)[(e)], which limits the
No. 22AP-321 17
monthly payment to 25% of the debtor’s personal disposable income.” State v. Barker, 2d
Dist. No. 26703, 2016-Ohio-315, ¶ 30. See also State v. Will, 10th Dist. No. 18AP-759, 2019-
Ohio-3906, ¶ 7, 33; State v. Estright, 9th Dist. No. 27598, 2016-Ohio-1194, ¶ 2, 3.
Accordingly, when appellant begins his term of community control on Counts 1 and 3, the
trial court should hold a hearing to consider appellant’s ability to pay and establish a
reasonable monthly restitution payment for him. Appellant may pay more than the
minimum amount each month, and is encouraged to do so, but so long as he pays the
minimum monthly amount he will not violate the financial sanction of his community
control.
{¶ 47} Based on the foregoing, we overrule appellant’s second assignment of error.
V. Third Assignment of Error – Split Sentence
{¶ 48} Appellant’s third assignment of error asserts that his sentence to a
consecutive term of community control on Counts 1 and 3 was illegal pursuant to Hitchcock.
(Appellant’s Brief at 53.) Appellant previously raised this argument in Thompson II, and
we held that res judicata barred appellant from raising a claim regarding his split sentence
in a proceeding subsequent to his direct appeal. Thompson II at ¶ 12-13. See also Peoples
at ¶ 35. Res judicata continues to bar appellant’s argument regarding his sentence to a
consecutive term of community control on Counts 1 and 3. Appellant’s third assignment of
error is overruled.
VI. Conclusion
{¶ 49} Having sustained in part and overruled in part appellant’s first assignment of
error, sustained appellant’s fourth assignment of error, and overruled appellant’s second
and third assignments of error, the judgment of the Franklin County Court of Common
Pleas is affirmed in part and reversed in part. The case is remanded to that court for
proceedings consistent with law and this decision.
{¶ 50} On remand, we instruct the trial court to issue a nunc pro tunc entry to correct
the clerical errors in the May 6, 2022 entry. The nunc pro tunc entry must state that the
court’s July 10, 2020 resentencing on Counts 1 and 3 was void; that appellant’s sentence on
Counts 1 and 3 remains the sentence originally imposed on December 8, 2010; five-year
terms of community control to be served concurrently to each other and consecutive to the
sentence on Counts 4 through 23; and that, due to the revocation of appellant’s judicial
No. 22AP-321 18
release community control, appellant must serve the prison term remaining on Counts 4
through 23 with credit for time served. The nunc pro tunc entry must accurately state
appellant’s sentence on all counts, state appellant’s current restitution balance, and credit
appellant with the time he has served on Counts 4 through 23. When appellant completes
the approximate 11-month prison term remaining on Counts 4 through 23, he will begin his
five-year term of community control on Counts 1 and 3.
Judgment affirmed in part, reversed in part;
case remanded with instructions.
MENTEL, J., concurs.
BEATTY BLUNT, P.J., dissents.
BEATTY BLUNT, P.J., dissenting.
{¶ 51} I respectfully dissent. The sentencing error that occurred in 2010 has
continued through three appeals, multiple resentencings, and has never been resolved. It
has in fact been compounded several times over by every well-meaning attempt to fix it. But
the clear language and intent of R.C. 2929.15, which limits an offender’s service on
community control to a maximum of five years per case, cannot be ignored.
{¶ 52} As the majority observes, the appellant’s sentence in this case was an
improper “split sentence,” in which the trial court ordered the offender to serve a term of
community control consecutive to serving a prison sentence. Compare supra at ¶ 10-16
with State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, ¶ 1 (plurality holding that
“unless otherwise authorized by statute, a trial court may not impose community-control
sanctions on one felony count to be served consecutively to a prison term imposed on
another felony count”). And it seems plain that every error committed by the trial court
and every decision by this court since that initial sentencing, has been at least in part an
attempt to preserve the remnants of that sentence. In any event, it is undisputed that
appellant has served over four years of incarceration in prison and over five years while
released on community control sanctions. And while appellant has come nowhere near the
completion of his ordered restitution, he has satisfied all of the other conditions of his
community control sanction.
No. 22AP-321 19
{¶ 51} R.C. 2929.15(A)(1) provides, in relevant part:
The duration of all community control sanctions imposed on
an offender under this division shall not exceed five years. If
the offender absconds or otherwise leaves the jurisdiction of
the court in which the offender resides without obtaining
permission from the court or the offender’s probation officer to
leave the jurisdiction of the court, or if the offender is confined
in any institution for the commission of any offense while
under a community control sanction, the period of the
community control sanction ceases to run until the offender is
brought before the court for its further action.
{¶ 53} R.C. 2929.20(K) provides, in relevant part:
If the court grants a motion for judicial release under this
section, the court shall order the release of the eligible offender
or state of emergency-qualifying offender, shall place the
offender under an appropriate community control sanction,
under appropriate conditions, and under the supervision of the
department of probation serving the court and shall reserve the
right to reimpose the sentence that it reduced if the offender
violates the sanction. If the court reimposes the reduced
sentence, it may do so either concurrently with, or consecutive
to, any new sentence imposed on the eligible offender or state
of emergency-qualifying offender as a result of the violation
that is a new offense. Except as provided in division (N)(5)(b)
of this section, the period of community control shall be no
longer than five years. The court, in its discretion, may reduce
the period of community control by the amount of time the
offender spent in jail or prison for the offense and in prison.
The state and the majority justify their decision to exceed the five-year limitations present
in both statutes by contending, along with a few of the other District Courts of Appeals, that
the purposes of R.C. 2929.20 respecting judicial release and R.C. 2929.15 regarding
community control sentences are different, and accordingly the five-year limitations are
independent of each other. See generally State v. Jenkins, 4th Dist. No. 10CA3389, 2011-
Ohio-6924, ¶ 14 (holding that “R.C. 2929.15(A)(1) and R.C. 2929.20(K) are separate
statutes that serve different purposes * * * [and] community control imposed under R.C.
2929.15(A)(1) is separate and distinct from community control imposed under R.C.
2929.20(K)”). See also State v. Arm, 3d Dist. No. 14-14-03, 2014-Ohio-3771, ¶ 1, fn. 1
(following Jenkins), and State v. Briggs, 8th Dist. No. 99980, 2014-Ohio-705, ¶ 14-15
(following Jenkins).
No. 22AP-321 20
{¶ 54} But I am not convinced that the five-year limitations in the two statutes are
wholly independent of each other. Had the legislature chosen to adopt two completely
separate schemes for community control sanctions, it would have specifically said so. Both
the reference to the tolling of community control in R.C. 2929.15(A)(1) and the exception in
2929.20(K) permitting an extended period of community control during a medical judicial
release demonstrate that the legislature is perfectly capable of distinguishing special cases
from the general five-year limitation period. A better understanding of the statutes shows
that the two statutory limitations complement each other and work together. Under this
reading, offenders that are initially released on community control sanctions but violate
those sanctions and are incarcerated may then be granted judicial release and placed back
on community control, and are subject to a single five-year limitation rather than multiple
five-year limitations. Ohio trial courts only have the sentencing power that they are granted
by the legislature, see, e.g, State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 22, citing
Griffin & Katz, Ohio Felony Sentencing Law, Section 1:3, at 4, fn. 1 (2008), and there is no
language in the sentencing statutes that suggests it is permissible for a determined court to
place an offender on local supervision for ten years rather than five.
{¶ 55} It is notable that at the relevant time, the legislature specifically advanced a
truth in sentencing model. So, it would be strange for that same legislature to enact a
scheme. And it would have been beyond strange for the legislature, when adopting a scheme
specifically designed to advance truth in sentencing, see, e.g., Woods v. Telb, 89 Ohio St.3d
504, 508 (2000) (noting that “one of the overriding goals of SB 2 was ‘truth in sentencing,’
meaning that the sentence imposed by the judge is the sentence that is served, unless altered
by the judge”) to enact a scheme that would allow a defendant to be directly sentenced to a
community control term of five years that could be extended to a second five years after
violation without any mention of that extension when the initial sentence was imposed.
{¶ 56} The Fourth District’s decision in Jenkins provides the backbone for the
majority’s holding otherwise, but the analysis in that case is sparse. Essentially, Jenkins
rests on the statement that “other than the use of a common term - -‘community control’- -
there is no statutory language to suggest that the five-year maximums under R.C.
2929.15(A)(1) and R.C. 2929.20(K) should be combined.” Jenkins at ¶ 15. But that
“common term” is a term of art that has a specific statutory definition with specific
No. 22AP-321 21
statutory references. See generally R.C. 2929.01(E) (defining “community control
sanction” and specifically referencing R.C. 2929.15). And it almost goes without saying that
in practice, when an offender is actually granted judicial release and placed under
community control sanctions, trial courts must look to R.C. 2929.15 for any statutory limits
on the type of sanctions to be imposed and, perhaps even more importantly, for its options
to address violations of those sanctions, as R.C. 2929.20 says nothing about that subject.
{¶ 57} Accordingly, I do not believe that the Jenkins rationale stands up to scrutiny.
Rather, the logical reading of the two statutes is that they address a single temporal
limitation on the trial court’s authority to place offenders under community control
sanctions, albeit in two different circumstances. I therefore dissent from the majority’s
holding on this issue, and would remand the case to the trial court for further proceedings
consistent with that understanding of the sentencing statutes.