State v. Bailey , 2013 Ohio 5512 ( 2013 )

[Cite as State v. Bailey, 2013-Ohio-5512.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-130245
C-130246
Plaintiff-Appellee, : TRIAL NOS. B-1300413
B-1200651
vs. :
O P I N I O N.
JOSEPH BAILEY, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: December 18, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
H ILDEBRANDT , Judge.
{¶1} Following the entry of guilty pleas to two counts of breaking and
entering, the trial court sentenced defendant-appellant Joseph Bailey to community
control in the case numbered B-1200651. The trial court notified Bailey that he
would be sentenced to a total of 24 months in prison if he violated his community
control. Six months later, Bailey was convicted of breaking and entering in the case
numbered B-1300413. The trial court imposed a 12-month prison term and ordered
Bailey to pay court costs. As a result of that conviction and other violations, the trial
court revoked Bailey’s community control in the earlier case and imposed
consecutive 12-month prison terms for each of the two underlying offenses. Those
prison terms were ordered to be served consecutively to the sentence in the case
numbered B-1300413, for an aggregate sentence of 36 months. The trial court also
imposed court costs.
{¶2} Bailey now appeals both judgments, bringing forth two assignments
of error challenging the imposition of his sentences.
{¶3} In his first assignment of error, Bailey argues that the trial court erred
by imposing consecutive, maximum prison terms for the three underlying offenses.
We disagree.
{¶4} Under the standard of review set forth in R.C. 2953.08(G)(2), we may
only modify or vacate Bailey’s sentence if we “clearly and convincingly find” that
either (1) the record does not support the mandatory sentencing findings, or (2) that
the sentence is “otherwise contrary to law.” State v. White, 1st Dist. Hamilton No. C-
130114, 2013-Ohio-4225, ¶ 11. Here, the sentencing court made the appropriate
statutory findings before imposing consecutive sentences and those findings are
supported in the record. See R.C. 2929.14(C)(4). Further, we cannot say that
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OHIO FIRST DISTRICT COURT OF APPEALS
Bailey’s sentences are clearly and convincingly contrary to law given that his
sentences are within the permitted range for fifth-degree felonies, see R.C.
2929.14(A)(5), and when the sentencing court balanced Bailey’s genuine remorse
with his lengthy criminal history and his lack of previous success on community
control. The first assignment of error is overruled.
{¶5} Bailey, citing R.C. 2947.23(A)(1), contends in his second assignment
of error that the trial court erred when it imposed court costs without notifying him
that he may be required to perform community service in lieu of paying those costs.
If Bailey had been sentenced for his crimes before March 22, 2013, when the prior
version of R.C. 2947.23(A)(1) was in effect, his assignment would have merit. See
State v. Ysrael, 1st Dist. Hamilton Nos. C-100622 and C-120263, 2013-Ohio-1125,
and State v. Dillard, 1st Dist. Hamilton No. C-120058, 2012-Ohio-4018, ¶ 8. But
Bailey was sentenced in April 2013, after R.C. 2947.23(A)(1) had been amended by
2012 Sub.H.B. No. 247. The current version of R.C. 2947.23(A)(1) requires that a
defendant be notified that community service might be required for failure to pay
court costs only when “the judge or magistrate imposes a community control
sanction or other nonresidential sanction.” See State v. Gates, 11th Dist. Portage No.
2011-P-0001, 2013-Ohio-4284, fn. 1.
{¶6} Here, Bailey’s judgment included a prison term and court costs.
Because Bailey was sentenced to a prison term rather than community control or any
other nonresidential sanction, the trial court was not required to notify Bailey that he
might be required to perform community service in lieu of paying court costs. R.C.
2947.23(A)(1); see State v. Raymond, 8th Dist. Cuyahoga No. 99177, 2013-Ohio-
3144, ¶ 14.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Accordingly, the second assignment of error is overruled, and the
judgments of the trial court are affirmed.
Judgments affirmed.
H ENDON , P.J., and D EWINE , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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