State v. South , 2010 Ohio 983 ( 2010 )

[Cite as State v. South, 2010-Ohio-983.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-07-40
v.
CHARLES R. SOUTH, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2006 CR 168
Judgment Affirmed
Date of Decision: March 15, 2010
APPEARANCES:
Alison Boggs for Appellant
Terry L. Hord for Appellee
Case No. 14-07-40
WILLAMOWSKI, P.J.
{¶1} Defendant-Appellant, Charles R. South, brings this appeal from the
judgment of the Court of Common Pleas of Union County revoking his
community control and sentencing him to an eighty-four month prison term. For
the reasons set forth below, the judgment is affirmed.
{¶2} On November 22, 2006, the Union County Grand Jury indicted
South for seven counts of nonsupport of dependents in violation of R.C.
2919.21(B), felonies of the fifth degree. South entered a plea of not guilty as to all
counts in the indictment on December 4, 2006, and was referred to indigent
counsel services. Indigent counsel was appointed on December 8, 2006. On
February 2, 2007, South withdrew his plea of not guilty and entered a plea of
guilty as to all counts in the indictment, which the trial court accepted.
{¶3} South was sentenced on March 7, 2007, to a thirty-day jail term and
three years of community control, stating that “[i]f the defendant violates the terms
and conditions of Community Control, the same conditions may be re-imposed, a
greater continuum of sanctions may be imposed, or the Defendant will be
sentenced to a maximum total term of imprisonment of 84 months.” Mar. 7, 2007,
Entry, 2. Additionally, the trial court listed the terms of community control,
including the following:
5) The Defendant is further ordered to make immediate
arrangements with the Union County Child Support
Enforcement Agency to pay and will pay pursuant to said
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arrangements all support arrearages to date, and to pay support
as ordered in the sum of $548.50 each month, and to pay all
arrearages owed for support in the sum of $15,772.24.
***
16) Defendant shall not use, possess, or imbibe/ingest alcoholic
beverages and/or Scheduled drugs not prescribed by his
physician, nor shall Defendant enter any business establishment
the primary purpose of which is to dispense alcoholic beverages.
Id. No appeal was taken from these judgments.
{¶4} On September 4, 2007, South’s probation officer filed a notice of
violation of the conditions of community control, alleging that South registered a
.190 and .193 on a breath analysis test. The trial court held a community control
violation hearing on September 12, 2007, during which South admitted the
allegations. The trial court then proceeded to sentence South to a twelve-month
prison term on each conviction of nonsupport of dependents, to be served
consecutively, for a total prison term of eighty-four months, or seven years. South
appealed this judgment.
{¶5} On March 17, 2008, this court dismissed South’s appeal in State v.
South, 3d Dist. No. 14-07-40, 2008-Ohio-1143 (South I), finding that the original
sentencing entry issued by the trial court was not a final appealable order for the
reasons set forth in State v. Goldsberry, 3d Dist. No. 14-07-06, 2007-Ohio-5493(Goldsberry I). On December 24, 2008, the Ohio Supreme Court reversed our
decision in South I without discussion, and remanded the matter for this Court to
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rule on the merits of the assignments of error. See State v. South, 120 Ohio St.3d
358, 2008-Ohio-6693 (South II). See, also, State v. Goldsberry, 120 Ohio St.3d
275, 2008-Ohio-6103 (Goldsberry II). On remand, South presents the following
assignments of error for our review.
First Assignment of Error
The trial court erred when it imposed maximum, consecutive
prison sentences.
Second Assignment of Error
The trial court’s decision to revoke [South’s] community
control was an abuse of discretion.
Third Assignment of Error
The trial court erred when it failed to determine whether
[South] willfully failed to violate (sic) the terms of his
community control by not conducting a hearing to determine if
he had an ability to pay his child support before revoking his
community control.
{¶6} In his first assignment of error, South contends that the trial court
erred when it imposed maximum, consecutive prison sentences. Specifically, he
argues that R.C. 2929.14(E)(4) permits a court to impose consecutive sentences
only when it finds they are needed to protect the public from future crime or to
punish the offender. South argues that no evidence was presented that he was a
threat to the public, and that his sentence was very disproportionate to his crime of
nonsupport of dependents. This court disagrees.
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{¶7} The trial court has full discretion to impose any sentence within the
statutorily authorized ranges, including maximum and consecutive sentences.
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶37, 846 N.E.2d 1. At the
time of the original sentence placing a defendant on community control, the trial
court must notify the defendant of the duration of the possible prison term that
could result if community control is violated. R.C. 2929.19(B)(5). Following a
community control violation, the trial court must comply with the sentencing
requirements when ordering a sentence for the violations. State v. Fraley, 105
Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995. Here, South was informed at
the original sentence that if he violated the terms of his community control, he
would receive up to 84 months in prison. The trial court indicated that it
considered the record, the statements of the State, South’s statement in mitigation,
the presentence report, and the statutory factors as required. The trial court then
proceeded to sentence South to 84 months in prison for the community control
violations. Since this time was within the statutory range for the underlying
offenses and South was properly notified of the consequences of violating his
community control sanctions, the trial court did not abuse its discretion in
imposing this sentence. The first assignment of error is overruled.
{¶8} In his second assignment of error, South contends that the trial
court’s decision to revoke his community control was an abuse of discretion.
Specifically, he argues that the trial court should not have revoked his community
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control based on his alcohol consumption because this was a “small” violation of
his community control, and that the transcript demonstrates the trial court also
considered that he had not paid his child support since being placed on community
control, even though a violation notice was never filed for this alleged offense.
If the conditions of a community control sanction are violated or
if the offender violates a law or leaves the state without the
permission of the court or the offender’s probation officer, the
sentencing court may impose a longer time under the same
sanction if the total time under the sanctions does not exceed the
five-year limit specified in division (A) of this section, may
impose a more restrictive sanction under section 2929.16,
2929.17, or 2929.18 of the Revised Code, or may impose a prison
term on the offender pursuant to section 2929.14 of the Revised
Code. The prison term, if any, imposed upon a violator
pursuant to this division shall be within the range of prison
terms available for the offense for which the sanction that was
violated as imposed and shall not exceed the prison term
specified in the notice provided to the offender at the sentencing
hearing pursuant to division (B)(3) of section 2929.19 of the
Revised Code.
R.C. 2929.15(B). “Once the court finds a community control violation exists, we
review the court's decision to revoke community control under an abuse of
discretion standard.” State v. Belcher, 4th Dist. No. 06CA32, 2007-Ohio-4256,
¶20. An abuse of discretion implies that the trial court’s attitude was arbitrary,
unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 450 N.E.2d 1140.
{¶9} In this case, South admitted to violating the terms of his community
control by consuming alcohol. This violation occurred within the first six months
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of South’s release from jail. Additionally, South had not made arrangements
during that time to pay his child support and arrearages although the community
control sanctions required him to do so immediately. This failure was particularly
offensive to the trial court since the underlying charges were seven counts of
failure to pay child support. South had not maintained employment as required by
the community control sanctions. Although the trial court’s decision to terminate
community control for a “minor” violation of the terms may seem harsh, it is not
an abuse of discretion. Thus, the second assignment of error is overruled.
{¶10} Finally, South argues that the trial court erred when it failed to hold
a hearing to determine his ability to pay his child support, and thus, to determine
whether he willfully failed to comply with the terms of his community control
requiring him to pay child support. Specifically, South contends that a trial court
must make a determination of whether the defendant willfully refused to pay child
support or did not make sufficient efforts to acquire resources to pay before
revoking community control in a nonsupport of dependents case. This court has
recently addressed this issue in State v. Bowsher, 3d Dist. No. 14-07-32, 2009-
Ohio-6524. In Bowsher, the defendant was convicted of twelve counts of failing
to pay child support and was placed upon community control. A few months
later, his probation officer filed a notice of violation of community control
alleging that Bowsher had failed to pay his child support and failed to complete his
community service. The trial court then imposed a six year sentence on Bowsher.
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On appeal, this court reversed the judgment and remanded the matter for a hearing
to determine Bowsher’s ability to pay.
{¶11} Unlike the case in Bowsher, no alleged violation was made based
upon South’s failure to pay his child support. Rather the violation for which South
was sentenced was his consumption of alcohol, which was prohibited by the terms
of the community control. Specifically, the trial court made the following finding.
[T]he Court finds the Defendant violated his community control
in the following particulars:
On or about September 9, 2007 [South] registered .190 and .193
on the Breath-A-Lyzer.
It is hearby ordered that the attached journal entry is
incorporated herein and the Court finds that the shortest prison
term will demean the seriousness of the offender’s conduct and
will not adequately protect the public from future crimes by the
offender or others.
Sept. 12, 2007, entry, 1. Since South’s community control sanctions were not
terminated for failure to pay child support, but rather for a different violation, the
trial court had no duty to inquire into his ability to pay. The third assignment of
error is overruled.
{¶12} Having found no error prejudicial to the appellant herein the
judgment of the trial court is affirmed.
Judgment Affirmed
SHAW, J., concurs.
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ROGERS, J., Dissents
{¶13} I respectfully dissent from the opinion of the majority.
{¶14} In March 2007, the trial court convicted South of seven counts of
nonsupport of dependents and imposed a lump three-year term of community
control. Additionally, the journal entry of sentence reflects that South was notified
that if he “violates the terms of Community Control, the same conditions may be
re-imposed, a greater continuum of sanctions may be imposed, or the Defendant
will be sentenced to a maximum total term of imprisonment of 84 months.” (Mar.
2007 Journal Entry of Sentence, p. 2).
{¶15} In September 2007, the trial court found that South had violated the
terms of his community control by registering a .190 and .193 on a breath analysis
test. The trial court proceeded to sentence South to a twelve-month prison term on
each of his seven convictions for nonsupport of dependents, to be served
consecutively, for an aggregate seven-year prison term.
{¶16} As stated in my dissenting opinion in State v. Goldsberry, 3d Dist.
No. 14-07-05, 2009-Ohio-6026, ¶¶22-37 (Goldsberry III), and my separate
concurrence in State v. Bowsher, 3d Dist. No. 14-07-32, 2009-Ohio-6524, ¶¶8-15,
I would find that the trial court committed plain error in sentencing South to seven
prison terms for violating his community control when it initially imposed only
one term of community control at his original sentencing. Further, I would find
that plain error also occurred because the trial court did not advise South at his
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original sentencing of specific prison terms that it would impose on each count of
nonsupport if he violated the terms of his community control. I would raise these
issues sua sponte and would consider them under the plain error standard.
{¶17} In order to find plain error under Crim.R. 52(B), there must be an
error, the error must be an “obvious” defect in the trial proceedings, and the error
must have affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27,
2002-Ohio-68. Plain error is to be used “with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.”
Id. Plain error exists only in the event that it can be said that “but for the error, the
outcome of the trial would clearly have been otherwise.” State v. Biros, 78 Ohio
St.3d 426, 431, 1997-Ohio-204; see, also, State v. Johnson, 3d Dist. No. 2-98-39,
1999-Ohio-825. This Court has previously determined that plain error occurs
when a trial court fails to provide proper notice to a defendant of a specific prison
term it will impose in the event of a community control violation, and then
imposes a prison term upon the defendant when he violates his community
control. State v. Moore, 3d Dist. Nos. 5-07-18, 5-07-20, 5-07-21, 2008-Ohio-
1152.
{¶18} In State v. Goldsberry, 3d Dist. No. 14-07-06, 2007-Ohio-5493(Goldsberry I), and State v. South, 3d Dist. No. 14-07-40, 2008-Ohio-1143 (South
I), this Court considered, sua sponte, whether a trial court’s journal entry of
sentence that imposed a lump community control sentence for a multiple count
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conviction constituted a final appealable order. Consistent with the previous
decisions of this Court, as well as several other courts of appeal, we determined
there was no final appealable order in either case because the trial court’s journal
entries of sentence failed to separately dispose of each of the multiple counts for
which the defendants were convicted. See South I; Goldsberry I; State v. Moore,
3d Dist. No. 14-06-53, 2007-Ohio-4941; State v. Sanchez, 2d Dist. No. 2006-CA-
154, 2009-Ohio-813; State v. Phillis, 4th Dist. No. 06CA75, 2007-Ohio-6893;
State v. Waters, 8th Dist. No. 85691, 2005-Ohio-5137; State v. Cooper, 8th Dist.
No. 84716, 2005-Ohio-754; State v. Hicks, 8th Dist. No. 84418, 2004-Ohio-6113;
State v. Goodwin, 9th Dist. No. 23337, 2007-Ohio-2343; State v. Hoelscher, 9th
Dist. No. 05CA0085-M, 2006-Ohio-3531; State v. Garner, 11th Dist. No. 2002-T-
0025, 2003-Ohio-5222 (holding that “[n]owhere in R.C. 2929.15, which governs
community control sanctions, does it state that if a court chooses to sentence a
person to something other than a prison term the court may only impose a single
term, regardless of the number of charges”). However, the Supreme Court of Ohio
reversed our decisions, without opinions, and remanded the matters for us to rule
on the merits. See State v. South, 120 Ohio St.3d 358, 2008-Ohio-6693 (South II);
State v. Goldsberry, 120 Ohio St.3d 275, 2008-Ohio-6103 (Goldsberry II ).
{¶19} I reiterate the reasoning behind this Court’s finding in Goldsberry I
and South I that a trial court must separately dispose of each count of a conviction,
as expressed in Goldsberry III (Rogers, J., dissenting). In summary, I believe that,
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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, pronounced by the Supreme Court of Ohio, 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. See Id. Additionally, I
reiterate my belief that R.C. 2929.19(B) requires a trial court to advise an offender
of a specific prison term that will be imposed on each individual count if the
offender violates the terms of his community control, given the Supreme Court of
Ohio’s emphasis on specificity as set forth in State v. Brooks, 103 Ohio St.3d 134,
2004-Ohio-4746. See Goldsberry III, 2009-Ohio-6026, at ¶¶31-34 (Rogers, J.,
dissenting).
{¶20} Here, I would find that the trial court failed to properly advise South
at his original March 2007 sentencing of specific prison terms that it would
impose on each count if he violated the terms of his community control.
Additionally, I would find this to be plain error because the trial court failed to
provide South with proper notice of specific prison terms for each count of
nonsupport, but proceeded to impose seven prison terms upon his violation of
community control. See Moore, Bowsher, supra. Further, I would find that plain
error was present because South was convicted of seven counts of nonsupport, but,
at his original sentencing, received only one term of community control. As the
trial court was required to sentence him on each count separately, but sentenced
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him to only one lump term of community control, the maximum sentence that
could be imposed upon his violation of community control was twelve months, not
seven times twelve. See State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶9
(“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”). Thus, the trial court deviated from the legal rule that a trial court must
impose a sentence on each count separately, the deviation is an obvious defect,
and the imposition of seven prison terms where the defendant is originally
sentenced on only one count affects a substantial right. See, also, Goldsberry III,
2009-Ohio-6026, at ¶¶35-36 (Rogers, J., dissenting). Consequently, I would
reverse and remand the matter for resentencing on these bases, with a prison term
not an option. See Brooks, 103 Ohio St.3d 134, at ¶33; Moore, 2008-Ohio-1152, at
¶11.
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