State v. Wood , 2015 Ohio 4243 ( 2015 )

[Cite as State v. Wood, 2015-Ohio-4243.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150197
TRIAL NO. B-1404854
Plaintiff-Appellee, :
O P I N I O N.
vs. :
SHANA WOOD, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: October 14, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michele Berry, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
MOCK, Judge.
{¶1} Defendant-appellant Shana Wood pled guilty to misuse of credit
cards, a fifth-degree felony. The trial court sentenced her to ten months in prison.
Wood now appeals, bringing forth three assignments of error, all related to the
sentence imposed.
{¶2} Because the trial court failed to properly notify Wood about her
postrelease-control obligations, we remand this cause for the trial court to correct
that portion of Wood’s sentence and provide the required postrelease-control
notification. The judgment of the trial court is otherwise affirmed.
Sentencing
{¶3} In her first assignment of error, Wood essentially argues that her
sentence is contrary to law. We disagree.
{¶4} We review Wood’s sentence under the standard of review set forth in
R.C. 2953.08(G). See State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 9 (1st
Dist.). Under that statute, we may modify or vacate a sentence only if we “clearly and
convincingly find” that the record does not support the sentencing court’s mandatory
findings or that the sentence is contrary to law. R.C. 2953.08(G)(2).
{¶5} Wood first argues her prison term is contrary to law because the trial
court was required to sentence her to community control under R.C.
2929.13(B)(1)(a). But a review of the record demonstrates that the trial court
actually had the discretion to impose a prison term.
{¶6} R.C. 2929.13(B)(1)(a) provides that for a nonviolent fourth- or fifth-
degree felony, a court must impose a community-control sanction of at least a year’s
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OHIO FIRST DISTRICT COURT OF APPEALS
duration if all of the following are met: (1) the offender has not previously been
convicted of or pleaded guilty to a felony; (2) the most serious charge at the time of
sentencing is a fourth- or fifth-degree felony; (3) if, in a case where the court believes
that no acceptable community-control sanctions are available, the court requests a
community-control option from the department of rehabilitation and correction, and
the department identifies an appropriate program; and (4) the offender has not been
convicted of or pleaded guilty to a misdemeanor offense of violence committed
during the two years before the commission of the offense for which the court is
imposing sentence. State v. Jones, 1st Dist. Hamilton No. C-130625, 2014-Ohio-
3345, ¶ 8.
{¶7} But there is an exception to this rule. A sentencing court has the
discretion to impose a prison term for a fourth- or fifth-degree felony if one of 11
criteria listed in R.C. 2929.13(B)(1)(b)(i) through (xi) applies. Id. at ¶ 9. Here, R.C.
2929.13(B)(1)(b)(iii) applies, because Wood violated a condition of her bond when
she failed to appear at the originally scheduled sentencing. Eventually, a capias was
issued for her arrest. Because she had violated a condition of her bond, the trial
court had the discretion to impose a prison term.
{¶8} Next, Wood argues that her sentence is contrary to law because the
trial court failed to make any findings under R.C. 2929.11 and 2929.12 as to why she
was not amenable to community control. This argument is meritless. R.C. 2929.11
and 2929.12 do not require the trial court to make findings. State v. Alexander, 1st
Dist. Hamilton Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 24.
{¶9} Therefore, we hold that Wood’s sentence was not clearly and
convincingly contrary to law. The first assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} In her second assignment of error, Wood maintains that the trial court
erred by failing to notify her at the sentencing hearing of her postrelease-control
obligations. The state concedes this error.
{¶11} When a trial court fails to properly advise an offender about
postrelease control, the court has violated its statutory duty, and the portion of the
offender’s sentence relating to postrelease control is void. See State v. Williams, 1st
Dist. Hamilton No. C-081148, 2010-Ohio-1879, ¶ 20. Because the trial court failed to
provide Wood with the proper postrelease-control notification, we sustain the second
assignment of error, and we remand this cause for the trial court to apply the
procedures outlined in R.C. 2929.191 to correct the postrelease-control-related
sentencing errors.
{¶12} In the third assignment of error, Wood argues that her counsel was
ineffective for failing to object to the imposition of a prison term instead of
community control and for failing to object to the trial court’s failure to notify her of
postrelease control at the sentencing hearing.
{¶13} To prevail on her claim, Wood “must show that [her] counsel’s
representation fell below an objective standard of reasonableness” and that she was
prejudiced by counsel’s deficient performance. See Strickland v. Washington, 466
U.S. 668, 687-688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
{¶14} After reviewing the record, we find, with respect to trial counsel’s
failure to object to the imposition of a prison term, that Wood cannot show that her
counsel’s representation fell below an objective standard of reasonableness where
the trial court had the discretion to impose a prison term. And Wood cannot
demonstrate that she was prejudiced by her counsel’s failure to object to the trial
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OHIO FIRST DISTRICT COURT OF APPEALS
court’s failure to notify her about postrelease control. In fact, the lack of notification
worked to Wood’s benefit. If she is not notified of her postrelease-control obligations
prior to being released from prison, she will not be subject to postrelease-control.
Accordingly, the third and final assignment of error is overruled.
{¶15} Therefore, this cause is remanded for the trial court to properly notify
Wood about her postrelease-control obligations. The judgment of the trial court is
otherwise affirmed.
Judgment affirmed in part, reversed in part, and cause remanded.
HENDON, P.J., and Cunningham, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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