State v. McClurg ( 2018 )

[Cite as State v. McClurg, 2018-Ohio-3840.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 17CA98
JAMES MCCLURG
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Case No. 2012CR0339
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT ENTRY: September 20, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP JEFFREY P. UHRICH
Prosecuting Attoney Law Office of Jeffrey P. Uhrich
Richland County, Ohio P.O. Box 1977
Westerville, OH 43086
By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
[Cite as State v. McClurg, 2018-Ohio-3840.]
Hoffman, J.
{¶1} Defendant-appellant James McClurg appeals the October 27, 2017
Community Control Violation Journal Entry entered by the Richland County Court of
Common Pleas, which found him guilty of violating his community control after Appellant
admitted such violation, and sentenced him to a two year prison term. Plaintiff-appellee
is the state of Ohio.
STATEMENT OF THE CASE
{¶2} On June 28, 2012, Appellant pled guilty to a Bill of Information charging him
with one count of burglary, in violation of R.C. 2911.12(A)(1), a felony of the third degree.
The trial court sentenced Appellant to 30 months of community control with a two year
suspended prison term to be served upon any violation of his probation.
{¶3} On February 4, 2013, a notice was filed with the trial court, alleging
Appellant had violated his community control sanctions. Appellant appeared before the
trial court on February 15, 2013, and admitted the violations. The trial court continued
Appellant on community control with the additional requirement he successfully complete
a program at a community-based correction facility (“CBCF”). The trial court filed a
Community Control Violation Journal Entry on February 15, 2013.
{¶4} On December 23, 2013, a notice was filed with the trial court, alleging
Appellant had again violated his community control sanctions. Appellant appeared before
the trial court of March 24, 2014, and admitted the violations. The trial court extended
Appellant’s probation, but tolled the term until he was released from prison on an
unrelated case (“Case No. 2013-CR-839”). The trial court filed a Community Control
Violation Journal Entry on March 24, 2014, however, the entry did not indicate the length
of the original suspended prison term that could be imposed upon a subsequent violation.
{¶5} On March 29, 2017, the trial court filed an entry captioned, “Additional
Community Control Sanctions”, which ordered Appellant to successfully complete a
program at Crosswaeh CBCF as an additional community control sanction. On
September 11, 2017, after Appellant completed his prison term in Case No. 2013-CR-
839, a notice of probation violation was filed, alleging Appellant failed to complete CBCF.
Appellant filed a Motion and Memorandum Contra Imposition of Prison Sanction on
October 5, 2017. Therein, Appellant argued the trial court failed to notify him of the
specific prison sentence at his last probation violation sentencing, and, as such, was now
prohibited from imposing a prison sanction for the current community control violation.
The state filed a response on October 20, 2017.
{¶6} Appellant admitted the probation violation on October 25, 2017. Via
Community Control Violation Journal Entry filed October 27, 2017, the trial court
sentenced Appellant to the original two year prison term.
{¶7} It is from this judgment entry, Appellant appeals, raising the following
assignments of error:
I. THE TRIAL COURT ERRED IN OVERRULING THE
APPELLANT’S 10/5/17 MOTION AND MEMORANDUM CONTRA
IMPOSITION OF PRISON SANCTION, AND THEREAFTER
SENTENCING DEFENDANT TO SERVE A TWO YEAR PRISON
SENTENCE, ALTHOUGH NO PRISON SENTENCE WAS SPECIFIED IN
PREVIOUS COMMUNITY CONTROL VIOLATION SANCTION
SENTENCING ENTRY.
II.THE TRIAL COURT ERRED WHEN IT ADDED AN ADDITIONAL
COMMUNITY CONTROL VIOLATION TO CONDITIONS PREVIOUSLY
IMPOSED THREE YEARS PRIOR, WITHOUT AN ADDITIONAL
VIOLATION OR HEARING.
I.
{¶8} In his first assignment of error, Appellant contends the trial court erred in
overruling his Motion and Memorandum Contra Imposition of Prison Sanction, and
sentencing him to serve a two year prison term when a prison term had not been specified
in the March 24, 2014 Community Control Violation Journal Entry.
{¶9} Appellant relies upon the Ohio Supreme Court’s decision in State v. Fraley,
105 Ohio St. 3d 13, 2004–Ohio–7110, in support of his position the trial court was required
to re-advise him of the specific prison term he faced at each subsequent community
control violation hearing. We agree.
{¶10} In Fraley, the trial court failed to inform the defendant at his initial sentencing
hearing of the prison term which could be imposed if he violated the terms of his
community control. Id. at ¶ 19. The trial court did, however, notify Fraley by journal entry
that harsher sanctions, including up to five years of imprisonment, could be imposed if he
failed to comply with the sanctions. Id. At a later hearing, when Fraley was continued on
community control, the trial court specifically advised him he would be sentenced to a
prison term of four years for a community control violation. Id. The Ohio Supreme Court
considered “whether a trial court is mandated to notify a defendant at the initial sentencing
hearing of a specific term of imprisonment that could be imposed if a defendant violates
the terms and conditions of his community control, or whether such notification may come
at a later sentencing hearing.” Id. at ¶ 11. (Emphasis added.)
{¶11} The Fraley Court answered the question in the affirmative, holding the
“original sentencing hearing is the time when the notification must be given for the court
to impose a prison term upon a defendant's first community control violation.” Id. at ¶ 15.
(Emphasis in original.) The Fraley Court further noted, for subsequent violations, a prison
term may be imposed if the court properly notified the defendant of the specific prison
term when continuing or “resentencing” the defendant to community control. The Court
held, when there are multiple violations of community control, “a trial court sentencing an
offender upon a violation of the offender's community control sanction must, at the time
of such sentencing, notify the offender of the specific prison term that may be imposed
for an additional violation of the conditions of the sanctions as a prerequisite to imposing
a prison term on the offender for a subsequent violation.” Id. at ¶ 18. (Emphasis added.)
{¶12} The state asserts the trial court gave Appellant adequate warning of the
specific sentence which would be imposed upon violation of his community control
sanctions at his original sentencing; therefore, the trial court was not required to re-advise
him of the penalties for a subsequent violation. The state relies upon State v. Hodge, 8th
Dist. Cuyahoga No. 93245, 2010-Ohio-78, 2010 WL 125861, in support of its position.
{¶13} In Hodge, the appellant pled guilty to one count of breaking and entering.
Id. at para. 2. The trial court sentenced him to one year of community control sanctions
and advised him: “Any violations of this order may result in imposing a longer period of
supervision, more restrictive community control sanctions or a prison term. The fine for
violation of this order will be $2500. The prison term for violation of this order will be 12
months in prison.” Id. The appellant violated his community control sanctions twice. Id.
at para. 3. After the first violation, the court ordered him to complete inpatient drug
treatment, and stated in its judgment entry “community control is continued with prior
conditions.” Id. After the second violation, the trial court sentenced the appellant to nine
months in prison. Id. On appeal, the appellant, relying on the Fraley, argued the trial court
erred in sentencing him to prison because it did not advise him again after his first violation
a prison term could be imposed.
{¶14} The Eighth District Court of Appeals declined to follow Fraley, finding:
While we agree that the language in Fraley might support that
conclusion, in context, it does not. Fraley is based upon a wholly different
set of facts than our case at bar. Hodge's original sentence was not legally
deficient; Fraley's was.
We construe the holding of the Supreme Court in Fraley narrowly to
mean that a trial court that fails to notify a defendant of the specific penalty
he will face upon violation of community control sanctions at the initial
sentencing, may “cure” that failure at a subsequent violation hearing by then
advising the defendant of the definite term of imprisonment that may be
imposed upon any subsequent finding of violation. We find nothing in the
statute or Fraley that requires a legally adequate notification in the first
instance to be given over and over again. Id.at 9.
{¶15} In her dissent in Hodge, Judge Colleen Conway Cooney wrote:
I respectfully dissent. I read the syllabus of State v. Fraley, 105 Ohio
St.3d 13, 821 N.E.2d 995, 2004-Ohio-7110, to clearly state that a trial court
sentencing an offender upon a violation of community control must, at the
time of such sentencing, notify the offender of the specific prison term that
may be imposed for an additional violation of the conditions as a
prerequisite to imposing a prison term for a subsequent violation.
In the instant case, the trial court failed to notify Hodge at the October
2008 violation hearing of the specific prison term he faced for a subsequent
violation. Therefore, I would reverse the trial court's imposition of a prison
term. Id. at 12 and 13.
{¶16} We agree with Judge Conway Cooney’s dissent and find the syllabus in
Fraley is clear. The syllabus reads:
Pursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court
sentencing an offender upon a violation of the offender's community control
sanction must, at the time of such sentencing, notify the offender of the
specific prison term that may be imposed for an additional violation of the
conditions of the sanction as a prerequisite to imposing a prison term on the
offender for a subsequent violation. Fraley, supra at syllabus.
{¶17} Although the trial court notified Appellant at his original sentencing hearing
and in the entry which memorialized it of the specific sentence of imprisonment which
could be imposed upon a probation violation, the trial court failed to re-advise Appellant
of the sentence when he appeared in court on March 24, 2014, upon a subsequent
violation. As the Ohio Supreme Court explained:
The notification requirement in R.C. 2929.19(B)(5) is meant to put
the offender on notice of the specific prison term he or she faces if a violation
of the conditions occurs. Following a community control violation, the trial
court conducts a second sentencing hearing. At this second hearing, the
court sentences the offender anew and must comply with the relevant
sentencing statutes. State v. Martin, 8th Dist. No. 82140, 2003-Ohio-3381,
2003 WL 21474154, at ¶ 35. The trial court could therefore comply with both
the sentencing statutes and our holding in Brooks if at this second hearing
the court notifies the offender of the specific prison term that may be
imposed for a subsequent violation occurring after this second hearing. We
believe that this process complies with the letter and spirit of R.C.
2929.19(B)(5) and 2929.15(B).
Fraley, supra at 17. (Emphasis added.)
{¶18} Accordingly, we find the trial court erred in imposing the suspended prison
term in October, 2017, because it failed to specifically inform Appellant of the possible
two year prison sentence which could be imposed upon a community control violation at
his sentencing hearing in March, 2014.
{¶19} Appellant’s first assignment of error is sustained.
II.
{¶20} In light of our disposition of Appellant’s first assignment of error, we find
Appellant’s second assignment of error to be moot.
{¶21} The sentence of the Richland County Court of Common Pleas is vacated
and the matter remanded for resentencing.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur