State v. Dunbarr

[Cite as State v. Dunbarr, 2014-Ohio-2723.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 13CA010475
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JONATHAN DUNBARR COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 09CR078411
DECISION AND JOURNAL ENTRY
Dated: June 23, 2014
WHITMORE, Judge.
{¶1} Defendant, Jonathan Dunbarr, appeals from the judgment of the Lorain County
Court of Common Pleas. This Court reverses.
I
{¶2} In March 2010, Dunbarr pleaded guilty to burglary, a felony of the fourth degree.
The court granted Dunbarr’s motion for Intervention in Lieu of Conviction, but he was
terminated from the program after a violation hearing in September 2010. Subsequently, the
court sentenced Dunbarr to three years of community control for the burglary conviction. At the
sentencing hearing, and in the journal entry, the court informed Dunbarr that a violation of
community control may “lead to a more restrictive sanction, a longer sanction, or a prison term
of 18 months.” In June 2012, the court found that Dunbarr had violated the terms of his
community control and ordered that he be sent to a residential treatment program.
2
{¶3} In December 2012, Dunbarr failed to appear and a warrant was issued for his
arrest.1 On January 2, 2013, the court sentenced Dunbarr to a prison term of two years for
violating the conditions of his community control. On October 31, 2013, this Court granted
Dunbarr’s request to file a delayed appeal. He now raises two assignments of error for our
review. To facilitate the analysis, we consolidate his assignments of error.
II
Assignment of Error Number One
THE TRIAL COURT COMMITTED PLAIN ERROR BY IMPOSING A TWO-
YEAR PRISON TERM FOR A COMMUNITY CONTROL VIOLATION
WHEN THE COURT HAD RESERVED ONLY EIGHTEEN MONTHS.
Assignment of Error Number Two
THE TRIAL COURT ERRED BY IMPOSING A TWO-YEAR PRISON TERM
FOR A FOURTH-DEGREE FELONY.
{¶4} In his two assignments of error, Dunbarr argues that the court erred in imposing a
two-year prison sentence for his community control violation because the sentence (1) exceeded
the maximum sentence allowed for a felony of the fourth degree, and (2) exceeded the maximum
prison sentence the court informed him could be imposed for a violation. The State concedes
error and we agree.
{¶5} When reviewing criminal sentences, this Court first “examine[s] the sentencing
court’s compliance with all applicable rules and statutes in imposing the sentence to determine
whether the sentence is clearly and convincingly contrary to law.” State v. Kalish, 120 Ohio
St.3d 23, 2008-Ohio-4912, ¶ 26. A maximum prison sentence for a felony of the fourth degree is
eighteen months. R.C. 2929.14(A)(4).
1
The record does not contain an order to appear so it is unclear what Dunbarr had been ordered
to appear for.
3
{¶6} The court’s two year prison sentence for Dunbarr’s robbery conviction, a felony
of the fourth degree, is outside of the statutory range and is, therefore, contrary to law. R.C.
2929.14(A)(4); See State v. Swift, 12th Dist. Butler No. CA2013-08-161, 2014-Ohio-2004, ¶ 32.
Additionally, when imposing a prison sentence for a community control violation a court may
not exceed the prison term that the offender was notified may be imposed upon a community
control violation. R.C. 2929.15(B)(2); See State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-
4746, ¶ 29. Because Dunbarr’s sentence did not comply with R.C. 2929.14(A)(4) or R.C.
2929.15(B)(2), it is contrary to law.
{¶7} Dunbarr’s first and second assignments of error are sustained. We vacate
Dunbarr’s sentence and remand the case to the trial court for resentencing.
III
{¶8} Dunbarr’s assignments of error are sustained. The judgment of the Lorain County
Court of Common Pleas is reversed, and the cause is remanded for further proceedings consistent
with the foregoing opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
4
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
STEPHAN P. HARDWICK, Assistant Public Defender, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.