State v. McClurg

[Cite as State v. McClurg, 2020-Ohio-4228.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2017 CA 0098
JAMES McCLURG
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Case No. 2012-CR-0339
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 25, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP JEFFREY P. UHRICH
Prosecuting Attorney P.O. Box 1977
Richland County, Ohio Westerville, Ohio 43086
JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2017 CA 0098 2
Hoffman, P.J.
{¶1} This case is before us based upon the remand issued by
the Supreme Court of Ohio in State v. McClurg, --- Ohio St.3d ---, 2020-Ohio-3696, ---
N.E.3d --- , in which the Court reversed our decision in State v. McClurg, 5th Dist.
Richland No. 17CA98, 2018-Ohio-3840 (“McClurg I”), on the authority of State v. Howard,
--- Ohio St.3d ---, 2020-Ohio-3195, --- N.E.3d ---.
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.
Appellant appeared before the trial court for sentencing on August 8, 2012. The trial court
imposed a two year prison term, but suspended the sentence and placed Appellant on
community control for 30 months. The trial court advised Appellant a violation of
community control could lead to the imposition of the two year prison term. As part of his
community control sanctions, Appellant was ordered to successfully complete
CROSSWAEH Community Based Correctional Facility (“CBCF”). The trial court
memorialized Appellant’s sentence via Sentencing Entry filed August 9, 2012.
{¶3} On February 4, 2013, a notice was filed with the trial court, alleging
Appellant had violated his community control sanctions. Specifically, Appellant failed to
successfully complete VOA Halfway House. Appellant entered VOA Halfway House on
October 3, 2012, as CROSSWAEH CBCF had a long wait list. Appellant was
unsuccessfully terminated from the program on January 30, 2013. Appellant appeared
before the trial court on February 15, 2013, and admitted the violation. Via Community
Control Violation Journal Entry filed February 15, 2013, the trial court continued Appellant
Richland County, Case No. 2017 CA 0098 3
on community control “with the following conditions: enter and successfully complete a
CBCF.” February 15, 2013 Community Control Violation Journal Entry.
{¶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. The entry did not specify the length of the
original suspended prison term which 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. 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 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 at a hearing 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} Appellant appealed his sentence to this Court, raising the following
assignments of error:
Richland County, Case No. 2017 CA 0098 4
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.
{¶8} In McClurg I, we sustained Appellant’s first assignment of error, vacated his
sentence, and remanded the matter to the trial court for resentencing. We found “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.”
McClurg, 2018-Ohio-3840 at ¶ 18. We found Appellant’s second assignment of error to
be moot in light of our disposition of his first assignment of error. Id. at ¶ 20
{¶9} The state appealed our decision to the Ohio Supreme Court, which
reversed and remanded the matter to us “for application of State v. Howard, --- Ohio St.3d
---, 2020-Ohio-3195, --- N.E.3d ---.” State v. McClurg, --- Ohio St.3d ---, 2020 -Ohio- 3696,
--- N.E.3d ----, ¶ 1. The matter is now before us.
Richland County, Case No. 2017 CA 0098 5
I
{¶10} Pursuant to the Ohio Supreme Court's decision and remand, we must
reexamine Appellant's first assignment of error applying State v. Howard, supra.{¶11} In State v. Howard, the Ohio Supreme Court addressed the issue of
“whether appellant, John M. Howard, received sufficient notice of the specific prison terms
that the trial court could impose before the court revoked his community-control sentence
and imposed the prison terms.” Id. at ¶ 1. The Howard Court held neither R.C.
2929.19(B) nor R.C. 2929.15(B) require a trial court to repeat notice of the specific prison
term a defendant could face for a violation of his community control when the defendant
was provided such notice at his initial sentencing hearing. Id. at ¶ 21.
{¶12} Upon application of Howard, as mandated by the remand order of
the Supreme Court of Ohio, we find Appellant received sufficient notice of the specific
prison term the trial court could impose before the court revoked his community-control
and imposed the prison term. Like the appellant in Howard, Appellant herein was properly
notified at his initial sentencing hearing of the prison term he could face if he were to
violate his community control and the potential prison term did not change between his
initial sentencing and the subsequent revocation hearing at which the court imposed the
prison term. Further, like the appellant in Howard, Appellant was not convicted of any
new offense in the intervening period for which additional prison time could have been
imposed and Appellant was aware throughout the period of his community control a
violation could result in a prison term of two years.
{¶13} Accordingly, we overrule Appellant’s first assignment of error.
Richland County, Case No. 2017 CA 0098 6
II
{¶14} In his second assignment of error, Appellant contends the trial court erred
in imposing additional community control conditions without Appellant having committed
a new violation and without conducting a hearing.
{¶15} On August 8, 2012, the trial court sentenced Appellant to a two year prison
term, but suspended the sentence and placed Appellant on community control for 30
months. As part of his community control sanctions, Appellant was ordered to
successfully complete CROSSWAEH CBCF.
{¶16} As Appellant failed to successfully complete VOA Halfway House, the state
filed a probation violation on February 4, 2013. Appellant admitted the violation and the
trial court continued him on community control “with the following conditions: enter and
successfully complete a CBCF.” February 15, 2013 Community Control Violation Journal
Entry. On December 23, 2013, the state again filed a probation violation. Appellant
admitted he violated his community control. The trial court extended Appellant's
probation, but tolled the term until he was released from prison on an unrelated case.
March 24, 2014 Community Control Violation Journal Entry. Thereafter, 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.
{¶17} On September 11, 2017, after Appellant completed his prison term in Case
No. 2013-CR-839, a probation violation was filed, alleging Appellant failed to complete
CBCF. Appellant filed a Motion and Memorandum Contra Imposition of Prison Sanction,
arguing 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
Richland County, Case No. 2017 CA 0098 7
sanction for the current community control violation. Appellant appeared before the trial
court on October 25, 2017, and admitted the violation. The trial court sentenced Appellant
to the original two year prison term. October 27, 2017 Community Control Violation
Journal Entry.
{¶18} Appellant’s argument relies upon the trial court’s March 29, 2014 entry
captioned “Additional Community Control Sanctions”. Appellant asserts this entry places
additional conditions on him and such was erroneous as there was no new violation and
the trial court failed to conduct a hearing. We find Appellant’s reliance on the caption of
the March 29, 2014 entry misplaced.
{¶19} The March 29, 2014 entry is a pre-printed form. Although captioned
“Additional Community Control Sanctions”, the entry does not place a new condition on
Appellant’s community control. To the contrary, the entry restates the condition Appellant
continually failed to complete, to wit: successfully completing CBCF. This condition was
part of Appellant’s original sentence imposed on April 8, 2012, and memorialized in a
Sentencing Entry filed August 9, 2012.
Richland County, Case No. 2017 CA 0098 8
{¶20} Based upon the foregoing, we find Appellant’s second assignment of error
is not well taken and overrule the same.
{¶21} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Gwin, J. and
Delaney, J. concur