State v. Thompson

[Cite as State v. Thompson, 2021-Ohio-4491.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 20AP-352
(C.P.C. No. 09CR-1170)
v. :
(REGULAR CALENDAR)
David A. Thompson, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 21, 2021
On brief: [Janet Grubb, First Prosecuting Attorney], and
Kimberly M. Bond, for appellee. Argued: Kimberly M. Bond.
On brief: Yeura Venters, Public Defender, and Ian J. Jones,
for appellant. Argued: Ian J. Jones.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Defendant-appellant, David A. Thompson, appeals from a judgment of the
Franklin County Court of Common Pleas reimposing a prison sentence following
revocation of judicial release and resentencing him. For the reasons which follow, we affirm
in part and reverse in part.
{¶ 2} By indictment filed February 27, 2009, plaintiff-appellee, State of Ohio,
charged appellant with 23 felony counts, including charges of engaging in a pattern of
corrupt activity, tampering with records, money laundering, forgery, and filing incomplete,
false, and fraudulent tax returns. The charges arose from appellant's actions during his
tenure as pastor of the World of Pentecost Church (the "church") from 1995 to 2007.
No. 20AP-352 2
Following a bench trial, the court acquitted appellant of one count of engaging in a pattern
of corrupt activity, and found appellant guilty of the lesser-included offense of second-
degree felony theft on a count charging first-degree felony theft. The court found appellant
guilty of the remaining counts charged in the indictment.
{¶ 3} On December 8, 2010, the court issued its judgment entry imposing sentence.
The court sentenced appellant to "a period of Community Control for Five (5) YEARS" on
Counts 1 and 3 of the indictment, and notified appellant that he would "serve a prison
sentence of Six (6) Years" if he violated his community control. (Dec. 8, 2010 Sentencing
Entry at 2-3.) The court sentenced appellant to a 5-year term of imprisonment on Counts
4 through 16, and a 12-month term of imprisonment on Counts 17 through 23. The court
ordered Counts 1 and 3 to run concurrent to each other and Counts 4 through 23 to run
concurrent to each other but ordered Counts 1 and 3 to be served consecutive to Counts 4
through 23. The court ordered appellant to pay restitution to the church in the amount of
$733,048.86.
{¶ 4} Appellant appealed his conviction and sentence. In State v. Thompson, 10th
Dist. No. 10AP-1004, 2011-Ohio-5169 ("Thompson I"), this court affirmed the judgment of
conviction but reversed and remanded for the trial court to reduce the amount of
restitution. Appellant did not raise any issue concerning his sentence to a consecutive term
of community control in Thompson I.
{¶ 5} On November 12, 2014, after serving nearly 4 years of his 5-year prison
sentence, appellant filed a R.C. 2929.20 motion for judicial release. At a January 16, 2015
hearing on the motion, the court stated it would grant the motion for judicial release and
suspend the "six-year prison sentence" on Counts 1 and 3 as well as the prison sentence on
Counts 4 through 23. (Jan. 16, 2015 Tr. at 10.) The court further stated that, as it had
originally sentenced appellant to "a split sentence," the "community control portion of that
sentence [as to Counts 1 and 3 would] begin as well as well as [sic] community control for
the judicial release time." (Jan. 16, 2015 Tr. at 11.) On January 20, 2015, the court issued
an entry granting appellant's motion for judicial release. The entry stated that the
"remainder of the Eleven (11) Years (Five years Prison and Six years suspended for
Community Control)" was "suspended and Defendant [was] placed on Community Control
for a period of Five (5) years under Intensive Supervision." (Jan. 20, 2015 Entry Granting
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Mot. for Judicial Release at 1-2.) The court imposed community control sanctions and
ordered appellant to pay his court costs and restitution to the church in the amount of
$625,727.86.
{¶ 6} On March 13, 2019, appellant's probation officer filed a statement of
violations with the court alleging that appellant violated his community control by failing
to make appropriate payments toward restitution. The statement indicated that the
balance remaining on appellant's restitution was $621,377.50.
{¶ 7} The trial court held a community control revocation hearing on April 26,
2019. Appellant stipulated to the community control violation. The court stated that it
believed appellant had been "underemployed" while on community control and had "not
made the effort." (Apr. 26, 2019 Hearing Tr. at 14.) The court specifically noted that,
despite his minimal payments toward restitution, appellant "found money" to take several
trips, including a trip "to Tennessee to get married and go to Myrtle Beach for [his]
honeymoon." (Apr. 26, 2019 Hearing Tr. at 13-14.) Appellant's counsel argued at the
hearing that appellant's sentence to a consecutive term of community control following a
prison term was "contrary to law." (Apr. 26, 2019 Hearing Tr. at 7.)
{¶ 8} On May 2, 2019, the trial court issued an entry finding appellant "to be in
violation" of his community control, but concluding that appellant's community control
"need not be revoked at this time." (May 2, 2019 Entry.) The trial court restored appellant
to community control with the same sanctions and conditions imposed on January 16,
2015. (May 2, 2019 Entry.)
{¶ 9} Appellant appealed from the May 2, 2019 entry to this court. In State v.
Thompson, 10th Dist. No. 19AP-359, 2020-Ohio-6756 ("Thompson II"), decided
December 17, 2020, we resolved appellant's appeal and affirmed the May 2, 2019 entry.
Appellant argued in the appeal that the trial court had erroneously sentenced him to a
period of community control on Counts 1 and 3 to be served consecutive to his prison
sentence on the other counts, in violation of State v. Hitchcock, 157 Ohio St.3d 215, 2019-
Ohio-3246.1 Appellant alleged that the Hitchcock error rendered his sentence void.
However, as the trial court possessed subject-matter jurisdiction over appellant's case and
1Hitchcock holds that "unless otherwise authorized by statute, a trial court may not impose community-
control sanctions on one felony count to be served consecutively to a prison term imposed on another felony
count." Id. at ¶ 1.
No. 20AP-352 4
personal jurisdiction over appellant, we concluded that any error in appellant's sentence
rendered the sentence voidable, not void. Thompson II at ¶ 11-12. See State v. Harper, 160
Ohio St.3d 480, 2020-Ohio-2913, ¶ 42; State v. Henderson, 161 Ohio St.3d 285, 2020-
Ohio-4784, ¶ 1. As appellant could have, but did not, raise an argument regarding his
sentence to a consecutive term of community control in his direct appeal, res judicata
barred appellant's claims in Thompson II. Id. at ¶ 13.
{¶ 10} On October 23, 2019, while Thompson II was pending, appellant filed a
motion in the trial court asserting that his sentence to a consecutive term of community
control on Counts 1 and 3 was void pursuant to Hitchcock. Appellant asked the trial court
to void the consecutive term of community control from his sentence and terminate his
community control.
{¶ 11} On November 8, 2019, appellant's probation officer filed a statement of
violations with the court, alleging that appellant violated his community control by failing
to make adequate payments toward restitution. The balance remaining on appellant's
restitution as of November 8, 2019 was $620,175.
{¶ 12} The trial court held a community control revocation hearing on
December 20, 2019. The court indicated at the hearing there were "a couple of issues"
before the court, as there was the "revocation as it relates to the judicial release * * *, and
then the revocation as it relates to the original sentence in which the Court imposed a split
sentence of community control." (Dec. 20, 2019 Tr. at 3.) The court noted appellant's
October 23, 2019 motion to terminate, and found appellant's sentence to a consecutive term
of community control on Counts 1 and 3 to be "a void sentence." (Dec. 20, 2019 Tr. at 3-4.)
As such, the court concluded that appellant "[could not] be revoked on that" and "would
have to be resentenced" on Counts 1 and 3. (Dec. 20, 2019 Tr. at 4.) Based on testimony
from appellant's probation officer, the trial court revoked appellant's judicial release
community control due to appellant's failure to make adequate payments toward
restitution.
{¶ 13} On January 23, 2020, the court held a hearing to address appellant's ability
to pay restitution. Following the hearing, the court issued a judgment entry finding that
appellant willfully or intentionally failed to pay restitution by not making a bona fide effort
to acquire the resources to pay.
No. 20AP-352 5
{¶ 14} The court held a sentencing hearing on June 25, 2020 to address both the
"revocation as to Counts 4 through 23 and sentencing as to Counts 1 and 3." (June 25, 2020
Tr. at 3.) The court noted the pending appeal in Thompson II, but indicated that it wanted
to "move forward with the revocation" and "sentencing" in the case. (June 25, 2020 Tr. at
7.) The court stated that "with respect to Counts 4 through 23," the court had previously
revoked appellant's community control and was "impos[ing] the remaining days on the [5-
year] sentence." (June 25, 2020 Tr. at 12-14.) The court noted that appellant had 1,520
days of jail-time credit on Counts 4 through 23. With respect to Counts 1 and 3, the court
sentenced appellant to concurrent 5-year terms of imprisonment. The court stated that
"the record [would] reflect zero days of jail time credit" on Counts 1 and 3. (June 25, 2020
Tr. at 15.)
{¶ 15} On July 10, 2020, the trial court issued a judgment entry imposing sentence.
The court stated that appellant's original sentence on Counts 1 and 3 was "void under State
v. Hitchcock," and that appellant was resentenced to concurrent 6-year terms of
imprisonment on Counts 1 and 3. (July 10, 2020 Entry at 2.) The court reimposed the
aggregate 5-year prison sentence on Counts 4 through 23, and stated that the sentence on
Counts 4 through 23 would run "consecutively to Counts One and Three, for a total of
Eleven (11) years." (July 10, 2020 Entry at 3.) The court ordered appellant to pay
restitution in the amount of $625,727.86 to the church. On July 22, 2020, the court granted
appellant's motion to stay sentence pending appeal.
{¶ 16} Appellant appeals, assigning the following seven errors for our review:
[I.] The trial court improperly modified a voidable sentence,
which was only subject to correction on direct appeal.
[II.] The harsher sentence of imposing a five-year prison
sentence in lieu of community control was a vindictive sentence
not based on defendant's identifiable conduct after the original
sentencing.
[III.] The court committed error by finding that Mr. Thompson
did not make sufficient bona fide efforts legally to acquire the
resources to pay restitution.
[IV.] The court improperly imposed consecutive sentences
without making the findings required by State v. Bonnell [140
Ohio St.3d, 2014-Ohio-3177] and R.C. 2929.14(C)(4).
No. 20AP-352 6
[V.] The trial court ordered Mr. Thompson's sentences on
Counts One and Three to run consecutively to the remaining
counts, despite remaining silent on whether they should run
consecutively at the sentencing hearing.
[VI.] The trial court improperly sentenced Mr. Thompson to six
years in prison on Counts One and Three despite having
actually sentenced him to five years in prison at the sentencing
hearing on June 25th, 2020.
[VII.] The trial court lacked jurisdiction to rule on Mr.
Thompson's sentencing while the issue of his sentencing was
pending before this court.
{¶ 17} As it raises a jurisdictional question, we consider appellant's seventh
assignment of error first. Appellant's seventh assignment of error asserts the trial court
lacked jurisdiction to resentence appellant on Counts 1 and 3 while Thompson II was
pending. We agree.
{¶ 18} " '[O]nce an appeal is perfected, the trial court is divested of jurisdiction over
matters that are inconsistent with the reviewing court's jurisdiction to reverse, modify, or
affirm the judgment.' " State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty.,
129 Ohio St.3d 30, 2011-Ohio-626, ¶ 13, quoting State ex rel. Rock v. School Emps.
Retirement Bd., 96 Ohio St.3d 206, 2002-Ohio-3957, ¶ 8. Accord In re S.J., 106 Ohio St.3d
11, 2005-Ohio-3215, ¶ 9. See State ex rel. Special Prosecutors v. Judges, Court of Common
Pleas, 55 Ohio St.2d 94, 97 (1978) (explaining that, when an appeal is taken, the trial court
"does retain jurisdiction over issues not inconsistent with that of the appellate court * * *,
such as the collateral issues like contempt, appointment of a receiver and injunction").
" 'When a trial court acts beyond its jurisdiction while an appeal is pending, its order is
void.' " Huntington Natl. Bank v. Bywood, Inc., 10th Dist. No. 16AP-358, 2017-Ohio-2829,
¶ 10, citing Kitson v. Gordon Food Serv., 9th Dist. No. 15CA0078-M, 2016-Ohio-7079, ¶ 6.
Accord Kellie Auto Sales, Inc. v. Hernandez, 10th Dist. No. 19AP-462, 2020-Ohio-1516,
¶ 17.
{¶ 19} Thus, when a defendant has perfected an appeal regarding their sentence, the
trial court lacks jurisdiction to resentence the defendant during the pendency of the appeal.
State v. Triplett, 4th Dist. No. 11CA3, 2011-Ohio-5431, ¶ 6-7 (holding that the trial court's
attempt to resentence defendant after defendant had "perfected an appeal of his sentence"
No. 20AP-352 7
was "clearly inconsistent with [the court's] appellate jurisdiction"); State v. Dunning, 12th
Dist. No. CA2013-05-048, 2014-Ohio-253, ¶ 8 (stating that a notice of appeal divests a trial
court of the "ability to resentence a defendant to correct a sentencing error while his appeal
is pending"); State v. Taogaga, 8th Dist. N0. 79845, 2002-Ohio-5062, ¶ 19; State v.
Bowman, 10th Dist. No. 02AP-1025, 2003-Ohio-5341, ¶ 21. See also Whipps v. Ryan, 10th
Dist. No. 14AP-67, 2014-Ohio-5302, ¶ 42 (holding that "[b]ecause appellant's motion [in
the trial court] in large part related to issues subject to determination by this court [on
appeal], the trial court was without jurisdiction to entertain appellant's motion").
{¶ 20} In Thompson II, appellant argued that his sentence to a consecutive term of
community control on Counts 1 and 3 was void pursuant to Hitchcock and thus subject to
collateral attack. Appellant's October 23, 2019 motion asked the trial court to find his
sentence on Counts 1 and 3 void pursuant to Hitchcock. Thus, when the trial court found
appellant's sentence on Counts 1 and 3 void and resentenced on those counts, the court
ruled on the same issue which was pending before this court in Thompson II. Accordingly,
as the trial court's decision to void appellant's sentence on Counts 1 and 3 and resentence
on those counts was inconsistent with this court's ability to review, modify, or affirm the
judgment in Thompson II, the trial court lacked jurisdiction to resentence appellant on
Counts 1 and 3 while Thompson II was pending. Although appellant filed the October 23,
2019 motion in the trial court, the invited error doctrine does not apply to matters of
subject-matter jurisdiction. State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-
4849, ¶ 27; State v. Hardie, 4th Dist. No. 14CA24, 2015-Ohio-1611, ¶ 12.
{¶ 21} The state contends the trial court did not resentence appellant on Counts 1
and 3 at the June 25, 2020 hearing. The state claims the trial court simply revoked
appellant's community control on Counts 1 and 3 and imposed "the sanction attached to
the revocation of community control." (Appellee's Brief at 13.) The state asserts appellant
was "under the trial court's community control supervision pursuant to R.C. 2929.15 and
R.C. 2929.20," and that the trial court accordingly had jurisdiction to revoke appellant's
community control and impose the appropriate sentence regardless of the appeal in
Thompson II. (Appellee's Brief at 11.)
{¶ 22} The trial court did retain jurisdiction to revoke appellant's judicial release,
community control, and impose sentence despite the appeal. Thompson II. "The
No. 20AP-352 8
revocation of community control is an exercise of the sentencing court's criminal
jurisdiction." State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, ¶ 15. Thus, a trial court
possesses "jurisdiction to sentence a defendant for a community-control violation during
the pendency of the defendant's appeal from the underlying judgment of conviction." State
v. Buttery, 1st Dist. No. C-170141, 2018-Ohio-2651, syllabus. Accord State v. Manson, 3d
Dist. No. 14-98-50 (May 28, 1999); State v. Jordan, 8th Dist. No. 56493 (Nov. 22, 1989).
{¶ 23} However, with respect to Counts 1 and 3, the trial court unequivocally stated
at the December 20, 2019 and June 25, 2020 hearings, and in its July 10, 2020 entry, that
it was voiding appellant's sentence due to the Hitchcock error and resentencing appellant
on those counts. The court treated the resentencing on Counts 1 and 3 "separately" from
the revocation and imposition of sentence on Counts 4 through 23. (June 25, 2020 Tr. at
16.) Accordingly, the record does not support the state's contention that the trial court
revoked appellant's community control on Counts 1 and 3 and imposed sentence pursuant
to the revocation.
{¶ 24} The state further argues that "by the time [appellant] was revoked in 2020,
his void-sentence claim was moot because [he] had served the bulk of his community
control sentence on Counts 1 and 3." (Appellee's Brief at 13.) The state's belief that
appellant had served much of his sentence on Counts 1 and 3 is understandable, as the court
stated at the January 16, 2015 hearing that appellant would begin serving his community
control sentence on Counts 1 and 3 when appellant began his term of judicial release
community control. As we explain below, however, appellant has yet to serve his 5-year
term of community control on Counts 1 and 3.
{¶ 25} Although the court's statements in 2015 indicated that appellant's sentence
on Counts 1 and 3 was the 6-year prison sentence underlying the term of community
control, appellant's sentence on Counts 1 and 3 was to community control, not prison.
Unlike probation, "which [was] a period of time served during suspension of a sentence,
community control sanctions are imposed as the punishment for an offense at a sentencing
hearing." Heinz at ¶ 14, citing R.C. 2929.01(E) and (FF). Although a court sentencing a
defendant to community control must inform the defendant of the prison term the court
could impose if the defendant violates community control, "when one is sentenced to
community control supervision, the defendant is sentenced to community control and not
No. 20AP-352 9
sentenced to the stated prison term." State v. Solomon, 11th Dist. No. 2017-P-0078, 2019-
Ohio-1841 ¶ 39, citing State v. Duncan, 12th Dist. No. CA2015-05-086, 2016-Ohio-5559,
¶ 19-26. See R.C. 2929.19(B)(4); State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746,
¶ 23.
{¶ 26} Furthermore, when the court granted appellant judicial release in 2015 it
could only release appellant from the non-mandatory prison term he was serving on Counts
4 through 23. R.C. 2929.20, the statute creating judicial release, provides that "[o]n the
motion of an eligible offender or upon its own motion, the sentencing court may reduce the
eligible offender's aggregated nonmandatory prison term or terms through a judicial
release under this section." R.C. 2929.20(B). See State v. Greene, 2d Dist. No. 02-CA-17,
2002-Ohio-2595, ¶ 3 (stating that "[j]udicial release is a purely statutory creation"); State
v. Watkins, 10th Dist. No. 20AP-313, 2020-Ohio-5203, ¶ 17, quoting 1 Anderson's Ohio
Criminal Practice and Procedure, Section 36.101 (2019) (stating that, following the
enactment of R.C. 2929.20 in 1997, judicial release "is now 'the sole source of judicial
authority for modifying the sentence of an incarcerated felon' "). R.C. 2929.20 does not
permit a court to grant judicial release from a term of community control.
{¶ 27} If a court grants an eligible offender judicial release from prison, R.C.
2929.20(K) requires the court to "place the eligible offender under an appropriate
community control sanction" and to "reserve the right to reimpose the sentence that it
reduced if the offender violates the sanction." Thus, "[w]hen a trial court grants a motion
for judicial release pursuant to R.C. 2929.20[(K)], 'it, in effect, suspends the balance of the
terms of the originally imposed sentences and places 'the eligible offender under an
appropriate community control sanction.' " State v. Terry, 10th Dist. No. 11AP-127, 2011-
Ohio-6666, ¶ 9, quoting State v. Darthard, 10th Dist. No. 01AP-1291, 2002-Ohio-4292,
¶ 11. The remainder of the defendant's prison sentence is "suspended pending either the
successful completion of a period of community control or the defendant's violation of a
[judicial release] community control sanction." State v. Alexander, 3d Dist. No. 14-07-45,
2008-Ohio-1485, ¶ 7, citing State v. Mann, 3d Dist. No. 3-03-42, 2004-Ohio-4703, ¶ 8.
Accord State v. Jackson, 12th Dist. No. CA2000-03-045 (June 25, 2001); State v. Bazil,
11th Dist. No. 2003-T-0063, 2004-Ohio-5010, ¶ 29.
No. 20AP-352 10
{¶ 28} Although R.C. 2929.20(K) "uses the phrase 'community control sanction' in
reference to the status of an offender when granted early judicial release," the "rules dealing
with a violation of an original sentence of community control (R.C. 2929.15) should not be
confused with the sections of the Revised Code that address judicial release (R.C.
2929.20)." Terry at ¶ 9, quoting State v. Franklin, 5th Dist. No. 2011-CA-00055, 2011-
Ohio-4078, ¶ 12. R.C. 2929.15 applies only "to offenders who were initially sentenced to
community control sanctions and permits a trial court to newly impose a prison term upon
an offender who later violates the community control sanction." Terry at ¶ 9, citing
Franklin at ¶ 14. "In contrast, an offender who has been granted early judicial release
pursuant to R.C. 2929.20 has already been ordered to serve a term of incarceration as part
of the original sentence but, upon motion by the 'eligible offender,' is released early from
prison." Terry at ¶ 9. Accord State v. Phipps, 3d Dist. No. 3-20-07, 2021-Ohio-258, ¶ 18,
quoting State v. Cox, 3d Dist. No. 2-09-31, 2010-Ohio-3799, ¶ 9, fn. 3 (stating that "[e]ven
though 'community control sanctions are imposed when judicial release is granted, judicial
release is different from and not synonymous with community control' ").
{¶ 29} If the offender violates their judicial release community control and the court
revokes judicial release, pursuant to R.C. 2929.20(K), the " 'court's option in this instance
with respect to ordering incarceration is limited to the reinstatement, with credit for time
served, of the sentences that it suspended upon the granting of judicial release.' " Terry at
¶ 10, quoting Darthard at ¶ 13. Accord State v. Jones, 3d Dist. No. 10-07-26, 2008-Ohio-
2117, ¶ 15; State v. Taylor, 1st Dist. No. C-110295, 2012-Ohio-232, ¶ 7; State v. Salter, 10th
Dist. No. 14AP-211, 2014-Ohio-5524, ¶ 8-9. R.C. 2929.20 "does not authorize the trial court
to increase or reduce the original sentence." Terry at ¶ 12.
{¶ 30} Accordingly, when the trial court granted appellant judicial release in
January 2015 it could only release appellant from the remainder of the prison term
appellant was serving on Counts 4 through 23. As the judicial release simply suspended
appellant's prison sentence on Counts 4 through 23 during the term of judicial release
community control, appellant was still effectively serving his sentence on Counts 4 through
23 during his judicial release community control. See State v. Best, 7th Dist. No. 04 MA
203, 2005-Ohio-4375, ¶ 50, citing State v. Peoples, 151 Ohio App.3d 446, 2003-Ohio-151,
No. 20AP-352 11
¶ 21 (10th Dist.) (stating that the "decision of a trial court to grant judicial release is, in
effect, part of the court's original felony sentence").
{¶ 31} As the trial court sentenced appellant to serve Counts 1 and 3 consecutive to
Counts 4 through 23, appellant's sentence on Counts 1 and 3 could not begin until appellant
completed his sentence on Counts 4 through 23. Indeed, a consecutive sentence " 'begins
to run only after the completion of a prior sentence.' " State ex rel. Gray v. Karnes, 10th
Dist. 10AP-789, 2010-Ohio-5364, ¶ 41, quoting Brinklow v. Riveland, 773 P.2d 517 Colo.
No. 87SA245 (Jan. 17, 1989). Accord State v. Lyle, 3d Dist. No. 1-13-16, 2014-Ohio-751,
¶ 36 (finding it "axiomatic that a consecutive sentence does not begin until the prior
sentence has been completed"). Compare Richards v. Eberlin, 7th Dist. No. 04-BE-1,
2004-Ohio-2636, ¶ 21 (stating that, for concurrent sentences, "a person need not finish
serving the first sentence before the time for the second sentence can be served, as is the
case with consecutive sentences"). Thus, appellant's sentence to community control on
Counts 1 and 3 could not begin until appellant either successfully completed the term of his
judicial release community control or completed the prison term on Counts 4 through 23.
{¶ 32} The court's statement at the January 16, 2015 hearing, indicating that
appellant would serve his community control sentence on Counts 1 and 3 simultaneously
with his term of judicial release community control, was an impermissible attempt to alter
appellant's final sentence on Counts 1 and 3 from a sentence served consecutive to Counts
4 through 23 to a sentence served concurrent with Counts 4 through 23. There was no
statutory authority permitting the trial court to alter appellant's sentence on Counts 1 and
3 when it granted judicial release. See State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553,
¶ 1 (holding that "[a]bsent statutory authority, a trial court is generally not empowered to
modify a criminal sentence by reconsidering its own final judgment"); State ex rel. Womack
v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, ¶ 13, citing State ex rel. Cruzado v. Zaleski,
111 Ohio St.3d 353, 2006-Ohio-5795, ¶ 18-19.
{¶ 33} Thus, as the trial court lacked jurisdiction to resentence appellant on Counts
1 and 3 while the appeal in Thompson II was pending, the portion of the court's July 10,
2020 entry resentencing appellant to a prison term on Counts 1 and 3 is void. Harper at
¶ 42 (holding that "[a] sentence is void when a sentencing court lacks jurisdiction"); Lingo
v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, ¶ 46 (stating that a "void judgment is a
No. 20AP-352 12
nullity"). Appellant's sentence on Counts 1 and 3 remains the sentence originally imposed
in 2010: 5-year terms of community control to be served concurrently to each other and
consecutive to the sentence on Counts 4 through 23.
{¶ 34} Although the trial court lacked jurisdiction to resentence appellant on Counts
1 and 3 while Thompson II was pending, the court retained jurisdiction to revoke
appellant's judicial release community control on Counts 4 through 23 and impose the
appropriate sentence on those counts. Pursuant to R.C. 2929.20(K), when the court
revoked appellant's judicial release on Counts 4 through 23, it was limited to reimposing
the prison sentence it previously suspended when granting judicial release, with credit for
time served. Because the trial court originally sentenced appellant to serve Counts 1 and 3
consecutive to Counts 4 through 23, when appellant completes the approximate 11-month
prison term remaining on Counts 4 through 23, his 5-year term of community control on
Counts 1 and 3 will begin.
{¶ 35} Based on the foregoing, appellant's seventh assignment of error is sustained.
Appellant's first, second, fourth, fifth, and sixth assignments of error all concern the court's
resentencing on Counts 1 and 3. As our ruling on appellant's seventh assignment of error
demonstrates that the trial court lacked jurisdiction to resentence on Counts 1 and 3, our
ruling on appellant's seventh assignment of error renders appellant's first, second, fourth,
fifth, and sixth assignments of error moot.
{¶ 36} Appellant's third assignment of error asserts the trial court erred by finding
appellant did not make sufficient bona fide efforts to acquire the resources to pay
restitution.
{¶ 37} "A trial court may impose restitution as a condition of [community control],"
and it is generally "within the trial court's discretion to revoke [community control] where
the [offender] has failed to make restitution." State v. Conway, 10th Dist. No. 05AP-358,
2006-Ohio-288, ¶ 11. See also State v. Thompson, 3d Dist. No. 3-16-12, 2016-Ohio-8401,
¶ 1, citing State v. Arm, 3d Dist. No. 14-14-03, 2014-Ohio-3771, ¶ 22 (stating that "[a] trial
court's decision to revoke a defendant's judicial release based on a violation of the
conditions of his judicial release will not be disturbed absent an abuse of discretion").
However, "[i]f a trial court revokes community control for non-payment of financial
obligations imposed as part of that community control, 'the Fourteenth Amendment to the
No. 20AP-352 13
United States Constitution is implicated.' " State v. McDaniel, 10th Dist. No. 18AP-875,
2019-Ohio-4996, ¶ 10, quoting State v. Rudin, 1st Dist. No. C-110747, 2012-Ohio-2643, ¶ 8.
{¶ 38} In Bearden v. Georgia, 461 U.S. 660 (1983), the United States Supreme Court
considered whether it was constitutionally permissible for a court to revoke an indigent
defendant's probation and sentence the defendant to prison due to the defendant's failure
to pay a fine and restitution. The court held, in relevant part, as follows:
[I]n revocation proceedings for failure to pay a fine or
restitution, a sentencing court must inquire into the reasons for
the failure to pay. If the probationer willfully refused to pay or
failed to make sufficient bona fide efforts legally to acquire the
resources to pay, the court may revoke probation and sentence
the defendant to imprisonment within the authorized range of
its sentencing authority. If the probationer could not pay
despite sufficient bona fide efforts to acquire the resources to
do so, the court must consider alternative measures of
punishment other than imprisonment. Only if alternative
measures are not adequate to meet the State's interests in
punishment and deterrence may the court imprison a
probationer who has made sufficient bona fide efforts to pay.
To do otherwise would deprive the probationer of his
conditional freedom simply because, through no fault of his
own, he cannot pay the fine. Such a deprivation would be
contrary to the fundamental fairness required by the
Fourteenth Amendment.
Bearden at 672-73.
{¶ 39} Accordingly, "before revoking community control and re-imposing a
suspended prison sentence, [a trial court] is 'required to not only inquire into the reasons
for [the defendant's] failure to make full restitution payments, but also find that [the
defendant] had " 'willfully refused to pay or [had] failed to make sufficient bona fide efforts
legally to acquire the resources to pay.' " ' " McDaniel at ¶ 12, quoting State v. Conte, 9th
Dist. No. 28868, 2018-Ohio-4688, ¶ 12, quoting State v. Estright, 9th Dist. No. 27598,
2016-Ohio-1194, ¶ 11, quoting Bearden at 672. Accord State v. Breckenridge, 10th Dist. No.
10AP-652, 2011-Ohio-1493, ¶ 12 (stating that "a court cannot revoke community control for
failure to pay restitution" unless there is "evidence that the failure to pay or to obtain
employment was willful or intentional"); State v. Dockery, 187 Ohio App.3d 798, 2010-
Ohio-2365, ¶ 16 (1st Dist.). "Facts sufficient to establish the degree of willfulness required
No. 20AP-352 14
to support revocation must be developed in the record." State v. Hudson, 10th Dist. No.
00AP-236 (Nov. 14, 2000).
{¶ 40} At the January 23, 2020 ability-to-pay hearing, appellant testified that he had
an associate's degree in theology from an unaccredited Christian college and that his
primary occupation prior to the present case was as a church pastor. Following his release
from prison in January 2015, appellant began working for MiraCit Development
Corporation ("MiraCit"), a development corporation owned by Living Faith Apostolic
Church. Appellant explained that MiraCit had been "in bankruptcy" since he was
incarcerated and was "not making any money to have any full-time employees." (Jan. 23,
2020 Tr. at 15, 26.) As such, appellant stated that Bishop Posey, the bishop of Living Faith
Apostolic Church, paid him in cash weekly. Although Bishop Posey initially paid appellant
$500 per week, since summer 2016, Bishop Posey had been paying appellant only $300
per week. Appellant stated that the "bulk" of what he did for MiraCit was "cutting grass and
picking up trash." (Jan. 23, 2020 Tr. at 16.)
{¶ 41} Appellant stated that he tried to get fast food and manufacturing jobs while
on community control, but was unsuccessful. He claimed that each place he went to apply
"told [him], no, we do not hire felons." (Jan. 23, 2020 Tr. at 18.) Although appellant
indicated some potential employers "stated as well" that his lack of a college education was
a problem, he explained that "the big one was the criminal record." (Jan. 23, 2020 Tr. at
59.) However, appellant admitted he never informed his probation officer he was having
difficulties finding another job due to his felony convictions. Appellant stated that, when a
friend informed him UPS would hire individuals with felony convictions, he applied at UPS
and was hired. Appellant began working a part-time, third-shift position at UPS in July
2019 making approximately $300 per week. As appellant continued to work for MiraCit
during the day, appellant's income effectively doubled beginning in July 2019.
{¶ 42} Appellant indicated that his monthly expenses included rent, utilities, cell
phone bill, and auto and renter's insurance. However, appellant admitted that when he was
first released from prison in 2015, he did not have to "pay any type of rent or utilities," and
stated that his parents had paid the rent at his current residence from 2017 until the "last
half" of 2019. (Jan. 23, 2020 Tr. at 24, 31-32.) Appellant explained that his former
probation officer "established a $200 a month [restitution] payment" for him. (Jan. 23,
No. 20AP-352 15
2020 Tr. at 23.) Although appellant initially made the $200 per month payments, when
his weekly pay was reduced to $300 in 2016, he reduced his monthly restitution payments
to $100 and eventually $50. From June 2017 to February 2019, appellant paid only $50
per month toward his sizeable restitution. Appellant began paying $200 per month toward
restitution again after he became employed with UPS.
{¶ 43} On March 19, 2020, the trial court issued an entry concluding that appellant
"willfully or intentionally failed to pay restitution by not making a bona fide effort."
(Mar. 19, 2020 Entry at 6.) The court noted that appellant had paid "less than 1% (one
percent) of the amount owed since his release" despite being "fully capable of better
employment." (Mar. 19, 2020 Entry at 6.) The court acknowledged appellant's contention
that he could not find additional employment due to his felony convictions, but observed
that appellant "never provided his probation officer with documentation of the jobs that he
was seeking or that he was having difficulty seeking other employment." (Mar. 19, 2020
Entry at 2.) The court also noted that "after the April 26, 2019 hearing, [appellant] did
obtain better employment with UPS." (Mar. 19, 2020 Entry at 6.) The court stated that,
while it did not expect appellant to earn the salary he was earning as a church pastor,
income of $300 per week was "under employed for this [appellant]." (Mar. 19, 2020 Entry
at 5.)
{¶ 44} Appellant contends that his failure to pay more toward restitution was not
willful or intentional, as his job prospects were limited due to his felony convictions and his
limited post-secondary education. However, as noted by the trial court, appellant never
discussed the difficulties he was allegedly having finding additional employment with his
probation officer. Moreover, appellant's employment with UPS shortly after the April 26,
2019 revocation hearing demonstrated appellant was capable of finding additional
employment despite his felony convictions and limited college education. Appellant
admitted at the ability-to-pay hearing that he "could have put forth better effort as far as
going out and finding other employment or at least attempting, let's say attempting, to find
other employment than what [he] did." (Jan. 23, 2020 Tr. at 58.) Rather than finding
additional or more lucrative employment throughout the majority of his community control
term, appellant chose to work for a bankrupt development corporation receiving $300 cash
per week.
No. 20AP-352 16
{¶ 45} The record demonstrates the trial court made the necessary inquiry under
Bearden into the reasons for appellant's failure to make adequate payments toward
restitution. The record supported the court's conclusion that appellant willfully or
intentionally failed to pay restitution by not making a bona fide effort to acquire the
resources to do so. Accordingly, appellant's third assignment of error is overruled.
{¶ 46} Having sustained appellant's seventh assignment of error, thereby rendering
appellant's first, second, fourth, fifth, and sixth assignments of error moot, and having
overruled appellant's third assignment of error, the judgment of the Franklin County Court
of Common Pleas is affirmed in part, reversed in part, and this case is remanded to that
court for proceedings consistent with law and this decision.
Judgment affirmed in part,
reversed in part; and case remanded.
SADLER and MENTEL, JJ., concur.
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