State v. Dinka

[Cite as State v. Dinka, 2022-Ohio-1365.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, : CASE NO. CA2021-04-036
Appellee, : OPINION
4/25/2022
:
- vs -
:
JOHN DINKA, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 20CR37249
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
Craig A. Newburger, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, John Dinka, appeals his sentence in the Warren County Court of
Common Pleas for domestic violence.
{¶ 2} Appellant was convicted of third-degree felony domestic violence in March
2021. During the April 1, 2021 sentencing hearing, the trial court advised appellant, "Your
sentence is 24 months. Place you on community control. Require you to complete a
Warren CA2021-04-036
community based correctional facility program at CCC. Upon release, you'll be on a monitor
for 60 days." The trial court further advised appellant that "if there's a protection order in
place, you can't violate it or you're going to be violated here and you're going to serve 24
months." On April 2, 2021, the trial court issued its sentencing entry which provided that
appellant was "sentenced to three (3) years of community control on basic probation," and
that "[v]iolation of this sentence may lead to a longer or more restrictive sanction, or the
Court may impose a prison term of up to 24 months."
{¶ 3} Appellant appeals his sentence, raising one assignment of error:
{¶ 4} THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO TWENTY-
FOUR MONTHS OF COMMUNITY CONTROL ON THE RECORD, AND, SENTENCING
APPELLANT TO THREE YEARS OF COMMUNITY CONTROL IN THE SENTENCING
ENTRY.
{¶ 5} Appellant argues that the trial court issued a sentencing entry that did not
accurately reflect the sentence imposed at the sentencing hearing because the trial court
sentenced appellant to 24 months of community control at the sentencing hearing but
imposed three years of community control in the sentencing entry. The state argues there
is no variance or discrepancy between the sentence the trial court announced at the
sentencing hearing and the sentence imposed by the sentencing entry because "it is evident
that the court's reference to 24 months [at sentencing] related to the prison term that the
court reserved as a possible sanction if [appellant] violated the conditions of his community
control."
{¶ 6} It is well settled that a court speaks only through its journal entries and not by
oral pronouncement. State v. Starr, 12th Dist. Clermont Nos. CA2018-09-065 and CA2018-
09-066, 2019-Ohio-2081, ¶ 12. Notwithstanding this general rule, Crim.R. 43(A) provides
that "the defendant must be physically present at every stage of the criminal proceeding
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and trial, including * * * the imposition of sentence[.]" "Because a defendant is required to
be present when sentence is imposed, it constitutes reversible error for the trial court to
impose a different sentence in its judgment entry than was announced at the sentencing
hearing in defendant's presence." State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-
Ohio-6068, ¶ 79. Thus, "if there exists a variance between the sentence pronounced in
open court and the sentence imposed by a court's judgment entry, a remand for
resentencing is required." Id. Judgment entries imposing different sentences than were
pronounced in open court have been held invalid, even when they did not change or
increase the period of actual incarceration, or when it resulted in a downward modification
of the sentence. Id. at ¶ 82.
{¶ 7} Whether the trial court's reference to 24 months at the sentencing hearing
applied to the term of community control or the prison term reserved as a sanction for
violation of community control is ambiguous at best. What the record clearly shows,
however, is that the trial court's sentencing entry imposes a term of community control (i.e.,
three years) that was not imposed during the sentencing hearing. Thus, the sentence
imposed in the sentencing entry is not the same sentence imposed at the sentencing
hearing.
{¶ 8} A defendant is entitled to know his sentence at the sentencing hearing. State
v. Santiago, 8th Dist. Cuyahoga No. 101640, 2015-Ohio-1824, ¶ 19, citing Crim.R. 43. A
trial court errs when it issues a judgment entry imposing a sentence that differs from the
sentence pronounced in the defendant's presence. Id. at ¶ 18. The discrepancy between
the term of community control imposed at the sentencing hearing and by the subsequent
sentencing entry requires a new sentencing hearing. State v. Szafranski, 8th Dist.
Cuyahoga No. 107905, 2019-Ohio-4349, ¶ 76 (vacating the sentence and remanding for
resentencing where the trial court placed the defendant on community control at the
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sentencing hearing without stating the term of community control and where the sentencing
entry sentenced the defendant to five years of community control); Robinson, 2012-Ohio-
6068 at ¶ 85; State v. Smith, 10th Dist. Franklin No. 17AP-573, 2018-Ohio-3875, ¶ 7-8.
{¶ 9} Appellant's assignment of error is well-taken and sustained.
{¶ 10} The judgment of the trial court is reversed as to appellant's sentence and the
cause is remanded to the trial court for resentencing.
S. POWELL and BYRNE, JJ., concur.
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