         [Cite as State v. Bailey, 2013-Ohio-5512.]
                   IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                    HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NOS. C-130245
                                                                      C-130246
        Plaintiff-Appellee,                           :   TRIAL NOS. B-1300413
                                                                     B-1200651
  vs.                                                 :
                                                              O P I N I O N.
JOSEPH BAILEY,                                        :

    Defendant-Appellant.                              :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: December 18, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS



H ILDEBRANDT , Judge.

       {¶1}    Following the entry of guilty pleas to two counts of breaking and

entering, the trial court sentenced defendant-appellant Joseph Bailey to community

control in the case numbered B-1200651. The trial court notified Bailey that he

would be sentenced to a total of 24 months in prison if he violated his community

control. Six months later, Bailey was convicted of breaking and entering in the case

numbered B-1300413. The trial court imposed a 12-month prison term and ordered

Bailey to pay court costs. As a result of that conviction and other violations, the trial

court revoked Bailey’s community control in the earlier case and imposed

consecutive 12-month prison terms for each of the two underlying offenses. Those

prison terms were ordered to be served consecutively to the sentence in the case

numbered B-1300413, for an aggregate sentence of 36 months. The trial court also

imposed court costs.

       {¶2}    Bailey now appeals both judgments, bringing forth two assignments

of error challenging the imposition of his sentences.

       {¶3}    In his first assignment of error, Bailey argues that the trial court erred

by imposing consecutive, maximum prison terms for the three underlying offenses.

We disagree.

       {¶4}    Under the standard of review set forth in R.C. 2953.08(G)(2), we may

only modify or vacate Bailey’s sentence if we “clearly and convincingly find” that

either (1) the record does not support the mandatory sentencing findings, or (2) that

the sentence is “otherwise contrary to law.” State v. White, 1st Dist. Hamilton No. C-

130114, 2013-Ohio-4225, ¶ 11. Here, the sentencing court made the appropriate

statutory findings before imposing consecutive sentences and those findings are

supported in the record.     See R.C. 2929.14(C)(4).     Further, we cannot say that


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                     OHIO FIRST DISTRICT COURT OF APPEALS


Bailey’s sentences are clearly and convincingly contrary to law given that his

sentences are within the permitted range for fifth-degree felonies, see R.C.

2929.14(A)(5), and when the sentencing court balanced Bailey’s genuine remorse

with his lengthy criminal history and his lack of previous success on community

control. The first assignment of error is overruled.

       {¶5}    Bailey, citing R.C. 2947.23(A)(1), contends in his second assignment

of error that the trial court erred when it imposed court costs without notifying him

that he may be required to perform community service in lieu of paying those costs.

If Bailey had been sentenced for his crimes before March 22, 2013, when the prior

version of R.C. 2947.23(A)(1) was in effect, his assignment would have merit. See

State v. Ysrael, 1st Dist. Hamilton Nos. C-100622 and C-120263, 2013-Ohio-1125,

and State v. Dillard, 1st Dist. Hamilton No. C-120058, 2012-Ohio-4018, ¶ 8. But

Bailey was sentenced in April 2013, after R.C. 2947.23(A)(1) had been amended by

2012 Sub.H.B. No. 247. The current version of R.C. 2947.23(A)(1) requires that a

defendant be notified that community service might be required for failure to pay

court costs only when “the judge or magistrate imposes a community control

sanction or other nonresidential sanction.” See State v. Gates, 11th Dist. Portage No.

2011-P-0001, 2013-Ohio-4284, fn. 1.

       {¶6}    Here, Bailey’s judgment included a prison term and court costs.

Because Bailey was sentenced to a prison term rather than community control or any

other nonresidential sanction, the trial court was not required to notify Bailey that he

might be required to perform community service in lieu of paying court costs. R.C.

2947.23(A)(1); see State v. Raymond, 8th Dist. Cuyahoga No. 99177, 2013-Ohio-

3144, ¶ 14.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


       {¶7}    Accordingly, the second assignment of error is overruled, and the

judgments of the trial court are affirmed.

                                                                 Judgments affirmed.

H ENDON , P.J., and D EWINE , J., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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