[Cite as State v. Brooks, 2017-Ohio-5825.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

    STATE OF OHIO                                  :
                                                   :
          Plaintiff-Appellee                       :  C.A. CASE NO. 2016-CA-17
                                                   :
    v.                                             :  T.C. NO. 16-CR-55
                                                   :
    LAVON O. BROOKS                                :  (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :
                                              ...........

                                             OPINION

                  Rendered on the ___14th __ day of _____July_____, 2017.

                                              ...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecutor, 61 Greene Street,
Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

ADAM JAMES STOUT, Atty. Reg. No. 0080334, 2600 Far Hills Avenue, Suite 315,
Dayton, Ohio 45419
      Attorney for Defendant-Appellant

                                             .............

FROELICH, J.

         {¶ 1} Lavon O. Brooks pled guilty in the Greene County Court of Common Pleas

to an amended charge of aggravated possession of drugs, a third-degree felony; as part

of the plea, three additional charges were dismissed.1 The trial court imposed an agreed


1
    As part of the plea agreement, Brooks also pled guilty to aggravated possession of
                                                                                         -2-


sentence of 30 months in prison with risk reduction programming. In its judgment entry,

the trial court disapproved placement in an intensive program prison (IPP) and transfer to

transitional control.

       {¶ 2} Brooks appeals from his conviction, claiming that the trial court erred when it

disapproved placement in IPP (1) without providing a factual basis for its disapproval and

(2) after the court had “construed the plea agreement to include IPP along with risk

reduction.” For the following reasons, the trial court’s judgment will be affirmed in part,

reversed in part, and remanded for further proceedings.

       {¶ 3} IPP “includes institutions that have military-type regimen programs as

described in R.C. 5120.031 and institutions that focus on ‘educational achievement,

vocational training, alcohol and other drug abuse treatment, community service and

conservation work, and other intensive regimens or combinations of intensive regimens.’”

State v. Howard, 190 Ohio App.3d 734, 2010-Ohio-5283, 944 N.E.2d 258, ¶ 11, quoting

R.C. 5120.032(A).

       {¶ 4} “At the time of sentencing, the court may recommend the offender for

placement in * * * an intensive program prison under section 5120.032 of the Revised

Code, disapprove placement of the offender in * * * an intensive program prison of that

nature, or make no recommendation on placement of the offender.” R.C. 2929.14(I).

However, “[i]f the court recommends or disapproves placement, it shall make a finding

that gives its reasons for its recommendation or disapproval.” R.C. 2929.19(D).

       {¶ 5} The trial court’s judgment entry addressed IPP, stating, “IPP is approved/not



drugs, a fifth-degree felony, in Case No. 2015-CR-93. Brooks’s appeal does not concern
Case No. 2015-CR-93.
                                                                                            -3-


approved, sentence given is appropriate”; the phrase “is approved” was crossed out.

       {¶ 6} In its appellate brief, the State acknowledges that Brooks was statutorily

eligible for IPP, and it agrees with Brooks that the trial court’s factual findings were

inadequate. The State notes that we addressed a similar circumstance in State v. Berry,

2d Dist. Greene No. 2013-CA-34, 2014-Ohio-132, in which we reversed a judgment

disapproving IPP when the trial court did not discuss IPP at sentencing and the

sentencing entry simply stated, “IPP is approved/not approved, sentence given is

appropriate”; as here, the phrase “is approved” was crossed out on the entry. We

concluded in Berry that this statement was not a factual finding, commenting, “There may

be facts in the record justifying disapproval of IPP, but the trial court did not refer to them

when deciding to disapprove Berry for placement in IPP.” Id. at ¶ 49. We reversed the

portion of the judgment concerning the disapproval of IPP and remanded for further

proceedings on this issue. Id.

       {¶ 7} We agree with the State that this case is governed by Berry and other cases

in which we have required the trial court to make findings that give its reasons for

disapproving IPP. See also, e.g., State v. Bailey, 2d Dist. Greene No. 2014-CR-569,

2016-Ohio-2957. As in Berry, the phrase “the sentence is appropriate” is not a factual

finding for purposes of R.C. 2929.19(D). Brooks’s first assignment of error is sustained.

       {¶ 8} The State argues, however, that the trial court did not err in failing to

recommend IPP, because IPP was not a term of the plea agreement. The parties’ plea

agreement was memorialized in a Plea Agreement Report. The Plea Agreement Report,

which addressed two pending cases against Brooks, read:

       The Defendant will make a plea of guilty in Case 2015 CR 0093 to Count
                                                                                            -4-


         One O.R.C. §2925.11(A), Aggravated Possession of Drugs, a felony of the

         fifth degree. Count Two will be dismissed. The Defendant will make a

         plea of guilty in Case 2016 CR 0055 to Amended Count Three O.R.C. §

         2925.11(A), Aggravated Possession of Drugs, a felony of the third degree.

         Counts One, Two and Four will be dismissed. The State will not proceed

         on any charges from the incident on January 27, 2016.             The parties

         stipulate to a 30-month prison sentence with Risk Reduction Programming

         in Case No. 2016 CR 0055 and Community Control in Case No. 2015 CR

         0093.

(Emphasis in original.)

         {¶ 9} At the plea hearing, the trial court reviewed the terms of the plea deal with

Brooks, saying:

         THE COURT: Now, I also have a document called a Plea Agreement

         Report, which is the written position of the Greene County Prosecutor’s

         Office and the police in your case. I want to read this to make sure we’re

         all on the same page and have the same understanding as to what this deal

         is. The Prosecutor says, the Defendant will plead guilty in Case 93 to

         aggravated possession of drugs, a felony of the fifth degree. Count 2 of

         the indictment will be dismissed. Defendant will plead guilty in case 55 to

         an amended Count 3, aggravated possession of drugs, a felony three, and

         Counts 1, 2, and 4 will be dismissed. The State will not proceed on any

         charges from the incident on January 27, 2015 2 – I presume you


2
    Later in the plea hearing, the parties informed the court that the year should read “2016,”
                                                                                         -5-


       understand what this is? I don’t know.

       DEFENDANT LAVON BROOKS: Yes.

       THE COURT: And the parties stipulate to a 30-month prison sentence with

       Risk Reduction Programming in Case Number 2015 [sic] CR 55, and

       Community Control in Case Number 15 CR 93. Now, what I read, is that

       your understanding of the position of the Prosecutor and the police in your

       case?

       DEFENDANT LEVON BROOKS: Yes.

       THE COURT: Are there any other deals or conditions or promises present

       in this case that we haven’t discussed?

       DEFENDANT LAVON BROOKS: No.

       {¶ 10} IPP was not included in the terms of the written plea agreement, and IPP

was not mentioned at the plea hearing.

       {¶ 11} IPP was first raised by Brooks at the sentencing hearing. In his allocution,

Brooks apologized to the State and to his family, expressed regret at the “terrible mistake”

that has resulted from his drug abuse, and asked the trial court “if with your compassion,

that I can get granted IPP program.” The court responded by asking about the agreed

terms of disposition, and the attorneys responded that there was an agreement that there

be a risk reduction sentence. The court then stated:

       THE COURT: Actually having reviewed the plea agreement, it does say

       specifically that there’s an agreement as to a 30-month prison sentence and

       Risk Reduction Programming, so I think * * * that would include IPP.


and the date was corrected on the Plea Agreement Report.
                                                                                        -6-


      [PROSECUTOR]: That’s correct.

      [DEFENSE COUNSEL]: That’s correct, Your Honor.

As stated above, the court imposed the 30-month prison sentence with Risk Reduction

Programming.

      {¶ 12} Based on the record, it is unclear whether IPP was included within the

parties’ agreement to a risk reduction sentence. The parties agreed in their written

agreement to risk reduction programming as part of the 30-month prison sentence; they

did not expressly agree to IPP as an additional term. As stated above, IPP was not

mentioned at the plea hearing, and Brooks did not express that his plea was based on an

understanding that he would receive IPP. When Brooks asked for IPP at sentencing, the

court and the parties apparently agreed that IPP was “included” in the risk reduction

sentence. However, it is unclear from the discussion at sentencing whether parties and

the trial court understood that Brooks’s risk reduction sentence included a

recommendation by the trial court in favor of IPP, that the risk reduction sentence would

include an evaluation by the Ohio Department of Rehabilitation and Correction of Brooks’s

eligibility and suitability for IPP (which would occur if the trial court made no

recommendation regarding IPP pursuant to R.C. 5120.32(B)(1)(a)), or that IPP was

precluded because the parties had agreed to risk reduction instead.

      {¶ 13} In short, we cannot conclude, from the record before us, that the parties

agreed that the court would expressly recommend IPP in addition to ordering the risk

reduction sentence, and we cannot conclude that the trial court erred in failing to approve

IPP as part of Brooks’s sentence. However, in light of the discussion of IPP at Brooks’s

sentencing hearing, the trial court should determine upon remand whether the parties’
                                                                                            -7-


plea agreement included IPP, and if so, whether it included the possibility of IPP or a

recommendation for IPP.

       {¶ 14} Brooks’s second assignment of error is overruled.

       {¶ 15} Although not raised as an assignment of error by Brooks, the State notes in

its appellate brief that the trial court also erred in disapproving transitional control in its

judgment entry. The trial court’s judgment entry read: “Transfer to Transitional control is

approved/not approved”; the phrase “is approved” was crossed out, and the phrase “risk

reduction” was handwritten after the statement. Citing Berry, the State acknowledges

that we have “routinely held that a trial court errs when it prematurely disapproves of

transitional control in its judgment entry.” Berry, 2d Dist. Greene No. 2013-CA-34, 2014-

Ohio-132, at ¶ 54. The State indicates that “this case should also be remanded to the

trial court for the limited purpose of amending the judgment entry to delete the disapproval

of the defendant for transitional control.”

       {¶ 16} The trial court’s judgment will be reversed to the extent that it disapproves

IPP and transitional control, and the matter will be remanded for further proceedings on

those matters, consistent with this opinion.        In all other respects, the trial court’s

judgment will be affirmed.

                                          .............

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

Nathaniel R. Luken
Adam James Stout
Hon. Stephen A. Wolaver
