[Cite as State v. Davenport, 2012-Ohio-4013.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              DEFIANCE COUNTY



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                            CASE NO. 4-12-05

        v.

DERECK M. DAVENPORT,                                   OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                            CASE NO. 4-12-06

        v.

DERECK M. DAVENPORT,                                   OPINION

        DEFENDANT-APPELLANT.



                Appeals from Defiance County Common Pleas Court
                  Trial Court Nos. 08 CR 10401 and 08 CR 10352

                  Judgment Affirmed in Case No. 4-12-05;
     Judgment Affirmed in Case No. 4-12-06 and Sentence Vacated in Part

                          Date of Decision: September 4, 2012
Case No. 4-12-05, 4-12-06



APPEARANCES:

      Clayton J. Crates for Appellant

      Morris J. Murray and Russell R. Herman for Appellee



PRESTON, J.

      {¶1} Defendant-appellant, Dereck M. Davenport, appeals the judgments of

the Defiance County Court of Common Pleas revoking his community control and

imposing its previously reserved terms of imprisonment. We affirm the trial

court’s judgments revoking Davenport’s community control and imposing the

reserved terms of imprisonment; however, we vacate the post-release control

(“PRC”) sanction in appellate case no. 4-12-06 (trial court case no. 08 CR 10401)

and remand for an R.C. 2929.191 hearing for Davenport to be properly notified of

his mandatory three-year PRC obligation under R.C. 2967.28(B)(3).

      {¶2} Davenport pled guilty to one count of receiving stolen property in

violation of R.C. 2913.51, a fifth degree felony, in Defiance County case no. 08

CR 10352. (Doc. Nos. 1, 16, 20). The trial court found Davenport guilty of one

count of domestic violence in violation of R.C. 2919.25(A), a third degree felony,

in Defiance County case no. 08 CR 10401. (Doc. Nos. 2, 9).

      {¶3} On June 30, 2009, the trial court sentenced Davenport to four years of

community control in both cases and reserved a nine-month term of imprisonment

                                       -2-
Case No. 4-12-05, 4-12-06



in case no. 08 CR 10352 and a five-year term of imprisonment in case no. 08 CR

10401. (Doc. Nos. 20, 13).

      {¶4} On November 14, 2011, Amber Adams, Davenport’s former fiancé

and mother of his child, reported to the Van Wert County Sheriff’s Office that

Davenport physically assaulted her. (Dec. 21, 2011 Tr. at 9-10, 17, 28, 36-40).

Van Wert County issued an arrest warrant, and Davenport subsequently turned

himself in at the advice of his probation officer. (Id. at 7-8, 11). The Van Wert

County charges were subsequently dismissed. (Id. at 7, 48).

      {¶5} As a result of the November 14, 2011 domestic violence charges, the

State filed motions to revoke Davenport’s community control in Defiance County

case nos. 08 CR 10352 and 08 CR 10401. (Doc. Nos. 31, 23).

      {¶6} On December 21, 2011, the trial court held an adjudicatory hearing on

the motion and found Davenport violated the conditions of his community control.

(Dec. 21, 2011 Tr. at 58-59). Thereafter, the trial court revoked Davenport’s

community control and imposed its previously reserved terms of nine months of

imprisonment in case no. 08 CR 10352 and five years of imprisonment in case no.

08 CR 10401. (Id. at 63); (Doc. Nos. 33, 25).       The trial court ordered that

Davenport serve the nine-month sentence in case no. 08 CR 10352 consecutively

to the five-year sentence imposed in case no. 08 CR 10401 for an aggregate



                                       -3-
Case No. 4-12-05, 4-12-06



sentence of five years and nine months. (Dec. 21, 2011 Tr. at 63); (Doc. Nos. 33,

25).

       {¶7} On January 20, 2012, Davenport filed notices of appeal from the trial

court’s judgment entries revoking his community control in both cases. (Doc.

Nos. 38, 35). The appeal in Defiance County case no. 08 CR 10342 was assigned

appellate case no. 14-12-05, and the appeal in Defiance County case no. 08 CR

10401 was assigned appellate case no. 14-12-06, which appeals were consolidated.

       {¶8} Davenport now appeals raising two assignments of error.

                            Assignment of Error No. I

       The Trial Court Violated Appellant’s Right to Due Process to
       the Prejudice of Appellant by Finding that Appellant Violated
       the Terms of His Community Control after the Underlying
       Criminal Offense of which the Violation was Based upon was
       Dismissed.

       {¶9} In his first assignment of error, Davenport argues that the trial court

erred by revoking his community control since the only alleged violation was the

charge of domestic violence out of Van Wert County, which was dismissed.

       {¶10} Generally, “parole may be revoked even though criminal charges

based on the same facts are dismissed, the defendant is acquitted, or a conviction

is overturned.” State ex rel. Hickman v. Capots, 45 Ohio St.3d 324 (1989).

“However, if the dismissal of the criminal charges removes all factual support

from the revocation, the revocation will not be upheld.” Flenoy v. Ohio Adult

                                        -4-
Case No. 4-12-05, 4-12-06



Parole Authority, 56 Ohio St.3d 131, 132 (1990), citing Hickman, supra; Mack v.

McCune, 551 F.2d 251, 254 (10th Cir.1977).

       {¶11} Davenport argues that this case is factually similar to Rocky River v.

Ghaster, wherein the appellate court reversed the trial court’s decision to revoke

the defendant’s community control. 8th Dist. No. 94559, 2011-Ohio-600. In that

case the trial court found the defendant not guilty of violating the charges

stemming from a violation of a temporary protection order (“TPO”), but

nevertheless noted in its judgment entry that it would find defendant violated her

community control based upon the same evidence since the burden of proof was

only a preponderance of the evidence. Id. at ¶ 4. When the defendant objected that

the trial court’s comments exhibited prejudgment on the pending community

control violations, two of the alleged community control violations were

transferred for hearing by a different judge. Id.      The transfer judge was to

determine whether the defendant violated conditions four and nine of her

community control; however, the parties stipulated at the hearing that the only

violation at issue was the defendant’s violation of condition nine, i.e., that she

follow all of the terms of the TPO. Id. at ¶ 4, 7-8. The judge determined that the

defendant, in fact, violated condition nine and extended her community control

sanctions. Id. at ¶ 10. On appeal, the defendant argued that the trial court erred by

not dismissing the alleged violation of community control based upon double

                                        -5-
Case No. 4-12-05, 4-12-06



jeopardy. Id. at ¶ 12. The Court of Appeals for the Eighth District agreed. The

Court concluded that since the parties stipulated that the violation of community

control was based only upon the defendant’s failure to follow the terms of her

TPO, the trial court’s previous not guilty finding removed all factual support for

the community control violation. Id. at ¶ 18.

       {¶12} This case is easily distinguishable from Ghaster, however, since the

trial court herein did not enter a finding of not guilty on the underlying charges of

domestic violence. Rather, once the State filed the community control violation in

Defiance County, the domestic violence charges in Van Wert County were

dismissed. The fact that the State chose not to prosecute the underlying charge

and instead proceeded to revoke the defendant’s community control does not

remove all factual support from the revocation. State v. Scott, 2nd Dist. No. 95-

CA-101, *3 (Mar. 7, 1997). Aside from that, the victim, Amber Adams, testified

that Davenport grabbed her throat, held her mouth, and hit her across the face with

an open hand, busting her lip open. (Dec. 21, 2011 Tr. at 20-23). Photographs of

Adams taken by law enforcement the day of the incident corroborated Adams’

testimony concerning the domestic violence incident. (State’s Exs. 1-4). James

Roehm of the Van Wert County Sheriff’s office also testified that he observed

Adams’ injuries when she reported the incident on November 14, 2011. (Dec. 21,

2011 Tr. at 9-13).     Although Davenport denied the allegations of domestic

                                         -6-
Case No. 4-12-05, 4-12-06



violence on the stand, the trial court found that Davenport was “lying through his

teeth.” (Dec. 21, 2011 Tr. at 39-43, 59). Consequently, the trial court did not err

by revoking Davenport’s community control.

       {¶13} Davenport’s first assignment of error is, therefore, overruled.

                            Assignment of Error No. II

       The Trial Court Abused Its Discretion When It Revoked the
       Defendant’s Community Control Sanctions and Sentenced
       Defendant to the Balance of his Suspended Prison Sentence.

       {¶14} In his second assignment of error, Davenport argues that the trial

court abused its discretion by revoking his community control.

       {¶15} “‘Once the court finds a community control violation exists, we

review the court’s decision to revoke community control under an abuse of

discretion standard.’” State v. South, 3d Dist. No. 14-07-40, 2010-Ohio-983, ¶ 8,

quoting State v. Belcher, 4th Dist. No. 06CA32, 2007-Ohio-4256, ¶ 20. An abuse

of discretion implies that the trial court’s attitude was arbitrary, unreasonable, or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980).

       {¶16} The trial court did not abuse its discretion by revoking Davenport’s

community control. As previously noted, the State presented substantial evidence

that Davenport committed the criminal offense of domestic violence in violation

of his conditions of community control. Davenport had previously violated the

conditions of his community control in February 2011 by consuming alcohol and

                                         -7-
Case No. 4-12-05, 4-12-06



associating with a felon. (Case No. 08 CR 10401, Doc. Nos. 19-20; Case No. 08

CR 10352, Doc. No. 28). Davenport also had a theft offense for which the State

did not file a motion to revoke his community control. (Dec. 21, 2011 Tr. at 61).

Davenport was found delinquent for the following offenses: criminal mischief,

felonious assault, domestic violence, unauthorized use of a motor vehicle,

probation violation, escape, assault, disorderly conduct, criminal damaging, theft,

unruly, curfew, disorderly conduct, criminal trespass, burglary, assault, and

criminal damaging. (Id. at 62). As an adult, Davenport committed the following

offenses: disorderly conduct, criminal trespass, theft, forgery, multiple domestic

violence convictions, multiple community control violations, multiple driving

under suspension convictions, passing bad checks, and receiving stolen property.

(Id. at 62-63). During one incident of domestic violence, Davenport repeatedly

punched his wife in the head, face, arms, and legs, for which he expressed no

remorse stating “she got slapped around.” (Id. at 62). During another incident of

domestic violence, Davenport punched his pregnant girlfriend in the stomach after

accusing her of having an affair with another man. (Id.). The trial court further

noted that the criminal justice system gave Davenport multiple chances to

rehabilitate short of imprisonment to no avail. (Id.). Based upon the foregoing, the

trial court did not abuse its discretion by revoking Davenport’s community

control.

                                        -8-
Case No. 4-12-05, 4-12-06



       {¶17} Davenport’s second assignment of error is, therefore, overruled.

       {¶18} Although Davenports’ assignments of error lack merit, we must

vacate Davenport’s PRC sanction in appellate case no. 4-12-06 (trial court case no.

08 CR 10401) and remand the case for an R.C. 2929.191 hearing to properly

impose the mandatory three years of PRC as required by R.C. 2967.28(B)(3).

       {¶19} “When sentencing a felony offender to a term of imprisonment, a

trial court is required to notify the offender at the sentencing hearing about

postrelease control and is further required to incorporate that notice into its journal

entry imposing sentence.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085,

paragraph one of the syllabus, superseded by statute as stated in State v. Singleton,

124 Ohio St.3d 173, 2009-Ohio-6434. When post-release control is not properly

included in a sentence for a particular offense, that portion of the sentence is

subject to review and correction. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, ¶ 27-28, modifying State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250.

When presented with such a sentence, an appellate court may vacate that portion

of the sentence and remand the matter for a resentencing hearing limited to the

proper imposition of post-release control. Id. at ¶ 29, 40.

       {¶20} In trial court case no. 08 CR 10401, Davenport was convicted of one

count of domestic violence in violation of R.C. 2919.25(A), a third degree felony.

At the community control revocation hearing for this case and case no. 08 CR

                                         -9-
Case No. 4-12-05, 4-12-06



10352, the trial court advised Davenport that “[t]he Department of Corrections

may subject you up to three years of post release control.” (Dec. 21, 2011 Tr. at

64) (emphasis added). In its judgment entries, the trial court advised Davenport

that “he is subject to a period up to three years of post-release control.” (Dec. 22,

2011 JE, Doc. Nos. 33, 25) (Emphasis added). While the “up to” language was

sufficient to provide Davenport notice of his discretionary three years of PRC for

his fifth degree felony conviction in case no. 08 CR 10352 (appellate case no. 4-

12-05), this language did not provide Davenport sufficient notice of his mandatory

three years of PRC for his third degree felony domestic violence conviction in

case no. 08 CR 10401 (appellate case no. 4-12-06). R.C. 2967.28(B)(3), (C). For a

third degree felony wherein the offender caused or threatened physical harm to a

person, post-release control is mandatory for three years. R.C. 2967.28(B)(3).

State v. Weems, 192 Ohio App.3d 560, 2011-Ohio-721, ¶ 22 (F-3 domestic

violence subject to mandatory three-years of PRC under R.C. 2967.28(B)(3)). See

also State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 214. By using the terms

“up to” and “may,” the trial court did not provide Davenport notice that his post-

release control obligation in case no. 08 CR 10401 (appellate case no. 4-12-06)

was mandatory. State v. Riggans, 3d Dist. No. 1-09-56, 2010-Ohio-1254, ¶ 16;

State v. Perkins, 3d Dist. Nos. 13-10-50, 13-10-51, 2011-Ohio-3129, ¶ 20.

Consequently, we must vacate Davenport’s PRC sanction in case no. 08 CR 10401

                                        -10-
Case No. 4-12-05, 4-12-06



(appellate case no. 4-12-06) and remand this matter for an R.C. 2929.191 hearing

for the limited purpose of properly imposing PRC.

       {¶21} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court

revoking Davenport’s community control.      Nevertheless, since the trial court

failed to properly notify Davenport of his mandatory three-year PRC obligation

under R.C. 2967.28(B)(3), we vacate Davenport’s PRC sanction in case no. 08 CR

10401 (appellate case no. 4-12-06) and remand for an R.C. 2929.191 hearing.

                                       Judgment Affirmed in Case No. 4-12-05;
                                        Judgment Affirmed in Case No. 4-12-06
                                                 and Sentence Vacated in Part

SHAW, P.J. and ROGERS, J., concur.

/jlr




                                      -11-
