[Cite as State v. Harper, 2011-Ohio-2041.]


             Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95718



                                    STATE OF OHIO
                                             PLAINTIFF-APPELLEE

                                              vs.

                                  KELLEN HARPER
                                             DEFENDANT-APPELLANT




                          JUDGMENT:
                  REVERSED; SENTENCE VACATED;
                CASE REMANDED FOR RESENTENCING


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-525015

        BEFORE:             Cooney, J., Kilbane, A.J., and Keough, J.

    RELEASED AND JOURNALIZED: April 28, 2011
ATTORNEYS FOR APPELLANT
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Robert L. Tobik
Cuyahoga County Public Defender

By: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Lorraine Debose
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




COLLEEN CONWAY COONEY, J.:

       {¶ 1} Defendant-appellant, Kellen Harper (“Harper”), appeals the trial court’s

imposition of an 18-month prison term after finding that he violated his community control

conditions.   Finding merit to the appeal and accepting the State’s concession, we vacate his

sentence and remand for resentencing.

       {¶ 2} In August 2009, Harper pled guilty to attempted burglary and unlawful sexual

conduct with a minor.    He was sentenced to two years of community control sanctions.     In
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August 2010, he was charged with violating his community control sanctions and sentenced to

two concurrent terms of eighteen months in prison.

       {¶ 3} Harper now appeals, raising one assignment of error.

                                     Imposition of Imprisonment

       {¶ 4} In his sole assignment of error, Harper argues that the trial court erred in

imposing a term of imprisonment when the court failed at sentencing to advise him that a term

of imprisonment may be imposed if he violated community control sanctions. The State

concedes this issue.

       {¶ 5} “Pursuant to R.C. 2929.19(B)(5) and R.C. 2929.15(B), a trial court sentencing

an offender to a community control sanction must, at the time of sentencing, notify the

offender of the specific prison term that may be imposed for a violation of the conditions of

the sanction, as a prerequisite to imposing a prison term on the offender for a subsequent

violation.”   State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837,

paragraph two of the syllabus.

       {¶ 6} In the instant case, the record shows that the trial court failed to verbally advise

Harper during his original sentencing of the specific prison term that would be imposed if he

violated the community control conditions.          Moreover, the trial court’s journal entry

sentencing Harper to community control sanctions is entirely devoid of any notification to

Harper as to the specific prison term he would face if he violated the community control
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sanctions.   When the trial court fails to comply with R.C. 2929.19(B)(5) and 2929.15

regarding community control sanctions, the court may not impose a prison sentence at a

subsequent violation hearing.        See State v. Hayes, Cuyahoga App. No. 87642,

2006-Ohio-5924.

       {¶ 7} Therefore, we find that the trial court erred in imposing a term of imprisonment

for the community control violation because Harper was not advised at his original sentencing

that he would be subject to prison time if he violated the community control sanction.

       {¶ 8} Accordingly, the sole assignment of error is sustained.

       Judgment reversed.    Sentence vacated, and case remanded for resentencing.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
