[Cite as State v. Wareham, 2013-Ohio-1494.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 3-12-10

        v.

LOVELL C. WAREHAM,                                        OPINION

        DEFENDANT-APPELLANT.




               Appeal from Crawford County Common Pleas Court
                          Trial Court No. 10-CR-0066

                                     Judgment Affirmed

                            Date of Decision:   April 15, 2013




APPEARANCES:

        Shane M. Leuthold for Appellant

        Clifford J. Murphy for Appellee
Case No. 3-12-10


ROGERS, J.

       {¶1} Defendant-Appellant, Lovell Wareham, appeals the judgment of the

Court of Common Pleas of Crawford County finding that he violated his

community control and sentencing him to an 11-month prison term. On appeal,

Wareham argues that the trial court erred by: (1) failing to consider and make

findings regarding the potential for sanctions that were less severe than prison; and

(2) recommending that Wareham’s sentence for his community control violation

be served consecutively to his sentence in another case. For the reasons that

follow, we affirm the trial court’s judgment.

       {¶2} On April 18, 2010, the Crawford County Grand Jury indicted

Wareham on one count of breaking and entering in violation of R.C. 2911.13, a

felony of the fifth degree.     He pleaded guilty and the trial court sentenced

Wareham to three years of community control on July 20, 2010. As part of his

community control, Wareham was instructed to obey all federal, state, and local

laws. When imposing community control, the trial court notified Wareham that

“[v]iolation of this sentence shall lead to a more restrictive sanction, a longer

sanction, or a prison term of twelve (12) months.” (Docket No. 12, p. 3).

       {¶3} On February 24, 2012, the State moved to revoke Wareham’s

community control. The basis for the motion was the State’s discovery that

Wareham was involved in a sexual relationship with a 13-year old child. This


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relationship gave rise to a separate case in which Wareham faced a charge of

unlawful sexual contact with a minor, a felony of the fourth degree. A community

control violation hearing was conducted on July 16, 2012, but the trial court

abstained from entering a judgment at that time since Wareham’s trial in the

unlawful sexual contact case was still pending.1

        {¶4} On August 20, 2012, the trial court conducted another community

control violation hearing. The State represented that before the hearing, Wareham

was convicted of unlawful sexual contact with a minor, but that he had not yet

received his sentence in that matter. The trial court then orally stated its finding

and sentence:

        I’m gonna find based upon the testimony that I heard that you
        violated your probation and, of course, the conviction is a violation
        of your probation; and your Community Control is going to be
        revoked and you’re gonna serve an 11-month sentence in the state
        penitentuary [sic]. I’ll make a notation that’s to be served
        consecutive with any violation you get in your new case, however,
        that’s up to the judge, the sentencing judge on that.2 Tr., p. 5-6.

On September 6, 2012, the trial court issued a judgment entry revoking

Wareham’s community control and imposing an 11-month prison term for his




1
  The record before us does not contain the transcript of the July 16, 2012 hearing or the filings from
Wareham’s case relating to unlawful sexual contact with a minor.
2
  Wareham was sentenced to three years of community control. As such, the trial court should have
referred to Wareham violating community control, not probation.

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violation.3 The trial court furthered ordered that the “prison sentence shall be

served consecutively to any other prison sentence the defendant is under.”

(Docket No. 23, p. 1-2).

         {¶5} Wareham filed this timely appeal, presenting the following

assignments of error for our review.

                                    Assignment of Error No. I

         THE TRIAL COURT ERRED IN NOT CONSIDERING ANY
         OF THE LESS SEVERE SANCTIONS, OTHER THAN
         PRISON, WHEN SENTENCING APPELLANT, AND FOR
         FAILING TO MAKE ANY FINDINGS AS TO WHY THE
         LESS   SEVERE  SANCTIONS   WOULD    NOT   BE
         APPROPRIATE.

                                    Assignment of Error No. II

         THE VISITING JUDGE ERRED BY ORDERING THE
         COMMUNITY    CONTROL     SANCTION   TO RUN
         CONSECUTIVE WITH A NEW CHARGE THAT
         APPELLANT HAD YET TO BE SENTENCED ON.

                                     Assignment of Error No. I

         {¶6} In his first assignment of error, Wareham argues that the trial court

improperly failed to consider less severe sanctions than prison for his community




3
  We note that the trial court’s judgment entry fails to state the basis for its revocation of Wareham’s
community control. Since the trial court orally stated the basis for the revocation at the hearing, this does
not amount to reversible error. E.g., State v. Osborn, 3d Dist. No. 9-05-35, 2006-Ohio-1890, ¶ 10 (“[A]n
oral statement made on the record by the court in lieu of a written statement is deemed to satisfy the [due
process] requirement of a written statement * * *.”), citing State v. Delaney, 11 Ohio St.3d 231, 235 (1984).
Although this does not create reversible error, we are mindful that such “oral ‘explanations’” are not
“condone[d]” by the Supreme Court of Ohio. Delaney at 235.

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control violation and failed to make findings regarding those sanctions.        We

disagree.

      {¶7} R.C. 2929.15(B) governs the imposition of sanctions for a

defendant’s violation of his community control. It provides, in pertinent part, as

follows:

      (1) If the conditions of a community control sanction are violated
      or if the offender violates a law * * *, the sentencing court may
      impose one or more of the following penalties:

      (a) A longer time under the same sanction if the total time under
      the sanction does not exceed the five-year limit specified in division
      (A) of this section;

      (b) A more restrictive sanction under section 2929.16, 2929.17, or
      2929.18 of the Revised Code;

      (c) A prison term on the offender pursuant to Section 2929.14 of
      the Revised Code.

      (2) The prison term, if any, imposed upon a violator pursuant to this
      division shall be within the range of prison terms available for the
      offense for which the sanction that was violated was imposed and
      shall not exceed the prison terms specified in the notice provided to
      the offender at the sentencing hearing pursuant to division (B)(2) of
      Section 2929.19 of the Revised Code. R.C. 2929.15(B).

      {¶8} The trial court has significant discretion in sentencing a defendant

for a community control violation, so long as it is consistent with the purposes and

principles of sentencing and with notification provided by the trial court when

imposing the community control sanctions.       See R.C. 2929.15(B)(2); State v.

Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 20 (stating that a trial court has “a

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Case No. 3-12-10


great deal of latitude in sentencing” an offender for a community control

violation). In setting such a term, the trial court need not make findings or give

reasons for imposing a maximum sentence or more than a minimum sentence.

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus;

see also State v. Anderson, 2d Dist. No. 24657, 2012-ohio-957, ¶ 11 (applying

Foster framework to sentencing for community control violations). Still, when

sentencing an offender for a community control violation, the trial court must

“consider both the seriousness of the original offense leading to the imposition of

community control and the gravity of the community control violation.” Brooks at

¶ 20.

        {¶9} The record here supports the trial court’s imposition of an 11-month

sentence for Wareham’s community control violation.        Wareham violated his

community control by engaging in an ongoing sexual relationship with a 13-year

old child. At the second community control hearing, Wareham’s attorney tended

to downplay such behavior as simply “overly chasing the ladies.” Tr., p. 4.

Additionally, the trial court indicated that Wareham’s admission to the

relationship at the second hearing contradicted his earlier representations at the

first hearing. In light of this evidence, Wareham’s violation of community control

resulted from abhorrent and generally unrepentant behavior. Based on the gravity

of his violation and the seriousness of his original conviction for breaking and


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entering, we are unable to find that the trial court’s sentence was contrary to law.

See Anderson at ¶ 14 (affirming sentence for community control violation despite

the defendant’s argument that the trial court should have considered and imposed a

less severe sanction).    We also note that the trial court’s sentence for the

community control violation was consistent with the notification given to

Wareham when he was originally sentenced on the breaking and entering

conviction.

       {¶10} Wareham cites to State v. McPherson, 142 Ohio App.3d 274 (4th

Dist. 2001), in support of his position that trial courts must consider and make

findings regarding lesser severe sanctions when imposing sentence for a

community control violation. However, a review of McPherson reveals that it

does not apply in this matter. There, the Fourth District found that the trial court

inappropriately sentenced the defendant because it imposed an automatic prison

sentence without consideration of the purposes and principles of felony

sentencing. Further, the court found that the trial court failed to properly advise

the defendant of the potential prison term for a violation of his community control.

Id at 282-83. This matter implicates neither the trial court’s automatic imposition

of a prison term, nor its failure to advise the defendant of a potential prison term.

Additionally, any guidance indicating that findings are necessary regarding lesser

severe sanctions is inapposite since McPherson predates Foster and its elimination


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of judicial fact-finding requirements for the imposition of sentences within the

relevant statutory range. As such, we decline to apply McPherson here.

       {¶11} Accordingly, we overrule Wareham’s first assignment of error.

                            Assignment of Error No. II

       {¶12} In his second assignment of error, Wareham argues that the trial

court erred by ordering that the sentence for Wareham’s community control

violation run consecutively to his sentence for unlawful sexual contact with a

minor. We disagree.

       {¶13} We must initially resolve the appropriate scope of the record

regarding this assignment of error. The State attached a judgment entry from

Wareham’s unlawful sexual contact with a minor case to its appellate brief in this

matter. However, neither this entry nor any other filing from that case is included

in the record for this matter. As such, the entry is not properly before us and we

decline to consider it when addressing Wareham’s argument. See App.R. 9(A)(1)

(outlining the contours of the appellate record); Deitz v. Deitz, 3d Dist. No. 14-11-

06, 2012-Ohio-130, ¶ 8 (stating that materials attached to appellate brief and not

part of record are precluded from consideration).

       {¶14} After reviewing the trial court’s judgment entry of sentencing, we

find that Wareham misapprehends its effect on his sentence. The judgment entry

does not refer to Wareham’s conviction in the unlawful sexual contact case, nor


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does it state that his sentence for the community control violation is to run

consecutively to his sentence in that case. Rather, the judgment entry merely

states that Wareham’s sentence in this matter is to “run consecutively to any other

prison sentence [he] is under.” (Docket No. 23, p. 1-2). Based on this language

and the fact that Wareham had not been sentenced in his unlawful sexual contact

case at the time of the sentencing hearing, we are unable to find that the trial court

ordered Wareham to serve his sentence in this matter consecutively to any

sentence he received in the unlawful sexual contact case.4 Further, the trial court’s

explicit statement at the sentencing hearing that it would leave the decision

regarding consecutive sentences to the sentencing judge in the unlawful sexual

contact case reinforces our finding.

         {¶15} Since the trial court did not order Wareham to serve his sentence for

the community control violation consecutively to his sentence in the unlawful

sexual contact case, there is no basis for this assignment of error. See State v.

Hines, 8th Dist. No. 84218, 2005-Ohio-4421, ¶ 14 (overruling the defendant’s

assignment of error challenging consecutive sentences since the judgment entry

reflected that the trial court did not impose consecutive sentences).

         {¶16} Accordingly, we overrule Wareham’s second assignment of error.



4
  Indeed, since the judgment entry fails to refer to any other sentence, it fails to order that Wareham serve
his sentence for the community control violation consecutively to any sentence, whether it be the one he
received in the unlawful sexual contact case or any other.

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       {¶17} Having found no error prejudicial to Wareham, in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                             Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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