[Cite as State v. Jimenez, 2017-Ohio-1553.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104735




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                    JOSHUA JIMENEZ
                                                    DEFENDANT-APPELLANT




                       JUDGMENT:
    AFFIRMED IN PART, VACATED IN PART, AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-597623-A

        BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: April 27, 2017
ATTORNEY FOR APPELLANT

Jeffrey Froude
P.O. Box 771112
Lakewood, Ohio 44107


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Ashley B. Kilbane
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} Joshua Jimenez appeals the revocation of his community control sanction.

We affirm in part, vacate the sentence imposed, and remand for a new sentencing hearing.

       {¶2} Jimenez pleaded guilty to the third-degree felony for the failure to provide

notice of his changed address under R.C. 2950.05(E)(1), a requirement of his sexual

offender classification. In February 2016, the trial court imposed one year of community

control sanctions to be served at a community-based correctional facility (“CBCF”), if

Jimenez was able to secure placement in the institution.1 The trial court ordered CBCF

personnel to screen Jimenez. If Jimenez was found ineligible, he was to be returned to

the trial court for further determination. The court warned Jimenez that any violation of

the terms of community control could lead to a 36-month sentence on the charge to which

Jimenez pleaded guilty.

       {¶3} In May of that year, Jimenez was returned to the trial court for failing to abide

by the conditions of CBCF confinement, which resulted in Jimenez being terminated from

the program. Jimenez appeared in court and admitted that he had failed to meet the

guidelines. The trial court followed through on the promise to sentence Jimenez to a

36-month term of imprisonment, with credit for 172 days served.

       {¶4} Jimenez appealed, claiming the procedure by which his violation was found

deprived him of his constitutional right to due process, that the 36-month sentence was


       1
          There is no indication as to the duration of time to be spent in the residential confinement,
but that issue has not been raised or briefed.
contrary to law because the court “predetermined” the sentence without considering the

R.C. 2929.11 and 2929.12 sentencing factors, and that his counsel at the hearing was

ineffective for not inquiring into the nature of the violation. We affirm in part, but

vacate the sentence and remand for a full sentencing hearing.

       {¶5} Jimenez failed to object to the proceedings below and has waived all but

plain error. State v. Frazier, 8th Dist. Cuyahoga No. 104596, 2017-Ohio-470, ¶ 8, citing

State v. Murphy, 91 Ohio St.3d 516, 532, 2001-Ohio-112, 747 N.E.2d 765, quoting State

v. Childs, 14 Ohio St.2d 56, 62, 236 N.E.2d 545 (1968) (“[e]ven constitutional rights

‘may be lost as finally as any others by a failure to assert them at the proper time.’”).

Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.” Id.

       {¶6} This court has repeatedly held that oral notice coupled with the complete

admission at the preliminary hearing on the violation of sanctions satisfies any due

process or effective assistance of counsel concerns. See, e.g., Frazier at ¶ 10-12; State v.

Patton, 2016-Ohio-4867, 68 N.E.3d 273, ¶ 9 (8th Dist.) (oral notice of alleged violation

may be sufficient to satisfy constitutional due process concerns); State v. Jones, 8th Dist.

Cuyahoga No. 102999, 2016-Ohio-2626, ¶ 10; State v. Washington, 8th Dist. Cuyahoga

Nos. 101157 and 101170, 2015-Ohio-305, ¶ 22; State v. Lenard, 8th Dist. Cuyahoga No.

93373, 2010-Ohio-81, ¶ 12; Lakewood v. Sullivan, 8th Dist. Cuyahoga No. 79382,

2002-Ohio-2134, ¶ 26. Further, the admission to the violation during a preliminary

hearing waives any further argument as to whether the offender violated the terms of his
community control sanctions during subsequent proceedings. Frazier at ¶ 17. Jimenez

has not provided any basis for us to diverge from our precedent, much less even identified

any of the controlling law in his appellate brief. App.R. 16(A)(7).

      {¶7} At the violation hearing, for which Jimenez has not argued that he lacked any

notice, Jimenez and his counsel both conceded the violation had indeed occurred. As a

result of his noncompliance, Jimenez was terminated from the CBCF program, an express

term of the community control sanctions.       The notification coupled with Jimenez’s

concession satisfied any due process concerns. Further, if any error existed, Jimenez

invited that error himself by expressly conceding to the violation and the summary nature

of the preliminary proceedings. Frazier at ¶ 12. “Under the settled principle of invited

error, a litigant may not ‘take advantage of an error which he himself invited or

induced.’” Murphy at 535-536, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor

Co., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus.

      {¶8} Jimenez, however, has also argued that the trial court failed to consider the

sentencing factors before imposing the 36-month sentence, citing State v. Heinz, 146

Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965. In Frazier, it was concluded that “a

sentence imposed following a community control violation constitutes a full sentencing

hearing where the court must abide by the relevant sentencing provisions and the rights

that inure to a criminal defendant.”       Frazier, 8th Dist. Cuyahoga No. 104596,

2017-Ohio-470, at ¶ 15, citing Heinz at ¶ 15; State v. Saxon, 8th Dist. Cuyahoga No.

104295, 2017-Ohio-93, ¶ 8; State v. Morris, 8th Dist. Cuyahoga No. 104013,
2016-Ohio-7614, ¶ 12. “Because offenders are sentenced anew, they must be afforded

the same rights as those afforded during an original sentencing hearing.” Frazier at ¶ 13;

see also State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17.

       {¶9} In Fraley, for example, the Ohio Supreme Court determined that under R.C.

2929.19(B)(5) and 2929.15(B), trial courts must notify the offender of the specific prison

term that may be imposed for the violation of the conditions of sanctions. Fraley at ¶ 18.

 The statutory section, R.C. 2929.19(B)(5), is meant to “put the offender on notice of the

specific prison term he or she faces if a violation of the conditions occurs.” Notice,

however, is just that. As the Ohio Supreme Court further held, “[a]t this second hearing,

the court sentences the offender anew and must comply with the relevant sentencing

statutes.” Id., citing State v. Martin, 8th Dist. Cuyahoga No. 82140, 2003-Ohio-3381, ¶

35 (trial court committed reversible error in failing to consider the minimum term under

the version of R.C. 2929.14(B) then in effect at the sentencing hearing on the violation of

community control sanctions). If the trial court is imposing a prison term upon the

violation of the community control sanctions already imposed, the court must

independently consider the sentencing factors at the time of the violation and in the

ensuing final sentencing entry that complies with all applicable requirements for finality.

       {¶10} In response, the state claims that the trial court considered the factors

enumerated in R.C. 2929.11 and 2929.12 because at the original sentencing hearing the

court noted such. The state argues that this case is analogous to the decision in State v.

Hutchinson, 8th Dist. Cuyahoga No. 102856, 2016-Ohio-927, ¶ 21. In that case, the
offender was placed on community control facing a potential 36-month sentence for

burglary upon any violation. Id. The trial court subsequently found a violation occurred

and sentenced the offender to the 36-month prison sentence after considering the

sentencing factors a second time. Id. The decision in Hutchinson is controlling, but not

for the reason the state now claims. As alluded to in that case, it was concluded that the

trial court must consider the sentencing factors in the new sentencing hearing that occurs

following a violation of the community control sanctions. Id. at ¶ 20 (noting the trial

court held a second sentencing hearing following the violation at which time the court

considered the felony sentencing factors anew).

      {¶11} The summary nature of Jimenez’s brief hearing for the notice of violation

precludes us from affirming. The trial court failed to consider the sentencing factors

before imposing the 36-month sentence at the hearing and in the final sentencing entry.

Jimenez’s sentence is, therefore, contrary to law. State v. Gaines, 8th Dist. Cuyahoga

No. 103476, 2016-Ohio-4863, ¶ 8 (a sentence is contrary to law if the trial court fails to

consider the purposes and principles of felony sentencing under R.C. 2929.11 and

2929.12). The sentence is vacated, and the case is remanded for a complete sentencing

hearing at which time Jimenez’s sentence is to be considered de novo.            Jimenez

personally admitted to the violation during the original hearing, however, so he has

waived any argument that he did not commit a violation, which shall remain the law of

this case. Frazier at ¶ 17. The sentence imposed is vacated, and the matter remanded.
      It is ordered that appellant and appellee share 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. Case remanded to the trial court for

resentencing.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

TIM McCORMACK, P.J., and
MARY J. BOYLE, J., CONCUR
