[Cite as State v. Jones, 2017-Ohio-943.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


STATE OF OHIO                                    )    CASE NOS. 15 MA 0086
                                                 )              15 MA 0087
        PLAINTIFF-APPELLEE                       )
                                                 )
VS.                                              )    OPINION
                                                 )
WILLIE JONES                                     )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                             Criminal Appeals from the Youngstown
                                                      Municipal Court of Mahoning County,
                                                      Ohio
                                                      Case Nos. 10CRB02474;
                                                      10TRD03709

JUDGMENT:                                             Affirmed.

APPEARANCES:
For Plaintiff-Appellee:                               Atty. Dana Lantz
                                                      Youngstown City Prosecutor
                                                      Atty. Kathleen Thompson
                                                      Assistant Prosecuting Attorney
                                                      26 S. Phelps Street
                                                      Youngstown, Ohio 44503
                                                      No Brief Filed

For Defendant-Appellant:                              Atty. John A. Ams
                                                      134 Westchester Drive
                                                      Youngstown, Ohio 44515


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb

                                                      Dated: March 15, 2017
[Cite as State v. Jones, 2017-Ohio-943.]
WAITE, J.


        {¶1}     Appellant Willie Jones was originally convicted in two separate matters

in late 2010 and was sentenced solely to a period of probation for both by means of a

joint hearing in early 2011. Between 2011 and 2015, Appellant committed several

more criminal acts resulting in additional convictions and several probation violations.

Appellant now appeals two judgment entries from the Youngstown Municipal Court,

both filed May 8, 2015. In both, Appellant was separately sentenced to 180 days in

jail to be served consecutively to any other case. Both of these sentences were the

result of three separate criminal acts which also caused a third probation violation

conviction. Appellant argues that because the trial court did not state that his original

2011 sentence on the underlying convictions was to be served consecutively to any

other case, the court’s imposition of consecutive sentences for his later probation

violation is erroneous. For the reasons provided, Appellant’s arguments are without

merit and the judgment of the trial court is affirmed.

                                  Factual and Procedural History

        {¶2}     The record does not provide many details regarding either case before

us on appeal and Appellant’s history is convoluted. We can glean that on December

10, 2010 in case number 10TRD03709, Appellant was charged with:               speeding,

driving with a suspended license, and failure to comply. As the result of a Crim.R. 11

plea agreement, Appellant pleaded guilty to failure to comply and the remaining

charges were dismissed.

        {¶3}     In case number 10CRB02474, on December 13, 2010, Appellant was

charged with: one count of possession of drug paraphernalia, a misdemeanor of the
                                                                                     -2-

first degree in violation of Y.C.O. 513.12(c)(1); one count of possession of drug

instruments, a misdemeanor of the first degree in violation of Y.C.O. 513.04(a); and

one count of possession of marijuana, a misdemeanor of the first degree in violation

of Y.C.O. 513.03. As the result of a Crim.R. 11 plea agreement, Appellant pleaded

guilty to possession of marijuana and a reduced possession of drug paraphernalia

charge. The remaining charge was dismissed. On February 3, 2011, Appellant was

sentenced to five years of probation in both matters and his driver’s license was

suspended for three years.        It appears that Appellant received a combined

sentencing hearing dealing with both cases and a combined sentence, but was

issued separate judgment entries in each case.

      {¶4}   On January 3, 2012, notification of a possible probation violation was

filed. The violations included: failure to report to probation on two occasions, failure

to complete community service, failure to comply with drug and alcohol treatment,

failure to pay financial sanctions, and an arrest for assault on November 25, 2011. It

appears that Appellant was placed on house arrest in connection with these charges.

Before the trial court’s scheduled hearing, a second notification of possible probation

violation was filed because Appellant failed to comply with house arrest.

      {¶5}   Appellant was found guilty of the criminal charge. On March 20, 2013,

Appellant was sentenced to a thirty-day jail term for the first violation. Notably, this

sentence was ordered to run consecutively to any other sentence. Appellant served

his 30-day jail sentence and no appeal was taken of this matter.
                                                                                        -3-

       {¶6}    Appellant was also found guilty of his second probation violation, and

on May 20, 2013 Appellant was sentenced to a 180 day term of incarceration which

was then suspended.        We note that this sentence was also ordered to run

consecutively to any other sentence.

       {¶7}    On November 7, 2014, a third notice of possible probation violation was

filed, alleging the following: failure to report to probation on two occasions, failure to

complete community service, failure to comply with alcohol and drug treatment,

failure to pay financial sanctions, and an active “FTA capias” out of Liberty Twp.

Appellant stipulated to all violations.   On May 8, 2015, the trial court sentenced

Appellant to 180 days in jail for his original charges of possession of marijuana/drug

abuse and 30 days in jail for drug paraphernalia. The court ordered these sentences

to run concurrently, but consecutively to any other sentence.              Appellant was

sentenced to an additional 180 days for failure to comply. This sentence was also

ordered to be served consecutively with any other sentence.             It is from these

judgment entries that Appellant timely appeals.

       {¶8}    It is noted that Appellant filed a motion for sentence modification and a

motion seeking stay pending appeal. The trial court denied the former motion and

granted the latter. It is further noted that the state declined to file a response brief in

this matter.

                              ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING

       CONSECUTIVE         SENTENCES        AFTER REVOKING           PROBATION
                                                                                   -4-

      BECAUSE THE SENTENCES WERE NOT ORIGINALLY IMPOSED

      CONSECUTIVELY.

      {¶9}   Pursuant to R.C. 2929.41(B)(1):

      A jail term or sentence of imprisonment for a misdemeanor shall be

      served consecutively to any other prison term, jail term, or sentence of

      imprisonment when the trial court specifies that it is to be served

      consecutively or when it is imposed for a misdemeanor violation of

      section 2907.322, 2921.34, or 2923.131 of the Revised Code.


      When consecutive sentences are imposed for misdemeanor under this

      division, the term to be served is the aggregate of the consecutive

      terms imposed, except that the aggregate term to be served shall not

      exceed eighteen months.

      {¶10} Appellant asserts that the trial court’s February 3, 2011 sentence for the

underlying charges in case number 10TRD03709, which imposed probation, did not

order that his sentence run consecutively to any other sentence. Likewise the trial

court’s February 3, 2011 sentence of probation for his charges in case number

10CRB02474 was not ordered as a consecutive sentence.            As such, Appellant

argues that the trial court’s May 8, 2015 imposition of consecutive sentences

modified the original combined sentence. Because the original orders were final,

Appellant argues that the trial court had no jurisdiction to modify them by now

ordering a consecutive sentence.
                                                                                    -5-

      {¶11} Because Appellant was not originally given a definite jail term, but was,

instead, sentenced to probation, we must first determine whether sentencing was

appropriate, here. Pursuant to R.C. 2929.25(A)(3):

      At sentencing, if a court directly imposes a community control sanction

      or combination of community control sanctions pursuant to division

      (A)(1)(a) or (B) of this section, the court shall state the duration of the

      community control sanctions imposed and shall notify the offender that

      if any of the conditions of the community control sanctions are violated

      the court may do any of the following:


      (a) Impose a longer time under the same community control sanction if

      the total time under all of the offender's community control sanctions

      does not exceed the five-year limit specified in division (A)(2) of this

      section;


      (b) Impose a more restrictive community control sanction under section

      2929.26, 2929.27, or 2929.28 of the Revised Code, but the court is not

      required to impose any particular sanction or sanctions;


      (c) Impose a definite jail term from the range of jail terms authorized for

      the offense under section 2929.24 of the Revised Code.

      {¶12} Here, following his third probation violation, the trial court chose to

impose sentence on Appellant for the underlying convictions pursuant to R.C.

2929.25(A)(3)(c). As such, the court was required to impose a definite jail term from
                                                                                    -6-

the range of jail terms authorized for the offenses. As noted by the trial court’s

sentencing entries, the offenses relevant to this appeal include drug abuse and drug

paraphernalia (case number 10CRB02474) and failure to comply (case number

10TRD03709). Pursuant to R.C. 2929.24(A)(1), the statutory range for possession of

drug paraphernalia and failure to comply, both misdemeanors of the first degree, is

180 days or less. According to R.C. 2929.24(A)(4), the statutory range for drug

abuse, a misdemeanor of the fourth degree, is 30 days or less.

      {¶13} In the trial court’s May 8, 2015 judgment entry for case number

2010TRD03709, Appellant was sentenced to a 180-day jail term for the probation

violation arising from his failure to comply conviction. The trial court’s other May 8,

2015 judgment entry addressed Appellant’s sentence for the probation violation

arising from case number 10CRB02474.          In that case, because he violated his

probation Appellant was sentenced to a 180-day jail term on the underlying drug

abuse conviction and a 30-day jail term on the underlying drug paraphernalia

conviction. The trial court ordered the sentences arising from the drug abuse and

drug paraphernalia convictions to run concurrently, but consecutive to the failure to

comply sentence. Each sentence was entered as the result of a probation violation

and is within the appropriate statutory sentence range. We note that the transcripts

of the original sentencing hearing were not provided to this Court, so the record does

not clearly reflect whether Appellant received notice that a jail term would be imposed

if he violated his probation. However, “[w]hen a defendant fails to provide a complete

and proper transcript, a reviewing court will presume regularity of the proceedings in
                                                                                       -7-

the trial court[.]” State v. Dumas, 7th Dist. No. 06 MA 36, 2008-Ohio-872, ¶ 14, citing

State v. Johnson, 9th Dist. No. 02CA008193, 2003-Ohio-6814, ¶ 9.             This record

reflects then, that the trial court complied with R.C. 2929.25. The question remains

whether the trial court properly ordered the sentences to run consecutively.

       {¶14} In support of his argument, Appellant relies on State v. Fankle, 2d Dist.

Nos. 26350, 26351, 26352, 2015-Ohio-1581. In Fankle, the appellant received a

180-day suspended jail sentence and was placed on community control. Id. at ¶ 3.

Two months later, Fankle was charged with two additional crimes and received two

180-day jail terms, to run concurrently, with 120 days suspended. He was again

placed on community control. Id. at ¶ 4.

       {¶15} One month later, Fankle was charged with violating a protection order.

The trial court imposed the following sentence: 180-day jail sentence, revocation of

community control in the prior cases, and reinstatement of the prior 180-day

suspended sentences. Id. at ¶ 5. In other words, Fankle was sentenced to a total of

three 180-day jail sentences, which the trial court ordered were to run consecutively.

Fankle did not contest the trial court’s ability to order his sentence from the third case

to run consecutive to the sentences arising from his first and second. He argued that

the trial court lacked authority to run the sentences stemming from the first two cases

consecutive to one another, because the trial court had not included language

regarding consecutive sentences in these judgment entries. Id. at ¶ 6.

       {¶16} On appeal, the Fifth District agreed. While acknowledging that the trial

court could not have included consecutive sentencing language in the first judgment
                                                                                       -8-

entry, as it was the sole sentence at the time, the Court focused on the fact that the

second sentencing entry did not include consecutive sentencing language despite

the existence of the first conviction. As the trial court had the ability to include such

language but failed to expressly do so, the Court held that the first two sentences

involved concurrent jail terms. Further, the trial court’s attempt to order that the

previously suspended sentences were to be consecutive only by means of the

revocation of community control amounted to a modification of Fankle’s sentence, for

which the trial court lacked jurisdiction. Id. at ¶ 8. The heart of the Fankle decision is

that the two 180 day suspended terms imposed on Fankle at his first probation

violation sentencing were specifically ordered to be served concurrently. There was

no consecutive language at all in his first probation violation order. When Fankle

again violated probation, the trial court reimposed the 180 day sentences from his

original sentencing and his first probation violation, but for the first time ordered that

they run consecutively and not concurrently, as the court had originally ordered.

Hence, it appears that the court attempted to change his 180 day concurrent

sentences from his original sentencing and his first probation violation to consecutive

sentences. For this reason, the Second District held that the sentence for Fankle’s

second probation violation amounted to an improper modification of earlier final court

orders.

       {¶17} Appellant’s case is readily distinguishable from Fankle. Here, the trial

court imposed five years of basic probation in the original cases – 10CRB02474 and

10TRD03709. Although the existence of two convictions may have authorized the
                                                                                      -9-

trial court to order consecutive sentences, the court did not do so and sentenced

instead to a combined period of five years of probation for all convictions.        The

validity of the original sentences are not at issue on appeal. The issue, here, is

whether the trial court properly ordered Appellant’s May 8, 2015 sentences on the

underlying convictions which arose due to his third probation violation to run

consecutively.    Again, we note that Appellant was charged and sentenced three

separate times for three separate instances of probation violations. For the first, it is

clear that Appellant served his thirty-day sentence for the crime on which the violation

was based.       This charge was specifically ordered consecutive, but at the time,

Appellant was under no other order requiring jail time. The sentence in his first

probation violation is also not at issue in this appeal. Appellant’s second violation

resulted in a 180 day suspended sentence that was specifically ordered to run

consecutively.

       {¶18} The trial court’s May 20, 2013 judgment entry for Appellant’s second

probation violation stated:    “180 days jail – stayed until further order by court.

Consecutive to any other sentence.” (5/20/13 J.E.)

       {¶19} Similarly, the trial court’s May 8, 2015 third probation violation judgment

entry in case number 10CRB02474 states:              “M1 drug abuse 180 days jail

consecutive. M4 Drug para 30 days jail concurrent with drug abuse[.] [U]pon release

from jail report to probation to do community service for fines, costs, fees –

community service hearing held – defendant Indigent – unable to pay.” (5/8/15 J.E.)

In case number 10TRD03709, the trial court’s sentencing entry states:            “Fail to
                                                                                   -10-

comply M1 180 days jail consecutive[.] [U]pon release from jail report to probation to

do community service for fines, costs, fees owed – community service hearing held –

defendant found indigent – unable to pay.” (5/8/15 J.E.) Unlike Fankle, the trial court

specifically included consecutive sentencing language in the judgment entries

entered in all three of Appellant’s probation violations. Unlike Fankle, the trial court

here was not reinstating earlier jail sentences that were concurrent and attempting to

change these sentences, at a later date, into consecutive sentences. The trial court

appropriately sentenced Appellant to entirely new sentences and appropriately

ordered them to run consecutively. The trial court here had the ability to impose a

definite sentence for his earlier convictions pursuant to R.C. 2929.25(A)(3)(c). The

court, for the first time, was entering a definite sentence of incarceration. The trial

court specifically ordered these definite terms to run consecutively. Because the

judge was not merely reimposing an earlier, suspended definite jail sentence, these

new sentences in no way modify the earlier probation only sentence and Fankle does

not apply. The trial court specifically ordered these sentences to run consecutively

with one another ─ 30 days concurrent with 180 days for one, 180 days on the other

─ but both 180 day terms to run consecutively.            As the trial court included

consecutive sentencing language and the aggregate total of the sentences is within

the 18 month total maximum sentence, the trial court properly imposed these new

consecutive sentences. Id. at ¶ 3. Again, this matter did not involve reimposition of

an earlier final order of a definite jail term sentence. Accordingly, Appellant’s sole

assignment of error is without merit and is overruled.
                                                                                  -11-

                                       Conclusion

       {¶20} Appellant contends that the trial court improperly imposed consecutive

sentences for his second and third probation violations.         However, the relevant

judgment entries contain the requisite consecutive sentencing language and the

aggregate sentence is within 18 months.          Accordingly, Appellant’s argument is

without merit and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

Robb, P.J., concurs.
