[Cite as State v. Hawk , 2011-Ohio-4577.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                              ATHENS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 10CA50
                               :
     vs.                       : Released: August 29, 2011
                               :
GARY W. HAWK,                  : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Timothy Young, Ohio State Public Defender, and Sarah G. LoPresti, Ohio
State Assistant Public Defender, Columbus, Ohio, for Appellant.

C. David Warren, Athens County Prosecuting Attorney, and George J.
Reitmeier, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} This is an appeal from an Athens County Court of Common

Pleas judgment entry, issued after holding a re-sentencing hearing in order to

properly impose a mandatory five-year term of post release control. On

appeal, Appellant contends that the trial court erred by imposing courts costs

without notifying him that failure to pay court costs may result in the court’s

ordering him to perform community service.
Athens App. No. 10CA50                                                           2


      {¶2} We conclude that, to the extent the re-sentencing entry imposed

court costs related to the re-sentencing hearing, rather than simply reiterating

the costs imposed at the original sentencing hearing, the trial court erred in

failing to provide Appellant the notice regarding community service required

by R.C. 2947.23. Thus, Appellant’s sole assignment of error is sustained.

As such, we must vacate the portion of the entry that imposes court costs and

remand this case for re-sentencing as to the issue of court costs.

      {¶3} Further, in light of the recent Supreme Court holding in State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, on remand,

in issuing its amended sentencing entry, we instruct the trial court to 1)

delete any reference to a “de novo” sentencing hearing; 2) mirror the

original sentencing entry with the exception of the original, improper post

release control notifications; and 3) add the proper the provisions for the

imposition any new order to pay court costs, as well as the notifications

regarding community service required by R.C. 2947.23.

                                    FACTS

      {¶4} After pleading guilty to one count of rape, in violation of R.C.

2907.02(A)(1)(b), and one count of rape in violation of R.C. 2907.02(A)(2),

both first degree felonies, Appellant’s original sentencing hearing was held

on January 3, 2001. On January 16, 2001, the trial court issued a judgment
Athens App. No. 10CA50                                                          3


entry sentencing Appellant to 1) “an indeterminent [sic] sentence of a

minimum of eight (8) years to a maximum of twenty-five (25) years” in

count one; 2) six years on count two, to be served consecutively to the

sentence on count one; and ordered Appellant to pay court costs. Although

the trial court mentioned in its sentencing entry that violation of post release

control may result in Appellant being returned to prison, it did not impose a

specific term of post release control.

      {¶5} On June 4, 2010, Appellant filed a “Motion for Re-sentencing

Pursuant to ‘Singleton’ Mandate.” Although the trial court originally denied

Appellant’s motion, after Appellant filed a motion for reconsideration, the

trial court scheduled a hearing to re-sentence Appellant on October 22, 2010.

At the hearing, which the court characterized as a “De Novo sentencing

hearing,” the trial court imposed the same sentence that was originally

imposed on Appellant, but this time it notified him that post release control

was mandatory for a period of five years. The trial court’s October 26,

2010, judgment entry also properly imposed a mandatory five year term of

post release control. At issue in the present case, the transcript from the

sentencing hearing includes the following statement by the trial court

regarding court costs: “[t]he Court did not impose any fine but it did order

payment of court costs, and that is ordered at this de novo hearing.”
Athens App. No. 10CA50                                                              4


      {¶6} It is from the judgment entry issued after re-sentencing that

Appellant now brings his timely appeal, assigning a single assignment of

error for our review.

                         ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT ERRED BY IMPOSING COSTS WITHOUT
      NOTIFYING MR. HAWK THAT FAILURE TO PAY COURT
      COSTS MAY RESULT IN THE COURT’S ORDERING HIM TO
      PERFORM COMMUNITY SERVICE.”

                              LEGAL ANALYSIS

      {¶7} In his first assignment of error, Appellant contends that the trial

court erred by imposing costs without notifying him that the failure to pay

court costs may result in the court’s ordering him to perform community

service. The State concedes this error by the trial court and contends that the

portion of the re-sentencing entry ordering court costs must be vacated and

remanded for sentencing, relying on this Court’s prior reasoning in State v.

Moss, 186 Ohio App.3d 787, 2010-Ohio-1135, 930 N.E.2d 838.

      {¶8} Before addressing the merits of Appellant’s assignment of error,

we initially note that it is not entirely clear to us whether the trial court was

simply noting that it had imposed court costs during Appellant’s 2001

sentencing hearing and was merely re-imposing those same costs during the

“de novo” hearing, or whether the trial court was imposing additional court

costs related to the “de novo” sentencing hearing. If the trial court was
Athens App. No. 10CA50                                                                                      5


simply referencing the fact that Appellant was originally sentenced to pay

court costs, then we find no error in the trial court’s failure to provide R.C.

2947.23’s community service notification. Our reasoning is based on the

fact that the version of R.C. 2947.23 that was in effect at Appellant’s

original sentencing hearing on January 3, 2001, did not contain such a

requirement.1

         {¶9} However, if the trial court did, in fact, impose additional costs

upon Appellant in connection with its “de novo” sentencing hearing, we

must employ a different analysis.2 By arguing that the trial court failed to

provide certain statutorily mandated notifications at the time of sentencing,

Appellant is essentially arguing that his sentence was contrary to law. Our

review of a trial court's felony sentence involves two steps. See State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124; see also State

v. Moman, Adams App. No. 08CA876, 2009-Ohio-2510 at ¶ 6 (involving a

community-control violation). First, we “must examine the sentencing

court's compliance with all applicable rules and statutes in imposing the

sentence to determine whether the sentence is clearly and convincingly




1
 The version of R.C. 2947.23 in effect in 2001 had an effective date of October 1, 1953.
2
 More likely than not, the trial court did impose additional costs at the “de novo” sentencing hearing as the
docket indicates that a cost bill was issued of Appellant, after the re-sentencing hearing, in the amount of
$260.20.
Athens App. No. 10CA50                                                            6


contrary to law.” Kalish at ¶ 4. If this first prong is satisfied, we then review

the trial court's decision under an abuse-of-discretion standard. Id.

      {¶10} R.C. 2947.23(A)(1) provides as follows:

“In all criminal cases, including violations of ordinances, the judge or
magistrate shall include in the sentence the costs of prosecution, including
any costs under section 2947.231 of the Revised Code, and render a
judgment against the defendant for such costs. At the time the judge or
magistrate imposes sentence, the judge or magistrate shall notify the
defendant of both of the following:

(a) If the defendant fails to pay that judgment or fails to timely make
payments towards that judgment under a payment schedule approved by the
court, the court may order the defendant to perform community service in an
amount of not more than forty hours per month until the judgment is paid or
until the court is satisfied that the defendant is in compliance with the
approved payment schedule.

(b) If the court orders the defendant to perform the community service, the
defendant will receive credit upon the judgment at the specified hourly credit
rate per hour of community service performed, and each hour of community
service performed will reduce the judgment by that amount.” (Emphasis
added.)

      {¶11} In State v. Moss, we departed from our previous line of cases

holding that questions related to a trial court’s failure to provide defendants

with R.C. 2947.23 community service notifications were not ripe for review,

and instead held that such issues were ripe for review. Moss at ¶ 19-20. In

changing course on the ripeness question, we reasoned that “[s]uch a

notification is mandatory; it is not a matter of discretion. Therefore, under

the first prong of the Kalish test, we find that this part of the sentence is
Athens App. No. 10CA50                                                           7


clearly and convincingly contrary to law.” Thus, in accordance with our

reasoning in Moss, Appellant is entitled to be re-sentenced in order for the

trial court to provide him with R.C. 2947.23’s required notice that his failure

to pay court costs may result in the trial court’s ordering him to perform

community service. Accordingly, we vacate the portion of the re-sentencing

entry that imposes court costs and remand this case to the trial court for re-

sentencing as to the issue of court costs. State v. Moss at ¶ 22.

      {¶12} We also take this opportunity to address the format of the

remand hearing that we have ordered. In State v. Fischer, supra, at

paragraphs one and two of the syllabus, the Court held that a sentence that

does not include the statutorily mandated term of post release control is void

and that the new sentencing hearing to which an offender is entitled under

State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, is

limited to the proper imposition of post release control. In further explaining

its holding, the Fischer Court stated that “when a judge fails to impose

statutorily mandated postrelease control as part of a defendant’s sentence,

that part of the sentence that is void and must be set aside. Neither the

Constitution nor common sense commands anything more.” Fischer at ¶ 26.

      {¶13} Appellant was re-sentenced before Fischer was decided, and

thus was re-sentenced in accordance with State v. Singleton, supra, which
Athens App. No. 10CA50                                                          8


required a de novo re-sentencing hearing. However, after Fischer, it is clear

that a trial court need not conduct a “de novo” sentencing hearing, and

instead must simply re-sentence an appellant by reimposing the original

sentence, and by adding the proper post release control notification. As

such, and as indicated above, during remand on the issue of court costs, we

instruct the trial court to 1) delete any reference to a “de novo” sentencing

hearing; 2) mirror the original sentencing entry with the exception of the

original, improper post release control notifications; and 3) add the proper

the provisions for the imposition any new order to pay court costs, as well as

the notifications regarding community service required by R.C. 2947.23.

                                              SENTENCE VACATED AND
                                                  CAUSE REMANDED.



Kline, J. dissenting.

      {¶14} I respectfully dissent because I conclude that Hawk’s

assignment of error is not ripe for review. I acknowledge that R.C. 2947.23

makes it mandatory for the judge to inform a defendant that he could be

ordered to perform community service. At this time, however, Hawk has

not suffered any prejudice from the trial court’s failure to inform him that it

may, in the future, require him to perform community service to fulfill his
Athens App. No. 10CA50                                                        9


obligation to pay costs. Thus, I would hold that the Hawk’s sole assignment

of error is not ripe for review.

      {¶15} Accordingly, I would adhere to our recent decisions in State v.

Knauff, Adams App. No. 09CA881, 2009-Ohio-5535, at ¶4-5, State v.

Welch, Washington App. No. 08CA29, 2009-Ohio-2655, at ¶14 (McFarland,

J.), State v. Bryant, Scioto App. No. 08CA3258, 2009-Ohio-5295, at ¶11,

and State v. Slonaker, Washington App. No. 08CA21, 2008-Ohio-7009, at

¶7 (McFarland, J.). See, also, State v. Moss, 186 Ohio App.3d 787, 2010-

Ohio-1135, at ¶34 (Kline, J., dissenting); State v. Kearse, Shelby App. No.

17-08-29, 2009-Ohio-4111, at ¶12-15 (noting the disagreement within the

Fourth District and applying the ripeness doctrine).
Athens App. No. 10CA50                                                         10


                           JUDGMENT ENTRY

    It is ordered that the SENTENCE BE VACATED AND THE CAUSE
REMANDED and that the Appellant recover of 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 Athens County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, P.J.: Concurs in Judgment and Opinion.
Kline, J.: Dissents with Dissenting Opinion.
                                       For the Court,


                                        BY: _________________________
                                            Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
