[Cite as State v. Goldsberry, 2009-Ohio-6026.]




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



STATE OF OHIO,                                            CASE NO. 14-07-06

    PLAINTIFF-APPELLEE,

    v.

MICHAEL GOLDSBERRY,                                         OPINION

    DEFENDANT-APPELLANT.



                  Appeal from Union County Common Pleas Court
                             Trial Court No. 05 CR 08

                                      Judgment Affirmed

                          Date of Decision: November 16, 2009




APPEARANCES:

         Allison Boggs for Appellant

         Terry L. Hord for Appellee
Case No. 14-07-06




PRESTON, P.J.

       {¶1} Defendant-Appellant, Michael E. Goldsberry, appeals the judgment

of the Union County Court of Common Pleas sentencing him to a sixty-month

prison term. We affirm.

       {¶2} In January 2005, the Union County Grand Jury indicted Goldsberry

on five (5) counts of nonsupport of dependents in violation of R.C. 2919.21(A)(2),

felonies of the fifth degree, and on five (5) counts of nonsupport of dependents in

violation of R.C. 2919.21(B), all felonies of the fifth degree.        Subsequently,

Goldsberry entered a plea of not guilty as to all counts in the indictment.

       {¶3} In March 2005, Goldsberry withdrew his plea of not guilty and

entered a plea of guilty as to all counts in the indictment. The trial court accepted

Goldsberry’s guilty plea and sentenced him to three years of community control,

stating that:

              The Court finds that [Goldsberry] has been convicted of:
       Five counts of Nonsupport of Dependants in violation of Ohio
       Revised Code Section 2919.21(A)(2), and Five counts of
       Nonsupport of Dependants in violation of ORC 2919.21(B), each
       a felony of the fifth degree.
              It is therefore ORDERED: [Goldsberry] be and hereby is
       placed on 3 years of Community Control[.]
       ***
       The Court further finds that the Court has notified the
       Defendant in writing and orally that if the conditions of
       community control are violated, the Court may impose a longer
       time under the same sanction, may impose a more restrictive
       sanction, or may impose a prison term on the Defendant and the


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Case No. 14-07-06


       Court hereby indicates that in the event the Court does impose a
       prison sentence on the offender if he/she violates community
       control, the Court has indicated the Defendant could receive a
       maximum prison term of up to 120 months.

(Mar. 23, 2005 JE, pp. 1-2, Doc. No. 18).

       {¶4} In November 2005, the trial court held a community control

violation hearing and found that Goldsberry had violated the terms of his

community control.        The trial court then ordered Goldsberry to complete an

additional one-hundred (100) hours of community service. Additionally, the trial

court stated that “[t]he Defendant is advised that if he violates any of the terms or

conditions of community control, the Court may impose a more restrictive

community control or the Defendant will be sent to prison for one hundred twenty

(120) months.” (Nov. 3, 2005 JE, pp. 1-2, Doc. No. 29).

       {¶5} In January 2007, the trial court held a second community control

violation hearing and found that Goldsberry had again violated the terms of his

community control. The trial court then sentenced Goldsberry to a six-month

prison term on each conviction of nonsupport of dependents, to be served

consecutively, for a total prison term of sixty months, from which Goldsberry

appealed to this Court.

       {¶6} In October 2007, this Court dismissed Goldsberry’s appeal in State

v. Goldsberry, 3d Dist. No. 14-07-06, 2007-Ohio-5493 (Goldsberry I), finding that




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Case No. 14-07-06


the judgment entry issued by the trial court did not constitute a final appealable

order.

         {¶7} In December 2008, the Supreme Court of Ohio reversed our decision

without discussion in Goldsberry I and remanded the matter for this Court to rule

on the merits of Goldsberry’s assignment of error. See State v. Goldsberry, 120

Ohio St.3d 275, 2008-Ohio-6103 (Goldsberry II).

         {¶8} On remand, Goldsberry presents the following assignment of error

for our review.

         THE TRIAL COURT ERRED WHEN IT IMPOSED A
         PRISON   SENTENCE  AT   APPELLANT’S   SECOND
         PROBATION VIOLATION HEARING WHEN THE COURT
         FAILED TO NOTIFY APPELLANT OF A SPECIFIC
         SENTENCE AT BOTH HIS ORIGINAL SENTENCING
         HEARING AND AT HIS FIRST PROBATION VIOLATION
         HEARING.

         {¶9} In his sole assignment of error, Goldsberry argues that the trial court

erred when it imposed a prison sentence at his second community control violation

hearing because it failed to notify him of the specific sentence it would sanction at

both his original sentencing hearing and at his first community control violation1

hearing should he violate the terms and conditions of his community control.

Additionally, Goldsberry argues that, because the trial court stated that, upon a


1
  With respect to the first community control hearing, Goldsberry specifically argues that “[h]e did violate
the terms of his community control, which gave the court a second opportunity to rectify the problem of
advising him of a specific prison sentence should he violate again, but the court only added the condition
that he complete an addition 100m [sic] hours of community control should he violate again.” (Appellant’s
Brief at 4).


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Case No. 14-07-06


violation of the terms of community control, it would sentence him to an aggregate

one hundred twenty-month prison term, but then sentenced him to an aggregate

sixty-month prison term after his second community control violation, it is evident

that the trial court never intended a one hundred twenty-month prison term to be

the specific sentence it would impose. We find these arguments meritless.

      {¶10} R.C. 2929.15(B) provides, in pertinent part:

      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 term specified in the notice
      provided to the offender at the sentencing hearing pursuant to
      division (B)[(5)] of section 2929.19 of the Revised Code.

(Emphasis added). R.C. 2929.19(B)(5) provides, in pertinent part:

      The court shall notify the offender that, if the conditions of the
      sanction are violated, if the offender commits a violation of any
      law, or if the offender leaves this state without the permission of
      the court or the offender’s probation officer, the court may
      impose a longer time under the same sanction, may impose a
      more restrictive sanction, or may impose a prison term on the
      offender and shall indicate the specific prison term that may be
      imposed as a sanction for the violation, as selected by the court
      from the range of prison terms for the offense pursuant to
      section 2929.14 of the Revised Code.

(Emphasis added).

      {¶11} In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814

N.E.2d 837, the Supreme Court of Ohio held that, in order to comply with R.C.

2929.19(B)(5), “[t]he judge should not simply notify the offender that if the

community control conditions are violated, he or she will receive ‘the maximum,’


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Case No. 14-07-06


or a range, such as ‘six to twelve months,’ or some other indefinite term, such as

‘up to 12 months.’” Id. at ¶19. Instead, “[t]he judge is required to notify the

offender of the ‘specific’ term the offender faces for violating community

control.” Id. Additionally, the Court in Brooks held that, when a trial court fails to

provide proper notice of a specific term to the offender, “[t]he matter must be

remanded to the trial court for a resentencing under that provision with a prison

term not an option.” Id. at ¶33. Although a prison term is not an option at the

resentencing, the trial court may choose to impose a longer time under the same

sanction or impose a more restrictive sanction. See id at ¶33.

       {¶12} Additionally, the trial court may, at the time of resentencing, notify

the offender of a specific prison term that will be imposed should he violate the

terms of community control again. State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-

7110, 821 N.E2d 995, ¶¶17-18. As the Supreme Court of Ohio stated in Fraley:

       The notification requirement in 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. Following a
       community control violation, the trial court conducts a second
       sentencing hearing. At this second hearing, the court sentences
       the offender anew and must comply with the relevant sentencing
       statutes. The trial court could therefore comply with both the
       sentencing statutes and our holding in Brooks if at this second
       hearing the court notifies the offender of the specific prison term
       that may be imposed for a subsequent violation occurring after
       this second hearing. We believe that this process complies with
       the letter and spirit of R.C. 2929.19(B)(5) and 2929.15(B).




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(Internal citations omitted.) 2004-Ohio-7110, at ¶17. See, also, State v. Moton,

5th Dist. No. 2006 CA 0081, 2007-Ohio-6796, appeal not allowed by State v.

Moton, 117 Ohio St.3d 1461, 2008-Ohio-1635, 884 N.E.2d 69.

       {¶13} Finally, where an offender is properly notified of a specific prison

term that will be imposed upon a community control violation, the offender

violates the terms of his community control, and the trial judge chooses to impose

a prison term, the “term imposed may not exceed the term the offender was

originally notified of under R.C. 2929.19(B)(5).” Brooks, 2004-Ohio-4746, at ¶22.

However, “[b]ecause the trial judge is not required to choose a prison term under

R.C. 2929.15, it follows that the trial judge could choose to impose a lesser term

of imprisonment than the one the offender was informed of under R.C.

2929.19(B)(5).” Id.

       {¶14} Here, Goldsberry first argues that the trial court erred when it

imposed a prison sentence at his second community control violation hearing

because it failed to notify him of a specific sentence at both his original sentencing

hearing and at his first community control violation hearing. Goldsberry is correct

that, under Brooks, the trial court’s initial sentencing entry incorrectly advised him

that, if he violated his community control, he could receive a maximum prison

term of “up to 120 months.” (Mar. 3, 2005 JE, Doc. No. 18). However, after

Goldsberry’s first community control violation, the trial court specifically stated in




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its judgment entry2 that: “[t]he Defendant is advised that if he violates any of the

terms or conditions of community control, the Court may impose a more

restrictive community control or the Defendant will be sent to prison for one

hundred twenty (120) months.” (Nov. 3, 2005 JE, pp. 1-2, Doc. No. 29). Pursuant

to State v. Fraley, the trial was permitted to remedy its failure to provide

Goldsberry with proper notice under R.C. 2929.19(B)(5) at his initial sentencing

by properly advising Goldsberry at his community control violation hearing of the

specific term that it may impose should he violate community control again. 105

Ohio St.3d 13, 2004-Ohio-7110, at syllabus. Goldsberry was sentenced to sixty

(60) months imprisonment for his second community control violation, which was

after the trial court had provided proper notice of the specific prison term it would

impose if he violated his community control at his first community control

violation hearing. Therefore, pursuant to Fraley, the trial court did not err in

sentencing Goldsberry after it provided him proper notice under R.C.

2929.19(B)(5) at his first community control violation hearing. 2004-Ohio-7110.

        {¶15} Goldsberry next argues that, because the trial court stated that, upon

violation of the terms of community control, it would sentence him to a one

hundred twenty-month prison term, but then later sentenced him to a sixty-month



2
  Goldsberry has not provided a transcript of the Nov. 3, 2005 community control violation hearing, so the
record does not indicate whether the trial court also orally advised Goldsberry of the reserved 120-month
sentence. We, therefore, presume the regularity of the proceedings as to this issue. See, e.g., State v.
Schaffer, 3d Dist. No. 4-08-07, 2008-Ohio-6183, ¶11.


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Case No. 14-07-06


prison term after his second community control violation, it is evident that the trial

court never intended a one hundred twenty-month prison term to be the specific

sentence it would impose.       We, again, disagree.     Brooks is very clear that,

although a trial judge may not impose a prison term exceeding the term of which

the offender was originally notified, the trial judge may choose to impose a lesser

term of imprisonment. 2004-Ohio-4746, at ¶22. Therefore, the trial judge was

permitted to impose a sixty-month term instead of a one hundred twenty-month

term, and we reject Goldsberry’s argument that this decision invalidated the trial

court’s proper notification under R.C. 2929.19(B)(5).

       {¶16} The dissent asserts that the trial court’s original sentencing entry and

subsequent sentencing entry failed to notify Goldsberry what specific prison term

it would impose on each of the ten (10) counts in the indictment should he violate

his community control. The dissent argues that the trial court erred by informing

Goldsberry of a “lump sum” prison term it would impose as to all ten (10) counts,

i.e. “120 months.” Goldsberry did not argue this on appeal; rather, the dissent has

raised it sua sponte, presumably as plain error. However, we believe the finality

of res judicata bars the dissent’s raising of plain error herein as Goldsberry never

filed a direct appeal from his original sentencing. See, e.g., State v. Wilson (June 9,

1989), 6th Dist. No. L-88-270; State v. Evans (May 16, 1990), 9th Dist. No.

89CA004587; State v. Moore (Mar. 12, 1992), 8th Dist. No. 62411; State v.




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Case No. 14-07-06


Gaston, 8th Dist. No. 82628, 2003-Ohio-5825; State v. Price, 8th Dist. No. 83344,

2004-Ohio-1910.

       {¶17} Even if plain error could be raised at this point, we recognize plain

error “‘with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.’” State v. Landrum (1990), 53 Ohio

St.3d 107, 111, 559 N.E.2d 710, quoting State v. Long (1978) 53 Ohio St.2d 91,

372 N.E.2d 804, paragraph three of the syllabus. For plain error to apply, the trial

court must have deviated from a legal rule, the error must have been an obvious

defect in the proceeding, and the error must have affected a substantial right. State

v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240. Under the plain error

standard, the appellant must demonstrate that the outcome of his trial would

clearly have been different but for the trial court’s errors. State v. Waddell (1996),

75 Ohio St.3d 163, 166, 661 N.E.2d 1043, citing State v. Moreland (1990), 50

Ohio St.3d 58, 552 N.E.2d 894. We cannot conclude that the trial court’s notice of

the “lump sum” sentence that it would impose should Goldsberry violate his

community control constitutes plain error in this case.

       {¶18} The Court in Brooks acknowledged that “there are some situations in

which * * * something less than strict compliance [with R.C. 2929.19(B)(5)’s

notice requirement] will suffice.” 2004-Ohio-4746, at ¶32. The Court found that,

in some cases, “the statements made at the plea hearing or other notifications to

the offender may be used to clarify and supplement what is said at the sentencing


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Case No. 14-07-06


hearing to the offender.” Brooks at ¶18 (emphasis in original and added). The

Court also provided one such factual scenario that would not require strict

compliance:

       One such situation would involve an offender who is informed
       prior to sentencing (e.g., at a plea hearing) what the specific
       maximum term would be, and then at sentencing, the trial court
       definitively states that it will impose “the maximum” prison
       term if community control is violated, without stating what the
       maximum is. It would be overly rigid in that case to find that the
       offender’s knowledge of the maximum term for the offense
       would not satisfy the notice requirement of R.C. 2929.19(B)(5).

Brooks at ¶32.

       {¶19} Goldsberry was charged with ten (10) counts of nonsupport of

dependents, all fifth degree felonies with possible prison terms of six (6) to twelve

(12) months on each count. (Doc. No. 1); R.C. 2919.21(A)(2), (B); R.C.

2929.14(A)(5). Throughout the proceedings, Goldsberry had notice that each of

the ten (10) counts carried a possible term of 6 to 12 months imprisonment. For

example, Goldsberry was informed at the arraignment “that Nonsupport of

Dependents, a fifth degree felony, could result in a prison term of 6, 7, 8, 9, 10, 11,

or 12 months * * * on each count.” (Doc. No. 5). In his entry withdrawing his

plea of not guilty, Goldsberry acknowledged that he was charged with ten (10)

counts of nonsupport of dependents, all fifth degree felonies, and that he

understood “the nature of the charges and that the potential sentencing range on a

fifth degree felony is 6 months up to 12 months * * * on each count.” (Doc. No.



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Case No. 14-07-06


15). Goldsberry was further advised that if he was “granted community control at

any point in [his] sentence and if [he] violate[d] any of the conditions imposed,

[he] may/will be given a longer period through court control, greater restrictions,

or up to and including a prison term of 6 to 12 months on each fifth degree

felony.” (Id.).

       {¶20} At the November 2005 community control violation hearing, the

trial court advised Goldsberry that he would be “sent to prison for one hundred

twenty (120) months” if he violated the terms or conditions of his community

control. (Nov. 3, 2005 JE, Doc. No. 29). The trial court’s notice of a lump sum of

120 months imprisonment at this hearing cannot be viewed in a vacuum. Rather,

the trial court’s hearing notice must be viewed in light of the “other notifications”

Goldsberry received and the fact that he pled guilty to ten (10) counts—all fifth

degree felonies with the same maximum potential term of 12 months

imprisonment. Brooks, 2004-Ohio-4746, at ¶18.          Effectively, Goldsberry had

notice that the trial court was reserving 12 months on each of the ten (10) counts

based upon the prior notification and the fact that 120 months divided by 10 (the

number of counts) equals 12 months per count, which is the only possible way to

divide the 120 months that the trial court reserved. Therefore, we cannot conclude

that the trial court committed plain error when Goldsberry had sufficient notice of

the trial court’s reserved prison term as to each count pursuant to R.C. 2929.15(B)

and 2929.19(B)(5) as interpreted under the Brooks strict compliance exception.


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2004-Ohio-4746, at ¶¶18, 32. See, also, State v. Moffit, 9th Dist. No. 22957, 2006-

Ohio-3340.

         {¶21} For all these reasons, Goldsberry’s assignment of error is overruled.

Having found no error prejudicial to the appellant herein in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                                    Judgment Affirmed

WILLAMOWSKI, J., concurs


ROGERS, J., dissents.

         {¶22} I respectfully dissent from the opinion of the majority.

         {¶23} When State v. Goldsberry, 3d Dist. No. 14-07-06, 2007-Ohio-5493

(Goldsberry I), was before this Court, we considered, sua sponte, whether the trial

court’s sentencing entry constituted a final appealable order. Consistent with the

previous decisions of this Court as well as several other courts of appeal, we

determined there was no final appealable order because the trial court’s original

sentencing entry failed to separately dispose of each count of which Goldsberry

was convicted.3 See Goldsberry I; State v. Moore, 3d Dist. No. 14-06-53, 2007-

Ohio-4941; State v. Sanchez, 2d Dist. No. 2006-CA-154, 2009-Ohio-813; State v.

Phillis, 4th Dist. No. 06CA75, 2007-Ohio-6893; State v. Waters, 8th Dist. No.

85691, 2005-Ohio-5137; State v. Cooper, 8th Dist. No. 84716, 2005-Ohio-754;


3
 This author anticipated that, after our finding that there was no final appealable order, the trial court, sua
sponte or on the motion of the prosecution or the defense, would have immediately resentenced Goldsberry.


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State v. Hicks, 8th Dist. No. 84418, 2004-Ohio-6113; State v. Goodwin, 9th Dist.

No. 23337, 2007-Ohio-2343; State v. Hoelscher, 9th Dist. No. 05CA0085-M,

2006-Ohio-3531; State v. Garner, 11th Dist. No. 2002-T-0025, 2003-Ohio-5222

(holding that “[n]owhere in R.C. 2929.15, which governs community control

sanctions, does it state that if a court chooses to sentence a person to something

other than a prison term the court may only impose a single term, regardless of the

number of charges”). However, the Supreme Court of Ohio reversed our decision,

without analysis, and remanded the matter for us to rule on the merits. See State v.

Goldsberry, 120 Ohio St.3d 275, 2008-Ohio-6103 (Goldsberry II). Accordingly, I

find it necessary to reiterate the reasoning behind our conclusion In Goldsberry I

that a trial court must separately dispose of each count of which a defendant is

convicted.

       {¶24} In 1995, the General Assembly enacted Senate Bill 2 (effective July

1, 1996), which eliminated felony probation and modified the procedure by which

trial courts impose sentences for felony offenses. See State v. Wolfe, 5th Dist. No.

2008-CA-00064, 2009-Ohio-830, ¶¶15-16, citing Griffin & Katz, Ohio Felony

Sentencing Law (1998 Ed.) 394-396, Section S.2-T5.4. Prior to the effective date

of Senate Bill 2, a trial court would sentence an offender to specific terms of

imprisonment on each individual count of which the offender was convicted. If

the trial court deemed probation appropriate for the offender, it would then

suspend the prison terms and place the offender on probation. Id. at ¶17. Senate


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Bill 2, however, radically altered this procedure. Trial courts now have the option

of sentencing offenders to either a term of imprisonment or to community control.

State v. Hoy, 3d Dist. Nos. 14-04-13, 14-04-14, 2005-Ohio-1093, ¶18. It is truly

an either/or situation.    The sentence imposed is either a specific term of

imprisonment on each count, or a specific term of community control on each

count.

         {¶25} If imposing community control under the new system, a trial court

may choose to impose different lengths of time on each count, depending on the

degree of the offense.         See R.C. 2929.15, 2929.16, 2929.17, 2929.18.     For

example, a one-year term of community control may be sufficient for a conviction

on a felony of the fifth degree, while a trial court may wish to impose a three-year

term or longer for a conviction on a felony of the third degree. However, the total

of all terms imposed may not exceed the statutory maximum of five years. R.C.

2929.15(A)(1).

         {¶26} R.C. 2929.15 governs imposition of community control and

provides, in pertinent part:

         If in sentencing an offender for a felony the court is not required
         to impose a prison term, a mandatory prison term, or a term of
         life imprisonment upon the offender, the court may directly
         impose a sentence that consists of one or more community
         control sanctions authorized pursuant to section 2929.16,
         2929.17, or 2929.18 of the Revised Code. * * * The duration of
         all community control sanctions imposed upon an offender
         under this division shall not exceed five years.



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R.C. 2929.15(A)(1). This language chosen by the General Assembly refers to

sentencing “an offender for a felony.” The word “a”, in this context, clearly may

be equated with the word “each” and expresses the General Assembly’s intent to

require the trial court to impose community control on “a” felony; in other words,

separately on each count. Additionally, as R.C. 2929.15(A)(1) provides that “the

court may directly impose a sentence that consists of one of more community

control sanctions * * *” (emphasis added), I believe that the General Assembly

intended community control to be a sentence, not a status or some other constraint

not a part of Ohio’s felony-sentencing scheme. As such, I find no distinction

between an error in imposing a “lump” prison term sentence for multiple felonies

and in imposing a “lump” community control sentence for multiple felonies.

      {¶27} Finally, the Supreme Court of Ohio has repeatedly emphasized that

Ohio’s felony-sentencing scheme focuses on each offense and sentence

individually and not as a group or “sentencing package.” Recently, the Court

observed that:

      Ohio’s felony-sentencing scheme is clearly designed to focus the
      judge’s attention on one offense at a time. Under R.C.
      2929.14(A), the range of available penalties depends on the
      degree of each offense. For instance, R.C. 2929.14(A)(1)
      provides that “[f]or a felony of the first degree, the prison term
      shall be three, four, five, six, seven, eight, nine, or ten years.”
      (Emphasis added.) R.C. 2929.14(A)(2) provides a different range
      for second-degree felonies. In a case in which a defendant is
      convicted of two first-degree felonies and one second-degree
      felony, the statute leaves the sentencing judge no option but to
      assign a particular sentence to each of the three offenses,


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Case No. 14-07-06


       separately. (Emphasis sic.) The statute makes no provision for
       grouping offenses together and imposing a single, “lump”
       sentence for multiple felonies.

       Although imposition of concurrent sentences in Ohio may
       appear to involve a “lump” sentence approach, the opposite is
       actually true. Instead of considering multiple offenses as a whole
       and imposing one, overarching sentence to encompass the
       entirety of the offenses as in the federal sentencing regime, a
       judge sentencing a defendant pursuant to Ohio law must
       consider each offense individually and impose a separate
       sentence for each offense. See R.C. 2929.11 through 2929.19.
       Only after the judge has imposed a separate prison term for
       each offense may the judge then consider in his discretion
       whether the offender should serve those terms concurrently or
       consecutively. See State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-
       856, 845 N.E.2d 470, paragraph seven of the syllabus, ¶ 100, 102,
       105; R.C. 2929.12(A); State v. Mathis, 109 Ohio St.3d 54, 2006-
       Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. Under
       the Ohio sentencing statutes, the judge lacks the authority to
       consider the offenses as a group and to impose only an omnibus
       sentence for the group of offenses. (Emphasis added.)

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶¶8-9.

       {¶28} As the General Assembly intended community control to be a

sentence and a part of Ohio’s felony-sentencing scheme, I believe that the

principles requiring the trial court to focus on one offense at a time and prohibiting

an omnibus sentence for a group of offenses apply equally to terms of community




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control.4 In summary, I believe that, pursuant to the prior decisions of this Court

as well as other courts of appeal, the language of the applicable statutes, and the

principles of Ohio’s felony-sentencing scheme, trial courts must separately dispose

of each count of which a defendant is convicted—including setting forth specific

terms of community control on each count.

         {¶29} In his assignment of error, Goldsberry argues that the trial court

erred when it imposed a prison sentence at his second community control violation

hearing because it failed to notify him of a specific sentence at both his original

sentencing hearing and at his first community control violation hearing.

Specifically, Goldsberry asserts that the trial court could not impose a prison

sentence on him if it did not advise him at his original sentencing of a specific

prison term that it would impose upon a violation of the terms of community

control, even though the trial court advised him of an aggregate term at his first




4
  Although I find that the principles requiring a trial judge to focus on each offense separately apply equally
to prison sentences and community control sentences, I acknowledge that at least one appellate court has
distinguished prison sentences and community control sentences on the basis that trial courts have
discretion to impose multiple prison sentences consecutively or concurrently; whereas multiple terms of
community control for different offenses must be imposed concurrently to each other and not
consecutively. See State v. Lehman, 6th Dist. No. L-99-1140, 2000 WL 125795. But, see, State v. Culgan,
147 Ohio App.3d 19, 2001-Ohio-1944, ¶28 (finding that “[n]othing in the language of R.C. 2929.16
prohibits a sentencing court from ordering that multiple residential community sanctions be served
consecutively”). Additionally, I note that, subsequent to Culgan, the Supreme Court of Ohio accepted
review of a similar case, State v. Barnhouse, 4th Dist. No. 02CA22, 2002-Ohio-7082, as a certified conflict
with Lehman, and held that a trial court may not impose consecutive jail sentences under R.C. 2929.16(A)(2).
See State v. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492. However, the Supreme Court’s decision was
limited to jail terms imposed for violations of community control sanctions under R.C. 2929.16(A)(2), and I
express no opinion as to whether that holding is or is not relevant to whether periods of community control on
multiple count indictments may be ordered to be consecutive. Additionally, I note that all of these cases were
decided prior to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, which severed portions of the felony
sentencing statutes requiring judicial fact finding before imposition of consecutive sentences.


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community control violation hearing.        Additionally, Goldsberry argues that,

because the trial court stated that, upon a violation of the terms of community

control, it would sentence him to an aggregate one hundred twenty-month prison

term, but then sentenced him to an aggregate sixty-month prison term after his

second community control violation, it is evident that the trial court never intended

a one hundred twenty-month prison term to be the specific sentence it would

impose. While I find no harm or prejudice to Goldsberry due to the imposition of

less than the full one hundred twenty months, I do agree that the trial court failed

to properly advise him at either his original March 2005 sentencing or his

November 2005 community control violation hearing of specific prison terms that

it would impose on each count if he violated the terms of his community control

sanctions, and I would reverse on that basis.

       {¶30} R.C. 2929.19(B) governs felony-sentencing hearings and provides,

in pertinent part, that if a community control sanction is imposed, “[t]he court

shall notify the offender that, if the conditions of the sanction are violated * * *

[the court may] impose a prison term on the offender and shall indicate the

specific prison term that may be imposed as a sanction for the violation[.]* * * ”

R.C. 2929.19(B)(5).

       {¶31} In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, the

Supreme Court of Ohio emphasized the importance of trial courts’ strict

compliance with the specificity requirement of R.C. 2929.19(B)(5). In Brooks, the


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Court held that, in order to comply with R.C. 2929.19(B)(5), “[t]he judge should

not simply notify the offender that if the community control conditions are

violated, he or she will receive ‘the maximum,’ or a range, such as ‘six to twelve

months,’ or some other indefinite term, such as ‘up to 12 months.’ [Instead, t]he

judge is required to notify the offender of the ‘specific’ term the offender faces for

violating community control.” Id. at ¶19. The Supreme Court held that, when a

trial court fails to provide proper notice of a specific term to the offender, “[t]he

matter must be remanded to the trial court for a resentencing under that provision

with a prison term not an option.” Id. at ¶33. Additionally, as stated in the first

part of this analysis, Ohio’s felony-sentencing laws focus on each offense and

sentence individually and not as a group or sentencing package. See Saxon, supra.

       {¶32} Particularly given the Supreme Court’s emphasis on specificity in

Brooks, and its emphasis on individual offenses and sentences in Saxon, it seems

axiomatic that, if R.C. 2929.19(B) requires the trial court to advise an offender of

a specific prison term that will be imposed if the offender violates sanctions, it

must do so as to each individual count. Otherwise, it cannot be a specific term,

but would be an aggregate term as was imposed in the case before us.

       {¶33} Here, Goldsberry was convicted of ten counts of nonsupport of

dependants. Despite the presence of multiple counts, however, the trial court

notified him in March 2005 that, if he violated the terms of his community control,

he could receive a prison term of “up to 120 months.” Upon his violation of


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community control in November 2005, the trial court notified him that, if he

violated the terms of his community control for a second time, it would impose a

prison term of “one hundred twenty (120) months.” On neither occasion did the

trial court delineate what specific prison term it would impose on each of the ten

counts.

       {¶34} Additionally, I disagree with the majority’s determination that the

unique factual circumstances presented in this case require an exception to the

notice requirements set forth in R.C. 2929.15(B) and 2929.19(B)(5). I agree with

the majority that the only possible way to divide a one hundred twenty-month

lump sentence among ten counts, each carrying a maximum twelve-month

sentence, is to allocate a twelve-month sentence on each of the ten counts, and the

majority’s observation that Brooks, 103 Ohio St.3d 134, at ¶32, acknowledged that

certain situations may require less than strict compliance with R.C. 2929.19(B)(5).

The majority also cites State v. Moffit, 9th Dist. No. 22957, 2006-Ohio-3340,

which adopted a similar rationale. However, I disagree that the factual scenario

before us falls into such an exception and that Goldsberry had effective notice that

the trial court was reserving a twelve-month sentence on each count. Both Brooks

and Moffit must be distinguished because both involved cases where the defendant

was convicted of only one count.       I cannot find that a situation requiring a

defendant to divide a lump sum among ten counts, taking into consideration the




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possible maximum terms, in order to calculate the specific terms being reserved,

comports with the intent of the legislature in R.C. 2929.15(B) and 2929.19(B)(5).

       {¶35} Finally, the most obvious flaw in the sentencing of Goldsberry is the

fact that he was convicted of ten counts, but received only one term of community

control. Because the trial court was required to sentence him on each count

separately, but only sentenced him to one term of community control, the

maximum sentence that could be imposed was twelve months, not ten times

twelve!

       Under the Ohio sentencing statutes, the judge lacks the authority
       to consider the offenses as a group and to impose only an
       omnibus sentence for the group of offenses.

Saxon, 109 Ohio St.3d 176, at ¶9.

       {¶36} The majority correctly stated the test for plain error: [f]or plain error

to apply, the trial court must have deviated from a legal rule, the error must have

been an obvious defect in the proceeding, and the error must have affected a

substantial right, citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68.

Here, the trial court deviated from the legal rule that a trial court must sentence on

each count separately; the deviation is clearly an obvious defect; and the

imposition of ten prison terms where the defendant is sentenced on only one count

greatly affects a substantial right.

       {¶37} For these reasons, I would find that the trial court failed to properly

sentence Goldsberry, and further failed to properly advise Goldsberry at either his


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original March 2005 sentencing or his November 2005 community control

violation hearing of specific prison terms that it would impose on each count if he

violated the terms of his community control sanctions, and I would reverse and

remand the matter for resentencing.

/jnc




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