[Cite as State v. Baldwin, 2016-Ohio-5476.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




STATE OF OHIO,                                     :
                                                              CASE NOS. CA2015-10-082
        Plaintiff-Appellee,                        :                    CA2015-10-086

                                                   :                  OPINION
    - vs -                                                             8/22/2016
                                                   :

WENDY L. BALDWIN,                                  :

        Defendant-Appellant.                       :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2015 CR 00355



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for
defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Wendy Baldwin, appeals from the Clermont County Court

of Common Pleas decision sentencing her to serve 24 months in prison. For the reasons

outlined below, we affirm in part, reverse in part, and remand for further proceedings.1

        {¶ 2} On June 18, 2015, Baldwin was charged with theft of an elderly person and


1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar for purposes of
issuing this opinion.
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misuse of a credit card. Baldwin pled guilty and was sentenced to five years of community

control. She did not file an appeal. The conditions of community control were listed in the

sentencing entry, and required, among other things, that Baldwin follow her probation

officer's instructions, participate in and successfully complete drug treatment, and refrain

from consuming illegal drugs.

       {¶ 3} While that action was pending, Baldwin was charged with one count of illegal

assembly or possession of chemicals for the manufacture of drugs in violation of R.C.

2925.041, a third-degree felony. Baldwin pled guilty on September 2, 2015 and the matter

was scheduled for a sentencing hearing.

       {¶ 4} On September 29, 2015, the trial court was notified that Baldwin had allegedly

violated her community control obligations by failing to participate in treatment and

counseling, abusing illegal drugs, and failing to follow verbal or written instructions issued by

the probation officer. Baldwin's probation officer testified that Baldwin had been sent to

outpatient treatment, but was unsuccessfully discharged from that program because she

provided a drug screen testing positive for morphine, a metabolite of heroin. The outpatient

treatment facility recommended that Baldwin be sent to a higher level of treatment facility for

her drug addiction. Following the hearing, the trial court found Baldwin in violation of her

community control obligations.

       {¶ 5} On October 14, 2015, the trial court sentenced Baldwin in both cases. In the

first case the trial court revoked Baldwin's community control and ordered her to serve two

concurrent 12-month sentences. Those sentences were ordered to run concurrently to a 24-

month prison term imposed in the second case for illegal assembly. Baldwin now appeals

from the trial court's decision, raising two assignments of error for review.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT ERRED AS A MATTER OF LAW BY REVOKING
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APPELLANT'S COMMUNITY CONTROL SANCTION.

       {¶ 8} In her first assignment of error, Baldwin argues the trial court erred by revoking

her community control sanction. In so doing, Baldwin acknowledges that the probation officer

alleged three violations of her community control, but all of those violations stem from one

incident, the positive drug screen. Baldwin maintains that relapse is a part of the recovery

process and she should have been provided with other opportunities to maintain sobriety and

enter a different treatment program. Baldwin also argues that the positive drug screen may

have been the result of drugs consumed before the imposition of community control. We find

no merit to Baldwin's argument.

       {¶ 9} As a revocation hearing is not a criminal trial, the state does not need to prove

a violation beyond a reasonable doubt. State v. Messer, 12th Dist. Butler No. CA2014-02-

056, 2014-Ohio-5741, ¶ 12. Whether an offender can remain on community control depends

on compliance with the community control conditions and is a decision that rests "within the

sound discretion of the court." State v. Wolpert, 12th Dist. Butler No. CA2006-10-244, 2007-

Ohio-4734, ¶ 10.

       {¶ 10} A trial court's decision revoking community control may only be reversed if the

trial court abused its discretion. State v. Haley, 12th Dist. Butler No. CA2012-10-212, 2013-

Ohio-4531, ¶ 7. "[A] trial court does not abuse its discretion in revoking community control

when the offender is on notice that successful participation in a particular program is a

requirement of the community control and the offender is unsuccessfully discharged from the

program." State v. Bishop, 12th Dist. Clermont No. CA2010-08-054, 2011-Ohio-3429, ¶ 11.

       {¶ 11} After reviewing the record, we find the trial court did not abuse its discretion by

revoking Baldwin's community control. The record reflects that Baldwin was removed from

the less restrictive outpatient treatment facility because she tested positive for morphine, a

metabolite of heroin.     Despite Baldwin's arguments to the contrary, any violation of
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community control conditions may properly be used to revoke the privilege. The trial court

heard evidence that Baldwin had engaged in conduct that directly resulted in her termination

from the treatment facility and appropriately considered that testimony in revoking community

control and imposing a prison term. As such, we find that the trial court did not abuse its

discretion in revoking Baldwin's community control. Baldwin's first assignment of error is

without merit and overruled.

       {¶ 12} Assignment of Error No. 2:

       {¶ 13} THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPROPERLY

SENTENCING APPELLANT.

       {¶ 14} In her second assignment of error, Baldwin alleges a number of errors with

respect to the sentence imposed after her community control was revoked and the sentence

imposed for illegal assembly.      As previously noted, the trial court revoked Baldwin's

community control and sentenced her to serve concurrent 12-month sentences for theft of an

elderly person and misuse of a credit card. The sentences were ordered to run concurrent

with the 24-month prison term imposed for illegal assembly.

                             2015 CR 00375: Illegal Assembly

       {¶ 15} We will first address Baldwin's arguments with respect to the sentence

imposed for illegal assembly. Baldwin argues that there is a lesser likelihood of recidivism in

this case and the trial court's sentence is contrary to law. We find no merit to Baldwin's

arguments.

       {¶ 16} This court reviews felony sentences pursuant to the standard of review set

forth in R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is clearly

and convincingly contrary to law. State v. Julious, 12th Dist. Butler No. CA2015-12-224,

2016-Ohio-4822, ¶ 8. A sentence is not clearly and convincingly contrary to law where the

trial court considers the purposes and principles of sentencing as set forth in R.C. 2929.11,
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as well as the seriousness and recidivism factors listed in R.C. 2929.12, and sentences a

defendant within the permissible statutory range. State v. Brandenburg, 12th Dist. Butler

Nos. CA2014-10-201 and CA2014-10-202, 2016-Ohio-4918, ¶ 9.

       {¶ 17} We find Baldwin's sentence on the illegal manufacture conviction is not clearly

and convincingly contrary to law. Baldwin's sentence was within the permissible statutory

range and the record reflects the trial court considered all relevant seriousness and

recidivism factors set forth in R.C. 2929.11 and R.C. 2929.12. The trial court's sentencing

decision is supported by the record and not contrary to law.

       {¶ 18} Baldwin also alleges the trial court failed to notify her during sentencing that

she was forbidden from taking drugs and required to submit to random drug testing, that the

trial court failed to notify her of the requirement to submit to DNA testing, and that she may or

may not be eligible for earned days of credit.

       {¶ 19} However, as this court has previously stated, a trial court's failure to direct a

defendant not to ingest drugs and that the defendant would be subject to random drug and

DNA testing amounts to harmless error because the statutory sections directing a trial court

to so advise do not confer any substantive rights on a defendant. State v. Moore, 12th Dist.

Clermont No. CA2014-02-016, 2014-Ohio-5191, ¶ 16. Instead, these requirements were not

intended to benefit the defendant, but rather to facilitate the state in maintaining a DNA

database and to "facilitate the drug testing of prisoners in state institutions by discouraging

defendants who are sentenced to prison from using drugs." State v. Chisenhall, 12th Dist.

Clermont Nos. CA2015-07-055 and CA2015-07-063, 2016-Ohio-999, ¶ 38.

       {¶ 20} Similarly, Baldwin argues that the trial court erred by failing to inform her that

she may have been eligible to earn days of credit pursuant to R.C. 2967.193(A). But while

this statute provides that certain offenders are eligible to earn days of credit, it imposes no

requirement on a trial court to give such a notification to a defendant at sentencing. State v.
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Taylor, 1st Dist. Hamilton No. C-150488, 2016-Ohio-4548, ¶ 7. Former R.C. 2929.14(D)(3)

required that a trial court inform a defendant at sentencing about the defendant's eligibility to

earn jail time credit, but that provision was removed from Ohio's criminal code as of

September 20, 2012.            Chisenhall at ¶ 38.           Accordingly, we conclude that Baldwin's

arguments with respect to alleged errors in her sentence for illegal assembly are without

merit.

                       2015 CR 00355: Revocation of Community Control

         {¶ 21} The state concedes error with respect to a portion of sentencing after the

community control violation and asks this court to remand the matter for resentencing. The

state agrees the trial court did not make the required finding under R.C. 2929.13(E)(2) and,

after review, we agree that such a determination was not made on the record. Therefore, we

remand this matter for findings with respect to R.C. 2929.13(E)(2).

         {¶ 22} We note that Baldwin raises an additional issue related to the revocation of

community control. Baldwin challenges the sentence on the basis that her theft and misuse

of credit card convictions should have been merged. However, Baldwin is foreclosed from

challenging that issue, as the proper time to challenge the merger issue was through the

direct appeal of those convictions.2 As this court has previously noted, questions concerning

the validity of a sentencing entry or matters pertaining thereto should be raised on a direct

appeal of that particular entry, and not through a collateral attack of the revocation of

community control. State v. Dodson, 12th Dist. Butler No. CA2011-02-034, 2011-Ohio-6347,

¶ 9 ("the time to challenge a conviction based on allied offenses is through a direct appeal").

Accordingly, Baldwin's argument with respect to the merger of those convictions is not well-

taken.


2. Despite the fact that Baldwin was not given a prison term, the imposition of community control was still a valid
sentence. Baldwin could have appealed the merger issue at that time.
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                                         Conclusion

       {¶ 23} In conclusion, we find Baldwin's second assignment of error has merit, only to

the extent that trial court failed to make the required finding under R.C. 2929.13(E)(2) at the

sentencing hearing and we remand this matter for resentencing on the offenses for which

community control was revoked. In all other respects, this matter is affirmed.

       {¶ 24} Judgment affirmed in part, reversed in part, and remanded to the trial court.


       PIPER, P.J., and HENDRICKSON, J., concur.




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