[Cite as State v. Barton, 2013-Ohio-307.]


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


State of Ohio,                        :
                                      :
      Plaintiff-Appellee,             :
                                      :          Case No. 12CA24
      v.                              :
                                      :          DECISION AND
Josey C. Barton,                      :          JUDGMENT ENTRY
                                      :
      Defendant-Appellant.            :          Filed: January 29, 2013
______________________________________________________________________

                                            APPEARANCES:

John A. Bay, BAY LAW OFFICE, L.L.C., Columbus, Ohio, for Appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
______________________________________________________________________

Kline, J.:

        {¶1}     Josey C. Barton appeals the judgment of the Washington County Court of

Common Pleas, which convicted her of permitting drug abuse. Barton contends that

she is entitled to a new sentencing hearing because the trial court misinformed her of

the consequences of violating the terms of postrelease control. Because Barton has not

been prejudiced by the alleged error, we disagree. Accordingly, we affirm the judgment

of the trial court.

                                                 I.

        {¶2}     A Washington County Grand Jury indicted Barton on one count of

permitting drug abuse and one count of possession of drugs. Eventually, Barton and
Washington App. No. 12CA24                                                          2


the state negotiated a plea deal. Barton pled guilty to one count of permitting drug

abuse, a fifth-degree felony in violation of R.C. 2925.13(B) & 2925.13(C)(1)(3).

       {¶3}   The trial court held a sentencing hearing on June 5, 2012. The court

sentenced Barton to five years of community control. During the sentencing hearing,

the trial court informed Barton (1) that if she violated the terms of community control,

she could be sentenced to a prison term and (2) that if she were sentenced to prison,

she could be subject to a term of postrelease control. Barton bases her appeal on the

statements the trial court made with respect to postrelease control. Specifically, the trial

court advised Barton as follows:

                 Now, but rest assured, Ms. Barton, you violate any of

                 these [community control] rules or any of these

                 regulations, I am going to send you to prison for the

                 balance of your sentence. Okay? That’s just – that’s

                 an absolute assurance. So, for the next five years,

                 you’ve got a reason to get your act together, stay in

                 counseling, and get some marketable skills and make

                 something of your life. Because if you make me send

                 you to prison, I’ll do it.

                       And if you do make me send you to prison, upon

                 your release from prison, the Parole Authority has the

                 option to give you up to three years of post release

                 control. It would be very much like today. They

                 would set rules and regulations and they would
Washington App. No. 12CA24                                                           3


                 supervise you. You violate one of their rules or one of

                 their regulations, it’s a little different. There’s no due

                 process. You—they don’t get a court order, they don’t

                 bring you to court. They can kick your door in at two

                 a.m. and drag you back to prison. And they can take

                 you back for up to six months for something as simple

                 as skipping a counseling session, not showing up for

                 an appointment with your * * * officer. It doesn’t have

                 to be a crime, but if you commit a felony while you’re

                 under – under post release control, and you’re

                 convicted of that felony, the sentencing Judge in

                 Ohio, in addition to the sentence for the new felony,

                 has to add an additional one year in prison or three

                 year—or the time remaining on post release control in

                 prison, whichever’s longer, and that has to be

                 consecutive.” Tr. at 48-49.

       {¶4}   Barton appeals and asserts the following assignment of error: I. “The trial

court erred while advising Appellant Barton that violation of conditions of post release

control could result in a prison sanction without the protections of due process.”

                                             II.

       {¶5}   Barton argues that the trial court erred by misinforming her of the

consequences of violating the terms of postrelease control.
Washington App. No. 12CA24                                                           4


       {¶6}   To resolve Barton’s appeal, we must interpret and apply various statutes

related to community control, postrelease control, and sentencing. “Thus, our review is

de novo.” State v. Lofton, 4th Dist. No. 11CA16, 2012-Ohio-2274, ¶ 7, citing State v.

Jenkins, 4th Dist. No. 10CA3389, 2011-Ohio-6924, ¶ 9.

       {¶7}   The trial court sentenced Barton to community control. The court did not

impose a prison sentence. But the court informed Barton that a violation of her

community control could result in a prison sentence, which could subject her to a period

of postrelease control following her release from prison. Then, the court told Barton that

the Parole Authority could send her back to prison without a court order for violating the

terms of postrelease control.

       {¶8}   Barton argues that the Parole Authority must hold a hearing before it can

send a defendant to prison for violating the terms of postrelease control. Barton claims

that she is entitled to a new sentencing hearing where she could be properly informed of

the consequences of violating the terms of postrelease control. We disagree.

       {¶9}   “It is axiomatic that in order for there to be reversible error, there must be

prejudice to the appellant.” State v. Rembert, 5th Dist. No. 04 CA 66, 2005-Ohio-4718,

¶ 15, citing State v. Dean, 94 Ohio App. 540, 16 N.E.2d 767 (1st Dist.1953); Tingue v.

State, 90 Ohio St. 368, 108 N.E. 222 (1914). And even assuming that the trial court

misinformed Barton of the consequences of violating the terms of postrelease control,

Barton cannot show prejudice.

       {¶10} A trial court must properly notify a defendant regarding the applicable

terms of postrelease control. See State v. Munson, 8th Dist. No. 93229, 2010-Ohio-

1982, ¶ 14. However, R.C. 2929.19(B)(2)(d) provides, in relevant part, “if the
Washington App. No. 12CA24                                                          5


sentencing court determines at the sentencing hearing that a prison term is necessary

or required, the court shall * * * [n]otify the offender that the offender may be supervised

under [R.C. 2967.28] after the offender leaves prison if the offender is being sentenced

for a felony of the third, fourth, or fifth degree * * *.” (Emphasis added.) (R.C. 2967.28

governs postrelease control.)

       {¶11} Here, the trial court did not sentence Barton to prison. Instead, it

sentenced Barton to community control under R.C. 2929.15. A trial court may impose a

prison sentence for a violation of the terms of a community control sanction. See R.C.

2929.15(B)(1)(c). And “[f]ollowing 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.” State v. Fraley, 105 Ohio

St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17.

       {¶12} Currently, Barton is not subject to postrelease control based on her

community control sentence. Should Barton violate the terms of her community control

sanction, she could be sentenced to prison. But before the court could sentence Barton

to prison, it would have to hold another sentencing hearing. During that hearing, the

trial court would be required to comply with the relevant sentencing statutes, including

those related to postrelease control. Consequently, even if the trial court misinformed

Barton of the consequences of violating postrelease control, she cannot show prejudice

from the trial court’s alleged error.

       {¶13} Accordingly, we overrule Barton’s assignment of error and affirm the

judgment of the trial court.

                                                                 JUDGMENT AFFIRMED.
Washington App. No. 12CA24                                                        6


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the 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
Washington County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Harsha, J. & Abele, J.: Concur in Judgment & Opinion.


                                  For the Court


                                  BY:_____________________________
                                     Roger L. Kline, 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.
