[Cite as State v. Jones, 2020-Ohio-762.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  HARRISON COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                           BROOKE E. JONES,

                                           Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 19 HA 0003


                                   Criminal Appeal from the
                        Court of Common Pleas of Harrison County, Ohio
                                   Case No. CRI 2015-0067

                                          BEFORE:
                  David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.


                                                JUDGMENT:
                                           Vacated and Remanded.


 Atty. T. Owen Beetham, Harrison County Prosecutor and Atty. Jeffrey J. Bruzzese,
 Assistant Prosecuting Attorney, Harrison County Prosecutor’s Office, 111 W. Warren
 Street, P.O. Box 248, Cadiz, Ohio 43907 for Plaintiff-Appellee and

 Atty. Travis Collins, 105 Jamison Avenue, Cadis, Ohio 43907, for Defendant- Appellant.
                                                                                        –2–


                                Dated: February 26, 2020


 D’APOLITO, J.

       {¶1}   Appellant Brooke E. Jones appeals her two-year sentence imposed by the
Harrison County Court of Common Pleas for a community control violation, because the
sentence (originally suspended) was imposed to be served consecutively to the sentence
for her felony conviction in Jefferson County. Appellant’s Jefferson County conviction,
which occurred while Appellant was on community control in Harrison County, provided
the substance of the community control violation.
       {¶2}   Appellant contends that the trial court was prohibited as a matter of law from
imposing the sentence to be served consecutively to the Jefferson County sentence for
three reasons. First, she argues that a trial court cannot impose a sentence to run
consecutively to the sentence of another court. Next, she argues that the sentence is
unlawful because she was not notified at her original sentencing hearing, when the
sentence was suspended, that it could be imposed to run consecutively to a sentence for
a future crime. Finally, Appellant argues that the trial court failed to make the requisite
statutory findings to impose consecutive sentences.
       {¶3}   We find that the trial court had the statutory authority to impose the two-year
sentence to run consecutively to the Jefferson County sentence, and that the trial court
was not obliged to notify Appellant that the sentence for a community control violation
could be imposed to be served consecutively to a future sentence. However, we agree
with Appellant that the sentence is contrary to law insofar as the trial court erred in not
making the findings set forth in R.C. 2929.14(C)(4), which are required for the imposition
of consecutive sentences. Accordingly, Appellant’s sentence is vacated and this matter
is remanded for resentencing consistent with R.C. 2929.14(C)(4).

                         FACTS AND PROCEDURAL HISTORY

       {¶4}   At the original plea/sentencing hearing on October 16, 2016, Appellant
pleaded to and was convicted and sentenced for one count of endangering children, in
violation of R.C. 2919.22(A), a felony of the third degree. Prior to imposing sentence, the
trial court read portions of the written plea agreement into the record.


Case No. 19 HA 0003
                                                                                        –3–


        {¶5}     Although Appellant was not under a community control sanction at the time,
the trial court read aloud, “I understand if I am * * *under community control sanction * * *
this plea may result in revocation proceedings and any new sentence could be imposed
consecutively.” (10/24/16 Hrg. Tr., p. 8; 10/25/16 Plea Agreement, p. 2.) The trial court
further read:

        “[t]his Court is not required by law to impose a prison sanction. It may
        impose community control sanction or non-prison sanction [sic] upon me. I
        understand if I violate the terms and conditions of a community control
        sanction this Court may extend the time for which I’m subject to the
        sanctions up to a maximum of five years, impose a more restrictive
        sanction, or imprison me for the maximum term stated allowed for the
        offense as set out above.”

(Id. p. 9; Plea Agreement, p. 3.)

        {¶6}     The trial court imposed the following sentence:

        The Court is going to sentence you to two years in the appropriate penal
        institution, five year community control [sic]. Court is suspending your two
        year sentence. Court placing you under the probation department’s control
        and you are to successfully complete the program at EOCC.

(Id., p. 11.)

        {¶7}     The sentencing entry reads, in pertinent part:

        THEREFORE, IT IS THE JUDGMENT AND SENTENCE of this Court that
        Defendant be and hereby is placed on Community Controls for a period of
        five (5) years administered by the Community Controls Program of this
        Court.

        ***




Case No. 19 HA 0003
                                                                                          –4–


       In addition, the Community Controls shall specifically include the following
       “Defendant shall serve two (2) years in an Ohio penal institution; two
       (2) years is hereby suspended.”

(Emphasis in original)(11/4/16 J.E., p. 4.)

       {¶8}       After setting forth the conditions of community control, which included the
completion of certain therapeutic programs and to “abide by all laws,” the sentencing entry
reads, “[t]he Court may modify this order, consistent with [R.C. 2929.15 – the community
control sanctions statute], as needed to protect the public and may punish violations of
this order by imposing a longer period of supervision, a more restrictive community control
sanction, or a prison term of two (2) years.” (Id., p. 5.)
       {¶9}       Although the trial court provided the admonition regarding the possibility of
consecutive sentences if Appellant was currently under a community control sanction at
the original plea/sentencing hearing (she was not), the trial court did not provide the same
admonition should Appellant commit a community control violation in the future.
       {¶10} On February 14, 2018, the state filed a motion to revoke the community-
based control sanction due to Appellant’s termination from a therapeutic program. On
May 2, 2018, Appellant admitted to the violation and the trial court imposed a jail sentence
of thirty days.
       {¶11} On July 24, 2018, the state filed a second motion to revoke the community
control sanction based on three violations: (1) Appellant was charged with one count of
complicity to commit aggravated robbery and one count of robbery; (2) Appellant was
associating with known felons; and (3) Appellant was located in Jefferson County, Ohio
without prior consent from her Community Control Officer. On December 11, 2018,
Appellant entered a guilty plea in the Jefferson County Court of Common Pleas and was
convicted of one count of robbery, in violation of 2911.02(A)(3) and (B), a felony of the
third degree. She was sentenced to thirty-six months, which is the maximum term of
incarceration for a third-degree felony.
       {¶12} Pursuant to negotiations with the Jefferson County prosecutor’s office, the
state filed a motion to withdraw the motion to revoke community control on January 9,
2019. However, the trial court overruled the motion because the state “recommended that


Case No. 19 HA 0003
                                                                                       –5–


[Appellant] be placed on the Zero Tolerance Policy established by the Community
Correction’s Office of the Court as a part of her Community Based Control Sanctions.”
(1/14/19 J.E., p. 1.) At the community control violation hearing on March 11, 2019,
Appellant admitted the violation. The trial court revoked the community control sanction
and imposed the reserved sentence of twenty-four months, with credit for jail time served,
to be served consecutively to the Jefferson County sentence. (3/11/19 J.E., p. 4.) This
timely appeal followed.

                               ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN SENTENCING APPELLANT BROOKE
       JONES, TO SERVE A RESERVED PRISON SENTENCE CONSECUTIVE
       TO A NEW SENTENCE SUBSEQUENTLY IMPOSED BY A DIFFERENT
       COURT WHEN REVOKING APPELLANT’S COMMUNITY CONTROL
       SANCTIONS.

       {¶13} “An appellate court may vacate or modify a felony sentence on appeal only
if it determines by clear and convincing evidence that the record does not support the trial
court’s findings under relevant statutes or that the sentence is otherwise contrary to law.”
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. R.C.
5145.01, captioned “Duration of sentences,” reads, in pertinent part, “If a prisoner is
sentenced for two or more separate felonies, the prisoner’s term of imprisonment shall
run as a concurrent sentence, except if the consecutive sentence provisions of sections
2929.14 and 2929.41 of the Revised Code apply.”
       {¶14} As an initial matter, we recognize that Appellant’s original sentence was
contrary to law. Pursuant to R.C. 2929.19(B), community control sanctions and prison
terms are mutually exclusive and cannot be imposed at the same time on the same count
of conviction. State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512,
¶ 21-23. However, Appellant waived any challenge to the lawfulness of her original
sentence because she did not file a timely appeal. State v. Vlad, 7th Dist. Carroll No. 02
AP 0775, 2003-Ohio-2930, ¶ 6 (“Such errors in actually imposing the prison term must be




Case No. 19 HA 0003
                                                                                       –6–


immediately appealed even if the trial court then ‘suspends’ the felony prison sentence
and further orders probation or community control sanctions.”)
       {¶15} According to R.C. 2929.14(C)(4), separate prison terms for multiple
offenses may be ordered to be served consecutively if the court finds it is “necessary to
protect the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender's conduct and to
the danger the offender poses to the public,” and if the court also finds any of the factors
in R.C. 2929.14(C)(4)(a)-(c) are present:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed
       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
       was under post-release control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or
       more courses of conduct, and the harm caused by two or more of the
       multiple offenses so committed was so great or unusual that no single
       prison term for any of the offenses committed as part of any of the courses
       of conduct adequately reflects the seriousness of the offender's conduct.

       (c) The offender’s history of criminal conduct demonstrates that consecutive
       sentences are necessary to protect the public from future crime by the
       offender.

“[T]o impose consecutive terms of imprisonment, a trial court is required to make the
findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its
findings into its sentencing entry.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, ¶ 37.
       {¶16} Although Appellant advances a single assignment of error, her statutory
argument is divided in three parts. First, she asserts that “the plain language of R.C.
2929.14(C)(4) prohibited the trial court from imposing a consecutive sentence in this
matter because, unlike R.C. 2929.14(C)(1)-(3), R.C.2929.14(C)(4) does not reference
imposing a consecutive prison term to any other prison term previously or subsequently


Case No. 19 HA 0003
                                                                                      –7–


imposed upon the offender.” (Appellant’s Brf., p. 4). Appellee counters generally that “it
is clear that a sentencing court may impose consecutive sentences upon making the
appropriate findings.” (Appellee’s Brf., p. 3.)
       {¶17} R.C. 2929.14(C)(1) requires certain offenders to serve their mandatory
prison sentences consecutive to prison terms “previously or subsequently” imposed on
the offender. R.C. 2929.14(C)(2) requires offenders who commit a felony while
incarcerated to serve the sentence imposed for the new felony consecutive to any prison
term “previously or subsequently” imposed. R.C. 2929.14(C)(3) requires an offender who
steals a firearm or flees from the police in a motor vehicle to serve the sentence for that
offense consecutive to any prison term “previously or subsequently” imposed on the
offender. Because R.C. 2929.14(C)(4) does not read that the court may order sentences
to run consecutive to those previously or subsequently imposed, Appellant argues the
trial court was prohibited from imposing the sentence at issue here consecutively to the
Jefferson County sentence.
       {¶18} In State v. Gillman, 10th Dist. Franklin No. 01AP-662, 2001-Ohio-3968, the
Tenth District considered the forgoing argument. In Gillman, the defendant was under a
community control sanction when he committed two armed robberies. After a twenty-two
year term of imprisonment was imposed for the armed robbery convictions, Gillman
stipulated to the community control violation and the same trial court imposed a two-year
sentence to be served consecutively to the sentences for the armed robberies. Gillman
challenged the trial court’s authority to impose a consecutive sentence for the community
control violation. The Tenth District opined:

       Subsections (1), (2), and (3) pertain to circumstances when there are
       multiple sentences and one of the sentences was for one of three specific
       types of conduct. Subsection (4) applies to all other situations when there
       exists multiple sentences. In subsections (1), (2), and (3), the legislature
       made it mandatory that sentences for gun specifications, crimes in a
       detention facility, and certain acts against a law enforcement officer be
       served consecutively to all other sentences imposed previously or
       subsequently. The legislature undoubtedly made consecutive sentences
       mandatory for such crimes to underscore the serious nature of those


Case No. 19 HA 0003
                                                                                          –8–


        offenses. Subsection (4) then gives the trial court the discretion to determine
        whether sentences for multiple offenses that do not fit into subsections (1),
        (2), or (3) should be served consecutively. As subsections (1), (2), and (3)
        require sentences to be served consecutively to other sentences imposed
        previously or subsequently when the offense was of an especially serious
        nature, we read subsection (4) to give the trial court the discretion to order
        a sentence to be served consecutively to any previous or subsequent
        sentence when the court makes the required findings indicating that the
        prison terms should be served consecutively. While we agree R.C.
        2929.14(E)(4) is not a model of clarity, we do not believe the legislature
        intended that the trial court would not have this type of discretion in
        sentencing.

Id. at *3.

        {¶19} The Tenth District concluded that Gillman’s sentence for two counts of
aggravated robbery and his subsequent sentence for the probation violation “constituted
‘multiple prison terms * * * imposed on an offender for convictions of multiple offenses’
within the meaning of R.C. 2929.14(E)(4), so as to permit consecutive sentences.” Id.
        {¶20} We adopted the Tenth District’s reasoning in Gillman in State v. Love, 7th
Dist. Mahoning No. 00 CA 255, 2002-Ohio-7178. In that case, the defendant was
sentenced to a three-year community control sanction, as well as a potential five-year
prison sentence for any violation of the terms of his community control. One year later,
Love pleaded guilty to aggravated murder and other crimes in Licking County. A motion
to revoke community control sanctions was filed in Mahoning County, Love admitted the
violation, and the trial court imposed a five-year prison term, to be served consecutively
to the Licking County sentence. On appeal, Love challenged the trial court’s alleged
failure to make the requisite statutory findings.
        {¶21} Although Love did not argue that the trial court lacked the authority to
impose a consecutive sentence for the community control violation, we observed that
“[a]lthough the consecutive sentence at issue was not for multiple convictions within a
single criminal case, but rather, was for multiple convictions in totally distinct and separate


Case No. 19 HA 0003
                                                                                        –9–


criminal proceedings, the statute has been interpreted to apply in this situation.” Id. at ¶
35, citing Gilman, supra. We further found that “[u]nder the revised sentencing laws,
effective since 1996 with the enactment of Am. S.B. 2, imposing a prison term after a
community control violation is not a mere reinstatement of a previous sentence,” and, as
a consequence, the sentencing court must comply with the requirements of R.C. 2929.14.
Accordingly, we find that the first part of Appellant’s sole assignment of error based on
the text of R.C. 2929.14(C)(1)-(3) has no merit.
       {¶22} In State v. Thompson, 5th Dist. Fairfield No. 01CA62, 2002-Ohio-4717, the
Fifth District raised the issue articulated in the second part of Appellant’s argument, that
is, “[t]he plain language of R.C. 2929.15(B)(3) precluded the trial court from imposing a
consecutive sentence because the trial court did not advise [Appellant] that the reserved
sentence could be ordered to be served consecutively to a subsequent sentence imposed
by a different court in the original sentencing entry.” (Appellant’s Brf., p. 8.)       R.C.
2929.15, captioned “Community control sanctions,” reads, in relevant part, “The prison
term, if any, imposed upon a violator pursuant to this division and division (B)(1) of this
section shall be within the range of prison terms described in this division and shall not
exceed the prison term specified in the notice provided to the offender at the sentencing
hearing pursuant to division (B)(2) of section 2929.19 of the Revised Code.” R.C.
2929.15(B)(3).
       {¶23} In Thompson, a Fairfield County trial court imposed concurrent nine-month
suspended sentences for two felony convictions, and placed the defendant on community
control for five years. Roughly eleven months later, the prosecutor filed a motion to
revoke community control based on Thompson’s conviction for a second degree felony
in Franklin County. The Franklin County trial court imposed a five-year sentence on the
substantive crime, as well as a one-year sentence, to run consecutively, for a probation
violation in an earlier case. At the community control violation hearing in Fairfield County,
the trial court reimposed the nine-month concurrent sentences to be served consecutively
to the five-year sentence imposed in Franklin County.
       {¶24} In vacating the consecutive nature of the sentence imposed by Fairfield
County, the Fifth District relied, in part, on the defendant’s statutory right to serve no
greater sentence than the sentence originally imposed. The Thompson panel wrote,



Case No. 19 HA 0003
                                                                                         – 10 –


“While we understand appellant’s sentence was reimposed as a result of a probation
violation, the court did not, indeed, could not indicate appellant’s original sentence would
be served consecutively to any other subsequent offense in the original sentencing entry.”
Id. at ¶ 31.
       {¶25} The Second District articulated the same reasoning in State v. Ashworth,
2nd Dist. Champaign No. 2011 CA 1, 2012-Ohio-108. Ashworth was previously
sentenced in Franklin County to five years of community control, with a prison sentence
of five years to be served for a community control violation. Two years later, Ashworth
was convicted of felony and misdemeanor charges in Champaign County.                      The
Champaign County trial court imposed three concurrent prison terms, but ordered
Ashworth to serve a fourth prison term consecutive to any penalty that the Franklin County
court would later issue as a consequence for the violation of that court’s community
control sanctions.
       {¶26} In affirming the imposition of consecutive sentences by the Champaign
County trial court, the Ashworth Court opined that the Franklin County trial court was likely
without authority to impose the community control violation sentence to be served
consecutively to the Champaign County sentence:

       The community-control statute prevents a court from imposing a sentence
       longer than the one it originally announced: “The prison term, if any,
       imposed upon a violator pursuant to this division * * * shall not exceed the
       prison term specified in the notice provided to the offender at the sentencing
       hearing pursuant to division (B)(2) of section 2929.19 of the Revised Code.
       * * * ” R.C. 2929.15(B)(2). We have not found any court that has addressed
       whether a prison term that is equal to or less than the specified term
       nevertheless exceeds the specified prison term if it runs consecutive to a
       prison term imposed in another county and the sum of the terms exceeds
       the specified term. But, given [S.B. 2’s] underlying idea of truth-in-
       sentencing, as well as the requirements of due process, we think that,
       directly confronted with the issue, this Court, and others, would hold that
       R.C. 2929.15(B)(2) is violated in this situation. Moreover in a plea situation,
       a defendant whose penalty for violation of community control is ordered to


Case No. 19 HA 0003
                                                                                      – 11 –


       be consecutive to a sentence for subsequent conduct would likely raise the
       issue that his original plea was not knowingly entered because the
       consequence of making the sentence consecutive to a penalty for
       subsequent conduct, which had not yet occurred, could not be adequately
       explained at the time of the plea. For all these reasons, we believe it is
       likely that the Franklin County court would determine it could not have
       ordered Ashworth to serve its five-year prison sentence consecutive to the
       Champaign County court’s sentence because that would exceed the five-
       year prison term specified originally by the court.

Id. at ¶19.

       {¶27} Am.Sub.S.B. No. 2, effective on July 1, 1996, significantly changed felony
sentencing law in Ohio. Am.Sub.S.B. No. 2 has been labeled a “truth in sentencing”
measure because it provides for definite sentences while eliminating “good time,” parole
releases, and caps on consecutive terms.           For instance, the Eighth District has
recognized that “truth in sentencing” is a dominant purpose of the current sentencing
procedures, “‘which aims to eliminate indefinite sentences in favor of specific terms, to
increase certainty and predictability in sentencing.’” State v. Porter, 8th Dist. No. 103185,
2016-Ohio-5832, 70 N.E.3d 1208, ¶ 19-20, quoting State v. Comer, 99 Ohio St.3d 463,
2003-Ohio-4165, 793 N.E.2d 473. The Second District Court of Appeals has similarly
observed that “the time sentenced [under S.B. 2] will be the time served.” State v. Brown,
2nd Dist. Clark No. 96 CA 92, 1997 WL 216580, *1.
       {¶28} Contrary to the opinions of the Fifth and Second Districts, we find that the
imposition of a consecutive sentence in this case does not run afoul of the statutory
language in R.C. 2929.15(3)(b) or the spirit of S.B. 2. Appellant was informed at the
original plea/sentencing hearing that a two-year prison sentence may be imposed in the
event that she violated the terms of her community control sanction. Appellant was on
notice that any violation of the terms of her community control, regardless of whether the
underlying violation resulted in a separate term of imprisonment, could result in a two-
year term of imprisonment.




Case No. 19 HA 0003
                                                                                         – 12 –


       {¶29} In accordance with R.C. 2929.15(B)(3), the two-year sentence at issue in
this appeal was within the range of prison terms described in the statute and did not
exceed the prison term specified in the notice provided to Appellant at the plea/sentencing
hearing. Similarly, the sentence is not at odds with S.B. 2’s goal of “truth in sentencing,”
because the “time sentenced” in this case – two years – is the “time served” for the
community control violation. Brown, supra.
       {¶30} In State v. Richter, 12th Dist. Clermont No. CA2014-06-040, 2014-Ohio-
5396, the defendant challenged the validity of a 155-day jail term for the violation of a
misdemeanor community control sanction, which was imposed to be served
consecutively to a prison sentence for a felony committed while Richter was on
community control. The Twelfth District recognized the trial court’s authority to impose
the consecutive sentence, as well as the sufficiency of the notice provided during
Richter’s sentencing hearing, writing:

       Admittedly, this case presents a unique situation [because it involves a
       consecutive sentence for a community control violation and the crime that
       constitutes the substance of the violation – rather than two substantive
       convictions]. However, as the record firmly establishes, Richter’s 155-day
       jail term imposed by the municipal court resulting from his admitted violation
       of his community control sanctions was within the statutory range for a first-
       degree misdemeanor OVI offense. See R.C. 2929.24(A)(1). Therefore, we
       find the municipal court’s decision to sentence Richter to serve his 155-day
       jail term consecutive to the 16-month prison sentence he received in the
       common pleas court was proper. To hold otherwise would effectively
       eliminate any penalty for his admitted violation of his community control
       sanctions through the commission of a new felony offense. That is clearly
       not the General Assembly’s intent behind the provisions found in [the
       misdemeanor community control statute].          Such a decision is further
       supported by the fact that Richter was explicitly informed by the municipal
       court at his original sentencing hearing that he would be “facing the
       revocation of [his] community control and all of the outstanding jail time that
       has not been imposed” if he were to violate his community control sanctions.


Case No. 19 HA 0003
                                                                                     – 13 –


(Emphasis added) Id. at 11.

       {¶31} Because Appellant was on notice that any violation of the terms of her
community control would result in the imposition of a two-year prison sentence, the
consecutive sentence imposed in this case does not violate R.C. 2929.15(B)(3) or S.B.
2’s goal of “truth in sentencing.” Therefore, we find that the second part of Appellant’s
sole assignment of error is meritless.
       {¶32} Appellant contends in the final portion of her argument that “[t]he trial court
committed reversible error by not making any of the requisite findings required by R.C.
2929.14(C)(4) prior to ordering Appellant to serve a consecutive sentence.” (Appellant’s
Brf., p. 10.)   Appellant cites Bonnell, supra, for the position that “[w]hen imposing
consecutive sentences, a trial court must state the required findings as part of the
sentencing hearing, and by doing so it affords notice to the offender and to defense
counsel.” Id. at ¶ 29, citing Crim. R. 32(A)(4). The state concedes a Bonnell violation
but contends that we can conclude nonetheless that consecutive sentences were
appropriate based on the record.
       {¶33} We previously held in Love, supra, that a trial court may impose a sentence
for a community control violation in one county to be served consecutively to the
underlying sentence imposed in another county, but must fulfill its statutory obligation
under R.C. 2929.14(C)(4). Contrary to the state’s argument, fact-finding by the trial court
is mandated by Bonnell. Because the trial court did not make any of the findings set forth
in R.C. 2929.14(C)(4), a fact conceded by the state, Appellant’s sentence must be
vacated and this matter remanded for resentencing, in order for the trial court to make the
required statutory findings at the sentencing hearing and in the sentencing entry pursuant
to Bonnell, supra.

                                      CONCLUSION

       {¶34} In summary, we find that the trial court had the authority to impose the
sentence for the community control violation to be served consecutively to the sentence
imposed in Jefferson County, and was under no obligation to notify Appellant that the
sentence for her community control violation could be imposed consecutively to any



Case No. 19 HA 0003
                                                                                   – 14 –


sentence for a future crime. However, Appellant correctly argues that the trial court did
not comply with statutory requirements for the imposition of consecutive sentences.
Therefore, the sentence is vacated and this matter remanded for resentencing in order to
allow the trial court to engage in the required statutory analysis.




Donofrio, J., dissents with attached dissenting opinion.

Waite, P.J., concurs.




Case No. 19 HA 0003
                                                                                      – 15 –


Donofrio, J., dissenting opinion.

        {¶35} I respectfully dissent from the majority opinion. For the following reasons, I
would reverse the trial court’s judgment and order appellant’s sentence for violating
community control to be served concurrently to her Jefferson County sentence.
        {¶36} The majority cites State v. Thompson, 5th Dist. Fairfield No. 01CA62, 2002-
Ohio-4717, but does not apply it. Yet, Thompson has facts that are very similar to this
case.      In Thompson, Thompson was originally sentenced by the Fairfield County
Common Pleas Court to a suspended prison term and five years of community control.
Id. at ¶ 3. Thompson was not advised during sentencing that any sentence he received
as a result of violating community control could be served consecutively to any other
sentence. Id. at ¶ 31. Thompson was later convicted in the Franklin County Common
Pleas Court for engaging in a pattern of corrupt activity and sentenced to a six-year prison
term. Id. at ¶ 4. After Thompson’s conviction in Franklin County, the Fairfield County
Common Pleas Court revoked Thompson’s community control and sentenced him to a
nine-month prison term to be served consecutive to his Franklin County sentence. Id. at
¶ 7.
        {¶37} The Fifth District held that the Fairfield County Common Pleas Court’s
imposition of the nine-month consecutive sentence for violating community control was
error for two reasons. First, Thompson was not informed at his original sentencing
hearing that any sentence for violating community control could be served consecutively
to any other sentence. Id. at ¶ 31. Second, the Fifth District presumed that the Franklin
County Common Pleas Court took appellant’s criminal history, including his status as a
probationer at the time, into account when it sentenced him to a six-year prison term. Id.
at ¶ 32.
        {¶38} Later, in State v. Campbell, 162 Ohio App.3d 413, 2005-Ohio-3980, 833
N.E.2d 802 (5th Dist.), the Fifth District held that, pursuant to State v. Brooks, 103 Ohio
St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, “a trial court sentencing an offender to
community-control sanctions must, at the time of the sentencing, notify the offender of the
specific prison term it may impose for violations of the conditions of the sanction as a
prerequisite to imposing a prison term on the offender for a subsequent violation of the
conditions.” Campbell at ¶ 5 citing Brooks.


Case No. 19 HA 0003
                                                                                     – 16 –


       {¶39} In this case, appellant was not notified at her original sentencing hearing
that any sentence for violating community control could be served consecutively to any
other sentence she received. This fact makes Thompson the more applicable case.
Moreover, pursuant to Campbell and Brooks, appellant was not properly notified of the
specific term the trial court could impose for violations of community control because the
trial court did not advise appellant that any sentence for violating community control could
be imposed consecutively to any other sentence.
       {¶40} I also find State v. Richter, 12th Dist. Clermont No. CA2014-06-040, 2014-
Ohio-5396, which the majority relies upon, to be distinguishable. Richter is based in large
part on R.C. 2929.25 which concerns misdemeanor community control sanctions. In this
case, appellant was not on community control for a misdemeanor, she was on community
control for a felony.
       {¶41} I would find that because the trial court did not advise appellant at her
original sentencing hearing that any sentence she received for violating community
control could be served consecutively to any other sentence, the trial court did not have
the authority to impose appellant’s sentence for her community control violation
consecutively to her sentence in Jefferson County. Thus, I would reverse the trial court’s
judgment on the consecutive sentence and would order appellant’s sentence in this case
to be served concurrent to her Jefferson County sentence.




Case No. 19 HA 0003
[Cite as State v. Jones, 2020-Ohio-762.]




          Appellant correctly argues that the trial court did not comply with statutory
 requirements for the imposition of consecutive sentences. Therefore, the sentence is
 vacated and this matter remanded for resentencing in order to allow the trial court to
 engage in the required statutory analysis. Costs to be taxed against the Appellee.
          A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                           NOTICE TO COUNSEL

          This document constitutes a final judgment entry.
