[Cite as State v. Turner , 2018-Ohio-2730.]




                     Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106123



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                              WAYNE TURNER

                                                         DEFENDANT-APPELLANT




                                          JUDGMENT:
                                    REVERSED AND REMANDED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-16-603727-A

        BEFORE: E.A. Gallagher, A.J., Stewart, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: July 12, 2018
ATTORNEY FOR APPELLANT

Leigh S. Prugh
Nee Law Firm, L.L.C.
26032 Detroit Road, Suite 5
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Yosef M. Hochheiser
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, A.J.:

       {¶1} Defendant-appellant Wayne Turner appeals his sentences imposed as a result of the

revocation of his community control. For the following reasons, we reverse and remand.

       Factual and Procedural Background

       {¶2} In 2016 Turner plead guilty to one count of attempted felonious assault and one

count of domestic violence. At sentencing the trial court imposed 18 months of community

control on each count. The trial court also imposed a prison sentence of 30 months on each

count but ordered the prison terms “suspended” in favor of community control.

       {¶3} On June 21, 2017, the trial court conducted a community-control- revocation

hearing and found Turner to be in violation of his community-control-revocation. The trial

court provided Turner an opportunity to speak before terminating his community control and

stating, “[t]he original sentence will be ordered into execution.”

       {¶4} The trial court issued a journal entry that set forth a blanket prison term of 30

months without specifying separate sentences for each count. This court sua sponte remanded

the present appeal to the trial court to issue a nunc pro tunc entry conforming with the

requirements of a final appealable order under State v. Lester, 130 Ohio St.3d 303,

2011-Ohio-5204, 958 N.E.2d 142. On March 21, 2018, the trial court issued a nunc pro tunc

entry specifying that Turner’s prison sentence was 30 months on each count and the counts were

to be served concurrently.

       Law and Analysis

       I. Allied Offenses
       {¶5} In his first assignment of error, Turner argues that the trial court erred by failing to

merge his felonious assault and domestic violence charges as allied offenses at the time of his

community-control-revocation hearing.

       {¶6} We find Turner’s argument to be barred by res judicata. It is well established that

res judicata bars the consideration of issues that could have been raised on direct appeal. State v.

Saxon, 109 Ohio St.3d 176, 2006-Ohio- 1245, 826 N.E.2d 824, ¶ 16-17. This court has

recognized that the issue of whether two offenses constitute allied offenses subject to merger

must be raised on direct appeal from a conviction or res judicata will bar a subsequent attempt to

raise the issue. State v. Poole, 8th Dist. Cuyahoga No. 94759, 2011-Ohio-716, ¶ 13. We have

also recognized that an appeal taken from a community-control- revocation hearing is not a direct

appeal from a defendant’s original conviction and that res judicata precludes appellate review in

such an appeal of issues that could have been raised in a direct appeal. State v. Bailey, 8th Dist.

Cuyahoga No. 103114, 2016-Ohio-494, ¶ 7. Other Ohio appellate courts have reached the same

conclusion. See, e.g., State v. Allbaugh, 4th Dist. Athens No. 12CA23, 2013-Ohio-2031, ¶ 14;

State v. Turner, 2d Dist. Montgomery No. 27350, 2017-Ohio-4101, ¶ 8; State v. Fields, 5th Dist.

Richland No. 2012-CA-0011, 2012-Ohio-4808, ¶ 16-19. “[T]he time to challenge a conviction

based on allied offenses is through a direct appeal — not at a resentencing hearing.” Poole at ¶

13.

       {¶7} Turner’s first assignment of error is overruled.

       II. Consideration of Sentencing Factors

       {¶8} In his second assignment of error, Turner argues that the trial court failed to consider

the sentencing factors under R.C. 2929.11 and 2929.12 when it sentenced him following the

revocation of his community control sanctions.
        {¶9} “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.” State v. Fraley, 105 Ohio St.3d 13,

2004-Ohio-7110, 821 N.E.2d 995, ¶ 17; State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127,

81 N.E.3d 1237, ¶ 11.                 The Ohio Supreme Court in Jackson reaffirmed that a

community-control-revocation hearing is a sentencing hearing conducted consistent with R.C.

2929.15(B) and in sentencing a defendant at such a hearing a trial court is not merely imposing

an already existing sentence. Jackson at ¶ 11-13.

        {¶10} In this instance the record reflects that trial court failed to sentence Turner anew.

In fact, the trial court failed to state a specific sentence for either count at this sentencing.

Although the trial court’s nunc pro tunc entry set forth concurrent 30-month prison terms for

Turner’s two convictions, we find that the entry does not reflect what actually occurred at the

hearing. At the hearing, the trial court made no mention of any specific term of incarceration

and failed to individually address either count. Because individual sentences were not imposed

at the hearing, a nunc pro tunc entry cannot remedy this omission. State v. Nave, 8th Dist.

Cuyahoga Nos. 105286 and 105288, 2018-Ohio-485, ¶ 2.1




          1
            We find the trial court’s “suspended” prison terms at Turner’s original hearing to be in compliance with
the notice required by R.C. 2929.19(B)(4) for the imposition of community control but a nullity for sentencing
purposes. Under Ohio’s felony sentencing statutes a trial court may impose either a prison term or community
control sanctions on each count. State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2098, 35 N.E.3d 512, ¶ 13.
“[T]he sentencing statute does not allow a trial court to impose both a prison sentence and community control for the
same offense.” State v. Jacobs, 189 Ohio App.3d 283, 2010-Ohio-4010, 938 N.E.2d 79, ¶ 5 (8th Dist.). Rather,
“the trial court must decide which sentence is appropriate — prison or community control sanctions — and impose
whichever option is deemed to be necessary.” Id., quoting State v. Vlad, 153 Ohio App.3d 74, 2003-Ohio-2930, 790
N.E.2d 1246, ¶ 16 (7th Dist.).
       {¶11} We note that after the trial court determined Turner to be in violation of his

community control it failed to comply with Crim.R. 32(A) in that the court did not afford either

Turner’s counsel or the prosecuting attorney an opportunity to speak during the sentencing phase.

       {¶12} Turner’s second assignment of error is sustained.

       {¶13} The judgment of the trial court is reversed. Turner’s sentence is vacated and case

remanded for resentencing consistent with State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110,

821 N.E.2d 995.

       It is ordered that appellant recover from appellee 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 Cuyahoga 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.



____________________________________________________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

MELODY J. STEWART, J., and
SEAN C. GALLAGHER, J., CONCUR
