         [Cite as State v. Sullivan, 2015-Ohio-4845.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :    APPEAL NOS. C-150091
                                                                    C-150098
        Plaintiff-Appellee,                        :    TRIAL NO. 14CRB-33774

  vs.                                              :

BRUCE SULLIVAN,                                    :            O P I N I O N.

    Defendant-Appellant.                           :




Criminal Appeals From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed as Modified

Date of Judgment Entry on Appeal: November 25, 2015


Paula Boggs Muething, City Soliciter, Natalia Harris, City Prosecutor, and Lauren
DeGoricia, Assistant City Prosecutor, for Plaintiff-Appellee,


Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}     This is an appeal from a municipal court conviction for violation of a

protective order. The first issue that we must address is whether certain markings on

the judgment-entry form used by the judge constitute part of the sentence and, thus,

were required to be announced in open court in the defendant’s presence. Additionally,

we consider whether the conviction was based on insufficient evidence or against the

manifest weight of the evidence. We modify the sentence to remove a reference to

consecutive sentences, and affirm the trial court’s judgment as modified.

                                   I. Background

       {¶2}     In July 2014, the Hamilton County Municipal Court issued a domestic-

violence protection order that prohibited Bruce Sullivan from contacting his ex-

girlfriend, Alisha Cottingham. A few months later, Ms. Cottingham received two calls

from a telephone number she did not recognize. When she answered the second call,

she thought the voice sounded familiar. She asked who was calling, and the caller

stated, “This is Bruce.” Ms. Cottingham testified that because the protection order was

in place, she hung up and called the prosecutor, and two days later, contacted the police.

       {¶3}     In response to her report, a police officer visited Ms. Cottingham at her

home. Using a “screen shot” of the number that Ms. Cottingham had captured, the

officer returned the phone call.     A man who identified himself as Bruce Sullivan

answered. Mr. Sullivan acknowledged that he had been dealing with this case for a while

and had been “locked up over it a couple times.” The officer asked him why he had

called Ms. Cottingham when he knew that there was a protection order, and Mr. Sullivan

replied that he had not called her. After a bench trial, Mr. Sullivan was convicted. The




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court sentenced Mr. Sullivan to 180 days in jail, but suspended the sentence and ordered

one year of community control, a $200 fine, and court costs.

                               II. Judgment Entry

       {¶4}    In his first assignment of error, Mr. Sullivan argues the court erred in

sentencing him, because the court’s judgment entry does not match the sentencing

conditions that were announced in open court. Mr. Sullivan also contends the court

erred when it ordered his jail sentence in this case to be served consecutively to his

sentence in another case, which had not yet been imposed.

       {¶5}    In open court, the judge announced a sentence of one year of community

control, court costs, and a $200 fine. The only terms of community control stated were

electronic and juris monitoring, and that Mr. Sullivan was to have no contact with Ms.

Cottingham. Mr. Sullivan does not dispute that all of those conditions were announced

at sentencing and properly appear in the entry.

       {¶6}    But Mr. Sullivan argues that the judgment entry contains other

sentencing terms that were not announced in open court. Specifically, Mr. Sullivan says

the entry imposes consecutive sentences, makes him ineligible for certain sentence

reductions, and requires that he undergo treatment. He contends that because these

sentencing terms were not announced in open court, his right to due process has been

violated. Mr. Sullivan is correct that sentencing terms in a judgment entry must match

those announced in open court in the defendant’s presence. See State v. Carpenter, 1st

Dist. Hamilton No. C-950889, 1996 Ohio App. LEXIS 4434, *4-5 (Oct. 9, 1996). But we

do not read the judgment entry in this case to impose any sentencing terms that were

not announced in open court.




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         {¶7}        The trial court used a standard criminal judgment entry form of the

Hamilton County Municipal

Court.     Presumably, such a

form is employed to allow

municipal       court    judges     to

manage the large caseload

with      which          they      are

confronted. A copy of the form

entry in Mr. Sullivan’s case is

set forth to the right.           Mr.

Sullivan focuses on the boxes

checked         by      the     court:

“extended       treatment,”       “any

treatment if eligible,” “not

eligible for 2 for 1,” “not

eligible for 3 for 1.” (We will

leave aside for a moment the box marked consecutive.)

         {¶8}        It is important to understand that the form not only sets forth the

defendant’s sentence, but also provides instructions to the sheriff. The boxes that are

checked are not located in the portion of the form that imposes a community-control

sanction, but rather in the section of the form that deals with jail time. Indeed, just

above the checked boxes is the inscription, “To the Sheriff of Hamilton County,

Greetings.” Here, the form tells the sheriff that Mr. Sullivan is not eligible for a program

by which a defendant is given a sentence reduction of 3 days for every 1 day served, nor a

program by which a defendant is given a sentence reduction of 2 days for every 1 day



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served. These instructions are consistent with R.C. 2947.151, which allows the sheriff to

grant such credit based upon work performed by the inmate while in jail, but only upon

“the written concurrence of the presiding or sentencing judge.” Similarly, the checks in

the boxes related to treatment tell the sheriff about Mr. Sullivan’s eligibility for

treatment programs in jail. In Mr. Sullivan’s case, his sentence was suspended, so no jail

time was actually imposed. Presumably, however, in the event that the suspended

sentence was imposed, the checked boxes would provide guidance to the sheriff about

treatment eligibility and eligibility for sentence-reduction programs during Mr.

Sullivan’s stay in jail.

        {¶9}      We disagree with Mr. Sullivan’s assumption that the judment entry

ordered him to undergo treatment as a condition of community control. There is no

order of treatment in the section of the entry that lists the conditions of community

control. Rather, the treatment references are in the portion of the form relating to jail

time. Thus, the treatment references in the entry simply serve as guidance to the sheriff

should the stayed sentence be imposed.

        {¶10}     Because we conclude that the markings on the judgment entry relating

to treatment and eligibility for 2-for-1 and 3-for-1 credit were not part of the sentence

imposed, but merely instructions to the sheriff, we overrule Mr. Sullivan’s first

assignment of error in this regard.

        {¶11}     That leaves the box marked “consecutive.”      Mr. Sullivan was only

sentenced on one offense, so there is nothing to which the sentence could have been

consecutive. Mr. Sullivan suggests that the checked box indicates that the trial court

intended the sentence to be consecutive to any sentence that might be imposed in the

underlying domestic-violence case. A trial court, however, may not order a sentence to

be served consecutively to another sentence that has not yet been announced. State v.



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Feller, 2012-Ohio-6016, 985 N.E.2d 210, ¶ 41 (1st Dist.).        We do not know if Mr.

Sullivan is correct in his supposition that the trial court meant to make the sentence

consecutive to the unimposed sentence or if the checked box was simply an error.

Regardless, to alleviate any confusion, we will exercise our authority under App.R. 12(B)

to modify the court’s judgment to remove the consecutive-sentences marking.

        {¶12}    Therefore, we sustain Mr. Sullivan’s first assignment of error in part and

modify the sentence to remove the consecutive marking. We overrule the assignment of

error in all other respects.

                          III.   Weight and Sufficiency

        {¶13}    In his second assignment of error, Mr. Sullivan claims his conviction was

not supported by sufficient evidence and was contrary to the manifest weight of the

evidence.

        {¶14}    The statute under which Mr. Sullivan was convicted, R.C. 2919.27,

requires a showing that the defendant recklessly violated the terms of a protection order.

The protection order issued here was in place to protect Ms. Cottingham from Mr.

Sullivan during the pendency of the domestic-violence case against him.                Ms.

Cottingham testified that she received a call from Mr. Sullivan and then contacted the

prosecutor, because the protection order was in place. When she later called the police,

the officer telephoned Mr. Sullivan, who identified himself.          This evidence was

sufficient to meet the elements of the offense. See State v. Jenks, 61 Ohio St.3d 259,

574 N.E.2d 492 (1991), paragraph two of the syllabus. As to the manifest-weight

challenge, our review of the record—including a weighing of the evidence and all

reasonable inferences, and consideration of the credibility of the witnesses—does not

lead us to conclude that the trial court so clearly lost its way as to create a manifest




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miscarriage of justice. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997). Mr. Sullivan’s second assignment of error is overruled.

                                IV. Conclusion

       {¶15}   We modify the judgment entry to omit the reference to consecutive

sentences. We affirm the trial court’s judgment as modified.



                                                                 Affirmed as modified.


C UNNINGHAM , P.J., and S TAUTBERG , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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