[Cite as State v. Brown, 2018-Ohio-88.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 105211 and 106278




                                      STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                           vs.

                                 DEMETRIUS BROWN
                                                 DEFENDANT-APPELLANT




                                   JUDGMENT:
                              VACATED AND REMANDED



                                Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
              Case Nos. CR-13-581262-A, CR-12-568782-A, CR-12-568784-A,
                          CR-12-568786-A, and CR-12-568930-A

        BEFORE: E.T. Gallagher, J., E.A. Gallagher, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED: January 11, 2018
ATTORNEY FOR APPELLANT

Rachel A. Kopec
1360 E. 9th Street, Suite 910
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Gregory J. Ochocki
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, Demetrius Brown (“Brown”), appeals from the

30-month prison sentence he received in the Cuyahoga County Court of Common Pleas

for violating the conditions of his community control.            He raises the following

assignments of error for review:

       1. The trial court erred when it sentenced appellant to prison without
       properly advising him of how much of the prison sentence would be
       imposed if he violated probation.

       2. Even if the trial court was proper in holding that appellant violated his
       community control sanctions, the trial court erred when it sentenced
       appellant to consecutive prison terms.

       {¶2} After careful review of the record and relevant case law, we vacate Brown’s

sentence and remand for further proceedings consistent with this opinion.

                           I. Procedural and Factual History

       {¶3} In March 2014, Brown pleaded guilty in Cuyahoga C.P. Nos.

CR-12-568782-A, CR-12-568784-A, CR-12-568786-A, and CR-12-568930-A to a total

of nine counts of criminal nonsupport in violation of R.C. 2919.21(B), felonies of the

fifth degree. In Cuyahoga C.P. No. CR-13-581262-A, Brown pleaded guilty to a single

count of theft in violation of R.C. 2913.02(A)(3), a felony of the fifth degree.

       {¶4} In April 2014, the trial court held a joint sentencing hearing in Cuyahoga C.P.

Nos. CR-12-568782-A, CR-12-568784-A, CR-12-568786-A, CR-12-568930-A, and

CR-13-581262-A.      Following an extensive discussion on the record, the trial court

imposed six-month prison terms in each case, to run consecutively to each other, for an
aggregate 30-month prison term. The trial court suspended Brown’s prison sentence and

placed him on a five-year period of community control sanctions.

       {¶5} In October 2016, Brown was found to have violated the terms and conditions

of his community control sanctions. As a result, the trial court ordered Brown to serve

the aggregate 30-month prison term, with credit for time served.

       {¶6} Brown now appeals from his aggregate sentence.1

                                   II. Law and Analysis

       {¶7} In his first assignment of error, Brown argues that the trial court erred in

imposing a term of imprisonment when the court failed to advise him at sentencing that a

term of imprisonment may be imposed if he violated the terms and conditions of his

community control sanctions.

       {¶8} Pursuant to R.C. 2929.19(B)(4):

       If the sentencing court determines at the sentencing hearing that a
       community control sanction should be imposed and the court is not
       prohibited from imposing a community control sanction, the court shall
       impose a community control sanction. The court shall notify the offender
       that, if the conditions of the sanction are violated, if the offender commits a
       violation of any law, or if the offender leaves this state without the
       permission of the court or the offender’s probation officer, the court may
       impose a longer time under the same sanction, may impose a more
       restrictive sanction, or may impose a prison term on the offender and shall
       indicate the specific prison term that may be imposed as a sanction for the


       1  On September 19, 2017, this court granted Brown leave to file a delayed appeal pursuant
to App.R. 5. In addition, this court consolidated 8th Dist. Cuyahoga Nos. 105211 and 106278 in
order to adequately address the legality of the sentences imposed in Cuyahoga C.P. Nos.
CR-12-568782-A, CR-12-568784-A, CR-12-568786-A, CR-12-568930-A, and CR-13-581262-A.
       violation, as selected by the court from the range of prison terms for the
       offense pursuant to section 2929.14 of the Revised Code.

(Emphasis added.)

       {¶9} The Ohio Supreme Court has addressed the obligations set forth under R.C.

2929.19(B)(4) (interpreting former analogous R.C. 2929.19(B)(5)), stating:

       Pursuant to R.C. 2929.19(B)([4]) and 2929.15(B), a trial court sentencing
       an offender to a community control sanction must, at the time of the
       sentencing, notify the offender of the specific prison term that may be
       imposed for a violation of the conditions of the sanction, as a prerequisite to
       imposing a prison term on the offender for a subsequent violation.

State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 29.

Furthermore, “[s]uch notification must also be contained in the accompanying sentencing

journal entry.” State v. Goforth, 8th Dist. Cuyahoga No. 90653, 2008-Ohio-5596, ¶ 20,

citing State v. McWilliams, 9th Dist. Summit No. 22359, 2005-Ohio-2148.

      {¶10} In this case, the state concedes that “the transcript establishes that the trial

court did not properly notify Brown of the potential prison term he faced for violating the

terms and conditions of his community control sanctions.” Thus, the state “respectfully

requests that this court vacate [Brown]’s prison sentences in [Cuyahoga C.P. Nos.]

CR-12-568782-A,       CR-12-568784-A,       CR-12-568786-A,       CR-12-568930-A,        and

CR-13-581262-A, and remand those matters back to the trial court for resentencing.”

       {¶11} Following an independent review of the record, we agree that the trial court

failed to notify Brown, at the time of the March 2014 sentencing hearing, of the specific

prison term that would be imposed if he violated the conditions of his community control

sanctions.   Moreover, the record reflects that the trial court failed to incorporate the
required notification into the accompanying sentencing journal entries.   Accordingly, we

find that the trial court erred in imposing a term of imprisonment for the community

control violation based on its failure to make the necessary advisements under R.C.

2929.19(B)(4).

      {¶12} With respect to the remedy an appellate court must afford an appealing

offender, the Ohio Supreme Court has stated, “when a trial court judge gives no notice

whatsoever * * * to an offender being sentenced to community control of any prison term

that may be imposed if the conditions of community control are violated, a prison term

may not be imposed for violation of the conditions.” Brooks, 103 Ohio St.3d 134,

2004-Ohio-4746, 814 N.E.2d 837, ¶ 8. The court explained:

      When a trial court makes an error in sentencing a defendant, the usual
      procedure is for an appellate court to remand to the trial court for
      resentencing. In community control sentencing cases in which the trial
      court failed to comply with R.C. 2929.19(B)([4]), however, a straight
      remand can cause problems. Due to the particular nature of community
      control, any error in notification cannot be rectified by “renotifying” the
      offender. When an offender violates community control conditions and
      that offender was not properly notified of the specific term that would be
      imposed, an after-the-fact reimposition of community control would totally
      frustrate the purpose behind R.C. 2929.19(B)([4]) notification, which is to
      make the offender aware before a violation of the specific prison term that
      he or she will face for a violation. Consequently, where no such
      notification was supplied, and the offender then appeals after a prison term
      is imposed under R.C. 2929.15(B), the matter must be remanded to the trial
      court for a resentencing under that provision with a prison term not an
      option.

(Emphasis added.) Id. at ¶ 33.

      {¶13} Because this case involves a direct appeal from the imposition of a prison

term under R.C. 2929.15(B), we find the trial court’s failure to give the proper
notification at the original sentencing hearing prohibits it from sentencing Brown to a

prison term as a result of his subsequent community control sanction violations.

Accordingly, we vacate Brown’s sentence and remand for a resentencing hearing.         At

the resentencing, the trial court must choose between the only options remaining under

R.C. 2929.15(B): (1) impose a longer time under the same sanction if the total time under

the sanctions does not exceed the five-year limit specified in R.C. 2929.15(A), or (2)

impose a more restrictive sanction. Id. at ¶ 142, fn. 2. See also State v. Harper, 8th

Dist. Cuyahoga No. 95718, 2011-Ohio-2041, ¶ 6, citing State v. Hayes, 8th Dist.

Cuyahoga No. 87642, 2006-Ohio-5924, ¶ 7. Here, we note that the trial court has

already imposed the maximum five-year period of community control sanctions permitted

under R.C. 2929.15(A) in each case.

       {¶14} Based on the foregoing, Brown’s first assignment of error is sustained.   His

second assignment of error is rendered moot.

       {¶15}    Judgment vacated and remanded for further proceedings consistent with

this opinion.

       It is ordered that appellant recover of said appellee 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 common

pleas court 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 T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, A.J., and
MARY J. BOYLE, J., CONCUR
