[Cite as State v. Solomon, 2019-Ohio-1841.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


 STATE OF OHIO,                                   :        OPINION

                   Plaintiff-Appellee,            :
                                                           CASE NO. 2017-P-0078
         - vs -                                   :

 IZAIAH J. SOLOMON,                               :

                   Defendant-Appellant.           :


 Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2014 CR
 00650.

 JUDGMENT: Affirmed in part, reversed in part and remanded.


 Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
 Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

 Richard E. Hackerd, 231 South Chestnut Street, Ravenna, OH 44266 (For Defendant-
 Appellant).



THOMAS R. WRIGHT, P.J.

        {¶1}      Appellant, Izaiah Solomon, appeals the revocation of his community control

supervision and imposition of an eight-year prison sentence. We affirm in part, reverse

in part, and remand.

        {¶2}      In December 2014, Solomon pleaded guilty to aggravated robbery in

violation of R.C. 2911.01(A)(1), a first-degree felony. He was sentenced to four years of

community control consisting of two years intensive supervision and two years general
supervision. Solomon was notified that if he violates the terms of his supervision, he will

receive more restrictive community control sanctions or will serve a specific prison term

of eight years.

        {¶3}    His community control supervision was eventually revoked in August of

2017.

        {¶4}    Solomon appeals and raises two assignments of error, which we address

collectively:

        {¶5}    “[1.] Appellant was denied due process when his probation was revoked for

minor violations which do not rise to a level which rationally justifies incarceration.

        {¶6}    “[2.] Appellant was denied due process when he was held liable for

violations for which he was never given a charging instrument claiming the alleged

violations.”

        {¶7}    Both of his assignments claim alleged due process violations.

        {¶8}    Solomon’s first assignment argues a denial of due process because he

claims his probation violations are minor and do not rise to a level justifying incarceration.

His second assignment claims a violation of due process because the trial court allegedly

held him responsible for probation violations for which he was not charged. In response,

the state acknowledges that the trial court misstated the number of revocation motions

filed against Solomon but asserts that was not the basis for the court’s decision to revoke

community control.

        {¶9}    “Community-control-revocation proceedings require a minimal threshold of

due process. A community-control-revocation hearing, like a parole-revocation hearing,

is not a stage of the criminal prosecution but is ‘an informal hearing structured to assure




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that the findings of a [community-control] violation will be based on verified facts and that

the exercise of discretion will be informed by an accurate knowledge of the [probationer's]

behavior.’ A trial court cannot revoke community control without first making a finding

supported by substantial evidence that the defendant has not complied with

his community-control conditions.”     (Citations omitted.)     State v. Dockery, 1st Dist.

Hamilton No. C-090345, 187 Ohio App.3d 798, 2010-Ohio-2365, 933 N.E.2d 1155, ¶10.

       {¶10} However, because Solomon did not raise these alleged violations to the trial

court, he waives all but plain error. State v. Sallaz, 11th Dist. Trumbull No. 2003-T-0009,

2004-Ohio-3508,     ¶40-41,   citing   State   v.   Gilreath   (July   7,   2000),   2d   Dist.

Greene No. 2000-CA-1, 2000 Ohio App. LEXIS 3030, at 7; State v. Roberts, 2d Dist.

Champaign No. 2016-CA-8, 2017-Ohio-481, 84 N.E.3d 339, ¶19.

       {¶11} Crim.R. 52(B) states: “Plain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” To find plain

error, we must conclude that there was an obvious legal error or defect in the proceedings

that affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-

68, 759 N.E.2d 1240. And upon finding plain error, an appellate court must exercise

discretion and act “‘with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.’ State v. Long, 53 Ohio St.2d 91, 7 O.O.3d 178,

372 N.E.2d 804, paragraph three of the syllabus * * *.” Id.

       {¶12} The state first moved to modify or revoke Solomon’s supervision in March

of 2016, alleging that he had used marijuana, failed to complete his drug and alcohol

evaluation, and incurred additional charges, including obstructing official business,

disobeying a police officer, reckless operation of a vehicle, driving without a license,




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speeding, and a stop sign violation. The motion to revoke was heard at a hearing on

June 13, 2016, and the parties agreed that Solomon had incurred traffic charges in

another county that were unresolved. Solomon’s attorney advised the court that he was

admitting to receiving new charges while on supervision, and Solomon generally

acknowledges violating his community control supervision. The trial court subsequently

held that while Solomon had violated, it would continue his supervision as ordered.

       {¶13} Thereafter, at a December 5, 2016 hearing, the state asks the court to

impose the eight-year sentence without filing a motion to revoke. It explains that the

probation department can no longer work with Solomon because of his violations. The

court informed the parties that there were no pending motions to revoke but instead that

Solomon had been in jail for 26 days following his failure to appear at another hearing.

The court then advises Solomon will remain on community control supervision but warns

that the next time he violates, it will impose the prison term. Solomon was present with

counsel.

       {¶14} On June 13, 2017, Solomon was before the court, and although the state

had not filed a motion to revoke his probation, it nevertheless advised the court about

several violations since the December 2017 hearing, including Solomon’s failure to attend

substance abuse treatment and being late to a probation appointment. Solomon blamed

a lack of transportation for his failures. The court concluded by admonishing Solomon

that it did not want to send him to prison, but that he “had a big prison sentence hanging

over his head.”

       {¶15} The state filed its second motion to revoke or modify Solomon’s supervision

the next day alleging that he failed to report to his probation officer on one occasion, and




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on another date, he was 90 minutes late. Solomon then failed to appear at the July 24,

2017 hearing, and on the state’s motion, the court issued a warrant for his arrest for failure

to appear.

       {¶16} The court held a status conference on August 9, 2017 at which Solomon

was present with counsel. The court’s decision thereafter finds that “he has violated the

terms of his community control,” and that he will remain in jail pending the next hearing

on August 21, 2017. There is no transcript of this hearing nor is it clear whether the matter

was recorded. Notwithstanding, Solomon is not challenging the finding that he violated.

       {¶17} At the August 21, 2017 hearing, the court advises that “he admitted back on

August 9th,” and that they were there for disposition. As stated, the court then incorrectly

finds that the state filed five motions to revoke, when in actuality it only filed two. The

confusion arose because the first motion hearing was reset several times. The court also

finds that community control is no longer sufficient because Solomon has continued to

fail to abide by the rules governing his supervision despite being given ample opportunity

to comply. Thus, it imposes the underlying eight-year sentence.

       {¶18} Although Solomon concedes that he violated the conditions of his

community control in July of 2017 by arriving 90 minutes late to probation and failing to

appear for another required appointment, he nevertheless argues that the minor nature

of his violations coupled with the court’s misstatement regarding the number of motions

to revoke filed, individually or collectively, do not warrant the revocation of his community

control and imposition of the eight-year prison sentence, and thus constitute a denial of

due process. We disagree.




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       {¶19} As outlined, Solomon had several opportunities to comply with the terms of

his supervision. The court did not impose the prison sentence after the state’s first motion

to revoke and his admitted violations. But in December of 2016, approximately eight

months after the hearing on the state’s first motion to revoke, the court warned Solomon

that the next time he violates, it will impose the prison term.

       {¶20} Thereafter, in July of 2017, the state filed its second motion to revoke and

Solomon again admitted to the violations.           Consequently, the court revoked his

supervision and imposed the eight-year prison sentence. Thus, regardless of the court’s

misstatement at the August hearing about the number of motions to revoke that were

filed, it is evident that its decision to revoke was based on Solomon’s repeated violations

of the terms of his supervision.

       {¶21} Moreover, while Solomon argues that his violations were not “major”

violations   of   the   terms      of   his   supervision,   “[a]   trial   court's   decision

to revoke community control, even for a ‘minor’ violation, is not an abuse of discretion.”

State v. Herald, 3rd Dist. Defiance No. 4-16-09, 2016-Ohio-7733, ¶28, appeal not

allowed, 149 Ohio St.3d 1408, 2017-Ohio-2822, 74 N.E.3d 465; State v. South, 3rd Dist.

Union No. 14-07-40, 2010-Ohio-983, ¶9.

       {¶22} Accordingly, Solomon fails to establish plain error, and both of his

assignments of error lack merit. The trial court’s decision revoking Solomon’s community

control supervision is affirmed.

       {¶23} Notwithstanding, we sua sponte find plain error in its decision to sentence

him to eight years in prison for his violation based on the trial court’s repeated statements




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that it was required to impose the sentence ordered by the prior judge when sentencing

Solomon to community control supervision.

       {¶24} As stated, in December of 2014, the trial court sentenced Solomon to four

years community control supervision and advised him that he would serve an eight-year

prison term for a violation.

       {¶25} At a status conference on December 5, 2016, the trial court states in part,

“I don’t have any choice in the years that you are sent to prison, its eight years. That’s

what [the prior judge] gave you.”

       {¶26} Thereafter, at the August 21, 2017 revocation hearing, which also serves

as a second sentencing hearing, the trial court states in part:

       {¶27} “This was a serious, serious offense that you got eight years for. * * *

       {¶28} “* * *

       {¶29} “And I can’t go back and change the sentence that [the prior judge] gave

you, but I know that probation is done, and I am done.

       {¶30} “I am terminating your supervision. I am going to impose the originally

suspended sentence that [the prior judge] gave you. * * *

       {¶31} “* * *

       {¶32} “I am sentencing you to the sentence that [the prior judge] suspended.

       {¶33} “* * *

       {¶34} “[Defense counsel:] Would the Court consider county jail time at all, then

you have a lot more flexibility.

       {¶35} “THE COURT: Eight years?”




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       {¶36} Contrary to the trial court’s statements that it had to impose the eight-year

prison term, it did not. The eight-year sentence ordered at Solomon’s initial sentencing

was not mandatory upon revocation of community control. Instead, the stated prison term

at the initial sentencing serves as a ceiling on the prison term the court may impose upon

finding a community control violation. State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-

4746, 814 N.E.2d 837, ¶23.

       {¶37} Although “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,” upon finding a

violation, the court sentences the defendant anew with discretion to impose a lesser term

than that notified of at the initial sentencing. Id. at ¶29.

       {¶38} “R.C. 2929.15(B)(1) * * * reiterates the three options available to the

sentencing court mentioned in R.C. 2929.19(B)(4)[, i.e., 1.) a longer time under the same

sanction, 2.) a more restrictive community control sanction, or 3.) a prison term]. In the

event a defendant violates community control and the court chooses to impose a prison

term, R.C. 2929.15(B)(2) further provides that the prison term must be within the range

of prison terms set forth in R.C. 2929.14 for the offense for which community control was

imposed, and cannot exceed the prison term specified in the notice provided to the

offender at the original sentencing hearing.” State v. Duncan, 12th Dist. Butler No.

CA2015-05-086, 2016-Ohio-5559, 61 N.E.3d 61, ¶17, citing State v. Davis, 12th Dist.

Warren Nos. CA2015-09-081 & CA2015-09-082, 2016-Ohio-879, 2016 WL 868938, ¶17.

       {¶39} Unlike a probation revocation, which merely suspended the original term

imposed, when one is sentenced to community control supervision, the defendant is




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sentenced to community control and not sentenced to the stated prison term. Duncan at

¶19-26. Community control is an alternative to the imposition of a prison term, not a

suspended term as is the case with probation. Id. And the stated prison term at the initial

sentencing hearing only serves as notice of the maximum term one faces if he violates

community control. Id. at ¶21.

      {¶40} Because it is evident that the trial court misstated its sentencing options, we

find plain error and reverse and remand for resentencing. On remand, the court must

conduct a sentencing hearing compliant with the relevant sentencing statutes and impose

a term not to exceed eight years. State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814,

56 N.E.3d 965, ¶15.

      {¶41} Based on the foregoing, the trial court’s decision is affirmed in part, reversed

in part, and remanded.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.




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