[Cite as State v. Marks, 2015-Ohio-4179.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102168



                                      STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                            vs.

                                     EUGENE MARKS
                                                  DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-12-569789-A and CR-13-571857-A

        BEFORE: Keough, P.J., E.A. Gallagher, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: October 8, 2015
ATTORNEY FOR APPELLANT

Rachel A. Kopec
8748 Brecksville Road
Suite 200
Brecksville, OH 44141


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, P.J.:

         {¶1} Defendant-appellant, Eugene Marks appeals from his 48-month sentence

imposed based on an alleged violation of his community control. For the reasons that

follow, we reverse the trial court’s decision and vacate Marks’s sentence.

         {¶2} In 2013, Marks entered guilty pleas and was sentenced under two different

case numbers.         In Case No. CR-569789, he pleaded guilty to burglary, attempted

felonious assault, and intimidation of a crime victim or witness. The court imposed a

prison sentence of 18 months for the burglary and attempted felonious assault charges,

and a sentence of 60 months of community control for the intimidation offense. The

journal entry of conviction stated, “[A] capias shall issue for the defendant to be returned

to Cuyahoga County jail to commence community control on Count 4 [intimidation] on

CR-569789 and CR-571857 after completion of [the] prison term.”

         {¶3} In Case No. CR-571857, Marks pleaded guilty to attempted bribery. The

court sentenced Marks to 60 months of community control.             The journal entry of

conviction is silent as to the commencement date of community control.        However, the

sentencing transcript provides that the court ordered that “[t]he capias will issue for the

defendant to be returned to the Cuyahoga County Jail to commence community control in

Case Number 57[1]857, and count 4 [intimidation] of 569789 after the completion of the

term.”    (Tr. 66.)
       {¶4} Also included in both journal entries of conviction, the court ordered that the

defendant have “no contact with victims and their families.”

       {¶5} Marks served his prison sentence of 18 months, and following his release

from prison, the court held a hearing “to institute the community control.”       (Tr. 69.)

During this hearing, it was alleged that Marks violated the terms of his community control

by sending two letters to the victim while he was incarcerated.   The trial court indicated

that the no-contact order was not a term of probation, but that no contact was ordered

through the journal entry of conviction.

       {¶6} At the request of defense counsel, the court scheduled an evidentiary hearing

in July 2014 on the alleged violation because further evidence was necessary.    The court

also referred the matter to the prosecutor’s office for a determination of whether there

was a criminal violation by violating the contact order and whether or not there was a

further crime of intimidation.    What is clear from the record is that no formal finding

was made by the trial court in open court on whether Marks violated the terms of

community control.     Nevertheless, the trial court immediately issued a written order

finding that Marks was in violation of the terms of his community control; nothing in the

record explains the trial court’s sudden reversal.

       {¶7} At the July 2, 2014 hearing, the court indicated it was conducting a

community control violation hearing. Marks was represented by new counsel and the

prosecutor was not present.    However, the probation officer noted on the record that the

court had already determined that Marks violated the terms of his community control.
Following a brief exchange, none of which included any evidence concerning the alleged

violation, the court found Marks in violation of community control and ordered him to

serve a total of 48 months in prison, less 127 days. This included 30 months for Case

No. CR-569789 consecutive to 18 months for Case No. CR-571857.

       {¶8} Marks now appeals, raising two assignments of error.                In his first

assignment of error, Marks contends that the trial court erred when it found him to be in

violation of community control despite trial counsel’s request for an evidentiary hearing.

       {¶9} According to the record on appeal, no hearing to determine whether a

violation occurred was ever held or waived, despite Marks’s request for an evidentiary

hearing. Furthermore, the order finding Marks to be in violation of the terms of his

community control markedly differed from the actual discussion that took place at the

initial hearing when Marks was released for prison.

       {¶10} Therefore, the record plainly demonstrates a denial of due process during

the community control violation determination. State v. Simpkins, 8th Dist. Cuyahoga

No. 87131, 2006-Ohio-3496, ¶ 14.       At the least, as applicable to the current case, the

defendant must be afforded the disclosure of the evidence and an opportunity to be heard

and to present evidence in response. Id.; State v. Davis, 8th Dist. Cuyahoga No. 93959,

2010-Ohio-5126, ¶ 24 (noting the abruptness of appointing counsel on the spot to

represent a defendant in a community control violation hearing and how that negatively

affects the defendant’s own ability to protect his constitutional rights).   Marks contested

the allegations, and although initially the trial court stated that Marks would have an
opportunity to challenge the alleged violation, the subsequent hearing merely presumed a

violation occurred based on an apparently erroneous journal entry.

       {¶11} The subsequent hearing afforded no opportunity for Marks to contest the

allegations or the timing of the alleged violation. State v. Waddell, 10th Dist. Franklin

No. 14AP-372, 2014-Ohio-4829, ¶ 8 (revocation of probation implicates two due process

requirements, a preliminary determination whether there is cause to believe that a

defendant violated the terms of probation and a revocation determination whether

probation should be revoked); State v. Boykins, 3d Dist. Marion No. 9-14-28,

2015-Ohio-1341, ¶ 8 (same two due process requirements applied to community control

violations); State v. Heinbach, 8th Dist. Cuyahoga No. 67821, 1995 Ohio App. LEXIS

3792, *4 (Aug. 31, 1995). In this case, Marks’s right to due process was not preserved.

The trial court indicated on the record that the probable cause determination would be

continued for an evidentiary hearing, yet it issued a journal entry finding that Marks

violated the terms of his community control before that second hearing took place.

Accordingly, the proceedings in this case violated Marks’s right to due process before he

was sentenced to a four-year term of incarceration on an alleged community control

violation.

       {¶12} Additionally, the record demonstrates that Marks was not on community

control sanctions at the time that he allegedly violated the court’s no-contact order.

Therefore, the court erred by first denying Marks due process and then erred by ordering

Marks to serve a prison term for the alleged violation.
       {¶13} The term of community control in both cases was to be served consecutively

to the prison term. Therefore, while Marks was in jail, he was not under any community

control sanction, including the no-contact order. See State v. Anderson, 143 Ohio St.3d

173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 17 (reiterating that a “no-contact order” is a

community control sanction and cannot be imposed along with a prison term on the same

felony offense). Therefore, Marks could not have violated the terms of his community

control in both cases because he was serving a prison sentence for an offense while the

alleged violation occurred.    Accordingly, the court erred in sentencing Marks to 48

months in prison — 30 months under Case No. CR-569789 consecutive to 18 months

under Case No. CR-571857 for the alleged violation.

       {¶14} Judgment reversed.      The case is remanded to the trial court to issue a

journal entry vacating Marks’s sentence for the violation and ordering him discharged

from prison in these cases. Based on the foregoing, Marks’s second assignment of error

challenging the imposition of consecutive sentences is rendered moot.

       It is ordered that appellant recover from 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN PART AND
DISSENTS IN PART (SEE SEPARATE OPINION)


SEAN C. GALLAGHER, J., CONCURRING IN PART AND DISSENTING IN PART:

          {¶15} I respectfully dissent from the majority’s decision to summarily discharge

Marks without a hearing to determine the validity of the underlying conviction.     In State

v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, the Ohio Supreme

Court held that a no-contact order cannot be imposed along with a prison term on the

same felony offense. The no-contact order could only be imposed as a term of the

community control sanction in Case No. CR-13-571587-A, which is silent as to the

commencement of the sanction.            Although the final sentencing entry in Case

No. CR-12-569789-A indicates that community control, as imposed in both cases, is

consecutive to the prison term, the ambiguity requires a new hearing to determine all

issues.

          {¶16} In addition, it should be noted that there is an open question as to whether

community control sanctions can be imposed consecutively in light of the fact that R.C.

2929.14(C)(4) is limited to the imposition of consecutive prison sentences. In State v.

Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874, ¶ 12, the Ohio

Supreme Court held that trial courts lack authority to impose consecutive jail sentences

pursuant to R.C. 2929.16(A)(2) because R.C. 2929.41 mandates that sentences of

imprisonment that include a felony jail sentence must be served concurrently to any other
term. More important, the Ohio Supreme Court concluded that although the language of

R.C. 2929.16(A), authorizing the imposition of a combination of sanctions for a “felony

offense” in the singular, may indicate “that multiple [sentences] may be imposed where

the criminal has been found guilty of multiple felony offenses[,]” such an interpretation

was irrelevant to whether the sentences must be imposed to be served consecutively or

concurrently. Id. R.C. 2929.41(A) provided no exception to the statutory requirement

that trial courts impose the community control sanctions to be served concurrently.

       {¶17} Further, although R.C. 2929.13(A) authorizes a court to impose “a

sentence[, a combination of sanctions pursuant to R.C. 2929.14 through 2929.18,] on an

offender for a felony[,]” the statute is limited to imposing a combination of sanctions on a

singular felony offense and is silent as to imposing consecutive service of community

control sentences upon multiple felonies. Barnhouse at ¶ 15; State v. Saxon, 109 Ohio

St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9. R.C. 2929.15(A) and 2929.16(A) also

use similar language authorizing trial courts to impose a combination of community

control sanctions for a “felony offense.”       As the Ohio Supreme Court noted in

Barnhouse, the legislature’s indication that a combination of sanctions may be imposed

for a felony offense is immaterial to resolving whether the sanctions can be imposed

consecutively to one another. Barnhouse at ¶ 15.

       {¶18} The validity of the underlying sentence must be addressed along with the

ambiguity in the final sentencing entries. For this reason, I would reverse the conviction

on the due process rationale advanced by the majority, but would remand for a hearing.
