[Cite as State v. Holloway, 2017-Ohio-4039.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :     CASE NO. CA2016-08-152

                                                     :          OPINION
    - vs -                                                       5/30/2017
                                                     :

CLITES A. HOLLOWAY,                                  :

        Defendant-Appellant.                         :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2015-07-1174



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 315 South Monument Avenue, Hamilton, Ohio 45011, for defendant-
appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Clites Holloway, appeals from the 12-month prison

sentence he received in the Butler County Court of Common Pleas for violating the

conditions of his community control. For the reasons detailed below, we affirm.

        {¶ 2} On August 25, 2015, Holloway entered into a plea agreement and pled guilty to

one count of attempted failure to provide notice of change of address or place of employment
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in violation of R.C. 2923.02 and R.C. 2950.05(A), a fifth-degree felony. As a Tier I sex

offender, Holloway was required to register his address with the Butler County Sheriff.

       {¶ 3} As a result of his guilty plea, on October 16, 2015, the trial court sentenced

Holloway to five years of community control. At the original sentencing hearing, the trial court

advised Holloway that he faced 12 months in prison if he violated the conditions of his

community control. In pertinent part, the trial court stated:

              TRIAL COURT: If you violate that or leave the state without
              permission, violate any of your terms, violate any law, this Court
              may impose a more restricted sanction or I may impose a prison
              term upon you specifically. I am going to reserve a 12-month
              prison term.

The sentencing entry also reflected the specific 12-month prison term for a violation.

       {¶ 4} On March 24, 2016, the probation department filed a report and notice of a

community control violation, again for failing to register his address. The trial court found

Holloway in violation, but continued Holloway on community control. The sentencing entry

indicated that there was "[z]ero tolerance" for any future violations and specified a 12-month

sentence upon violation. This was also addressed during the hearing:

              THE COURT: * * * Continue him on community control under his
              goal factors. So you still have to do everything you were ordered
              to do before, okay. And I'm going to warn you that at this point
              I'm going to say - - formally it's going to appear on the record that
              it's now a zero tolerance policy, okay. So moving forward you
              have to make sure you're doing everything right. Okay, I'm going
              to continue to shelf [sic] the 12 months, give him total credit of 95
              days (indiscernible). Do you understand?

              THE DEFENDANT: Yes, sir.

       {¶ 5} On July 21, 2016, the trial court issued an entry finding Holloway had once

again violated the conditions of his community control, this time based on a robbery

conviction. As a result, the trial court revoked Holloway's community control and sentenced

him to 12 months in prison. Holloway now appeals from the trial court's sentencing decision,


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raising the following single assignment of error for review:

       {¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN

IMPOSING A TERM OF IMPRISONMENT FOR HIS COMMUNITY CONTROL VIOLATION.

       {¶ 7} In his sole assignment of error, Holloway argues the trial court erred by

sentencing him to a 12-month prison term for violating the conditions of his community

control since the trial court did not explicitly advise him of the specific 12-month prison term

at the original sentencing hearing or during the subsequent community control violation

hearing. We disagree.

       {¶ 8} The Ohio Supreme Court has held that a trial court must notify an offender of

the specific prison term that may be imposed for a violation of a community control sanction.

State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 29. In that case, the court held that

pursuant to R.C. 2929.19(B)(5), now codified as R.C. 2929.19(B)(4):

              [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.

Id.

       {¶ 9} Holloway first argues that the trial court failed to notify him of the specific prison

term that may be imposed during the original sentencing hearing. However, as noted earlier,

the trial court specifically stated during the original sentencing hearing:

              TRIAL COURT: If you violate that or leave the state without
              permission, violate any of your terms, violate any law, this Court
              may impose a more restricted sanction or I may impose a prison
              term upon you specifically. I am going to reserve a 12-month
              prison term.

       {¶ 10} Holloway acknowledges the existence of that notification, but nevertheless

claims that it was not in strict compliance with R.C. 2929.19(B)(4) "as he was not notified of

the specific prison term that would be imposed for a violation." Holloway attempts to frame

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the notification as "tantamount to telling [him] that he could receive a prison term 'up to' the

maximum."

        {¶ 11} The argument that Holloway was not notified of the specific prison term that he

faced at the original sentencing hearing is without merit. The trial court notified Holloway of

the prison sentence he faced. Any suggestion otherwise belies the record. A trial court is

required to advise the offender of the specific prison term that may be imposed. As with

many issues, a trial court is not required to give a talismanic incantation of its order. State v.

Reed, 3d Dist. Defiance No. 4-05-22, 2005-Ohio-5614, ¶ 9. Here, the trial court stated that it

was going to "reserve a 12-month prison term," which is sufficient.

        {¶ 12} Next, Holloway relies on the Ohio Supreme Court's decision in State v. Fraley,

105 Ohio St.3d 13, 2004-Ohio-7110, to separately argue that the trial court was required to

re-advise him of the specific prison term he faced at each community control violation

hearing. However, this court has recently rejected that argument and stated that a trial court

is not required to re-advise the defendant "over and over again at each and every hearing

that may occur thereafter." State v. Gladwell, 12th Dist. Butler No. CA2016-07-139, 2017-

Ohio-1331, ¶ 13. Relying on precedent from the Fourth and Eighth Districts, this court

concluded that notification at the original sentencing hearing, or any subsequent community

control violation hearing is legally sufficient. Id., citing State v. Hodge, 8th Dist. Cuyahoga

No. 93245, 2010-Ohio-78; and State v. Batty, 4th Dist. Ross No. 13CA3398, 2014-Ohio-

2826.

        {¶ 13} Moreover, Holloway's argument is without merit as he was, in fact, notified of

the specific prison term that could be imposed at his most recent community control hearing.

During that hearing, the trial court again advised:

              THE COURT: * * * Continue him on community control under his
              goal factors. So you still have to do everything you were ordered
              to do before, okay. And I'm going to warn you that at this point
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                                                                         Butler CA2016-08-152

              I'm going to say - - formally it's going to appear on the record that
              it's now a zero tolerance policy, okay. So moving forward you
              have to make sure you're doing everything right. Okay, I'm going
              to continue to shelf [sic] the 12 months, give him total credit of 95
              days (indiscernible). Do you understand?

              THE DEFENDANT: Yes, sir.

       {¶ 14} While we would advise caution in the use of vernacular, such as "continue to

shelve," the record clearly and sufficiently reveals that Holloway was notified of the specific

prison term he faced at both the original sentencing hearing and the subsequent community

control hearing. See Reed, 2005-Ohio-5614 at ¶ 9. When Holloway violated his community

control, the trial court imposed the 12-month sentence. Accordingly, we find the trial court did

not err by imposing a prison term following the violation of his community control. Holloway's

sole assignment of error is without merit and overruled.

       {¶ 15} Judgment affirmed.


       HENDRICKSON, P.J., concurs.


       M. POWELL, J., concurs separately.


       M. POWELL, J., concurring separately.

       {¶ 15} I concur in the majority's judgment and opinion but write separately to express

my concern with our recent opinion in State v. Gladwell, 12th Dist. Butler CA2016-07-139,

2017-Ohio-1331, and our reliance upon it in affirming Holloway’s prison term.

       {¶ 16} In Gladwell, the defendant was sentenced to a community control sanction for

a felony conviction. At the sentencing hearing, the trial court provided Gladwell with the R.C.

2929.19(B)(4) notification of the specific prison term he faced should he violate the conditions

of community control. Thereafter, Gladwell was adjudicated in violation of the terms of his

community control. The trial court continued Gladwell on community control and again


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provided him with the necessary R.C. 2929.19(B)(4) notification. Gladwell violated the terms

of his community control a second time and was again continued on community control.

However, the trial court failed to provide a R.C. 2929.19(B)(4) notification at the second

community control violation sentencing hearing. When Gladwell violated the terms of his

community control a third time, the trial court sentenced him to the prison term of which he

had been notified at his original sentencing and at the first community control violation

sentencing. Gladwell appealed. Relying upon the Ohio Supreme Court's opinion in Fraley,

he argued he was not subject to a prison term because of the trial court’s failure to provide

the R.C. 2929.19(B)(4) notification at the second community control violation sentencing

hearing. We affirmed the imposition of the prison term on the ground that a proper R.C.

2929.19(B)(4) notification dispenses with any necessity for a subsequent notification. In

doing so, we rejected Gladwell's reliance upon Fraley and instead relied upon a 2010 opinion

of the Eighth Appellate District and its progeny. State v. Hodge, 8th Dist. Cuyahoga No.

93245, 2010-Ohio-78. In my view, Gladwell represents a misapplication of the supreme

court’s opinion in Fraley.

       {¶ 17} In 2004, the Ohio Supreme Court held that

              Pursuant to R.C. 2929.19(B)(5) 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, paragraph two of the syllabus. Thus,

the supreme court held that the R.C. 2929.19(B)(4) notification must be given at the time an

offender is sentenced to community control if a prison term is to be imposed for a

subsequent community control violation. However, Brooks specifically declined to address

whether providing the notification at a later community control violation sentencing hearing


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allows imposition of a prison term for a subsequent community control violation where the

notice was not originally provided. Id. at ¶ 33, fn. 2. In Fraley, the supreme court addressed

the issue left open in Brooks.

       {¶ 18} Fraley was concerned with the timing of the R.C. 2929.19(B)(4) notification

and addressed the various situations in which the notification would be effective in permitting

the imposition of a prison term for a later community control violation, including that left

unaddressed in Brooks.

       {¶ 19} The supreme court began by noting that the R.C. 2929.19(B)(4) notification

must be provided at the sentencing hearing where an offender is first sentenced to

community control, if a prison term is to be imposed as a sanction for an initial community

control violation:

              Thus, in order to comply with R.C. 2929.19(B)(5), the original
              sentencing hearing is the time when the notification must be
              given for the court to impose a prison term upon a defendant's
              first community control violation. However, this court has not
              ruled on the timing of notification required by the statute in order
              to impose a prison term when an offender violates his community
              control sanctions multiple times.

(Emphasis sic.) State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, ¶ 15. Notably, the

supreme court did not phrase this unaddressed issue of the timing of a notification for an

additional community control violation as involving whether the notification was provided at

the original sentencing.

       {¶ 20} The supreme court then discussed the timing of the notification where an

offender commits separate and successive community control violations. In doing so, the

supreme court recognized that the original sentencing hearing and subsequent community

control violation sentencing hearings are separate and distinct events, and observed that

"[f]ollowing 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
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the relevant sentencing statutes." Id. at ¶ 17. Obviously, R.C. 2929.19(B)(4), which requires

the specific prison term notification, is a "relevant sentencing statute" with which a court must

comply at this "new" sentencing hearing. Thus, to comply with "R.C. 2929.19(B)(5) and

2929.15(B), a trial court sentencing an offender upon a violation of the offender's community

control sanction must, at the time of such sentencing, notify the offender of the specific

prison term that may be imposed for an additional violation of the conditions of the sanction,

as a prerequisite to imposing a prison term on the offender for such a subsequent violation."

Id. at ¶ 18.1 This is a straightforward expression that the R.C. 2929.19(B)(4) notification must

be given at a community control violation sentencing hearing for a prison term to be imposed

for a subsequent violation, without regard to whether the notification was provided at the

original sentencing. However, in Gladwell, we adopted the construction of Fraley advanced

by the Eighth Appellate District in Hodge and affirmed Gladwell’s prison term because he had

been provided a R.C. 2929.19(B)(4) notification when originally sentenced and in a prior

community control violation sentencing.

       {¶ 21} Hodge, which was the lynchpin of our opinion in Gladwell, involved a case

where the defendant was provided a proper R.C. 2929.19(B)(4) notification at his original

sentencing but not at a first community control violation sentencing where he was continued

on community control. When Hodge violated the conditions of community control a second

time and was sentenced to a prison term, he appealed, arguing that based upon Fraley, he

could not be sentenced to prison because of the trial court’s failure to give the R.C.

2929.19(B)(4) notification at the first community control violation sentencing hearing. The

Hodge court found it significant that Fraley involved an offender who had not been properly

notified at the original sentencing hearing, while Hodge had been so notified. Thus, the



1. Former R.C. 2929.19(B)(5) is now codified as R.C. 2929.19(B)(4).

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Eighth Appellate District construed Fraley as holding that a failure to provide the R.C.

2929.19(B)(4) notification at the original sentencing may be "cured" by a notification at a

subsequent community control violation sentencing hearing. Hodge, 2010-Ohio-78 at ¶ 9.

Finding that a proper notification of the specific prison term at an original sentencing hearing

suffices for all subsequent community control violation sentencing hearings, the appellate

court stated, "We find nothing in * * * Fraley that requires a legally adequate notification in the

first instance to be given over and over again." Id.

        {¶ 22} I agree that a proper R.C. 2929.19(B)(4) notification at a R.C. 2929.15(B)

community control violation sentencing hearing permits the imposition of a prison term for a

subsequent community control violation without regard to whether a proper notification was

provided at the original sentencing.2 However, I believe the Eighth Appellate District

misconstrued Fraley in finding that a notification at the original sentencing hearing dispenses

with the necessity of providing the notification at community control violation sentencing

hearings, if a prison term is to be imposed for a subsequent violation of community control.

        {¶ 23} Fraley ruled that the timing of the notification, if a prison term is to be imposed,

is at the original sentencing for a first community control violation, and at the R.C. 2929.15(B)

community control violation sentencing hearing for subsequent community control violations.

The supreme court did not, as suggested by Hodge, qualify the duty to comply with the R.C.

2929.19(B)(4) notification upon whether a prior proper R.C. 2929.19(B)(4) notification had

been given. On the contrary, the supreme court limited the reach of a notification at an

original sentencing hearing to the first community control violation. Fraley, 2004-Ohio-7110

at ¶ 15 ("the original sentencing hearing is the time when the notification must be given for




2. For the reasons set forth herein, I believe it inaccurate to characterize a subsequent notification as a "cure"
for a deficient initial notification. Rather, a subsequent R.C. 2929.19(B)(4) notification provides an independent
basis to impose a prison term for a subsequent community control violation.

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the court to impose a prison term upon a defendant's first community control violation"). If

there is any doubt that a notification given at the original sentencing is not so limited, the

supreme court went on to state that imposition of a prison term for subsequent community

control violations requires notification at the community control violation sentencing hearing.

Id. at ¶ 18.

       {¶ 24} I believe we were wrong in Gladwell and are wrong in relying upon Gladwell as

a partial basis for affirming Holloway’s prison term. In my view, Fraley represents an

unequivocal statement that the R.C. 2929.19(B)(4) notification must be given each time an

offender is sentenced to community control, whether at the original sentencing or at

subsequent community control violation sentencings.

       {¶ 25} Despite my misgivings about Gladwell, I am compelled to concur in the

majority's opinion and judgment because Gladwell represents the law in this district.

However, I encourage my colleagues on the court to revisit Gladwell and the issue of the

necessity of the R.C. 2929.19(B)(4) notification each time an offender is sentenced "anew" to

a community control sanction.




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