[Cite as State v. Robinson, 2016-Ohio-5114.]

                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                 :            APPEAL NO. C-150602
                                                            TRIAL NO. B-1008506
        Plaintiff-Appellee,                    :
                                                                O P I N I O N.
  vs.                                          :

TROY ROBINSON,                                 :

     Defendant-Appellant.                      :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is:               Affirmed in Part, Reversed in Part, and Cause
                                         Remanded

Date of Judgment Entry on Appeal: July 27, 2016




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Farrish Law Firm and Michaela Stagnaro, for Defendant-Appellant.
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M OCK , Judge.

       {¶1}    Defendant-appellant Troy Robinson was originally charged with rape

of a child who was less than ten years of age, in violation of R.C. 2907.02(A)(1)(b).

Pursuant to extensive plea negotiations, Robinson entered a guilty plea to one count

of felonious assault, a felony of the second degree. He was placed on community

control. One of the conditions of the community control was to complete the Gary

Keys Sex Offender Program.        After he was terminated from the program for

noncompliance, the probation department notified the court, and he was returned

for a community-control-violation hearing.       The trial court found that he had

violated the terms of his community control and imposed a seven-year prison

sentence, giving credit for 1,480 days. In two assignments of error, Robinson now

appeals.

       {¶2}    In his first assignment of error, Robinson claims that the trial court

improperly found that he had violated the terms of his community control. He claims

that he complied with the program “until it became impossible to do so.”

       {¶3}    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. State v. Delaney, 11 Ohio St.3d 231, 236, 465 N.E.2d 72

(1984). In this case, the record supports the trial court’s conclusion that Robinson

simply refused to comply with the program, and that the refusal was representative of a

history of defiance in the case. In his letter to the trial court, Robinson complained

about having to go to a sex-offender program, saying that he “did not commit[, nor was

he] convicted of[,] a sex offense.” He complained about having to discuss his “personal

business” in the group sessions, and was otherwise a disruption to the group. The




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record supports the decision of the trial court to terminate his community control for

failing to complete the program, and we overrule his first assignment of error.

       {¶4}     In his second assignment of error, Robinson claims that the trial court

improperly sentenced him as a result of the revocation of his community control. He

first argues that his sentence was too severe because he was a first-time offender and his

community-control violation was minor. But he was originally charged with rape of a

child under the age of ten. And in that context, we cannot say that his failure to comply

with sex-offender treatment was a “less serious” violation. “R.C. 2929.15(B) requires the

court to consider both the seriousness of the original offense leading to the imposition of

community control and the gravity of the community control violation.” State v. Brooks,

103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 20. Since the gravamen of the

underlying facts of the case was the sexual assault of a child, treatment was a key prong

of his community control.

       {¶5}     Robinson also claims that the trial court failed to consider the factors in

R.C. 2929.11 and 2929.12 before imposing sentence. Under R.C. 2953.08(G)(2), we may

modify or vacate a sentence if we clearly and convincingly find that either the record

does not support the sentencing court’s findings or the sentence is otherwise contrary to

law.   See State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).          R.C.

2929.15(B) permits the trial court to impose a prison term upon a defendant for a

community-control violation as long as the prison term is “within the range of prison

terms available for the offense for which the sanction that was violated was imposed and

[does] not exceed the prison term specified in the notice provided to the offender at the

sentencing hearing * * *.” R.C. 2929.15(B)(2); see State v. Brooks, 103 Ohio St.3d 134,

2004-Ohio-4746, 814 N.E.2d 837, paragraph two of the syllabus. The statutory range

for a second-degree felony is two to eight years. R.C. 2929.14(A)(2).

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       {¶6}     Robinson was sentenced within the range of prison terms available for

the offense, and the sentence did not exceed the prison term specified in the notice

provided to him at his original sentencing hearing. The court was not required to make

specific findings on the record to demonstrate it considered the relevant provisions of

R.C. 2929.11(B) and 2929.12(A)-(E). We can presume that the court considered the

factors, absent an affirmative demonstration in the record showing otherwise. See State

v. Hendrix, 1st Dist. Hamilton Nos. C-150194 and C-150200, 2016-Ohio-2697, ¶ 51. No

such affirmative demonstration exists in this case.

       {¶7}      Robinson next argues that the trial court failed to warn him not to ingest

or inject drugs of abuse while in prison, and failed to warn him that he would be drug

tested in prison. But this court has held that the failure to issue such warnings is

harmless error. State v. Haywood, 1st Dist. Hamilton No. C-130525, 2014-Ohio-2801, ¶

18.

       {¶8}     Robinson further argues that the trial court erred when it failed to

explain his possible eligibility for the earned-credits program, which allows eligible

offenders to participate in programs so that they can earn days of credit “towards

satisfaction of their stated prison term.” But this court has held that the trial court is not

required, under R.C. 2967.193, to inform a defendant at his resentencing hearing that he

may be eligible to earn days of credit on his sentence. State v. Temaj-Felix, 1st Dist.

Hamilton No. C-140052, 2015-Ohio-3966, ¶ 13.

       {¶9}     Finally, Robinson argues that the trial court erred when it failed to

properly inform him of postrelease control. We agree. This court has held that the

sentencing hearing conducted upon finding a community-control violation constitutes

“a second sentencing hearing[,] [at which] the court sentences the offender anew and

must comply with the relevant sentencing statutes.” State v. McAfee, 1st Dist. Hamilton

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No. C-130567, 2014-Ohio-1639, ¶ 14, quoting State v. Fraley, 105 Ohio St.3d 13, 2004-

Ohio-7110, 821 N.E.2d 995, ¶ 17. Therefore, when sentencing a defendant to prison

subsequent to a revocation of community control, it is error for the trial court to fail to

provide the postrelease-control notification required by R.C. 2929.19(B)(3)(d)-(e) and

2967.28(C). Id. at ¶ 19. As a result, the trial court erred when it failed to inform

Robinson that, upon his release from prison, he would be subject to a mandatory period

of postrelease control lasting three years.

       {¶10}    We additionally note that the trial court, in its sentencing entry, notified

Robinson that he would be subject to five years of mandatory postrelease control. But

R.C. 2967.28(B)(2) states that the term is three years for felonies of the second degree

that are not felony sex offenses. Since R.C. 2967.28(A)(3) specifically defines a “felony

sex offense” as “a violation of a section contained in Chapter 2907 of the Revised Code

that is a felony,” Robinson’s conviction for felonious assault, a felony of the second

degree in violation of R.C. 2903.11(A)(1), was not a felony sex offense and falls within the

category of offenses in R.C. 2967.28(B)(2).

       {¶11}    To the extent that Robinson argues that the trial court failed to properly

notify him of postrelease control, we sustain his assignment of error. In all other

aspects, his second assignment of error is overruled.

       {¶12}    The record reflects that the trial court failed to properly notify Robinson

that he would be subject to a period of mandatory postrelease control lasting three years

when it sentenced him to prison after revoking his community control. We, therefore,

reverse the portion of the trial court’s judgment stating that Robinson would be subject

to five years of mandatory postrelease control and remand the matter for a new

sentencing hearing, which shall be limited to the proper imposition of postrelease




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control. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 29.

We affirm the trial court's judgment in all other respects.

                    Judgment affirmed in part, reversed in part, and cause remanded.

CUNNINGHAM, P.J., and DEWINE, J., concur.


Please note:

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




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