[Cite as State v. Kegley, 2016-Ohio-2983.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                              CRAWFORD COUNTY




STATE OF OHIO,                                           CASE NO. 3-15-20

   PLAINTIFF-APPELLEE,

  v.

BART W. KEGLEY,                                          OPINION

   DEFENDANT-APPELLANT.



                Appeal from Crawford County Common Pleas Court
                           Trial Court No. 14-CR-0072

                            Judgment Reversed and Remanded

                              Date of Decision: May 16, 2016



APPEARANCES:

        Adam Charles Stone for Appellant

        Ryan M. Hoovler for Appellee
Case No. 3-15-20


WILLIAMOWSKI, J.

       {¶1} Defendant-appellant Bart W. Kegley (“Kegley”) brings this appeal

from the judgment of the Court of Common Pleas of Crawford County revoking

his community control and imposing a prison sentence of 84 months. Kegley

argues on appeal that the trial court erred by 1) failing to set forth findings of fact

regarding the revocation of community control and 2) imposing an 84 month

prison sentence. For the reasons set forth below, the judgment is reversed and the

matter is remanded for further proceedings.

       {¶2} On April 14, 2014, the Crawford County Grand Jury indicted Kegley

on one count of possession of drugs in violation of R.C. 2925.11(C)(3)(d), a

felony of the third degree; one count of possession of drugs in violation of R.C.

2925.11(C)(4)(a), a felony of the fifth degree; and one count of the illegal

cultivation of marijuana in violation of R.C. 2925.04(A),(C)(5)(d), a felony of the

second degree. Doc. 1. Kegley initially entered a plea of not guilty. Doc. 5. On

September 23, 2014, a written change of plea was entered. Doc. 22. Pursuant to a

plea agreement, Kegley entered pleas of guilty to Counts One and Two of the

Indictment and guilty to an Amended Count Three for illegal cultivation of

marijuana, a felony of the third degree. Id. As part of the agreement, Kegley

agreed to the following sentence:

       On Counts I, II, and III the Defendant will be sentenced to five
       years Community Control of basic supervision with the special


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      condition that the defendant successfully complete an alcohol
      and drug assessment and complete all recommended treatment.

      ***

      The Defendant understands that if he/she fails to successfully
      complete Community Control that he/she is subject to thirty-six
      (36) months of prison on Count I; twelve (12) months in prison
      on count II; and thirty-six (36) months prison on amended count
      III for a total of eighty-four (84) months in prison.

Id. at 3. The plea agreement/change of plea was signed by Kegley, his counsel,

the prosecutor, and the trial judge. Id. at 3-4. The sentencing hearing was held

that same day and the trial court imposed the agreed upon sentence. Doc. 23.

      {¶3} On August 24, 2015, Kegley’s probation officer filed a show cause

motion requesting that Kegley’s community control be revoked due to him having

marijuana and drug paraphernalia in his possession as well as testing positive for

the use of cocaine and marijuana. Doc. 26. A hearing was held on the motion on

November 30, 2015. Doc. 38. Kegley admitted to the violations at the hearing

and the trial court then revoked his community control and sentenced him to an

aggregate sentence of 84 months in prison. Id. Kegley filed a timely notice of

appeal. Doc. 41. On appeal, Kegley raises the following assignments of error.

                           First Assignment of Error

      The trial court committed plain error in violation [of] R.C.
      2929.14(C) and R.C. 2929.15(B) when it revoked [Kegley’s]
      community control and sanctioned him to the full eighty-four
      (84) month prison term without providing specific findings and
      explanations as to why it imposed that maximum sentence.


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                          Second Assignment of Error

       The trial court abused its discretion when it revoked [Kegley’s]
       community control and sanctioned him to the full eighty-four
       (84) month prison term to which he was originally sentenced in
       the underlying case State of Ohio v. Kegley, Bart W., Crawford
       County Common Pleas Court, Case No. 14-CR-0072.

       {¶4} Before this court addresses the assignments of error regarding the

sentence raised by Kegley, we must first address the State’s argument that the

sentence is not subject to appellate review. Generally, a defendant has the right to

appeal a sentence which imposes maximum, consecutive sentences.                R.C.

2953.08(A),(C). However, “[a] sentence imposed upon a defendant is not subject

to review * * *if the sentence is authorized by law, has been recommended jointly

by the defendant and the prosecution in the case, and is imposed by a sentencing

judge.” R.C. 2953.08(D)(1). The State argues that since the fact that the plea

agreement stated that Kegley could receive a total prison term of 84 months, he

agreed to that sentence. However, the agreement concerning the possible prison

term was nothing more than a recitation of the maximum sentence for each offense

and the possibility of them being ordered to be served consecutively for a total

prison term of 84 months. The agreement did not state that Kegley agreed that 84

months in prison would be the penalty for any violation. The trial court is required

by law to notify a defendant of what the possible prison terms could be prior to

accepting a plea agreement. Crim.R. 11(C). That is what occurred. The language

of the plea agreement did not state that if Kegley violated community control, he

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would receive maximum, consecutive sentences. Thus, Kegley did not agree to

the imposition of maximum, consecutive sentences for a violation of community

control and the sentence is subject to judicial review.

       {¶5} In the first assignment of error, Kegley argues that the trial court erred

by imposing maximum, consecutive sentences without making the required

findings.

       (B)(1) If the conditions of a community control sanction are
       violated * * * , the sentencing court may impose upon the
       violator one or more of the following penalties:

       (a) A longer time under the same sanction if the total time under
       the sanctions does not exceed the five-year limit specified in
       division (A) of this section;

       (b) A more restrictive sanction under section 2929.16, 2929.17,
       or 2929.18 of the Revised Code;

       (c) A prison term on the offender pursuant to section 2929.14 of
       the Revised Code.

       (2) The prison term, if any, imposed upon a violator pursuant to
       this division shall be within the range of prison terms available
       for the offense for which the sanction that was violated was
       imposed and shall not exceed the prison term specified in the
       notice provided to the offender at the sentencing hearing
       pursuant to division (B)(2) of section 2929.19 of the Revised
       Code. The court may reduce the longer period of time that the
       offender is required to spend under the longer sanction, the
       more restrictive sanction, or a prison term imposed pursuant to
       this division by the time the offender successfully spent under
       the sanction that was initially imposed.

Here, Kegley admitted that he had violated the terms of his community control.

The trial court then had the authority to impose a prison term within the statutorily

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allowed range. However, this does not change the requirement that the trial court

must still comply with the sentencing requirements of R.C. 2929.14.

       {¶6} Before a trial court may impose consecutive sentences, it must make

certain findings.

       If multiple prison terms are imposed on an offender for
       convictions of multiple offenses, the court may require the
       offender to serve the prison terms consecutively if the court finds
       that the consecutive service is necessary to protect the public
       from future crime or to punish the offender and that consecutive
       sentences are not disproportionate to the seriousness of the
       offender’s conduct and to the danger the offender poses to the
       public, and if the court also finds any of the following:

       (a) The offender committed one or more of the multiple offenses
       while the offender was awaiting trial or sentencing, was under a
       sanction imposed pursuant to [R.C. 2929.16, 2929.17, 2929.18],
       or was under post-release control for a prior offense.

       (b) At least two of the multiple offenses were committed as part
       of one or more courses of conduct, and the harm caused by two
       or more of the multiple offenses so committed was so great or
       unusual that no single prison term for any of the offenses
       committed as part of any of the courses of conduct adequately
       reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from
       future crime by the offender.

R.C. 2929.14(C)(4). A review of the record in this case indicates that maximum,

consecutive sentences were imposed, but the trial court failed to make any

findings as required by statute. The failure to make these findings is clearly and

convincingly contrary to law. The first assignment of error is thus sustained.


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       {¶7} The second assignment of error argues that the trial court abused its

discretion in imposing maximum, consecutive sentences in this case. Having

found that the trial court erred by not making the statutorily required findings prior

to imposing consecutive sentences, we need not determine whether the sentence

was also an abuse of discretion. The second assignment of error is rendered moot

by the finding of an error of law in the first assignment of error and will not be

addressed by this court at this time. App.R. 12(A)(1)(c).

       {¶8} Having found error prejudicial to the appellant, the judgment of the

Court of Common Pleas of Crawford County is reversed and the matter is

remanded for a new sentencing hearing.

                                                                 Judgment Reversed
                                                                    And Remanded


SHAW, P.J. and ROGERS, J., concur.

/hls




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