[Cite as State v. Gladwell, 2017-Ohio-1331.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




STATE OF OHIO,                                       :
                                                           CASE NO. CA2016-07-139
        Plaintiff-Appellee,                          :
                                                                OPINION
                                                     :           4/10/2017
    - vs -
                                                     :

JOSEPH I. GLADWELL,                                  :

        Defendant-Appellant.                         :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2012-09-1483



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

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



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Joseph I. Gladwell, appeals from the 14-month prison

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

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

        {¶ 2} On January 28, 2013, Gladwell entered into a plea agreement and pled guilty to

one count of vandalism in violation of R.C. 2909.05(B)(1)(a), a fifth-degree felony, and one

count of grand theft in violation of R.C. 2913.02(A)(1), a fourth-degree felony. The charges
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arose after Gladwell stole a Ford F250 pickup truck from the lot of Manheim Auto Auction

located in Warren County and rammed said pickup truck into a security gate during the night

of August 22, 2010 or the early morning hours of August 23, 2010.

       {¶ 3} As a result of his guilty plea, on May 1, 2013, the trial court sentenced Gladwell

to nine months in prison on the vandalism charge and five years of community control on the

charge of grand theft. Gladwell was also ordered to pay $20,000 in restitution. It is

undisputed that at his original sentencing hearing the trial court explicitly advised Gladwell

that he faced 18 months in prison if he violated the conditions of his community control.

       {¶ 4} On March 5, 2015, the trial court issued an entry finding Gladwell violated the

conditions of his community control. However, instead of sentencing Gladwell to prison, the

trial court continued the conditions of his community control and further required him to

complete 20 hours of community service until he found full-time employment, complete

corrective thinking classes, live in Butler County, and pay $420 per month in restitution. Just

like his original sentencing hearing, it is undisputed that the trial court explicitly advised

Gladwell that he faced 18 months in prison if he violated the conditions of his community

control.

       {¶ 5} On November 18, 2015, the trial court issued another entry finding Gladwell

had again violated the conditions of his community control. However, just like it had done

previously, instead of sentencing Gladwell to prison, the trial court continued the conditions of

Gladwell's community control and further required Gladwell to complete the MonDay program

at the MonDay Community Correctional Institute in Dayton, Ohio within six months. Unlike at

his original sentencing hearing and previous community control violation hearing, the trial

court did not explicitly advise Gladwell that he faced 18 months in prison if he violated the

conditions of his community control. Rather, the trial court advised Gladwell of the following:

              Now this is your last shot. You're going to go to prison next time
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              you mess up and I will also want to add, zero tolerance on him.
              So that when you get out, if you mess up, even the littlest bit,
              you're going – that's my clue that you need to go to prison.

       {¶ 6} On June 24, 2016, the trial court issued an entry finding Gladwell had once

again violated the conditions of his community control. As a result, just as the trial court

advised Gladwell that it would, the trial court revoked Gladwell's community control and

sentenced him to serve 14 months in prison. Gladwell now appeals from the trial court's

decision sentencing him to 14 months in prison, raising the following single assignment of

error for review.

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

IMPOSING A TERM OF IMPRISONMENT FOR HIS COMMUNITY CONTROL VIOLATION.

       {¶ 8} In his single assignment of error, Gladwell argues the trial court erred by

sentencing him to a 14-month prison term for violating the conditions of his community

control since the trial court did not explicitly advise him at his most recent community control

violation hearing of the potential 18-month prison term he faced if he violated those

conditions again. We disagree.

       {¶ 9} In support of his claim, Gladwell relies on the Ohio Supreme Court's decision in

State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, wherein the court held that pursuant to

R.C. 2929.19(B)(5), now codified as R.C. 2929.19(B)(4), the following:

              [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 a subsequent violation.

Id. at syllabus.

       {¶ 10} According to Gladwell, the Ohio Supreme Court's holding in Fraley required the

trial court in this case to consistently re-advise him of the potential 18-month prison term he


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faced at each and every community control violation hearing, regardless of the fact that he

had already been specifically advised of such a possibility at both his original sentencing

hearing and at his prior hearing regarding his community control violations.

         {¶ 11} Although not addressed by this court, this exact argument has already been

rejected by both the Eighth District Court of Appeals and the Fourth District Court of Appeals.

As the Eighth District stated in State v. Hodge, 8th Dist. Cuyahoga No. 93245, 2010-Ohio-78,

¶ 8-9:

                While we agree that the language in Fraley might support that
                conclusion, in context, it does not. Fraley is based upon a wholly
                different set of facts than our case at bar. Hodge's original
                sentence was not legally deficient; Fraley's was.

                We construe the holding of the Supreme Court in Fraley narrowly
                to mean that a trial court that fails to notify a defendant of the
                specific penalty he will face upon violation of community control
                sanctions at the initial sentencing, may "cure" that failure at a
                subsequent violation hearing by then advising the defendant of
                the definite term of imprisonment that may be imposed upon any
                subsequent finding of violation. We find nothing in the statute or
                Fraley that requires a legally adequate notification in the first
                instance be given over and over again.

See also State v. Oulhint, 8th Dist. Cuyahoga No. 99296, 2013-Ohio-3250, ¶ 20 ("because

the trial court advised Oulhint at the original sentencing hearing of the specific prison term he

faced if he violated the conditions of his community control, it was under no duty to continue

to readvise him of the possible sentence at subsequent hearings").

         {¶ 12} Similarly, as the Fourth District Court of Appeals stated in State v. Batty, 4th

Dist. Ross No. 13CA3398, 2014-Ohio-2826, ¶ 33:

                Appellant was properly notified at the original sentencing hearing
                in February 2010 that if she violated the terms of her community
                control sanction, she risked imposition of a twelve (12) month
                prison term on each charge. That notification was legally
                sufficient and the trial court was not required to notify her over
                and over again.

         {¶ 13} We agree with the rationale employed by both the Eighth and Fourth District
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Courts of Appeals in Hodge and Batty, and similarly conclude that where the trial court

properly notified the defendant at the original sentencing hearing, or any subsequent

community control violation hearing, of the specific potential prison term that could be

imposed if a violation of community control sanctions was established at a subsequent

community control violation hearing, that notification is legally sufficient and the trial court is

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

may occur thereafter. Therefore, because we find no error with the trial court's decision

sentencing Gladwell to 14 months in prison for violating the condition of his community

control, Gladwell's single assignment of error is without merit and overruled.

       {¶ 14} Judgment affirmed.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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