[Cite as State v. Armstrong, 2015-Ohio-4186.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102545



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                               NATHAN ARMSTRONG
                                                      DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                  Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                       Case Nos. CR-13-573502-A, CR-13-573557-A, and
                                      CR-14-581553-A

        BEFORE: Boyle, J., Celebrezze, A.J., and Jones, J.

        RELEASED AND JOURNALIZED: October 8, 2015
ATTORNEY FOR APPELLANT

James J. Hofelich
614 West Superior Avenue
Suite 1310
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Shannon M. Musson
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Nathan Armstrong, appeals his sentence.          He raises

one assignment of error for our review:

       The trial court erred in imposing a term of imprisonment when the trial
       court failed during the sentencing hearing to advise appellant that a term of
       imprisonment may be imposed if he violated community control sanctions.

       {¶2} Finding no merit to his appeal, we affirm.

                       Procedural History and Factual Background

       {¶3} The grand jury indicted Armstrong on three separate cases:           Cuyahoga

C.P. No. CR-13-573557 on April 25, 2013, Cuyahoga C.P. No. CR-13-573502 on June

19, 2013, and Cuyahoga C.P. No. CR-14-581553 on January 22, 2014.

       {¶4} In Cuyahoga C.P. No. CR-13-573557, Armstrong was indicted on two

counts — receiving stolen property and trafficking in or illegal use of food stamps. He

pleaded guilty to an amended indictment of receiving stolen property, in violation of R.C.

2913.51(A), a felony of the fifth degree.    The remaining count was nolled.      The trial

court sentenced Armstrong to two years of community control sanctions.              At the

sentencing hearing, the trial court advised Armstrong in relevant part that “[i]f there is a

violation of those terms, and I am forced to put you in prison, when you get out, there’s

postrelease control, parole.”     In the sentencing entry, the trial court stated that

Armstrong could receive “12 months” of prison if he violated the conditions of his

community control.
         {¶5} In Cuyahoga C.P. No. CR-13-573502, Armstrong was indicted for escape, a

felony of the fifth degree, which he pleaded guilty to.     The trial court sentenced him to

two years of community control sanctions, and ordered that it be served concurrent to the

sanction in Cuyahoga C.P. No. CR-13-573557. At the sentencing hearing, the trial court

advised Armstrong in relevant part that “[i]f you had to come back and you had a

violation, I felt it was serious enough, I could impose the time on both cases.” The

sentencing entry indicated that if Armstrong violated the terms of his community control,

he could receive “12 months” of prison.

         {¶6} In Cuyahoga C.P. No. CR-14-581553, Armstrong was indicted for escape, a

felony of the fifth degree, which he pleaded guilty to.     The trial court sentenced him to

two years of community control sanctions. At the sentencing hearing, the trial court

stated that it was “going to combine the probation in this case” with his previous two

cases.    The trial court further warned Armstrong that he had “three felonies of the fifth

degree hanging over his head.       You come back again, you’ve got three years.”       The

trial court further stated, “[y]ou violate on me, or you violate with the probation officer,

you’re back on a new case, we’re talking — there is a year on each of these cases minus

the time you have served.     I’ll impose that if that happens.”

         {¶7} On January 12, 2015, the trial court found Armstrong to be in violation of his

community control sanctions.       It imposed a one-year prison term on each case and

ordered them to be served consecutive to each other, for a total of three years in prison.

It is from these judgments that Armstrong appeals.
                                     Law and Analysis

       {¶8} In his sole assignment of error, Armstrong maintains that the trial court

erred in sentencing him to prison for violating his community control because it did not

notify him of the specific prison term he would receive if he violated at his initial

sentencing hearings.

       {¶9} This court reviews sentences pursuant to R.C. 2953.08(G)(2), which states in

pertinent part:

       The appellate courts’ standard for review is not whether the sentencing
       court abused its discretion. The appellate court may take any action
       authorized by this division if it clearly and convincingly finds * * * :

       ***

       (b) That the sentence is * * * contrary to law.

       {¶10} R.C. 2929.19(B)(4) provides that if a sentencing court decides to impose an

authorized community control sanction at a sentencing hearing:

       the court shall notify the offender that, if the conditions of the sanction are

       violated, if the offender commits a violation of any law, or if the offender

       leaves this state without the permission of the court or the offender’s

       probation officer, the court may impose a longer time under the same

       sanction, may impose a more restrictive sanction, or may impose a prison

       term on the offender and shall indicate the specific prison term that may be

       imposed as a sanction for the violation, as selected by the court from the
       range of prison terms for the offense pursuant to section 2929.14 of the

       Revised Code.

(Emphasis added.)

       {¶11} R.C. 2929.15(B), which details procedures for a trial court to follow when

an offender has violated the conditions of community control, reiterates the three options

available to the sentencing court that are mentioned in R.C. 2929.19(B)(4) and further

provides that if an offender violates the conditions and the court chooses to impose a

prison term under R.C. 2929.14, the prison term “shall not exceed the prison term

specified in the notice provided to the offender at the sentencing hearing pursuant to

division (B)[4] of section 2929.19 of the Revised Code.”

       {¶12} In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837,

the Ohio Supreme Court held:

       1. Pursuant to R.C. 2929.19(B)[4], a trial court sentencing an offender to a
       community control sanction is required to deliver the statutorily detailed
       notifications at the sentencing hearing. (State v. Comer, 99 Ohio St.3d
       463, 2003-Ohio-4165, 793 N.E.2d 473, applied and followed.)

       2. Pursuant to R.C. 2929.19(B)[4] 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.

Id. at paragraphs one and two of the syllabus.

       {¶13} In Brooks, the Supreme Court made clear that the word “specific” meant

that a trial court must strictly comply with the notification set forth in R.C. 2929.19(B)(4)

and 2929.15(B) at the sentencing hearing. Id. at ¶ 19.       It stated that when giving the
notification, “the judge shall, in straightforward and affirmative language, inform the

offender at the sentencing hearing that the trial court will impose a definite term of

imprisonment of a fixed number of months or years, such as ‘twelve months’

incarceration, if the conditions are violated.” Id.

       {¶14} Brooks addressed a situation where the defendant was informed at his

sentencing hearing that if he violated, he could face up to six to 12 months in prison.

The defendant subsequently violated the terms of his community control, and the trial

court sentenced him to eight months in prison.           The Supreme Court reversed the

defendant’s sentence because the notification “six to 12 months” was not “specific” as

required under R.C. 2929.19(B)(4), but it did not remand for resentencing because the

defendant had already served his prison term (stating that normally a defendant would be

resentenced without prison being an option).     Id. at ¶ 33.

       {¶15} Three months later, however, in State v. Fraley, 105 Ohio St.3d 13,

2004-Ohio-7110, 821 N.E.2d 995, the Supreme Court was faced with a different scenario,

one that is exactly on point with the present case. In Fraley, the defendant was initially

sentenced in March 1998 to five years of community control sanctions.             The specific

term of five years was set forth in the journal entry, but was not mentioned at the

sentencing hearing.

       {¶16} Fraley pleaded guilty to failure to register in December 1999.           The trial

court continued his community control sanctions under the same terms and conditions as

previously ordered in the original case.   For his conviction for failure to register, the trial
court sentenced Fraley to a term of community control to run concurrent with the

sanctions imposed in the original case. The trial court also notified Fraley, in the journal

entry but not at the sentencing hearing, that “further, harsher sanctions, including prison

time up to twelve (12) months, could be imposed if defendant does not comply with

community sanctions [in his failure to register case].” Id. at ¶ 2.

         {¶17} On May 8, 2001, the trial court found that Fraley had again violated the

terms and conditions of his community control in his original case. The trial court

ordered that the violations were not so serious as to require the termination of community

control sanctions.

         {¶18} On April 9, 2002, Fraley again pleaded guilty to violating the terms and

conditions of his community control in his original case and his failure to register case.

The trial court again ordered that the violations were not of such a nature as to require the

termination of his community control sanctions.         For the first time, the trial court

notified Fraley at the sentencing hearing that if he violated the community control

sanctions again, a prison term would be imposed of four years in the original case and

nine months in the failure to register case, and that the sentences would run consecutively.

         {¶19} On November 12, 2002, a hearing was held to determine whether Fraley had

again violated the terms and conditions of his community control sanctions under both

cases.    Fraley admitted to a new DUI offense, which violated the terms and conditions of

his community control sanctions in both of his previous cases. The trial court terminated

Fraley’s community control in both cases and found that “pursuant to R.C. 2929.14(B) *
* * the shortest prison term will demean the seriousness of the offender’s conduct or will

not adequately protect the public from future crimes by the offender or others.” Id. at ¶

15.   The trial court also found that Fraley met the criteria for the imposition of

consecutive sentences. Id.      As a result of his DUI offense, the trial court sentenced

Fraley to four years in prison for his community control violation in his original case, and

to nine months for his failure to register case, to be served consecutively.

       {¶20} The certified question presented to the Ohio Supreme Court in Fraley was

“whether R.C. 2929.19(B)[4] requires a judge to notify a defendant at his initial

sentencing hearing, as opposed to any subsequent sentencing hearings, of the specific

prison term that may be imposed as a sanction for a subsequent community control

violation.” Id. at ¶ 8.

       {¶21} In Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, the

Supreme Court acknowledged its holding in Brooks, 103 Ohio St.3d 134,

2004-Ohio-4746, 814 N.E.2d 837, but distinguished it, explaining that Brooks dealt with

a situation where only one community control violation had occurred. Id. at ¶ 11, 15.

The Supreme Court went on to state in Fraley that it had not yet ruled on a case involving

“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.” Id. at ¶ 15.     This

is the exact situation we have in the present case.

       {¶22} In Fraley, the Supreme Court reasoned:

       The notification requirement in R.C. 2929.19(B)(5) is meant to put the
       offender on notice of the specific prison term he or she faces if a violation
       of the conditions occurs. Following 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 the relevant
       sentencing statutes. State v. Martin, 8th Dist. [Cuyahoga] No. 82140,
       2003-Ohio-3381, ¶ 35. The trial court could therefore comply with both
       the sentencing statutes and our holding in Brooks if, at this second hearing,
       the court notifies the offender of the specific prison term that may be
       imposed for a subsequent violation occurring after this second hearing.
       We believe that this process complies with the letter and spirit of R.C.
       2929.19(B)(5) and 2929.15(B).

Id. at ¶ 17.

       {¶23} The Supreme Court then concluded:

              In the case at bar, Fraley, at his initial sentencing hearing in March
       1998, was sentenced to five years’ community control. He was notified by
       journal entry only that harsher sanctions, including up to five years of
       imprisonment, could be imposed if he failed to comply with the sanctions.
       After this original sentencing hearing, Fraley violated community control
       four times. After each of the first two violations, the sentencing court
       continued the previous sanctions and failed to notify Fraley at the
       sentencing hearings of any specific prison term. At his third violation
       hearing in April 2002, however, the trial court additionally notified Fraley
       that if he violated the community sanctions again, specific prison terms
       would be imposed. Accordingly, at the April 2002 hearing, Fraley was
       notified of a specific term of imprisonment in compliance with the
       requirements under R.C. 2929.19(B)(5). When Fraley was found to have
       violated his community control sanctions in November 2002, the trial court
       proceeded properly in imposing a prison sentence on him.

Id. at ¶ 19.

       {¶24} Here, just as in Fraley, the trial court did not properly notify Armstrong of

the specific sentence he could receive if he violated at his initial sentencing hearing, or at

the second hearing (when he was sentenced for escape the first time), but it did at the

third hearing (when he was sentenced for escape the second time).       At this third hearing,

the trial court informed Armstrong that if he violated the terms of his community control
again, that it would impose one year on each case.           It also told him at that same

sentencing hearing that if he violated, “you’ve got three years.”    Then, when Armstrong

violated again, the trial court sentenced him to one year on each case, and ordered that

they be served consecutive to each other, for a total of three years in prison.

       {¶25} We conclude that the trial court’s notification at the third sentencing hearing

— that it would impose “one year on each case” and that he faced “three       years” — to be

a proper notification under R.C. 2929.15(B)(4).

       {¶26} Accordingly, we overrule Armstrong’s sole assignment of error.

       {¶27} Judgment affirmed.

       It is ordered that appellee recover from appellant the 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.      Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and
LARRY A. JONES, SR., J., CONCUR
