[Cite as Bay Village v. Barringer, 2015-Ohio-4079.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102432



                               CITY OF BAY VILLAGE
                                                            PLAINTIFF-APPELLEE

                                                      vs.

                                MARK E. BARRINGER
                                                            DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                      Criminal Appeal from the
                                     Rocky River Municipal Court
                                        Case No. 12CRB2802

        BEFORE: McCormack, J., Keough, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: October 1, 2015
ATTORNEY FOR APPELLANT

Christopher A. Godinsky
7835-B Freeway Circle
Middleburg Heights, OH 44130


ATTORNEY FOR APPELLEE

Gary A. Hotz
24461 Detroit Road, Suite 209
Westlake, OH 44145
TIM McCORMACK, J.:

       {¶1}   Defendant-appellant, Mark Barringer, appeals the imposition of stricter

sanctions and the extension of his community control term based on the trial court’s

conclusion that he failed to comply with the terms of the plea agreement. For the

following reasons, we reverse the decision of the trial court and vacate the December 4,

2014 order, which basically resentenced Barringer to three additional years of community

control with stricter terms of compliance.

       {¶2} The procedural posture of the case militates against the trial court’s

jurisdiction to impose an extended term of community control. Factually, it suffices that

based on neighbors’ inability to amicably co-exist, Barringer pleaded no contest and was

found guilty of a violation of a temporary protection order, a first-degree misdemeanor.

As part of the plea agreement, Barringer agreed to move out of the city of Bay Village.1

At the time, he was residing at the home of his elderly parents, he cared for his parents,

and he stored tools for his employment at their home. The trial court, in February 2013,

sentenced Barringer to a suspended 180-day jail term and two years of basic community

control, with the added requirement that Barringer receive boundary-issue counseling.

       {¶3} Over the next two years, the trial court continually modified the terms of the

community control to “reflect” the plea agreement. At first, the trial court ordered GPS

monitoring to ensure that Barringer was not living in Bay Village. In Bay Village v.

Barringer, 8th Dist. Cuyahoga No. 100959, 2014-Ohio-4816 (“Barringer I”), this court


       The propriety of such a condition is not before this court.
       1
affirmed the trial court’s GPS monitoring order.              Shortly thereafter, Barringer was

ordered to spend only one hour per day in Bay Village and the original two-year term of

community control was extended for an additional three years. There was no violation of

community control found or even referenced in the record.

        {¶4} Barringer appealed the extension of community control, advancing four

assignments of error, the first of which implicated the Double Jeopardy Clause of the

United States Constitution. Barringer claims that without a proven violation, the trial

court’s modification of the community control portion of his final sentence constituted

double jeopardy.       Although raised in terms of constitutional protections, the Ohio

Supreme Court’s recent decision in State v. Gilbert, 143 Ohio St.3d 150,

2014-Ohio-4562, 35 N.E.3d 493, is dispositive and predicated on the same concepts of

finality.2

        {¶5} The trial court’s order extending the term of community control was

specifically premised on the belief that Barringer failed to comply with the terms of the

plea agreement.       The trial court, however, was without jurisdiction to resentence

Barringer based on the noncompliance with the terms of the plea agreement. Although

we previously affirmed the use of GPS monitoring, our decision was issued on the


        It should be noted that generally, a trial court may not modify the terms of community control
        2


sanctions after the sentence was imposed, if the defendant satisfied the originally announced terms.
R.C. 2929.15(B) and 2929.25(D) authorize the post-sentencing imposition of more restrictive
community control sanctions only if the original conditions were violated. State v. Hooks, 128 Ohio
App.3d 750, 753, 716 N.E.2d 778 (8th Dist.1998), citing State v. Papa, 66 Ohio App.3d 146, 148, 583
N.E.2d 1044 (8th Dist.1990).
immediate heels of, and without reference to, the Ohio Supreme Court’s decision in

Gilbert, in which the court clarified that “once a defendant has been sentenced by a trial

court, that court does not have jurisdiction to entertain a motion by the state to vacate the

defendant’s guilty plea and sentence based upon the defendant’s alleged violation of a

plea agreement.” Id. at syllabus. “‘Absent statutory authority, a trial court is generally

not empowered to modify a criminal sentence by reconsidering its own final judgment.’”

Id. at ¶ 8, quoting State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553, 961 N.E.2d

671, ¶ 1.

       {¶6} In Gilbert, the defendant agreed to testify in exchange for a favorable plea

deal. The defendant, however, was sentenced before testifying and when called upon to

testify, the defendant predictably reneged.      The defendant was already serving his

sentence, and the Ohio Supreme Court held that the trial court could not reconsider the

final sentence imposed based on the failure to comply with the terms of the plea

agreement.     Id.; see also State v. Ellington, 8th Dist. Cuyahoga No. 101404,

2015-Ohio-601 (trial court’s effort to amend the final sentence to enforce the terms of the

plea bargain is immaterial to the question of whether the trial court has jurisdiction to

review a final sentence).

       {¶7} In this case, the trial court imposed additional community control sanctions

specifically based on Barringer’s noncompliance with the plea agreement.           It is well

settled in Ohio that imposing a suspended sentence and placing a defendant on

community control is a final sentence. State v. Fankle, 2d Dist. Montgomery Nos.
26350, 26351 and 26352, 2015-Ohio-1581, ¶ 8, citing R.C. 2951.10; State v. Hoy, 3d

Dist. Union Nos. 14-04-13 and 14-04-14, 2005-Ohio-1093, ¶ 45; State v. Kaiser, 4th Dist.

Lawrence No. 10CA1, 2010-Ohio-4616, ¶ 15; State v. Mason, 10th Dist. Franklin No.

01AP-847, 2002-Ohio-2803, ¶ 13.            None of the terms of the plea agreement were

imposed as terms of the community control sanction. As result, the trial court could not

impose stricter sanctions on Barringer under the guise of enforcing the plea agreement

when Barringer was otherwise in compliance with the terms of his community control

imposed upon a suspended jail term. Ellington at ¶ 4.

       {¶8} Trial courts generally do not possess continuing jurisdiction to enforce the

terms of a plea agreement after entering a final sentence. Gilbert, 143 Ohio St.3d 150,

2014-Ohio-4562, 35 N.E.3d 493, at syllabus; State v. Cauthen, 1st Dist. Hamilton No.

C-130475, 2015-Ohio-272, ¶ 18 (absent statutory authority, trial courts cannot maintain

continuing jurisdiction to modify a final sentence).             The city maintains that R.C.

2929.25(B) provides continuing jurisdiction to modify the terms of community control for

the duration of the term.        We need not delve that deep into the city’s argument.

R.C. 2929.25(B) expressly applies to community control sanctions directly imposed

pursuant to R.C. 2929.25(A)(1)(a). In this case, the trial court imposed a suspended jail

term and community control sanctions pursuant to R.C. 2929.25(A)(1)(b), and therefore,

R.C. 2929.25(B) is inapplicable. 3         A court can extend or impose more restrictive


        We recognize the apparent confusion generated by this court’s earlier decision. Although a
       3


non-unanimous panel concluded that the court possessed continuing jurisdiction pursuant to R.C.
2929.25(B) in this case, that conclusion exceeded the scope of the issues raised in that appeal, and
sanctions within the community control sanction imposed on a suspended jail sentence

only if the offender violates the terms of community control. R.C. 2929.25(D). In this

case, the trial court lacked jurisdiction to alter the final sentence unless it determined that

Barringer violated the terms of community control as imposed in the final sentencing

entry.

         {¶9} Based on the record, it is evident that the trial court revisited its final sentence

and imposed stricter sanctions based on Barringer’s failure to comply with the terms of

the plea agreement. The trial court stated as much in the December 2014 journal entry.

The trial court, in this case, was without jurisdiction to resentence Barringer and impose a

longer term of community control with stricter sanctions based on the violation of the

plea agreement alone.       If the terms of the plea agreement had been codified as terms of

the community control sanction, it is possible that Barringer’s noncompliance could have

been addressed. By failing to incorporate the terms of the plea agreement into the

community control sanction imposed on a suspended jail term, however, the court was

without jurisdiction to resentence Barringer.

         {¶10} Accordingly, we reverse the trial court’s December 2014 order imposing the

additional term of community control with the stricter sanctions. By implication, the trial


was merely a notation before addressing whether the trial court abused its discretion by denying a
motion to remove the GPS monitoring device. Barringer I, 8th Dist. Cuyahoga No. 100959,
2014-Ohio-4816, at ¶ 17. Barringer never appealed the trial court’s decision to impose GPS
monitoring, only the decision denying the removal of the device. As such, the authority to order
GPS monitoring was not at issue in Barringer I and we are not constrained by dicta. Gissiner v.
Cincinnati, 1st Dist. Hamilton No. C-070536, 2008-Ohio-3161, ¶ 15.
court’s imposition of the costs of further GPS monitoring on Barringer is likewise

reversed.4 The trial court lacked jurisdiction to extend community control beyond the

original term when the alleged violation was premised only upon the noncompliance with

the terms of the plea agreement. We therefore reverse the decision of the trial court.

           It is ordered that appellant recover from appellee 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 municipal

court to carry this judgment into execution.            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.



TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
MARY J. BOYLE, J., CONCUR




        We note that the parties represented at oral argument that the trial court ordered the GPS
       4


device to be removed from Barringer on August 17, 2015. The trial court’s order, however, has no
bearing on this court’s determination regarding the authority of the trial court to impose additional
terms of community control.
