[Cite as State v. Wacker, 2019-Ohio-3997.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                         :            OPINION

                 Plaintiff-Appellee,                   :
                                                                    CASE NOS. 2019-A-0044
        - vs -                                         :                      2019-A-0045

MARCUS T. WACKER,                                      :

                 Defendant-Appellant.                  :


Criminal Appeals from the Conneaut Municipal Court, Case Nos. 2017 TRC 01537 and
2018 CRB 00043.

Judgment: Reversed.


Kyle B. Smith, Conneaut Law Director, and Christopher M. Newcomb, Assistant
Conneaut Law Director, 294 Main Street, Conneaut, OH 44030 (For Plaintiff-
Appellee).

Phillip L. Heasley and Marie Lane, Ashtabula County Public Defender, Inc., 4817 State
Road, Suite 202, Ashtabula, OH 44004 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Marcus T. Wacker, appeals from the judgment of the Conneaut

Municipal Court, finding him guilty of community control violations in two separate

cases, and sentencing him to consecutive terms of 175 and 180 days in jail in each of

the separate matters. We reverse the trial court’s sentence.

        {¶2}     Appellant     originally    pleaded       guilty   to   two   separate   first-degree

misdemeanor offenses in two separate cases; to wit:                      in Case No. 17 TRC 1537,
operating a vehicle while under the influence (“OVI”) and in Case No. 18 CRB 43,

assault. In the OVI case, he was sentenced in February 2018 to 180 days, with 175

days suspended and placed upon supervised community control. Thereafter, in April

2018, appellant was sentenced in the assault case to 180 days, all of which were

suspended, on conditions of supervised community control.

       {¶3}   After failing to follow the terms of his community control, separate motions

to revoke were filed in each case.      In the OVI case, the motion alleged appellant

violated community control when he “failed to attend and complete the driver

intervention program; failed to follow any recommended treatment program; failed to

attend probation appointment on June 26, 2018; failed UDS for [THC] and

benzodiazepines on March 4, 2019.” In the assault case, the motion alleged appellant

violated community control when he “failed to attend probation appointment on June 26,

2018 and failed to complete comprehensive diagnostic reassessment at Signature

Health within 30 days, by May 23, 2018.”

       {¶4}   On March 19, 2019, the trial court held a hearing on both motions to

revoke. At a pre-revocation hearing, the record reflects appellant waived his right to

counsel; and prior to the revocation hearing, the court confirmed appellant still wished to

proceed pro se. After receiving evidence from two probation officers, the trial court

found appellant guilty on both separate violations.         Appellant was subsequently

sentenced and received 175 days in jail in the OVI case and 180 days in jail in the

assault case, to be served consecutively. Appellant now appeals and assigns three

errors. His first alleges:




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       {¶5}   “The trial court erred in imposing consecutive jail sentences in appellant’s

revocation hearing.”

       {¶6}   Under his first assignment of error, appellant argues the trial court erred in

ordering him to serve the jail terms from his original convictions consecutively after

revoking community control. He maintains the trial court’s failure to state, in its original

judgments on conviction, that a violation of community control could result in the

imposition of consecutive sentences invalidates the underlying order. In other words,

he maintains the trial court was without authority to run the sentences consecutive after

revocation because they were not originally imposed consecutively.

       {¶7}   The state maintains the trial court was not required “to explain consecutive

sentencing” to appellant during the original sentencing proceedings. Rather, the state

argues, the trial court was simply imposing sentences that had already been issued in

separate cases. And, because appellant knew jail time was possible if he violated, the

court did not err in imposing a consecutive term.

       {¶8}   We first point out that the state misconstrues appellant’s argument.

Appellant is not asserting the trial court was required to explain the possibility of

consecutive sentences during the original, separate sentencing proceedings. Rather,

he is arguing the trial court could not make the sentences run consecutively after

revoking community control because they were not originally imposed consecutively in

the initial judgment(s) on conviction.

       {¶9}   With this clarification in mind, appellant cites State v. Fankle, 2d Dist.

Montgomery Nos. 26350, 26351, 26352, 2015-Ohio-1581, in support of his position. In

Fankle, the defendant received a 180-day suspended jail sentence and was placed on




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community control. Two months later, the defendant was charged with two additional

crimes and received two 180-day jail terms, to run concurrently with each other, with

120 days suspended. He was again placed on community control. One month later, the

defendant was charged with violating a protection order. For this violation, the trial court

imposed a 180-day jail term, revoked the community control in the first two cases, and

reinstated the prior suspended sentences.        The trial court ran each 180-day term

consecutively.   On appeal, the defendant did not take issue with the trial court’s

authority to order his sentence from the third case to run consecutively with the

sentences arising from his first and second. Instead, he argued that the trial court

lacked authority to run the sentences of the first two cases consecutively because the

trial court had not included language regarding consecutive sentences in these

judgment entries. The Second District agreed.

       {¶10} While acknowledging that the trial court could not have included

consecutive sentencing language in the first judgment entry, as it was the sole sentence

at the time, the court emphasized the second sentencing entry failed to include

consecutive-sentencing language, despite the existence of the first conviction. Because

the trial court had the ability to include such language, or at least expressly inform the

defendant, but failed to do so, the Second District concluded the first two sentences

were concurrent jail terms. And the trial court’s order to run the suspended sentences

consecutively was an impermissible modification of the defendant’s previously entered

definite sentences. Id. at ¶8.   The facts of Fankle are legally analogous to the matter

before this court.




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      {¶11} Both judgments from the Conneaut Municipal Court are “form entries” in

which the trial court wrote in the details of the conviction and checked boxes for the

conditions of community control it elected to impose. Each judgment entry includes a

condition which provides the sentence could be served “[c]onsecutive to all other

[s]entences in all other cases” if a defendant violates community control. The trial court

did not check this box in either judgment entry.       In the OVI case, appellant was

sentenced in February 2018 to a suspended 180-day term and placed on community

control. As it was the only matter pending at the time, it would make little sense for the

trial court to indicate that sentence would be served consecutively with other cases in

the event of a violation. Because, however, appellant was sentenced in the assault

case one month after the OVI case, the trial court had the ability to check the box and

thereby require appellant to serve the sentences consecutively in the event his

community control was revoked as a result of a violation. The trial court failed to do so

and thus it lacked authority to run the sentences consecutively after revocation.

      {¶12} R.C. 2929.41(B)(1) provides: “A jail term or sentence of imprisonment for

a misdemeanor shall be served consecutively to any other prison term, jail term, or

sentence of imprisonment when the trial court specifies that it is to be served

consecutively * * *.” The trial court did not specify appellant could serve the sentences

for the OVI and assault consecutively in either judgment entry. Had the court checked

the box indicating “[c]onsecutive to all other [s]entences in all other cases,” appellant

would have been on notice of the potential for such a sentence, although the full

implication of this condition is, at best, ambiguous. Further, as no transcript of the

original sentencing hearing was filed with this court, we have no way of knowing




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whether appellant was placed on notice of the possibility of consecutive sentencing

during those proceedings. When the trial court revoked appellant’s community control

and imposed the suspended sentences, it was ordering into execution definite jail terms

it had previously imposed.      By ordering the terms to be served consecutively, it

impermissibly transcended the definite term of confinement it had previously ordered.

We therefore hold the trial court erred in ordering appellant to serve the previously

suspended sentences consecutively after revoking community control.

       {¶13} Appellant’s first assignment of error is sustained.

       {¶14} Appellant’s second assignment of error provides:

       {¶15} “The trial court erred in accepting appellant’s waiver of counsel in his

revocation hearing.”

       {¶16} Appellant contends the trial court failed to fully inquire into whether he fully

understood the nature of his right to counsel before accepting his relinquishment of the

same. He cites the trial court’s initial inquiry at the revocation hearing where the trial

court noted appellant was representing himself pro se. The court then asked: “Do you

still wish to do that?” To which appellant responded: “Correct.”

       {¶17} Crim.R. 32.3 sets forth the procedural framework for community control

revocation hearing.    Subsection (B) governs a defendant’s right to counsel in such

proceedings. It provides, in relevant part:

       {¶18} Where a defendant convicted of a serious offense is unable to
             obtain counsel, counsel shall be assigned to represent the
             defendant, unless the defendant after being fully advised of his or
             her right to assigned counsel, knowingly, intelligently, and
             voluntarily waives the right to counsel. Where a defendant
             convicted of a petty offense is unable to obtain counsel, the court
             may assign counsel to represent the defendant.




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      {¶19} Appellant was convicted of two petty offenses (i.e., offenses that involve a

penalty of up to six months confinement.). The rule indicates, if a defendant is unable to

obtain counsel, the court may assign counsel.       The language of the rule suggests

representation by counsel during a revocation hearing is discretionary and the trial

court’s discretion is only activated upon a defendant’s representation that he or she is

unable to obtain counsel. Appellant did not state he was unable to obtain counsel, but

merely indicated he wished to represent himself.            In this respect, the court’s

discretionary authority to assign counsel was not triggered.

      {¶20} Regardless of this point, the record reveals a pre-revocation hearing was

held before the court at which appellant waived representation by counsel. Appellant

did not produce a transcript of the pre-revocation hearing. “The duty to provide a

transcript for appellate review falls upon the appellant. This is necessarily so because

an appellant bears the burden of showing error by reference to matters in the record.”

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980) citing State v. Skaggs,

53 Ohio St.2d 162 (1978). As appellant has not provided a complete record of all

proceedings relevant to the error he assigns, we shall presume regularity below.

      {¶21} Appellant’s second assignment of error lacks merit.

      {¶22} Appellant’s third assignment of error provides:

      {¶23} “Did the trial court err by improperly considering Signature Health reports

in revoking appellant’s probation?”

      {¶24} Appellant contends the trial court erred in considering unauthenticated

records from a counseling clinic appellant visited pursuant to his community control

conditions vis-à-vis the OVI conviction. We do not agree.




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       {¶25} A community control revocation hearing is not a criminal trial, and, as a

result, the state does not have the burden of establishing a violation with proof beyond a

reasonable doubt. State v. Stockdale, 11th Dist. Lake No. 96-L-172, 1997 WL 663688,

*3 (Sept. 26, 1997). Rather, the state need only present evidence of a substantial nature

showing that the probationer has breached a term or condition of her probation. Id.; see

also State v. Hilson, 7th Dist. No. 11-MA-95, 2012-Ohio-4536, ¶10. “[A] revocation

hearing is an informal one, ‘structured to assure that the finding of a * * * violation will be

based on verified facts and that the exercise of discretion will be informed by an

accurate knowledge of the (defendant’s) behavior.’” State v. Orr, 11th Dist. No. 2008-G-

2861, 2009-Ohio-5515, ¶21, quoting State v. Alexander, 1st Dist. No. C-070021, 2007-

Ohio-5457, at ¶7.

       {¶26} While the trial court did peruse a Signature Health report in open court, no

objection was entered.      Moreover, the testimonial evidence demonstrated appellant

failed to adhere to many and various conditions of his community control.              To wit,

evidence was adduced that he was to attend and complete driver intervention; he also

failed to follow recommended treatment and failed to attend two probation

appointments; he additionally tested positive for THC and benzodiazepines; and, finally,

he failed to complete a diagnostic assessment at Signature Health within 30 days. Any

error in the court’s consideration of the unauthenticated document is rendered harmless

by the weight of the evidence supporting the revocation.

       {¶27} Appellant’s third assignment of error lacks merit.

       {¶28} For the reasons discussed in this opinion, the judgment of the Conneaut

Municipal Court sentencing appellant to consecutive jail terms is reversed. Because




                                              8
appellant could only be sentenced to concurrent terms, the maximum jail sentence he

could receive was 180 days. The judgment at issue was entered on March 19, 2019; as

such, appellant was eligible for release on September 14, 2019. It is therefore the order

of this court that appellant be immediately released from the Ashtabula County Jail.



MATT LYNCH, J., concurs,

TIMOTHY P. CANNON, J., concurs with a Concurring Opinion.

                                _____________________


TIMOTHY P. CANNON, J., concurring.

       {¶29} I concur with the judgment of the majority but write separately to expound

upon why I believe it is appropriate in this case to follow the Second District’s opinion in

State v. Fankle, 2d Dist. Montgomery Nos. 26350, et seq., 2015-Ohio-1581.

       {¶30} Pursuant to R.C. 2929.25(A)(1), a trial court has two options when

sentencing an offender for a misdemeanor.           The sentencing court may either (a)

“directly impose a sentence that consists of one or more community control sanctions”

or (b) “impose a jail term * * *, suspend all or a portion of the jail term imposed, * * * and

place the offender under a community control sanction.”

       {¶31} In Fankle, the sentencing court did not directly impose sentences that

consisted of community control sanctions.         Rather, it imposed jail terms upon the

offender, suspended a portion of the jail terms imposed, and then placed the offender

under community control sanctions. When it imposed the partially suspended jail term

in the second case, the sentencing court “said nothing about the possibility of

consecutive jail terms if community control were revoked.” Fankle, supra, at ¶11. It was



                                              9
because the sentencing court chose option (b) under R.C. 2929.25(A)(1) that the

Second District was “compelled to conclude that the trial court imposed concurrent jail

terms.” Id.; see R.C. 2929.41(B)(1) (“A jail term or sentence of imprisonment for a

misdemeanor shall be served consecutively to any other prison term, jail term, or

sentence of imprisonment when the trial court specifies that it is to be served

consecutively * * *.”) (emphasis added).

       {¶32} Here, the trial court also chose option (b) when sentencing appellant. It

imposed definite jail terms, suspended all or a portion of the jail terms imposed, and

placed appellant under community control sanctions. When it imposed the suspended

jail term in the second case, the trial court chose not to advise appellant, at least not in

the sentencing form entry, that a violation of those sanctions could result in consecutive

jail terms.

       {¶33} On the other hand, if the trial court had chosen option (a) when sentencing

appellant, i.e., if it had directly imposed a sentence of community control, I believe the

outcome here would have been different.             In that scenario, pursuant to R.C.

2929.25(A)(3), the trial court is required to notify the offender that the court may do one

of the three things set forth in R.C. 2929.25(A)(3)(a), (b) or (c) upon finding a violation of

the community control sanctions.       There is no such requirement if the sentence is

imposed under option (b). When an offender is sentenced for violating community

control that was directly imposed, a definite jail term is not imposed until the sentencing

hearing for the violation. This is because the jail term is actually being imposed for

violating community control. Thus, the trial court would have the discretion at that time

to impose consecutive jail terms.




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      {¶34} I recognize we have no transcript of the original sentencing hearing. It

may be that the trial court orally advised appellant that the suspended sentence could

be imposed consecutively to any other sentence.          However, if there is a sentence

imposed under subsection (b), the advisement that the sentence could be consecutive

needs to be included in the original sentencing entry.




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