[Cite as State v. Herald, 2016-Ohio-7733.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 4-16-09

        v.

JOHN T. HERALD,                                           OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Defiance County Common Pleas Court
                           Trial Court No. 14-CR-11918

                                      Judgment Affirmed

                          Date of Decision: November 14, 2016




APPEARANCES:

        Clayton J. Crates for Appellant

        Russell R. Herman for Appellee
Case No. 4-16-09


SHAW, P.J.

       {¶1} Defendant-appellant, John T. Herald (“Herald”), brings this appeal

from the March 17, 2016, judgment of the Defiance County Common Pleas Court

revoking Herald’s community control and imposing a reserved aggregate prison

term of seven-and-a-half-years for Herald’s convictions of Burglary in violation of

R.C. 2911.12(A)(1), a felony of the second degree, and Domestic Violence in

violation of R.C. 2919.25(A), a felony of the fourth degree.

                      Relevant Facts and Procedural History

       {¶2} On May 9, 2014, Herald was indicted for Burglary in violation of R.C.

2911.12(A)(1), a felony of the second degree, Domestic Violence in violation of

R.C. 2919.25(A), a felony of the fourth degree due to Herald having a prior

Domestic Violence conviction, and Aggravated Menacing in violation of R.C.

2903.21(A), a first degree misdemeanor. Herald originally pled not guilty to the

charges.

       {¶3} On July 3, 2014, the State filed a motion for joinder requesting that the

charges in this case be joined with a Retaliation charge in another case. That motion

was granted.

       {¶4} On July 17, 2014, a hearing was held wherein Herald agreed to plead

guilty to the Burglary and Domestic Violence charges in this case, and the

Retaliation charge in the separately indicted case. In exchange the State agreed to


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dismiss the Aggravated Menacing charge in this case. The State also agreed to

recommend that Herald be sentenced to four years of community control on the

Burglary and Domestic Violence offenses with a reserved six-year prison term on

the Burglary and an eighteen-month prison term on the Domestic Violence, which

would be served consecutive to each other for an aggregate seven-and-a-half-year

prison term in the event that community control was revoked. In addition, the State

agreed to recommend that Herald be sentenced to one year in prison on the

Retaliation charge in Herald’s other case, with his community control on the charges

in this case to begin once he was released from prison.

       {¶5} The trial court conducted a Crim.R. 11 colloquy with Herald wherein

Herald indicated that he understood the rights he was waiving, the consequences of

his plea, and the potential penalties he was facing. Herald seemed briefly confused

by the court’s indication that the court did not have to follow the parties’ sentencing

recommendation, but the court made it clear that it did not have to follow the

recommendation and Herald elected to plead guilty pursuant to the oral plea

agreement.

       {¶6} The court had the State recite a factual narrative related to the charges.

In the narrative, the State indicated that Herald unlawfully entered the private

residence of his ex-girlfriend, who was also the mother of his child, despite

previously being told not to be there.         The State indicated that Herald was


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intoxicated and that he shoved the victim down, and that he had a prior conviction

for Domestic Violence.1

         {¶7} After narrating the factual basis for the charges, the court asked defense

counsel whether the operative facts were correct and defense counsel stated that

“[t]he facts are debatable, but I’m sure the prosecution can put together evidence

that could convince a jury, a trier of fact.” (July 17, 2014, Tr. at 15). The court then

asked Herald whether the facts happened as alleged and he responded, “[t]o a

degree.” (Id.) However, Herald stated that he admitted to the essential elements of

each of the offenses, and that it was his intention to plead guilty per the plea

agreement.

         {¶8} The court accepted Herald’s pleas as knowingly, intelligently, and

voluntarily entered and found Herald guilty.

         {¶9} On August 28, 2014, Herald’s sentencing hearing was held.                                     At

sentencing the trial court recited the plea arrangement, stating that the parties

recommended that Herald would be placed on community control for the Burglary

and Domestic Violence convictions upon being released from his one-year prison

term for Retaliation in the separate case. The court indicated that the parties

recommended that if Herald violated his community control he would be subject to

an aggregate seven-and-a-half-year prison term.


1
 As it relates to the Retaliation, which is not before us, the State indicated that Herald made specific threats
of violence to kill the baby of a police officer.

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        {¶10} The court then asked the parties to be heard, and defense counsel

indicated that the sentence recommendation was “the agreed disposition.” (Aug.

28, 2014, Tr. at 3-4). Herald addressed the court stating that he understood what he

did was wrong and that he was willing to take responsibility for it. He urged the

court to adopt the parties’ sentencing recommendation.

        {¶11} The court stated that Herald had an extensive criminal history and told

Herald that “it’s highly unlikely that you’re going to be able to succeed on

community control.” (Aug. 28, 2014, Tr. at 4). Herald stated that he believed that

he could succeed on community control and that he understood the consequences if

he did not comply with his terms of community control.

        {¶12} The same date as Herald’s sentencing hearing, a “Community Control

Agreement and Order” was filed, indicating the terms and conditions of Herald’s

community control. Among the conditions were for Herald not to possess or use

drugs, and that he have a midnight curfew. Specific conditions were also added that

Herald should not be in any bars or taverns and that he should not possess or

consume any alcohol. (Doc. No. 23).

        {¶13} An entry memorializing Herald’s sentence was filed September 16,

2014.

        {¶14} The next relevant activity in this case occurred December 14, 2015,

when the State filed a motion to revoke Herald’s community control, contending


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that he had violated multiple terms of his community control. Specifically, the State

indicated that Herald was not home by his curfew one night and that on or about

December 4/5, 2015, Herald was at the Power Dam Bar and was consuming

alcoholic beverages.

         {¶15} On December 14, 2015, the trial court held a hearing on the motion to

revoke Herald’s community control. Herald waived his right to counsel2 and

indicated that he was “obviously * * * guilty” and that he fully admitted to the

violations. (Dec. 14, 2015, Tr. at 3). The State provided a narrative of the incident,

indicating that not only was Herald at a bar, consuming alcohol, and out past his

curfew, but that he also was involved in a fight at the bar.3

         {¶16} The court then accepted Herald’s admissions to his community control

violations and asked the State for its recommendation as to disposition. At that time

the State recommended that the disposition be delayed to see if Herald could comply

with the conditions of supervision, and that any “recommendation would be

dependent upon that. We would likely be recommending that he not be revoked,

possibly some additional specials if he commits no new violations. But it would

depend upon what his situation was at that time.” (Dec. 14, 2015, Tr. at 11).




2
  A written waiver of counsel was filed in the record.
3
  The State indicated it would likely not be pursuing charges from the fight even though the victim required
stitches because the victim was uncooperative.

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       {¶17} The court then again reiterated that Herald had a lengthy criminal

history and that he made a mistake being in the bar that evening. Herald requested

leniency, indicating that he had a job and his own residence and was doing better.

Ultimately the court continued disposition for Herald’s admitted violations for

approximately two months. An entry reflecting what transpired at the hearing was

filed December 18, 2015.

       {¶18} The case was called for a dispositional hearing on February 10, 2016.

At the hearing, the State indicated there were additional issues that had arisen since

the last hearing, such as Herald testing positive for marijuana and a complaint being

investigated that Herald committed sexual imposition against a female inmate. The

State indicated it had not filed new allegations of community control violations yet

based on the new issues. At that time, the State requested that the court revoke

Herald’s community control and impose the reserved prison term.

       {¶19} Herald addressed the court, admitting to smoking the marijuana, but

he denied the sexual imposition allegation, stating that he had told the prosecutor

and a detective that he would take a polygraph test “any day of the week. I will pay

for it. I’ll do it right now.” (Feb. 10, 2016, Tr. at 6). The court agreed to continue

the dispositional hearing to allow Herald to undertake the polygraph examination

that he requested, indicating that the State should prepare a stipulation that the

results of the test would be admissible and the court could consider it.


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       {¶20} The final dispositional hearing was held March 14, 2016. At the

hearing the court stated that Herald’s polygraph test indicated that Herald was being

deceptive. Herald denied that he failed the polygraph examination, and the court

asked whether Herald saw on the front page of the report that it said Herald did not

pass the polygraph examination. Herald responded that he saw it but it was not his

understanding. However, the record does not contain any documentation related to

the questions asked at the polygraph examination. Similarly, the record does not

contain a copy of the results or any stipulation related to their admissibility.

       {¶21} Despite the results of the polygraph examination that the court

narrated, Herald still denied that the sexual imposition occurred and requested

leniency from the court, asking that his community control be continued even

though he had multiple other violations that he had readily admitted to. The State

recommended that Herald’s community control be revoked.

       {¶22} The court recited Herald’s lengthy criminal history, including the

crimes Herald was currently on community control for. The court then revoked

Herald’s community control, and imposed the reserved prison terms, six years for

the burglary and eighteen months for the Domestic Violence, to be served

consecutive to each other, for an aggregate seven-and-a-half-year prison term.

When Herald asked the court “why” the court would impose such a prison term, the

court stated “[b]ecause you won’t follow your rules of community control.” (Mar.


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14, 2016, Tr. at 13). The court added that Herald earned his prison terms by

committing the offenses to which Herald pled guilty. At that time Herald attempted

to contend that he never actually “burglarize[d] anything,” despite already pleading

guilty to the Burglary. (Id. at 13).

        {¶23} A final judgment entry revoking Herald’s community control and

imposing the aggregate seven-and-a-half-year prison term was filed March 17,

2016.    It is from this judgment that Herald appeals, asserting the following

assignments of error for our review.

                    ASSIGNMENT OF ERROR 1
        THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
        BY IMPOSING CONSECUTIVE SENTENCES WITHOUT
        MAKING APPROPRIATE FINDINGS PURSUANT TO
        §2929.14.

                    ASSIGNMENT OF ERROR 2
        THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
        BY FAILING TO CONSIDER APPLICABLE SENTENCING
        STATUTES.

                     ASSIGNMENT OF ERROR 3
        THE TRIAL COURT’S DECISION TO REVOKE
        APPELLANT’S COMMUNITY CONTROL CONSTITUTED
        AN ABUSE OF DISCRETION.



                    ASSIGNMENT OF ERROR 4
        THE TRIAL COURT COMMITTED PLAIN ERROR BY
        ALLOWING THE PROSECUTOR TO CHANGE THE
        BARGAINED FOR RECOMMENDATION.



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                  ASSIGNMENT OF ERROR 5
      APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED
      WHEN THE STATE FAILED TO COMPLY WITH THE DUE
      PROCESS REQUIREMENTS OF COMMUNITY CONTROL
      REVOCATION PROCEEDINGS.

                   ASSIGNMENT OF ERROR 6
      APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED
      WHEN THE TRIAL COURT FAILED TO MAKE WRITTEN
      FINDINGS OF FACT AND CONCLUSIONS OF LAW.

      {¶24} We elect to address some of the assignments of error together, and out

of the order in which they were raised.

                            Third Assignment of Error

      {¶25} In Herald’s third assignment of error, he argues that the trial court

abused its discretion by revoking his community control. Specifically, Herald

argues that it was error for the trial court to place any reliance on the polygraph

examination when determining Herald’s disposition for his community control

violations, and that the overall circumstances did not support revoking his

community control.

      {¶26} At the outset, we note that community control-revocation and

dispositional hearings are not subject to the rules of evidence. Evid.R. 101(C)(3);

State v. Ohly, 6th Dist. Erie No. E-05-052, 2006-Ohio-2353, ¶ 21. “The rationale

for the exception is that, since a probation revocation hearing is an informal

proceeding, not a criminal trial, the trier-of-fact should be able to consider any


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reliable and relevant evidence to determine whether the probationer has violated the

conditions of his probation.” Columbus v. Bickel, 77 Ohio App.3d 26, 601 N.E.2d

61 (10th Dist.1991).

       {¶27} Nevertheless, in order to find that an offender violated the terms of his

community control at a community control-revocation hearing, the State must show

“substantial evidence.” State v. Boykins, 3d Dist. Marion No. 9-14-28, 2015-Ohio-

1341, ¶ 20, citing State v. McKeithen, 3d Dist. Marion No. 9-08-29, 2009-Ohio-84,

¶ 6, citing State v. Ryan, 3d Dist. Auglaize No. 14-06-55, 2007-Ohio-4743, ¶ 7.

“Substantial evidence is akin to a preponderance-of-the-evidence burden of proof.”

State v. Burdette, 5th Dist. Morrow No. 10–CA–9, 2011–Ohio–4425, *4, citing

State v. Ohly, 6th Dist. Erie No. E-05-052, 2006–Ohio–2353, ¶ 18. However,

“[s]ubstantial evidence is considered to consist of more than a mere scintilla of

evidence, but somewhat less than a preponderance.” (Emphasis added.) Burdette,

citing State v. Gomez, 11th Dist. Lake No. 93–L–080, 1994 WL 102230, *4 (Feb.

18, 1994), citing Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966) and Marker

v. Finch, 322 F.Supp. 905, 910, fn. 7 (D.Del.1971).

       {¶28} The decision of a trial court finding a violation of community control

will not be disturbed absent an abuse of discretion. State v. Berry, 3d Dist. Defiance

No. 4-12-04, 2012-Ohio-4660, ¶ 33, citing State v. Ryan, 3d Dist. Union No. 14-06-

55, 2007-Ohio-4743 ¶ 7. A trial court abuses its discretion when it makes a decision


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that is unreasonable, unconscionable, or arbitrary. State v. Darmond, 135 Ohio

St.3d 343, 2013-Ohio-966, ¶ 34. A trial court’s decision to revoke community

control, even for a “minor” violation, is not an abuse of discretion. See State v.

South, 3d Dist. Union No. 14-07-40, 2010-Ohio-983, ¶ 9.

       {¶29} In this case there were a number of general and specific provisions

contained in Herald’s community control. Herald’s general provisions required,

inter alia, that Herald obey all laws and that he abide by a midnight curfew unless

his scheduled work hours ended after the stated curfew. Herald was also required

not to possess any illegal drugs. In the specific conditions of Herald’s community

control, Herald was explicitly required not to enter any bars or taverns and not to

consume or possess any alcoholic beverages.

       {¶30} Herald readily admitted to multiple violations of his community

control sanctions in this case. Herald admitted that he had been at a bar, that he had

been drinking alcohol, and that he had been out past his curfew. All of these reasons

support the trial court’s decision finding Herald in violation of his community

control.

       {¶31} However, on appeal, Herald argues that the trial court improperly

“based” its decision to revoke Herald’s community control on the polygraph

examination that Herald requested at his dispositional hearing and subsequently—

apparently—failed. When Herald was before the court for his disposition, the State


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brought to the court’s attention that Herald failed a drug test and that Herald was

being investigated for a sexual imposition of a female prisoner. While Herald

admitted his marijuana use, he immediately denied the alleged sexual imposition

and stated that he would willingly take a polygraph examination to disprove it.4

         {¶32} The trial court delayed the dispositional hearing to allow Herald to

undertake the polygraph examination that he requested, in what appears to be one

last opportunity for Herald to establish some mitigating factors for his disposition

for his violations. Herald’s polygraph examination results apparently indicated that

his responses were indicative of deception. The trial court ultimately revoked

Herald’s community control at the final disposition hearing.

         {¶33} Herald now argues that the trial court improperly revoked his

community control based on his polygraph examination results.                               Contrary to

Herald’s claim, when Herald asked why the trial court revoked his community

control at the dispositional hearing, the trial court stated, “[b]ecause you won’t

follow your rules of community control.” (Mar. 14, 2016, Tr. at 13). The trial court

also cited Herald’s lengthy criminal history before revoking his community control.

The trial court did not specifically cite the polygraph examination as the reason

Herald’s community control was being revoked, rather it generally stated that

Herald had not complied with community control.


4
  Neither the State nor the trial court mentioned a polygraph before Herald brought it up. Nevertheless, the
trial court instructed the State to prepare stipulations to make the polygraph admissible.

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        {¶34} Nevertheless, Herald argues that any consideration of the polygraph

examination here was improper. To support his claim that the trial court improperly

relied on the polygraph examination in revoking his community control, Herald

attempts to liken this case to the Supreme Court of Ohio’s seminal decision in State

v. Souel, 53 Ohio St.2d 123 (1978), wherein strict procedure was determined as to

when polygraph examinations can be admitted into evidence at trial. In this case

the polygraph examination is not being used against Herald at trial and he is not

being prosecuted for any alleged offenses for which he took the polygraph

examination. If he wanted to challenge the admissibility of any such statements he

made during the polygraph examination at a subsequent prosecution for that

offense, he would still be able to do so. See In re D.S., 111 Ohio St.3d 361, 2006-

Ohio-5851, ¶ 16 (2006).

        {¶35} Further, the rules of evidence are not even applicable at community

control-revocation hearings and the standard of proof is substantially lower.5 In

addition, polygraph examinations have been found to be an acceptable tool of

community control where the testing is related to a criminal defendant’s treatment

and supervision, even where polygraph examinations were specifically required to

be undertaken. See State v. May, 8th Dist. Cuyahoga No. 97354, 2012-Ohio-2766,

¶ 37 (overruled on a separate issue in State v Anderson, 8th Dist. Cuyahoga No.


5
  Though we wish to emphasize that Herald was not being found in violation of his community control for
failing the polygraph examination, it was merely being considered for disposition.

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102427, 2016-Ohio-7044); but see In re D.S., 111 Ohio St.3d 361, 2006–Ohio–

0992, ¶ 5 (wherein it was determined that requiring a juvenile to take a polygraph

examination must be supported by the evidence as a juvenile is not a criminal). Thus

for all of these reasons we do not find Souel controlling here.

       {¶36} Herald also cites an older decision out of the Ninth District Court of

Appeals, State v. Rooney, 9th Dist. Summit No. 12052, 1985 WL 11040, wherein

the Ninth District affirmed a trial court’s suppression of evidence that a defendant

involuntarily took a polygraph examination as a condition of his probation and

defendant’s deception in that polygraph examination was going to be used as the

sole basis to find the defendant in violation of his probation. Rooney is readily

distinguishable from the case sub judice, because here Herald was already found in

violation of his community control at the time any polygraph results were

considered, and the polygraph was only considered here as giving Herald an

opportunity to mitigate the circumstances before the trial court. The apparent results

of the polygraph examination in this case were not being used as any basis to find

Herald in violation of his community control, let alone the sole basis, as it was in

Rooney. Moreover, Herald also undertook the examination voluntarily in this case.

Thus we do not find these circumstances the same as Rooney.

       {¶37} Finally, we would note that before Herald originally pled guilty to the

Burglary and Domestic Violence charges, the trial court admonished Herald that,


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even if the court accepted the parties’ sentencing recommendation, based on his

criminal history it seemed unlikely Herald would succeed on community control.

Herald stated that he believed that he could. Herald may feel that his community

control violations were minor, but he was already getting a significant opportunity

to be on community control at all given that he pled guilty to a second degree felony.

       {¶38} In this specific instance we can find no error with the trial court’s

revocation of Herald’s community control. Even disregarding everything related to

the polygraph examination, the trial court still had multiple reasons for revoking

Herald’s community control, and it was specifically stated that Herald’s community

control was revoked for his general failure to comply. Therefore, Herald’s third

assignment of error is overruled.

                            Fourth Assignment of Error

       {¶39} In Herald’s fourth assignment of error, he argues that the trial court

erred by allowing the prosecutor to “change” his “bargained-for” recommendation

at the dispositional hearing. Specifically, Herald argues that when he admitted his

community control violations, the State indicated that it would “likely” be

recommending that the trial court not revoke Herald’s community control at the

dispositional hearing.   Herald likens the State’s comment to that of a “plea

agreement,” claiming that the State breached said “plea agreement” when it




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recommended that Herald’s community control be revoked at the dispositional

hearing.

       {¶40} Herald’s arguments in this assignment of error are wholly disputed by

the record and are entirely without merit. After Herald admitted to multiple

community control violations, the trial court asked the State what it would

recommend for disposition. The prosecutor made the following statement.

       [Prosecutor]: Your Honor what I indicated is the State would ask
       that the matter be continued for disposition. I’d like to look at the
       history a little bit further and review further with Mr. Elwood.
       But also give the Defendant an opportunity to begin some
       counseling, Mr. Elwood had recommended or directed him to
       begin participating in. So I indicated to him that I would be
       requesting a continuance of the disposition to see if he can comply
       with all the conditions of his supervision, and then our
       recommendation would be dependent upon that. We would likely
       be recommending that he not be revoked, possibly some
       additional specials if he commits no new violations. But it would
       depend upon what his situation was at that time.

(Emphasis added.) (Dec. 14, 2015, Tr. at 11).

       {¶41} Notably, nowhere in the preceding statement does the prosecutor make

any type of binding promise to recommend that Herald remain on community

control at the dispositional hearing. However, even if the prosecutor had made such

a promise, the trial court was absolutely not bound by any such recommendation.

       {¶42} Nevertheless, even though the trial court did not have to continue

Herald’s dispositional hearing as the State recommended, it did, continuing the case

for approximately two months, allowing Herald an opportunity to demonstrate that

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he could be successful on community control. In that time Herald managed to fail

a drug test, which he admitted to, and there was an investigation related to a potential

sexual imposition charge. While Herald argues that no new community control

violations were specifically filed regarding those issues, the court indicated it was

unnecessary based on Herald’s past violations.             The State then gave its

recommendation that Herald’s community control be revoked.

       {¶43} The trial court, using its discretion, revoked Herald’s community

control. There was never any agreement between Herald and the State, and even if

there was, Herald seems to clearly have violated the agreement by continuously not

abiding by the terms of his community control. Therefore, Herald’s argument that

the State somehow altered a “bargained-for” recommendation is entirely inaccurate

and without merit. Accordingly, his fourth assignment of error is overruled.

                              Fifth Assignment of Error

       {¶44} In Herald’s fifth assignment of error, he argues that his due process

rights were violated by the State failing to comply with the requirements of

community control revocation proceedings.           Specifically, he argues that no

community control violations were filed against Herald for his marijuana use or his

alleged sexual imposition of a female inmate and that these potential violations were

used against him.




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       {¶45} Notably, any reference to Herald’s marijuana use and his potential

sexual imposition of a female inmate were only made at Herald’s dispositional

hearing. The trial court never determined whether Herald violated his community

control based on his marijuana use or the alleged sexual imposition. Rather, the trial

court merely took these issues into account when determining Herald’s disposition

for the violations of community control to which Herald had already admitted. This

Court has already determined that it is not reversible error for a trial court to consider

such allegations during a dispositional phase of a community control revocation

hearing. See State v. Rose, 3d Dist. Logan No. 8-02-14, 2002-Ohio-5136, ¶ 20;

State v. Patierno, 3d Dist. Defiance No. 4-08-08, 2009-Ohio-410, ¶ 24; State v.

Hurley, 3d Dist. Hardin Nos. 6-10-02, 6-10-03, 2010-Ohio-3668, ¶¶ 8-15. Thus

Herald’s argument is not well-taken and his fifth assignment of error is overruled.

                              Sixth Assignment of Error

       {¶46} In Herald’s sixth assignment of error, he argues that the trial court

erred by failing to make written findings of fact and conclusions of law in revoking

Herald’s community control.

       {¶47} To support his argument, Herald cites State v. Delaney, 11 Ohio St.3d

231 (1984), wherein the Supreme Court of Ohio stated that it did “not condone the

use of oral ‘explanations’ in lieu of written statements detailing the basis for a trial

court’s determination in revocation proceedings[.]” Delaney at 235. However, the


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Court continued by stating that written findings of fact and conclusions of law were

immaterial since the appellant was adequately informed of the reasons for which his

“probation” was being revoked on the record. Id.

       {¶48} The preceding segment makes clear that the legal authority actually

relied upon by Herald does not even adequately support his position. The Supreme

Court of Ohio indicated only that it was more favorable if a trial court produced

written findings of fact and conclusions of law when finding a violation, but it was

not necessary so long as a defendant is adequately informed of the reasons his

probation—now community control—is being revoked.

       {¶49} Here, written violations were filed, a hearing was held, and Herald

admitted to the violations. A factual basis of the violations was even presented and

Herald gave his version of events. Herald was clearly apprised of why he was being

found in violation of his community control in this case and the trial court made that

clear. Therefore, Herald’s sixth assignment of error is not well-taken, and is

overruled.

                      First and Second Assignments of Error

       {¶50} In Herald’s second assignment of error, he argues that the trial court

erred by failing to consider applicable sentencing statutes. In his first assignment

of error, he argues that the trial court erred by failing to make appropriate

consecutive sentences findings pursuant to R.C. 2929.14(C)(4).


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       {¶51} Revised Code 2953.08(D)(1) governs the appeal of jointly

recommended sentences. It provides that “[a] sentence imposed upon a defendant

is not subject to review under this section 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.” The Supreme Court of Ohio has held that “[o]nce

a defendant stipulates that a particular sentence is justified, the sentencing judge

need not independently justify the sentence.” State v. Porterfield, 106 Ohio St.3d

5, 2005–Ohio–3095, at paragraph three of the syllabus. “The General Assembly

intended a jointly agreed-upon sentence to be protected from review precisely

because the parties agreed that the sentence is appropriate.” Id. at ¶ 25. The

Supreme Court of Ohio has recently specifically applied this concept to the findings

required to impose consecutive sentences. State v. Sergent, Ohio Sup.Ct. Slip

Opinion No. 2016–Ohio–2696.

       {¶52} In this case the sentence was recommended by both the State and

Herald, and was bargained-for in the plea agreement. Herald’s counsel made this

clear at the sentencing hearing. At the sentencing hearing, Herald’s counsel stated

that, “The disposition that the Court recited is the bargain for [sic] and the agreed

disposition. The inclusion of SEARCH was actually the request of the Defendant

who felt that he needed some structure getting his life straighten out [sic], and so we

would certainly recommend that the Court accept the prosecutor’s disposition


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recommendation.” (Aug. 28, 2014, Tr. at 3-4). The defendant himself then also

urged the court to accept the sentencing recommendation stating, “I just ask that,

you know, you respect the recommendation of the prosecutor.” (Id.) The trial court

ultimately imposed the jointly recommended sentence. In doing so, the trial court

specifically stated that in the event the prison terms needed to be imposed, they

would be imposed consecutively and that “[c]onsistent with the plea arrangement *

* * that entire seven and a half year term will be reserved.” (Id. at 6).

        {¶53} As the sentence in this case was jointly recommended by the parties

and imposed by the trial court, we need only review if the sentence is authorized by

law.6 The six-year prison sentence for Burglary and the eighteen-month prison term

for Domestic Violence both fall within the statutory range. In the event of a

community control violation, Herald was aware that he was facing an aggregate

seven-and-a-half-year prison term as indicated in the “Community Control

Agreement and Order,” which was signed by the parties and the judge. Since the

term was authorized by law, any claims that the trial court did not consider specific

sentencing statutes are without merit, and Herald’s first and second assignments of

error are overruled. See State v. Sergent, Ohio Sup.Ct. Slip Opinion No. 2016–




6
 This case is readily distinguishable from State v. Kegley, 3d Dist. Crawford No. 3-15-20, 2016-Ohio-2983,
¶ 2, wherein the plea agreement and sentence only stated that the defendant could be “subject to” certain
maximum consecutive prison terms, not that such terms would necessarily be imposed.

                                                  -22-
Case No. 4-16-09


Ohio–2696; State v. White, 2d Dist. Greene No. 2015-CA-37, 2016-Ohio-4726, ¶

13; State v. Dennison, 10th Dist. Franklin No. 05AP–124, 2005–Ohio–5837, ¶ 9.

       {¶54} Having found no error prejudicial to Herald in the particulars assigned,

his assignments of error are overruled and the judgment of the Defiance County

Common Pleas Court is affirmed.

                                                                Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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