         [Cite as State v. Bohannon, 2013-Ohio-5101.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                   :      APPEAL NO. C-130014
                                                        TRIAL NO. B-0906619
        Plaintiff-Appellee,                      :
                                                           O P I N I O N.
  vs.                                            :

JEREMY BOHANNON,                                 :

    Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is:              Affirmed in Part, Reversed in Part, and Cause
                                        Remanded

Date of Judgment Entry on Appeal: November 20, 2013


Joseph T. Deters, Hamilton County Prosecuting Att0rney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Madden & Oswall Co., L.P.A., and William F. Oswall, Jr., for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D INKELACKER , Judge.

       {¶1}    Defendant-appellant Jeremy Bohannon appeals from a decision of the

Hamilton County Court of Common Pleas revoking his community control and

sentencing him to 30 months’ imprisonment. We find merit in one of his two

assignments of error, and we remand the cause to the trial court to notify Bohannon

about postrelease control.


                               I.     Procedural Background

       {¶2}    Bohannon was originally convicted of one count of having weapons

while under a disability under R.C. 2923.13(A)(3), a third-degree felony. The trial

court sentenced him to three years of community control. It informed him that he

would be sentenced to five years in prison if he violated the terms of his community

control.

       {¶3}    Subsequently, Bohannon was charged with violating the terms of his

community control after he (1) failed to provide a sample for a drug screen, (2) left

the state of Ohio without permission and was arrested for drug trafficking and

possession in Kentucky, (3) failed to report for a scheduled office visit, and (4) failed

to make payments toward his court costs and fees. Bohannon pleaded guilty, and the

court sentenced him to serve 30 months in prison. This appeal followed.


                                II.   Grounds for Mitigation

       {¶4}    In his first assignment of error, Bohannon contends that the trial

court erred in imposing a sentence “that is not supported by the findings in the

record.” He argues that the court failed to consider the existence of substantial

grounds to mitigate his conduct under R.C. 2929.12(C)(4), and, therefore, it was




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                     OHIO FIRST DISTRICT COURT OF APPEALS



unable to properly address the purposes and principles of felony sentencing. This

assignment of error is not well taken.

       {¶5}    Following a community-control violation, a trial court sentences the

offender anew, and it must comply with the relevant sentencing statutes. State v.

Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17; State v. Harris, 1st

Dist. Hamilton No. C-120531, 2013-Ohio-2721, ¶ 4. Before a reviewing court can

modify or vacate a felony sentence, it must clearly and convincingly find that the

sentence is contrary to law or that the record does not support the sentencing court’s

findings. R.C. 2953.08(G)(2); State v. White, 1st Dist. Hamilton No. C-130114, 2013-

Ohio-4225, ¶ 11.

       {¶6}    In this case, the sentence imposed by the trial court was within the

statutory range for a third-degree felony.         R.C. 2929.14(A)(3).   At the original

sentencing hearing, the trial court informed Bohannon that it would terminate his

community control for the “slightest infraction” and that it would sentence him to

five years in prison for any violation. The sentence the court actually imposed was

only half as long as it had originally promised.

       {¶7}    The court did not specifically state that it was considering the

grounds for mitigation. But R.C. 2929.12(C)(4) does not require the court to

make findings on the record. State v. Morris, 3d Dist. Hardin No. 6-12-17, 2013-

Ohio-1736, ¶ 12. While a trial court is required to consider the purposes and

principles of sentencing and the various factors under R.C. 2929.11 and 2929.12,

it need not make specific findings. We can presume from a silent record that the

trial court considered the appropriate factors unless the defendant affirmatively

shows that the court has failed to do so. State v. Brown, 1st Dist. Hamilton No.

C-120327, 2013-Ohio-2720, ¶ 46.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



      {¶8}    Though the trial court told Bohannon that it was going to send him

to prison for the community-control violation as it had previously stated it would,

the court listened extensively to Bohannon and considered what he had to say. It

gave him the choice of proceeding to sentencing that day or continuing the matter

so that he could consult an attorney. Bohannon stated that he wanted to “get it

over with” that day.

      {¶9}    Bohannon has not shown that that the trial court failed to consider

whether substantial grounds existed to mitigate his conduct.       On the record

before us, we cannot say that Bohannon’s sentence was clearly and convincingly

contrary to law, and we overrule his first assignment of error. See White, 2013-

Ohio-4225, at ¶ 12-14.


                                III. Postrelease Control

      {¶10}   In his second assignment of error, Bohannon contends that the

trial court erred in failing to notify him about post-release control at the

sentencing hearing. We agree. Though the judgment entry states that Bohannon

would be subject to postrelease control, the court did not inform him about

postrelease control at the sentencing hearing.

      {¶11}   R.C. 2929.19(B) requires the sentencing court to notify the

offender at the sentencing hearing that the offender may be subject to postrelease

control. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864,

paragraph one of the syllabus; State v. Cooper, 1st Dist. Hamilton Nos. C-110027

and C-110028, 2012-Ohio-555, ¶ 27. When a sentencing court fails to advise an

offender about postrelease control at the sentencing hearing, the trial court

violates its statutory duty, and that part of the offender’s sentence related to




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                     OHIO FIRST DISTRICT COURT OF APPEALS



postrelease control is void. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,

942 N.E.2d 332, ¶ 26; Cooper at ¶ 28.

       {¶12}   Bohannon contends that this court should remand the matter for

resentencing. But because Bohannon’s sentence was imposed after July 11, 2006,

the effective date of R.C. 2929.191, the trial court is not authorized to conduct a

de novo resentencing. Instead, it should apply the procedures set forth in R.C.

2929.191 to correct the postrelease-control sentencing error. State v. Singleton,

124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph two of the

syllabus; State v. Brown, 1st Dist. Hamilton Nos. C-100309 and C-100310, 2011-

Ohio-1029, ¶ 8.

       {¶13}   Those procedures contemplate only a correction of the postrelease-

control defect and not a de novo resentencing. Brown at ¶ 28. The doctrine of

“res judicata still applies to other aspects of the merits of a conviction, including

the determination of guilt and the lawful elements of the ensuing sentence.”

Fischer at paragraph three of the syllabus.

       {¶14}   Consequently, we hold that Bohannon’s sentence is void to the

extent that the trial court failed to properly notify him about postrelease control.

We sustain his second assignment of error, vacate the portion of the sentence

relating to postrelease control and remand the matter for a new hearing where

the trial court can properly inform him of his postrelease-control obligations. We

affirm the trial court’s judgment in all other respects.

                  Judgment affirmed in part, reversed in part, and cause remanded.


C UNNINGHAM , P.J., and D E W INE , J., concur.


Please note:
       The court has recorded its own entry this date.



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