[Cite as State v. Coffer, 2020-Ohio-994.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                                             STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                              ERIC COFFER,

                                            Defendant-Appellant.


                         OPINION AND JUDGMENT ENTRY
                                            Case No. 18 MA 0077


                                 Criminal Appeal from the
                     Youngstown Municipal Court of Mahoning County, Ohio
                                 Case No. 16 CRB 02604Y

                                         BEFORE:
                  Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.


                                                JUDGMENT:
                                                  Affirmed.


 Atty. Jeff Limbian, Youngstown Law Director and Atty. Kathleen Thompson, Assistant
 Law Director, 9 West Front Street, 3rd Floor, Youngstown, Ohio 44503, for Plaintiff-
 Appellee, No Brief Filed.

 Atty. Adam V. Buente, The Law Office of Adam V. Buente, LLC, 841 Boardman-Poland
 Road, Suite 307, Boardman, Ohio 44512, for Defendant-Appellant.
                                                                                        –2–


                                  Dated: March 13, 2020


 WAITE, P.J.

       {¶1}   Appellant Eric Coffer appeals a July 10, 2018 Youngstown Municipal Court

judgment entry sentencing him to one hundred-fifty days in jail following his community

control violation. Appellant argues that the trial court failed to inform him at the original

sentencing hearing that a definite jail term could be imposed if he violated the terms of

his community control. He also argues that the court failed to specify the length of such

jail sentence, thus the court lacked the ability to impose any jail sentence following his

violation. For the reasons provided, Appellant’s arguments are without merit and the

judgment of the trial court is affirmed.

                              Factual and Procedural History

       {¶2}   A warrant for Appellant’s arrest was issued after he was charged with

multiple violations of driving with a suspended license. On December 27, 2016, Appellant

was also charged with one count of falsification, a misdemeanor of the first degree in

violation of R.C. 2921.13(A)(3) in case number 16 CRB 2604. On April 25, 2017, a capias

was issued for Appellant’s arrest following his failure to appear at a court proceeding. On

June 5, 2017, Appellant was arrested and on June 13, Appellant pleaded guilty to the

falsification charge and two related driving with a suspended license charges that arose

from case numbers 17 TRD 1349 and 16 TRD 3027. Appellant was sentenced to thirty

days in jail for falsification and thirty days on each count of driving with a suspended

license. The sentences were ordered to run consecutively. The court also imposed a

one-year term of probation following Appellant’s release from jail.




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       {¶3}   Appellant filed two motions for early release, both were denied. Following

his actual release, on April 12, 2018 the state filed a notice of a possible probation

violation, alleging that Appellant failed to report to probation on February 21, March 21,

and April 5 of 2018. A capias was issued for Appellant’s arrest. On May 7, 2018,

Appellant was arrested on the capias.

       {¶4}   On May 25, 2018, Appellant stipulated to the probation violation and on July

10, 2018, the court held a final probation hearing where Appellant conceded that he failed

to report to probation on the three listed occasions. The court imposed a jail term of 150

days, with credit for 7 days served. It is from this entry that Appellant timely appeals.

                               ASSIGNMENT OF ERROR


       The Trial Court Failed to Properly Advise Appellant of the Sentence He

       Would Face if He Violated the Terms of His Community Control, Thereby

       Depriving the Trial Court of the Ability to Later Impose a Prison Term.


       {¶5}   Appellant argues that the trial court failed to notify him when he was

originally sentenced of the definitive jail term he would face in the event that he violated

community control. He also argues that the court failed to specify the length of that

potential jail sentence. Because the court failed to adequately advise him regarding a

possible jail sentence, he argues that the court was not permitted to impose this sentence.

       {¶6}   The state has failed to file a response brief.

       {¶7}   Generally, a misdemeanor sentence is reviewed for an abuse of discretion.

State v. Reynolds, 7th Dist. Jefferson No. 08-JE-9, 2009-Ohio-935, ¶ 9, citing R.C.

2929.22; State v. Frazier, 158 Ohio App.3d 407, 2004-Ohio-4506, 815 N.E.2d 1155, ¶ 15




Case No. 18 MA 0077
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(1st Dist.). “An abuse of discretion is more than an error of judgment; it requires a finding

that the trial court's decision was unreasonable, arbitrary, or unconscionable.” State v.

Nuby, 7th Dist. Mahoning No. 16 MA 0036, 2016-Ohio-8157, ¶ 10, citing State v. Adams,

62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶8}    Appellant concedes that he has waived all but plain error in this matter as

he failed to object to his sentence. A three-part test is employed to determine whether

plain error exists. State v. Billman, 7th Dist. Monroe Nos. 12 MO 3, 12 MO 5, 2013-Ohio-

5774, ¶ 25, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).


       First, there must be an error, i.e. a deviation from a legal rule. Second, the

       error must be plain. To be “plain” within the meaning of Crim.R. 52(B), an

       error must be an “obvious” defect in the trial proceedings. Third, the error

       must have affected “substantial rights.” We have interpreted this aspect of

       the rule to mean that the trial court's error must have affected the outcome

       of the trial.


Billman at ¶ 25.

       {¶9}    Appellant encourages us to apply State v. Brooks, 103 Ohio St.3d 134,

2004-Ohio-4746, 814 N.E.2d 837 and State v. Mavroudis, 2016-Ohio-894, 60 N.E.3d 821

(7th Dist.) on review of this matter. However, we have previously rejected application of

these cases, which involve the felony statute, in misdemeanor cases. See State v. Mayer,

7th Dist. Mahoning No. 16 MA 0107, 2018-Ohio-338.

       {¶10} In misdemeanors matters, a court is to apply R.C. 2929.25(A)(3), which

provides:




Case No. 18 MA 0077
                                                                                        –5–


      At sentencing, if a court directly imposes a community control sanction or

      combination of community control sanctions pursuant to division (A)(1)(a)

      or (B) of this section, the court shall state the duration of the community

      control sanctions imposed and shall notify the offender that if any of the

      conditions of the community control sanctions are violated the court may do

      any of the following:


      (a) Impose a longer time under the same community control sanction if the

      total time under all of the offender's community control sanctions does not

      exceed the five-year limit specified in division (A)(2) of this section;


      (b) Impose a more restrictive community control sanction under section

      2929.26, 2929.27, or 2929.28 of the Revised Code, but the court is not

      required to impose any particular sanction or sanctions;


      (c) Impose a definite jail term from the range of jail terms authorized for the

      offense under section 2929.24 of the Revised Code.


      {¶11} Appellant claims that the trial court did not comply with R.C.

2929.25(A)(3)(c), which requires the court to advise a defendant that it will “[i]mpose a

definite jail term from the range of jail terms authorized for the offense under section

2929.24 of the Revised Code” in the event of a community control violation.

      {¶12} At the sentencing hearing, the trial court stated at one point:


      Consider yourself lucky, however, that you’re not going to jail for eight

      consecutive months; because when you get out of jail, you’re going to be



Case No. 18 MA 0077
                                                                                         –6–


       on probation for a period of a year. So when you get out of jail, you need

       to come back in and sign up for probation. If you don’t -- because this is

       what you do; if you don’t come in and sign up for probation, I’ll have you

       arrested and here we go again, you go back to jail for everything that I didn’t

       give you today.


(6/13/17 Tr., pp. 7-8.)

       {¶13} Appellant appears to define the term “definite sentence” as one with a

specific jail term. At least three appellate districts have rejected this argument. See State

v. Sutton, 162 Ohio App.3d 802, 2005-Ohio-4589, 835 N.E.2d 752 (4th Dist.) (in

misdemeanor cases, a trial court is not required to impose a specific jail term at the

original sentencing hearing); State v. Bailey, 2016-Ohio-4937, 68 N.E.3d 416 (9th Dist.)

(the misdemeanor statute requires that the trial court notify the defendant that a jail term

may be imposed for a community control violation but does not require the court to provide

a specific jail term); State v. Gibson, 11th Dist. Portage No. 2013-P-0047, 2014-Ohio-433,

overruled on other grounds, State v. Thomas, 2018-Ohio-1024, 109 N.E.3d 12 (11th Dist.)

(a trial court is not required to notify a defendant at the original sentencing hearing of a

specific jail term that may be imposed in the event of a community control sanction

violation.)

       {¶14} Although the trial court’s language in the instant case is somewhat lacking

in clarity and precision, the court did provide a jail term. The court informed Appellant

that he could be sentenced to an aggregate total of eight months. Ultimately, the court

sentenced him to only three months. When taken as a whole, the record shows the court

did advise Appellant that it could impose the remainder of his eight month sentence, five



Case No. 18 MA 0077
                                                                                         –7–


months, if he violated his community control sanction. Appellant was sentenced to the

remaining five months of his eight-month sentence after he violated community control.

       {¶15} This court’s advisement is similar to that found in three cases arising from

the Fourth District, Sutton, supra; State v. McDonald, 4th Dist. Ross No. 04CA2806, 2005-

Ohio-3503, and State v. Brown, 4th Dist. Ross No. 05CA2855, 2006-Ohio-1716. In

Sutton, the trial court informed the defendant that she could “be brought back into court

and sentenced up to six months in jail” if she violated her community control sanction. Id.

at ¶ 11. In McDonald, the court advised the defendant “that if he failed to comply with the

community control sanctions, he could ‘be brought back in to court and sentenced up to

six months in jail.’ ” Id. at ¶ 3. In Brown, the court informed the defendant “that a violation

[of his community control sanction] could result in a sentence of ‘up to six months’ and a

fine ‘up to a thousand dollars.’ ” Id. at ¶ 1. In each of these cases, the Fourth District

held that the language was sufficient to place each defendant on notice that they would

be subject to a jail term if they violated their community control sanction.

       {¶16} In the instant case, the court advised Appellant that he would be subject to

the remainder of his eight month sentence after serving the three months he was directly

given. The court sentenced Appellant to five months in jail after he violated his community

control sanction. While not a model of clarity, Appellant was notified of his specific five

month sentence for possible violation of community control. Regardless, the court was

not required to notify Appellant of the specific jail term he would receive. The court was

only required to inform him that it could impose a jail term. This record reflects that the

court complied with R.C. 2929.15(A)(3)(c).




Case No. 18 MA 0077
                                                                                         –8–


       {¶17} It does not appear Appellant is contesting the trial court’s advisement of the

R.C. 2929.25(A)(3)(a), (b) notifications. We note that the trial court did fail to comply with

these notifications. The court’s failure in this regard does not create reversible error,

however, because the court did not impose either of the punishments in these

subsections: a longer community control sanction or a more restrictive community control

sanction. When the trial court fails to comply with a subsection of R.C. 2929.25(A)(3) but

does not impose the punishment found within the missing subsections, such error is

harmless. Sutton at ¶ 15.

       {¶18} Accordingly, Appellant’s sole assignment of error is without merit and is

overruled.

                                         Conclusion

       {¶19} Appellant argues that the trial court failed to inform him at the original

sentencing hearing that, if he violated the terms of his community control sanction, a

definite jail term could be imposed. He also argues that the court failed to specify the

length of such jail sentence. Hence, he contends the court lacked the ability to impose

any jail sentence following his community control sanction violation. For the reasons

provided, Appellant’s arguments are without merit and the judgment of the trial court is

affirmed.


Donofrio, J., concurs.

D’Apolito, J., concurs.




Case No. 18 MA 0077
[Cite as State v. Coffer, 2020-Ohio-994.]




          For the reasons stated in the Opinion rendered herein, the assignment of error

 is overruled and it is the final judgment and order of this Court that the judgment of the

 Youngstown Municipal Court of Mahoning County, Ohio, is affirmed. Costs waived.

          A certified copy of this opinion and judgment entry shall constitute the mandate

 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

 a certified copy be sent by the clerk to the trial court to carry this judgment into

 execution.




                                            NOTICE TO COUNSEL

          This document constitutes a final judgment entry.
