[Cite as State v. Cox, 2010-Ohio-3799.]




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



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 2-09-31

        v.

KYLE W. COX,                                            OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 2-09-32

        v.

KYLE W. COX,                                            OPINION

        DEFENDANT-APPELLANT.


                Appeals from Auglaize County Common Pleas Court
                  Trial Court Nos. 2005-CR-17 and 2006-CR-179

                    Appeal Dismissed in Case No. 2-09-31
          Judgment Reversed and Cause Remanded in Case No. 2-09-32

                            Date of Decision: August 16, 2010
Case No. 2-09-31 and 2-09-32


APPEARANCES:

        Terrence K. Scott for Appellant

        Edwin Pierce and Amy Otley Beckett for Appellee




ROGERS, J.

        {¶1} Defendant-Appellant, Kyle Cox, appeals from the judgments of the

Court of Common Pleas of Auglaize County convicting him of violating the terms

of his community control and sentencing him to an eighty-three-month prison

term. On appeal, Cox argues that the trial court erred in failing to advise him of

the specific prison term that would be imposed if he violated the terms of his

community control. Based on the following, we reverse the judgment of the trial

court in case number 2-09-32, and dismiss the appeal in case number 2-09-31.

        {¶2} This consolidated appeal stems from two separate convictions and

sentences. In January 2005, in case number 2005 CR 00171, Cox was indicted by

the Auglaize County Grand Jury on eleven counts: five counts of forgery in

violation of R.C. 2913.31(A)(3), felonies of the fifth degree; one count of forgery

in violation of R.C. 2913.31(A)(3), a felony of the fourth degree; two counts of

grand theft in violation of R.C. 2913.02(A)(3), felonies of the fourth degree; one



1
  We note that case number 2-09-31 corresponds to trial court case number 2005 CR 0017, and case
number 2-09-32 corresponds to trial court case number 2006 CR 0179.


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Case No. 2-09-31 and 2-09-32


count of theft in violation of R.C. 2913.02(A)(3), a felony of the fifth degree; one

count of passing bad checks in violation of R.C. 2913.11(B)2, a felony of the

fourth degree; and, one count of possessing criminal tools in violation of R.C.

2923.24(A), a felony of the fifth degree. The indictment arose from a series of

fraudulent bank transactions in which Cox forged checks to various banks and

withdrew funds off the forged instruments.

        {¶3} In February 2005, Cox entered a not guilty plea to all charges in the

indictment.

        {¶4} In March 2005, pursuant to a plea agreement, Cox withdrew his not

guilty pleas on the two counts of fifth degree forgery, one count of fourth degree

forgery, two counts of grand theft, and one count of theft, and entered guilty pleas

on these counts, with the five remaining counts dismissed. The trial court then

sentenced him to a nine-month prison term on a fifth degree forgery and a ten-

month prison term on each remaining count, to be served consecutively, for a total

prison term of fifty-nine months.

        {¶5} In June 2005, in trial court case number 2006 CR 0179, Cox was

indicted by the Auglaize County Grand Jury on three counts of theft in violation of

R.C. 2913.02(A)(3), felonies of the fifth degree, and one count of forgery in



2
  We note that the indictment charged Cox under R.C. 2913.11(A). However, we find this to be a
typographical error, as section (A) merely contains definitions, and the language for this count in the
indictment mirrors that found in R.C. 2913.11(B).


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Case No. 2-09-31 and 2-09-32


violation of R.C. 2913.31(A)(2), a felony of the fifth degree.

         {¶6} In October 2006, Cox entered a not guilty plea to all counts in the

indictment.

         {¶7} In March 2007, pursuant to a plea agreement, Cox withdrew his not

guilty plea on one count of theft and the count of forgery, and entered guilty pleas

to both counts, with the two remaining counts dismissed. The trial court then

sentenced him to a lump sum term of five years of community control for both

counts. The trial court’s judgment entry stated, in pertinent part, as follows:

         The Defendant is hereby NOTIFIED that if the conditions of the
         Community Control Sanctions are violated, the Court may
         impose a longer time under the same sanctions or more
         restrictive Community Control Sanctions, or may impose a
         prison term of TWELVE (12) MONTHS ON COUNT I and
         TWELVE (12) MONTHS ON COUNT IV, to run
         CONSECUTIVELY for a total prison sentence of TWENTY
         FOUR (24) MONTHS, plus POST RELEASE CONTROL
         TIME.

(Mar. 2007 Journal Entry- Orders on Finding of Guilt & Sentence, p. 4).

However, when sentencing Cox, the trial court stated the following from the

bench:

         If you’re found guilty of violating your community control
         sanctions, because one of those community control sanctions
         includes standard conditions of supervision which include you
         can’t violate any law, then, at that time, whoever is sitting here,
         could resentence you in this case for up to the twenty-four
         months plus three years of post release control and could make
         it consecutive to the time you’re doing in the other case, however
         much that is.


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Case No. 2-09-31 and 2-09-32



(Mar. 2007 Change of Plea/Sentencing Hearing Tr., pp. 16-17).

       {¶8} In July 2007, Cox filed a motion for judicial release in case number

2005 CR 0017. Following a hearing on the motion, the trial court granted judicial

release and imposed certain community control sanctions, stating the following

from the bench:

       Do you recognize that if I grant you release on this judicial
       release and notify you of your sentence, that if I resentence you,
       I can run these two cases consecutively?

       ***

       So you get the twenty-four [months] on the one plus what’s left
       of the fifty-nine [months] on the other. And I would do it in that
       fashion. It would be the twenty-four [months] plus the fifty-nine
       [months] with whatever credit you’ve got.

       ***

       * * *[I]f you violate your community control sanctions, the
       Court can impose more restrictive combinations of community
       control or can sentence you to fifty-nine months in the
       penitentiary on this case consecutive to the twenty-four months
       that you have hanging over your head in case 2006 CR 179, plus
       three years of post release control.

(July 2007 Hearing on Motion for Judicial Release Tr., pp. 5, 6, 15). The trial

court also stated the following in its judgment entry:

       It is hereby ORDERED that Defendant be Granted Judicial
       Release and sentenced to Five (5) years of Community Control
       Sanctions * * *.

       ***


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Case No. 2-09-31 and 2-09-32



        The Defendant is hereby NOTIFIED that if the conditions of the
        Community Control Sanctions are violated, the Court may
        impose a longer time under the same sanctions or more
        restrictive Community Control Sanctions, or may impose a
        prison term of FIFTY-NINE (59) MONTHS to run
        CONSECUTIVE to the TWENTY-FOUR (24) MONTHS in
        Case No: 2006-CR-179, plus POST RELEASE CONTROL
        TIME OF THREE (3) YEARS.

(July 2009 Journal Entry- Orders Granting Judicial Release, pp. 1-2).

        {¶9} In October 2009, a motion for a hearing on community control3

violations was filed in both cases, stating that Cox violated several conditions of

his supervision as a result of his arrest in Michigan; his issuance of a negotiable

instrument that was dishonored; and, his failure to report to his supervising officer,

to keep his supervising officer informed of his residence, to maintain full-time

employment, and to submit a log of all income and expenses to his supervising

officer.

        {¶10} In November 2009, Cox entered an admission to the violations in

both cases, and the trial court re-imposed the fifty-nine-month prison term in case

number 2005-CR-0017, and the twenty-four-month prison term in case number

2006-CR-0179, to be served consecutively, for a total prison term of eighty-three




3
  Trial courts continue to misapply the term community control when actually referring to judicial release.
While this may be because community control sanctions are imposed when judicial release is granted,
judicial release is different from and not synonymous with community control. See State v. Smith, 3d Dist.
No. 14-06-15, 2006-Ohio-5972, ¶¶9-10; State v. Jones, 3d Dist. Nos. 10-07-26, 10-07-27, 2008-Ohio-2117,
¶12.


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Case No. 2-09-31 and 2-09-32


months.

      {¶11} It is from these judgments that Cox appeals, presenting the following

assignment of error for our review.

      KYLE COX WAS DEPRIVED OF HIS RIGHT TO DUE
      PROCESS UNDER THE FOURTEENTH AMENDMENT TO
      THE UNITED STATES CONSTITUTION AND SECTION 16,
      ARTICLE I OF THE OHIO CONSTITUTION WHEN THE
      TRIAL COURT FAILED TO NOTIFY HIM OF THE
      SPECIFIC PRISON TERM THAT WOULD BE IMPOSED IF
      HE    VIOLATED          THE       COMMUNITY-CONTROL
      SANCTIONS. (TR. AUGLAIZE COUNTY CASE NO 05-CR-
      17 MARCH 15, 2007, P. 17, LINE 4.)

      {¶12} We initially note that Cox’s assignment of error pertains only to his

conviction in case number 2006-CR-0179.        Accordingly, because there is no

assignment of error pertaining to case number 2005-CR-0017, we dismiss his

appeal from that judgment.

      {¶13} In his sole assignment of error, Cox argues that he was deprived of

his due process right under the Ohio and United States Constitutions to be notified

of the specific prison term that would be imposed if he violated the terms of his

community control. Specifically, he contends that the trial court did not notify

him both on the record and in the judgment entry that he would receive a twenty-

four-month prison term if he violated the terms of his community control, but

merely stated that he could receive up to a twenty-four-month prison term.




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Case No. 2-09-31 and 2-09-32


        {¶14} R.C. 2929.19 governs felony sentencing, and provides, in pertinent

part:

        If the sentencing court determines at the sentencing hearing that
        a community control sanction should be imposed and the court
        is not prohibited from imposing a community control sanction,
        the court shall impose a community control sanction. The court
        shall notify the offender that, if the conditions of the sanction are
        violated, if the offender commits a violation of any law, or if the
        offender leaves this state without the permission of the court or
        the offender's probation officer, the court may impose a longer
        time under the same sanction, may impose a more restrictive
        sanction, or may impose a prison term on the offender and shall
        indicate the specific prison term that may be imposed as a
        sanction for the violation, as selected by the court from the range
        of prison terms for the offense pursuant to section 2929.14 of the
        Revised Code.

R.C. 2929.19(B)(5).

        {¶15} In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, the

Supreme Court of Ohio found that, in order to comply with the notice requirement

of R.C. 2929.19(B)(5), “the judge should not simply notify the offender that if the

community control conditions are violated, he or she will receive ‘the maximum,’

or a range, such as ‘six to twelve months,’ or some other indefinite term, such as

‘up to 12 months.’ The judge is required to notify the offender of the ‘specific’

term the offender faces for violating community control.” Id. at ¶19. The Court

went on to state that there must be strict compliance with the specific notice

requirement, with “notification given in a court’s journal entry issued after

sentencing * * * not comply[ing] with R.C. 2929.19(B)(5),” id. at ¶18; and, that,


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Case No. 2-09-31 and 2-09-32


where the trial court fails to properly notify a defendant of a specific prison term,

“and the offender then appeals after a prison term is imposed * * *, the matter

must be remanded to the trial court for a resentencing under that provision with a

prison term not an option.” Id. at ¶33.

       {¶16} Moreover, this Court has found that a trial court’s notification to a

defendant that he may receive a prison term “up to” a certain amount of time for

violating a term of community control is insufficiently specific under R.C.

2929.19(B)(5) and Brooks. See, State v. Miller-Nelson, 3d Dist. No. 14-07-04,

2007-Ohio-4495; State v. Moore, 3d Dist. Nos. 5-07-18, 5-07-20, 5-07-21, 2008-

Ohio-1152.

       {¶17} In case number 2006 CR 0179, the trial court sentenced Cox to a

five-year term of community control, and, at the sentencing hearing, stated that

Cox could receive “up to” a twenty-four-month prison term for violating the terms

of community control. Additionally, the trial court did not specify the reserved

prison term for each count. Although the trial court’s sentencing entry specifically

provided that Cox could be sentenced to a twenty-four-month prison term should

he violate the terms of community control, the trial court failed to strictly comply

with R.C. 2929.19(B)(5) by providing specific notice at the sentencing hearing.

“Notification given in a court’s journal entry issued after sentencing does not

comply with R.C. 2929.19(B)(5).” Brooks, 103 Ohio St.3d 134, at ¶18.



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Case No. 2-09-31 and 2-09-32


       {¶18} Consequently, because the trial court failed to properly notify Cox of

a specific prison term it could impose upon him should be violate the terms of

community control, we find the trial court erred in imposing a prison term upon

Cox’s violation of community control.

       {¶19} Accordingly, we sustain Cox’s assignment of error, reverse his

sentence in case number 2006 CR 0179, and remand to the trial court for

resentencing with a prison term not an option.

       {¶20} Finally, although we have sustained Cox’s assignment of error, we

also note that the trial court failed to properly sentence Cox to community control

in case number 2006 CR 0179. Cox pled guilty to one count of theft and one

count of forgery; however, the trial court imposed one lump sum term of five

years of community control, thereby failing to impose a separate sentence on each

count, and necessitating resentencing. See State v. Moore, 3d Dist. No. 14-06-53,

2007-Ohio-4941, ¶10, citing State v. Hayes, 9th Dist. No. 99CA007416, 2000 WL

670672.

       {¶21} Having found error prejudicial to the appellant herein in the

particulars assigned and argued in case number 2-09-32, and in the trial court’s

imposition of a lump sum term of community control, we vacate the original

sentence of the trial court and remand the matter with instructions to resentence on




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Case No. 2-09-31 and 2-09-32


each count separately consistent with this opinion. Moreover, having found no

assignment of error pertaining to case number 2-09-31, we dismiss the appeal.

                                      Appeal Dismissed in Case Number 2-09-31

                                                Judgment Reversed and Cause
                                             Remanded in Case Number 2-09-32

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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