[Cite as State v. McClurg, 2018-Ohio-3840.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                       Hon. William B. Hoffman, J.
                                                 Hon. Patricia A. Delaney, J.
-vs-
                                                 Case No. 17CA98
JAMES MCCLURG

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Richland County Court of
                                              Common Pleas, Case No. 2012CR0339


JUDGMENT:                                     Vacated and Remanded

DATE OF JUDGMENT ENTRY:                        September 20, 2018

APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


GARY BISHOP                                   JEFFREY P. UHRICH
Prosecuting Attoney                           Law Office of Jeffrey P. Uhrich
Richland County, Ohio                         P.O. Box 1977
                                              Westerville, OH 43086
By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
[Cite as State v. McClurg, 2018-Ohio-3840.]


Hoffman, J.


        {¶1}    Defendant-appellant James McClurg appeals the October 27, 2017

Community Control Violation Journal Entry entered by the Richland County Court of

Common Pleas, which found him guilty of violating his community control after Appellant

admitted such violation, and sentenced him to a two year prison term. Plaintiff-appellee

is the state of Ohio.

                                        STATEMENT OF THE CASE

        {¶2}    On June 28, 2012, Appellant pled guilty to a Bill of Information charging him

with one count of burglary, in violation of R.C. 2911.12(A)(1), a felony of the third degree.

The trial court sentenced Appellant to 30 months of community control with a two year

suspended prison term to be served upon any violation of his probation.

        {¶3}    On February 4, 2013, a notice was filed with the trial court, alleging

Appellant had violated his community control sanctions. Appellant appeared before the

trial court on February 15, 2013, and admitted the violations. The trial court continued

Appellant on community control with the additional requirement he successfully complete

a program at a community-based correction facility (“CBCF”). The trial court filed a

Community Control Violation Journal Entry on February 15, 2013.

        {¶4}    On December 23, 2013, a notice was filed with the trial court, alleging

Appellant had again violated his community control sanctions. Appellant appeared before

the trial court of March 24, 2014, and admitted the violations. The trial court extended

Appellant’s probation, but tolled the term until he was released from prison on an

unrelated case (“Case No. 2013-CR-839”). The trial court filed a Community Control
Violation Journal Entry on March 24, 2014, however, the entry did not indicate the length

of the original suspended prison term that could be imposed upon a subsequent violation.

      {¶5}   On March 29, 2017, the trial court filed an entry captioned, “Additional

Community Control Sanctions”, which ordered Appellant to successfully complete a

program at Crosswaeh CBCF as an additional community control sanction.                 On

September 11, 2017, after Appellant completed his prison term in Case No. 2013-CR-

839, a notice of probation violation was filed, alleging Appellant failed to complete CBCF.

Appellant filed a Motion and Memorandum Contra Imposition of Prison Sanction on

October 5, 2017. Therein, Appellant argued the trial court failed to notify him of the

specific prison sentence at his last probation violation sentencing, and, as such, was now

prohibited from imposing a prison sanction for the current community control violation.

The state filed a response on October 20, 2017.

      {¶6}   Appellant admitted the probation violation on October 25, 2017.           Via

Community Control Violation Journal Entry filed October 27, 2017, the trial court

sentenced Appellant to the original two year prison term.

      {¶7}   It is from this judgment entry, Appellant appeals, raising the following

assignments of error:



             I.   THE    TRIAL    COURT      ERRED      IN   OVERRULING        THE

      APPELLANT’S       10/5/17    MOTION     AND     MEMORANDUM          CONTRA

      IMPOSITION        OF     PRISON      SANCTION,         AND    THEREAFTER

      SENTENCING DEFENDANT TO SERVE A TWO YEAR PRISON

      SENTENCE, ALTHOUGH NO PRISON SENTENCE WAS SPECIFIED IN
       PREVIOUS        COMMUNITY          CONTROL         VIOLATION        SANCTION

       SENTENCING ENTRY.

              II.THE TRIAL COURT ERRED WHEN IT ADDED AN ADDITIONAL

       COMMUNITY CONTROL VIOLATION TO CONDITIONS PREVIOUSLY

       IMPOSED      THREE      YEARS      PRIOR,       WITHOUT     AN    ADDITIONAL

       VIOLATION OR HEARING.



                                                  I.

       {¶8}   In his first assignment of error, Appellant contends the trial court erred in

overruling his Motion and Memorandum Contra Imposition of Prison Sanction, and

sentencing him to serve a two year prison term when a prison term had not been specified

in the March 24, 2014 Community Control Violation Journal Entry.

       {¶9}   Appellant relies upon the Ohio Supreme Court’s decision in State v. Fraley,

105 Ohio St.3d 13, 2004–Ohio–7110, in support of his position the trial court was required

to re-advise him of the specific prison term he faced at each subsequent community

control violation hearing. We agree.

       {¶10} In Fraley, the trial court failed to inform the defendant at his initial sentencing

hearing of the prison term which could be imposed if he violated the terms of his

community control. Id. at ¶ 19. The trial court did, however, notify Fraley by journal entry

that harsher sanctions, including up to five years of imprisonment, could be imposed if he

failed to comply with the sanctions. Id. At a later hearing, when Fraley was continued on

community control, the trial court specifically advised him he would be sentenced to a

prison term of four years for a community control violation. Id. The Ohio Supreme Court
considered “whether a trial court is mandated to notify a defendant at the initial sentencing

hearing of a specific term of imprisonment that could be imposed if a defendant violates

the terms and conditions of his community control, or whether such notification may come

at a later sentencing hearing.” Id. at ¶ 11. (Emphasis added.)

       {¶11} The Fraley Court answered the question in the affirmative, holding the

“original sentencing hearing is the time when the notification must be given for the court

to impose a prison term upon a defendant's first community control violation.” Id. at ¶ 15.

(Emphasis in original.) The Fraley Court further noted, for subsequent violations, a prison

term may be imposed if the court properly notified the defendant of the specific prison

term when continuing or “resentencing” the defendant to community control. The Court

held, when there are multiple violations of community control, “a trial court sentencing an

offender upon a violation of the offender's community control sanction must, at the time

of such sentencing, notify the offender of the specific prison term that may be imposed

for an additional violation of the conditions of the sanctions as a prerequisite to imposing

a prison term on the offender for a subsequent violation.” Id. at ¶ 18. (Emphasis added.)

       {¶12} The state asserts the trial court gave Appellant adequate warning of the

specific sentence which would be imposed upon violation of his community control

sanctions at his original sentencing; therefore, the trial court was not required to re-advise

him of the penalties for a subsequent violation. The state relies upon State v. Hodge, 8th

Dist. Cuyahoga No. 93245, 2010-Ohio-78, 2010 WL 125861, in support of its position.

       {¶13} In Hodge, the appellant pled guilty to one count of breaking and entering.

Id. at para. 2. The trial court sentenced him to one year of community control sanctions

and advised him: “Any violations of this order may result in imposing a longer period of
supervision, more restrictive community control sanctions or a prison term. The fine for

violation of this order will be $2500. The prison term for violation of this order will be 12

months in prison.” Id. The appellant violated his community control sanctions twice. Id.

at para. 3.   After the first violation, the court ordered him to complete inpatient drug

treatment, and stated in its judgment entry “community control is continued with prior

conditions.” Id. After the second violation, the trial court sentenced the appellant to nine

months in prison. Id. On appeal, the appellant, relying on the Fraley, argued the trial court

erred in sentencing him to prison because it did not advise him again after his first violation

a prison term could be imposed.

       {¶14} The Eighth District Court of Appeals declined to follow Fraley, finding:



              While we agree that the language in Fraley might support that

       conclusion, in context, it does not. Fraley is based upon a wholly different

       set of facts than our case at bar. Hodge's original sentence was not legally

       deficient; Fraley's was.

              We construe the holding of the Supreme Court in Fraley narrowly to

       mean that a trial court that fails to notify a defendant of the specific penalty

       he will face upon violation of community control sanctions at the initial

       sentencing, may “cure” that failure at a subsequent violation hearing by then

       advising the defendant of the definite term of imprisonment that may be

       imposed upon any subsequent finding of violation. We find nothing in the

       statute or Fraley that requires a legally adequate notification in the first

       instance to be given over and over again. Id.at 9.
      {¶15} In her dissent in Hodge, Judge Colleen Conway Cooney wrote:



             I respectfully dissent. I read the syllabus of State v. Fraley, 105 Ohio

      St.3d 13, 821 N.E.2d 995, 2004-Ohio-7110, to clearly state that a trial court

      sentencing an offender upon a violation of community control must, at the

      time of such sentencing, notify the offender of the specific prison term that

      may be imposed for an additional violation of the conditions as a

      prerequisite to imposing a prison term for a subsequent violation.

             In the instant case, the trial court failed to notify Hodge at the October

      2008 violation hearing of the specific prison term he faced for a subsequent

      violation. Therefore, I would reverse the trial court's imposition of a prison

      term. Id. at 12 and 13.



      {¶16} We agree with Judge Conway Cooney’s dissent and find the syllabus in

Fraley is clear. The syllabus reads:



             Pursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court

      sentencing an offender upon a violation of the offender's community control

      sanction must, at the time of such sentencing, notify the offender of the

      specific prison term that may be imposed for an additional violation of the

      conditions of the sanction as a prerequisite to imposing a prison term on the

      offender for a subsequent violation. Fraley, supra at syllabus.
      {¶17}    Although the trial court notified Appellant at his original sentencing hearing

and in the entry which memorialized it of the specific sentence of imprisonment which

could be imposed upon a probation violation, the trial court failed to re-advise Appellant

of the sentence when he appeared in court on March 24, 2014, upon a subsequent

violation. As the Ohio Supreme Court explained:



              The notification requirement in R.C. 2929.19(B)(5) is meant to put

      the offender on notice of the specific prison term he or she faces if a violation

      of the conditions occurs. Following a community control violation, the trial

      court conducts a second sentencing hearing. At this second hearing, the

      court sentences the offender anew and must comply with the relevant

      sentencing statutes. State v. Martin, 8th Dist. No. 82140, 2003-Ohio-3381,

      2003 WL 21474154, at ¶ 35. The trial court could therefore comply with both

      the sentencing statutes and our holding in Brooks if at this second hearing

      the court notifies the offender of the specific prison term that may be

      imposed for a subsequent violation occurring after this second hearing. We

      believe that this process complies with the letter and spirit of R.C.

      2929.19(B)(5) and 2929.15(B).

      Fraley, supra at 17. (Emphasis added.)



      {¶18} Accordingly, we find the trial court erred in imposing the suspended prison

term in October, 2017, because it failed to specifically inform Appellant of the possible
two year prison sentence which could be imposed upon a community control violation at

his sentencing hearing in March, 2014.

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

                                            II.

      {¶20} In light of our disposition of Appellant’s first assignment of error, we find

Appellant’s second assignment of error to be moot.

      {¶21} The sentence of the Richland County Court of Common Pleas is vacated

and the matter remanded for resentencing.


By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur
