State v. Robinson

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[Cite as State v. Robinson, 2022-Ohio-1451.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT BELMONT COUNTY STATE OF OHIO, Plaintiff-Appellee, v. DWAN JABARE ROBINSON, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 21 BE 0001 Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 20 CR 124 BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges. JUDGMENT: Reversed and Remanded. Sentence Vacated. Atty. J. Kevin Flanagan, Belmont County Prosecuting Attorney and Atty. Daniel P. Fry, Assistant Prosecuting Attorney, 52160 National Road, St. Clairsville, Ohio 43950, for Plaintiff-Appellee –2– Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, 755 White Pond Drive, Suite 403, Akron, Ohio 44320, for Defendant-Appellant. Dated: March 25, 2022 WAITE, J. {¶1} Appellant Dwan Jabare Robinson appeals a December 4, 2020 Belmont County Court of Common Pleas judgment entry convicting him of one count of aggravated possession of drugs and entering sentence. Appellant only appeals his sentence in this matter, challenging both the court’s failure to make the requisite R.C. 2929.14(C) consecutive sentence findings and the court’s imposition of a sentence greater than the maximum sentence allowed by law. For the reasons provided, Appellant’s arguments have merit. Appellant’s convictions, which were not challenged on appeal, are affirmed. However, the judgment of the trial court as to Appellant’s sentence is reversed and vacated. This matter is remanded for the purpose of addressing consecutive sentences, clarification of an Eastern Ohio Community Corrections (“EOCC”) term, and for resentencing without the option of a reserved prison sentence. Factual and Procedural History {¶2} Because Appellant entered into a plea agreement, the facts of this case are limited. However, on June 5, 2020, Appellant was indicted on one count of aggravated possession of drugs. An incident report attached to his PSI reveals that Appellant was incarcerated for a conviction arising out of Franklin County. Apparently, someone at the prison informed a corrections officer that Appellant had drugs on his person. The officer attempted to search him, but Appellant would not cooperate. The officer then stripsearched him and discovered suspected drugs. Appellant claimed that he did not bring Case No. 21 BE 0001 –3– the drugs into the facility. He alleged that an unnamed corrections officer brought the drugs into the facility and gave them to another inmate. Appellant was asked to hold onto the drugs while the other inmate went to the main compound. {¶3} On October 23, 2020, Appellant pleaded guilty to the sole charged offense. However, at the sentencing hearing there was apparently some confusion. Prior to announcing the sentence, the trial court stated: “[t]his Court has reviewed the Acceptance Report from EOCC, which is a denial, not appropriate for placement due to extensive criminal behavior that [Appellant] consistently demonstrates even while incarcerated.” (11/30/20 Sentencing Hrg. Tr., p. 4.) Despite the fact that EOCC had apparently denied Appellant placement, the trial court ordered a six-month EOCC term as part of Appellant’s sentence. The court also imposed six months of incarceration to be served at the Belmont County Jail. These appear to be included as part of an overall three-year community control sanction. {¶4} The court’s sentencing entry created further confusion, as it imposed the same three-year community control term, with six months to be served at the jail and six months to be served at EOCC, but additionally reserved a six-month term of incarceration in the event that Appellant violated his community control. The court did not mention this reserved term at the sentencing hearing. The court ordered the sentence to run consecutively to the sentence ordered by Franklin County that Appellant was serving at the time. Appellant was sentenced in this matter on December 4, 2020. The trial court did not award jail time credit, as Appellant had been serving a separate sentence for the Franklin County charge during the relevant time period. Case No. 21 BE 0001 –4– {¶5} On October 7, 2021, Appellant filed a motion for stay of sentence pending appeal. On October 13, 2021, we denied the motion. We noted that Appellant had recently been denied judicial release due to an incident at the prison. {¶6} Although the exact date is unknown, it appears that Appellant completed serving his sentence for the Franklin County conviction in October of 2021 and was transferred to the Belmont County jail to begin serving his six-month term at that facility. It appears he will be released from the jail in mid-April of 2022. {¶7} For ease of understanding, Appellant’s assignments of error will be addressed out of order. Sua Sponte Issues {¶8} There are several issues not raised by the parties that affect resolution of this appeal. First, the trial court did not reserve a prison sentence in the event of a community control violation at the sentencing hearing, but did so as part of its judgment entry. {¶9} Pursuant to R.C. 2929.19(B)(4): 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 Case No. 21 BE 0001 –5– restrictive sanction, or may impose a prison term on the offender and shall indicate the range from which the prison term may be imposed as a sanction for the violation, which shall be the range of prison terms for the offense that is specified pursuant to section 2929.14 of the Revised Code and as described in section 2929.15 of the Revised Code. {¶10} Relying on the statute, the Ohio Supreme Court has held that “a trial court sentencing an offender to a community control sanction is required to deliver the statutorily detailed notifications at the sentencing hearing.” State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 15. We note that the statute has not changed in content but has a new subsection number. Thus, while the Brooks Court cited to R.C. 2929.19(B)(5), that law is now found at R.C. 2929.19(B)(4), as cited above. {¶11} The trial court in this matter did not provide any of the R.C. 2929.19(B)(4) notifications at the sentencing hearing. The court stated: “I sentence the defendant to six months in the Belmont County Jail and six months at EOCC. That is going to be three years of community control sanctions. That is to commence upon the termination of his current sentence.” (11/30/20 Sentencing Hrg. Tr., p. 5.) The court proceeded to provide Appellant with his notice of postrelease control and ended the hearing. While the state contended at oral argument that the trial court did provide the necessary R.C. 2929.19(B)(4) notifications, but not clearly, we find no reference to a reserved prison term, or to any of the R.C. 2929.19(B)(4) notifications, in the sentencing transcripts. {¶12} The Supreme Court addressed the remedy for such an error in Brooks: Case No. 21 BE 0001 –6– We begin by agreeing with those courts that have found that, when a trial court judge gives no notice whatsoever under R.C. 2929.19(B)(5) to an offender being sentenced to community control of any prison term that may be imposed if the conditions of community control are violated, a prison term may not be imposed for violation of the conditions. See, e.g., State v. Jones, 7th Dist. No. 02 HA 547, 2003-Ohio-5152, ¶ 24 (although appellate courts disagree over the exactness with which trial courts must comply with R.C. 2929.19[B][5], all appellate courts agree that some notification under the statute must occur). Id. at ¶ 8. {¶13} The Brooks Court also rejected an argument that the notifications are sufficient if they were given at the plea hearing or within the sentencing entry. Id. at ¶ 1518. {¶14} Because the trial court in this matter failed to provide the requisite R.C. 2929.19(B)(4) notifications at the initial sentencing hearing, the matter is remanded for a limited resentencing. Consistent with Brooks, on remand the trial court cannot impose a reserved prison sentence in the event of a community control violation, as that option is no longer available. In other words, the error cannot be later cured. {¶15} Secondly, prior to the initial sentencing, EOCC denied Appellant placement in the facility based on his lengthy criminal record. The trial court acknowledged this denial at the hearing, yet imposed a six-month EOCC term as part of Appellant’s sentence. (11/30/20 Sentencing Hrg. Tr., p. 4.) The significance of the EOCC term is Case No. 21 BE 0001 –7– unclear, in part because the record is silent as to whether Appellant can reapply to EOCC in the future or whether the EOCC denial is a final decision. {¶16} We note that on March 22, 2021, after the notice of appeal was filed, the trial court filed a judgment entry describing a status conference that was held “regarding the inability of the Eastern Ohio Correction Center to accept [Appellant] into their facility.” (3/23/21 J.E.) It is unclear who raised the issue and why a status conference was scheduled for purposes of addressing this issue while this appeal was pending. However, in the judgment entry, the trial court acknowledged that it lacked jurisdiction to address the issue due to the pendency of an appeal, but stated that it would act if ordered to do so by this Court. {¶17} On remand, the trial court is instructed to either remove the portion of the sentence as it relates to EOCC if the denial of placement is a final decision or to clarify that Appellant would be eligible to reapply for placement in EOCC after his release from the jail if the decision is not final. {¶18} Third, the trial court made inconsistent statements concerning whether the imposition of a community control sanction would demean the seriousness of the offense when discussing the requisite R.C. 2929.11 findings. In the court’s entry, it first provides: In view of the above stated findings, this Court finds that Community Control Sanctions or a combination of Community Control Sanctions would not adequately punish the offender and protect the public from future crime and a Community Control Sanction or a combination of Community Control Sanctions would demean the seriousness of the offense.” added.) Case No. 21 BE 0001 (Emphasis –8– (12/4/20 J.E., p. 2.) However, several paragraphs later the court ordered: “[t]herefore, the Court sentences the Defendant to Three (3) Years Community Control Sanctions * * *.” (Emphasis deleted.) (12/4/20 J.E., p. 2.) Thus, the court found that a community control or hybrid community control sanction was inappropriate, but then sentenced Appellant to exactly this sanction. {¶19} A trial court must enter a finding as to whether a defendant is amendable to a community control sanction and, based on that finding, the court must determine whether a prison sentence is consistent with the principles and purposes of sentencing as part of R.C. 2929.11. The trial court is further instructed on remand to correct this inconsistency within its judgment entry following a resentencing hearing. {¶20} In summation, on remand, the trial court is instructed to hold a resentencing hearing for the purpose of clarifying the EOCC portion of Appellant’s sentence, correcting the inconsistency within the judgment entry as it pertains to R.C. 2929.11, and eliminating the reserved prison sentence. ASSIGNMENT OF ERROR NO. 2 The trial court's sentence, which imposed a maximum term of incarceration and reserved a prison sentence beyond the maximum term allowed for a fifth-degree felony, was contrary to law. {¶21} Appellant asserts that the maximum sentence for a felony of the fifth degree is twelve months. Here, the trial court imposed a six-month jail sentence and a six-month EOCC sentence, which in the aggregate constitutes the maximum sentence. However, the court then imposed a six-month prison term in the event Appellant violates his Case No. 21 BE 0001 –9– community control sanction. Appellant urges that this portion of the sentence exceeds the maximum sentence allowed by law. {¶22} In response, the state concedes that Appellant cannot serve a day over the twelve-month maximum sentence prescribed by law. However, the state contends that if Appellant violates the terms of his community control sanction before the expiration of his jail and EOCC sentences, the court could impose that six-month sentence of incarceration without exceeding the maximum sentence. {¶23} As previously discussed, because the trial court failed to notify Appellant of the reserved prison term at the sentencing hearing, it is no longer an option available for the court to impose. Thus, there no longer remains a possibility that Appellant will serve more than the maximum sentence allowed by law and Appellant’s second assignment of error is moot. ASSIGNMENT OF ERROR NO. 1 The trial court's sentence of Appellant, which imposed a consecutive sentence without including the required findings under R.C. 2929.14(C)(4), was contrary to law. {¶24} Appellant argues that the trial court erroneously imposed consecutive sentences without making the requisite R.C. 2929.14(C) findings. Appellant explains that a jail sentence constitutes imprisonment pursuant to R.C. 1.05 and EOCC is a form of imprisonment under R.C. 2967.141. Thus, the trial court was required to make the requisite findings before imposing a consecutive sentence. Case No. 21 BE 0001 – 10 – {¶25} In response, the state argues that the findings are not required where a prison term is not imposed, raising State v. Bates, 6th Dist. Williams No. WM-12-002, 2013-Ohio-1270 and State v. Hess, 11th Dist. Portage No. 2018-P-0106, 2019-Ohio4223. {¶26} The state did not provide a citation for the Hess case on which it relies, and there are several with this caption. However, it appears that the state refers to the abovecited case. In that case, the trial court sentenced the appellant to a community control term that included 180 days in jail. Id. at ¶ 15. The court also reserved an 18-month prison term per offense in the event of a community control violation. The court stated that, if imposed, those sentences would run consecutively. {¶27} On appeal, the appellant argued that the trial court erroneously imposed consecutive sentences without making the requisite findings. The Hess court held that the trial court was not required to make the consecutive sentence findings because the court did not actually impose a consecutive sentence. Id. at ¶ 33. The court merely reserved the right to impose this sentence in the event of a community control violation. {¶28} In Bates, the trial court sentenced the appellant to a four-year community control term. The opinion does not include the reserved term but it appears from the limited analysis that the consecutive sentence would only be imposed in the event that the appellant violated the terms of his community control. Id. at ¶ 68. {¶29} Importantly, the trial court in the instant matter sentenced Appellant to both a jail and EOCC term and ordered the sentence to run consecutively to the sentence he was serving at the time for the Franklin County case. Thus, unlike Hess and Bates, the court in the instant matter actually imposed a consecutive sentence. The reserved prison Case No. 21 BE 0001 – 11 – term as applied to this specific issue has no relevance, as the consecutive sentence in this matter involves the jail and EOCC portions of Appellant’s sentence. The question then becomes whether a trial court must make the R.C. 2929.14(C) findings where it imposes consecutive sentences involving a jail or EOCC term. {¶30} Pursuant to R.C 2929.14(C)(4): If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct. Case No. 21 BE 0001 – 12 – {¶31} We have found no case directly on point. However, an analysis of the issue must begin with R.C. 2929.41, which addresses the imposition of multiple sentences. Subsection (A) provides: Except as provided in division (B) of this section, division (C) of section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States. Except as provided in division (B)(3) of this section, a jail term or sentence of imprisonment for misdemeanor shall be served concurrently with a prison term or sentence of imprisonment for felony served in a state or federal correctional institution. {¶32} Much of the available caselaw concerns the scenario where a misdemeanor jail term is ordered to run consecutive to a felony prison term. Although a jail term was imposed in this matter, it was for a felony offense, not a misdemeanor. Thus, these cases provide little, if any, guidance. In the absence of relevant caselaw, we turn to an interpretation of statutory law. {¶33} There is no question that, by definition, a community control sanction is not a prison term. See R.C. 2929.01(E) (“Community control sanction” means a sanction that is not a prison term * * *.) The definitions of “jail” and “jail sentence” are less clear. R.C. 2929.01(R) states that “ ‘[j]ail’ means a jail, workhouse, minimum security jail, or other residential facility used for the confinement of alleged or convicted offenders that is Case No. 21 BE 0001 – 13 – operated by a political subdivision or a combination of political subdivisions of this state.” R.C. 2929.01(S) provides that “ ‘[J]ail term’ means the term in a jail that a sentencing court imposes or is authorized to impose pursuant to section 2929.24 or 2929.25 of the Revised Code or pursuant to any other provision of the Revised Code that authorizes a term in a jail for a misdemeanor conviction.” {¶34} As noted by Appellant, R.C. 1.05 defines “imprisoned” and “imprisonment” as: [B]eing imprisoned under a sentence imposed for an offense or serving a term of imprisonment, prison term, jail term, term of local incarceration, or other term under a sentence imposed for an offense in an institution under the control of the department of rehabilitation and correction, a county, multicounty, municipal, municipal-county, or multicounty-municipal jail or workhouse, a minimum security jail, a community-based correctional facility, or another facility described or referred to in section 2929.34 of the Revised Code for the type of criminal offense and under the circumstances specified or referred to in that section. {¶35} While not directly on point, an Ohio Supreme Court case does provide some guidance. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. While Bonnell did not involve the imposition of either a jail or an EOCC term, the Court noted that: With exceptions not relevant here, if the trial court does not make the factual findings required by R.C. 2929.14(C)(4), then “a prison term, jail term, or Case No. 21 BE 0001 – 14 – sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States.” R.C. 2929.41(A). Thus, judicial factfinding is once again required to overcome the statutory presumption in favor of concurrent sentences. (Emphasis added.) {¶36} Thus, the Bonnell Court defined R.C. 2929.14(C) broadly to include “imprisonment,” not merely limited to a prison term and specifically included jail terms. As such, the R.C. 2929.14(C)(4) findings must be made where a defendant is imprisoned on a felony conviction. Here, Appellant’s sentence involved incarceration in the form of a jail term for a felony conviction which was ordered to run consecutively to his Franklin County felony conviction. Thus, the trial court was required to make the requisite R.C. 2929.14(C)(4) factors before imposing a consecutive sentence. Appellant’s first assignment of error has merit and is sustained. The matter is remanded for purposes determining whether a consecutive sentence is appropriate. Conclusion {¶37} Appellant argues that the court failed to make the consecutive sentencing findings as required by R.C. 2929.14(C) because a jail term is a form of incarceration. He also argues that the court imposed a sentence greater than the maximum allowed by law. Appellant’s arguments have merit. Appellant’s conviction, which is unchallenged, is affirmed. However, the judgment of the trial court as to Appellant’s sentence is reversed and vacated. This matter is remanded for resentencing after consideration of consecutive sentences and without the option of a reserved prison sentence. Case No. 21 BE 0001 – 15 – Robb, J., concurs. D’Apolito, J., concurs. Case No. 21 BE 0001 [Cite as State v. Robinson, 2022-Ohio-1451.] For the reasons stated in the Opinion rendered herein, the assignments of error are sustained and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Belmont County, Ohio, is reversed and Appellant’s sentence is vacated. We hereby remand this matter to the trial court for further proceedings according to law and consistent with this Court’s Opinion. 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.

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