State v. Bohannon , 2013 Ohio 5101 ( 2013 )

[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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