State v. Lee , 2014 Ohio 30 ( 2014 )

[Cite as State v. Lee, 2014-Ohio-30.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99853
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
REGGIE J. LEE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-558760
BEFORE: Kilbane, J., Celebrezze, P.J., and Keough, J.
RELEASED AND JOURNALIZED: January 9, 2014
-i-
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue East
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant Reggie Lee appeals from his 11-month sentence for
violating community control sanctions. Lee argues that the trial court lacked jurisdiction
to impose a prison sentence, because it had failed to properly notify him that a prison
sentence could be imposed if he violated the terms of his probation. We conclude that
the trial court provided Lee with the proper notification and that the trial court possessed
the authority to impose a prison sentence. Accordingly, we affirm the trial court’s final
judgment.
{¶2} Pursuant to a plea agreement with the state, Lee pleaded guilty to attemped
carrying a concealed weapon, a fifth-degree felony. On April 26, 2012, the trial court
sentenced Lee to one year of community control sanctions (hereinafter “community
control” or “probation”) under the probation department’s supervision. At the
sentencing hearing, the trial court informed Lee that if he violated the conditions of his
probation, Lee could be imprisoned for 12 months, in addition to three years of
postrelease control. Similarly, the journal entry setting forth Lee’s sentence stated that
“violation of the terms and conditions may result in more restrictive sanctions, or a prison
term of 12 month(s) as approved by law. Defendant advised of postrelease control for
up to 3 years.”
{¶3} On July 20, 2012, Lee appeared before the trial court for his first probation
violation hearing. At the hearing, Lee admitted to violating the terms of his probation.
The trial court continued Lee on community control, noting that it was Lee’s first
violation and warning Lee that no further violations would be tolerated. The trial court’s
journal entry stated that “community control is continued with prior conditions. No
further violations will be tolerated.”
{¶4} Three months later, on October 19th, Lee was back in court for his second
probation violation hearing. The trial court found that Lee had, again, violated
probation. Although the trial court decided to give Lee one more opportunity to
continue on probation, Lee was informed at the hearing that he would be sent to prison if
he violated probation again. The journal entry set forth that community control was
continued and modified, adding an additional requirement that Lee participate in both the
Thinking for a Change program and an outpatient drug treatment program.
{¶5} On January 2, 2013, a capias was issued for Lee, because he was alleged to
have violated the terms and conditions of community control. Lee failed to appear in
court as required, and on April 17, 2013, Lee was taken into custody. On April 26,
2013, the trial court conducted the third probation violation hearing. After determining
that Lee had committed additional probation violations, the trial court terminated Lee’s
community control, concluding that Lee had “utterly failed” to comply with probation.
Lee was sentenced to prison for 11 months.
{¶6} In his sole assignment of error, Lee argues that the trial court lacked
jurisdiction and abused its discretion in sentencing Lee to prison, because the trial court
never notified Lee at the probation violation hearings or in the corresponding journal
entries that a specific prison sentence could be imposed for violating community control
sanctions. A
trial court sentencing an offender to a community control sanction must, at
the time of the sentencing, notify the offender of the specific prison term
that may be imposed for a violation of the conditions of the sanction, as a
prerequisite to imposing a prison term on the offender for a subsequent
violation.
State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, paragraph two of
the syllabus.
{¶7} Lee acknowledges that when the trial court originally imposed the community
control sanction on April 26, 2012, it made clear, both from the bench and from its
journal entry, that if Lee violated the conditions of community control, he could face a
12-month prison sentence, with three months of postrelease control. But Lee asserts that
the trial court was required to repeat this information at the subsequent probation
violation hearings. According to Lee, the trial court was required to readvise Lee at the
subsequent probation violation hearings about the specific prison term that could be
imposed if Lee violated the terms of probation. Lee asserts that because the trial court
did not repeat this specific information at the first two probation violation hearings, the
trial court lacked jurisdiction to sentence Lee to prison at his third probation violation
hearing. Lee’s position on appeal is out of step with our case law.
{¶8} We rejected this exact same argument in State v. Oulhint, 8th Dist. Cuyahoga
No. 99296, 2013-Ohio-3250.1 In that case, the trial court provided the defendant with
1
The defendant in Oulhint was represented on appeal by the same attorney who is representing
the required notifications at the original sentencing hearing by informing the defendant
that he could be subject to a specific prison term if he violated the terms of his community
control. Following the defendant’s first probation violation, the trial court continued
community control, and did not readvise the defendant that future failures to abide by the
terms of probation could result in a prison sentence. After the defendant violated
community control a second time, the trial court sentenced the defendant to prison. The
defendant argued on appeal that the trial court lacked jurisdiction to impose the prison
sentence because the trial court had failed to notify him at the first violation hearing or in
the journal entry that he could be sentenced to a prison term if he continued to violate the
terms of his community control.
{¶9} We disagreed, concluding that the trial court had adequately notified the
defendant at the original sentencing hearing of the specific prison term he faced if he
violated the conditions of his community control. We explained that the trial court had
no duty to readvise the defendant of the possible sentence at subsequent hearings. Id. at¶
20, citing State v. Hodge, 8th Dist. Cuyahoga No. 93245, 2010-Ohio-78, ¶ 9, 10
(explaining that the law does not require that “a legally adequate notification be given
over and over again”). In this case, Lee’s argument is no different than the one we
rejected in Oulhint, and we, therefore, overrule the sole assignment of error.2
Lee in the instant appeal.
If anything, Lee’s argument is less compelling than the one made in Oulhint, because each
2
time that the trial court continued Lee’s community control, it reminded Lee that he could be
sentenced to a prison term for a future violation.
{¶10} The trial court’s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
__________________________________________
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR