State v. Cox , 2010 Ohio 3799 ( 2010 )

[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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