State v. Ward , 2021 Ohio 1320 ( 2021 )

[Cite as State v. Ward, 2021-Ohio-1320.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190656
TRIAL NO. B-1803096-B
Plaintiff-Appellee, :
O P I N I O N.
vs. :
STEVEN JAMES WARD, :
Defendant-Appellant. :
Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentences Vacated, and Cause
Remanded for Resentencing
Date of Judgment Entry on Appeal: April 16, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} Defendant-appellant Steven James Ward appeals from the trial
court’s judgment revoking his community control and imposing consecutive 18-
month prison terms. In his sole assignment of error, Ward challenges only his
sentences, not the finding of the community-control violations. He argues the trial
court erred by imposing the prison terms without earlier complying with the
notification provisions found in R.C. 2929.19(B)(4). The state concedes the error.
{¶2} Under Ohio law, a court may not impose a prison term for a
community-control violation in a felony case unless the court has “strict[ly]
compli[ed]” with certain statutory-notification requirements. See State v. Brooks,
103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 19, 24 and 29, interpreting
R.C. 2929.19(B)(5), now R.C. 2929.19(B)(4), and R.C. 2929.15(B); State v. Olverson,
1st Dist. Hamilton Nos. C-170018 and C-170019, 2017-Ohio-9188, ¶ 11 and 14.
{¶3} Generally, to comply under the statutory scheme, the prison term
imposed cannot exceed the specific prison term the court notified the defendant at
the time of sentencing that it would impose for a violation or a subsequent violation
of community-control conditions. And that prison term must be selected from the
range of prison terms available for the offense for which the community-control
sanction was imposed. See R.C. 2929.15(B)(3) (“The prison term, if any, imposed
upon a violator * * * shall not exceed the prison term specified in the notice provided
to the offender at the sentencing hearing pursuant to division (B)(2) [sic (B)(4)] of
section 2929.19 of the Revised Code.)”; Brooks at paragraph two of the syllabus;
State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, syllabus.
{¶4} Importantly, the sentencing court must provide this specific
notification with respect to each offense for which the community-control sanction is
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OHIO FIRST DISTRICT COURT OF APPEALS
imposed, meaning each count upon which the defendant is sentenced. See Olverson
at ¶ 7-12.
{¶5} In this case, Ward was convicted of two counts of aggravated
trafficking in drugs, both fourth-degree felonies with an authorized sentencing range
of six to 18 months in prison. See R.C. 2929.14(A)(4). When the trial court in 2018
sentenced Ward to a community-control sanction for those offenses, the court did
not notify Ward of a specific prison term within the authorized six to 18 months that
it would impose for each offense. Instead, the court notified Ward that it would
sentence him to a prison term of “up to three years.” Later, upon finding Ward guilty
of violating the terms of his community control, the trial court revoked that
community control and sentenced Ward to consecutive 18-month prison terms.
{¶6} This record demonstrates that the sentences imposed for Ward’s
community-control violations were not authorized under R.C. 2929.15(B)(3),
because the trial court failed to comply with the notification requirement of R.C.
2929.19(B)(4) at the 2018 sentencing hearing or at any time before imposing the 18-
month prison terms for the community-control violations.
{¶7} Consequently, we conclude that Ward’s sentences are clearly and
convincingly contrary to law. See R.C. 2953.08(G)(2). Accordingly, we sustain the
assignment of error, affirm the finding of the community-control violations, vacate
Ward’s sentences, and remand the case for resentencing with incarceration not an
option.
Judgment accordingly.
MYERS, P.J., and CROUSE, J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry this date.
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