[Cite as State v. Williams,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

STATE OF OHIO, CASE NO. 5-10-02

PLAINTIFF-APPELLEE,

v.

CHRISTOPHER M. WILLIAMS, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court Trial Court No. 2008-CRB-0255

Judgment Reversed and Cause Remanded

Date of Decision: March 7, 2011

APPEARANCES:

Deborah Kovac Rump for Appellant

Drew Wortman for Appellee Case No. 5-10-02

ROGERS, P.J.

{¶1} Defendant-Appellant, Christopher Williams, appeals from the

judgment of the Court of Common Pleas of Hancock County revoking his

community control and imposing a twenty-eight-month prison term. On appeal,

Williams argues that the trial court erred in revoking his community control, in

imposing a twenty-eight-month prison term that was greater than that of his

accomplices, and in failing to grant him jail-time credit for the thirty days he spent

on electronic home monitoring while on community control. Based on the

following, we reverse the judgment of the trial court and remand for resentencing.

{¶2} In October 2008, the Hancock County Grand Jury indicted Williams

on three counts of breaking and entering in violation of R.C. 2911.13(A), felonies

of the fifth degree; one count of safecracking in violation of R.C. 2911.31(A), a

felony of the fourth degree; and, one count of receiving stolen property in

violation of R.C. 2913.51(A), a felony of the fifth degree. The indictment arose

from multiple incidents during which Williams and several other accomplices

entered multiple churches and stole various items. Subsequently, Williams

entered a not guilty plea to all counts in the indictment.

{¶3} In March 2009, Williams withdrew his not guilty pleas to all counts in

the indictment and entered guilty pleas to all counts. In May 2009, the case

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proceeded to sentencing, at which the trial court imposed one lump five-year term

of community control and reserved a twenty-eight-month prison term.

{¶4} In August 2009, the trial court filed an “Order to Execute Deferred

Community Control Sanction,” stating that Williams failed to abide by the

condition of his community control mandating that he not possess, sell, distribute,

use, or have in his residence or automobile any controlled substance, or be in the

company of any person in possession of a controlled substance. The trial court

then ordered that he serve a ten-day term of electronic monitoring.

{¶5} In December 2009, a notice of community control violations was

filed, stating that Williams failed to notify his probation officer of his change of

residence; that he failed to report to his probation officer as instructed; that he

failed to abide by his curfew; that he was not complying with substance treatment

requirements; and, that he used a controlled substance.

{¶6} Subsequently, a hearing on the community control violations was

held, at which Williams admitted to the violation. The trial court then found

Williams in violation of the terms of his community control, revoked his

community control, and imposed an eleven-month prison term on each count of

breaking and entering and the receiving stolen property counts, and imposed a

seventeen-month prison term on the safecracking count, with the eleven-month

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prison terms to be served concurrently with each other, and consecutively to the

seventeen-month prison term, for a total prison term of twenty-eight months.

{¶7} It is from the trial court’s revocation of his community control and

imposition of a twenty-eight-month prison term that Williams appeals, presenting

the following assignments of error for our review.

Assignment of Error No. I

WILLIAMS COOPERATED WITH AUTHORITIES, AND HE WAS NOT A LEADER OR ORGANIZER OF THE THEFT RING, YET THE TRIAL COURT IMPOSED A SENTENCE THAT WAS SIGNIFICANTLY GREATER THAN HIS CO- DEFENDANTS. THE TRIAL COURT ABUSED ITS DISCRETION BY DOING THIS.

Assignment of Error No. II

THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING WILLIAMS’ COMMUNITY CONTROL AND BY IMPOSING THE ENTIRE SENTENCE.

Assignment of Error No. III

THE TRIAL COURT ERRED BY NOT GIVING WILLIAMS 30 DAYS CREDIT FOR THE TIME HE SPENT ON ELECTRONIC HOME MONITORING WHILE ON COMMUNITY CONTROL.

{¶8} Due to the nature of Williams’ arguments, we elect to address his

second assignment of error first.

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Assignment of Error No. II

{¶9} In his second assignment of error, Williams argues that the trial court

abused its discretion by revoking his community control and imposing a twenty-

eight-month prison term. Specifically, he contends that the trial court should not

have imposed such a harsh sentence where his community control violations were

minor, and that the trial court was not fair and objective in sentencing him.

{¶10} Before addressing Williams’ assignments of error, we would usually

first determine whether jurisdiction exists to hear this appeal.

{¶11} Appellate jurisdiction is limited to review of the lower court’s final

judgment. Section 3(B)(2), Article IV of the Ohio Constitution. To be a final

appealable order, a judgment entry must meet the requirements of R.C. 2505.02

and, if applicable, Crim.R. 32(C). Chef Italiano Corp. v. Kent State Univ. (1989),

; State v. Teague, 3d Dist. No. 9-01-25,

.

Additionally, the issue of whether a judgment is a final appealable order is a

jurisdictional question, which an appellate court may raise sua sponte. Chef

Italiano Corp.,

.

{¶12} In a criminal case, “‘[t]he necessity of journalizing an entry in

accordance with Crim.R. 32(C) is jurisdictional. Without a properly journalized

judgment of conviction, this court has no power to hear [an] appeal.’” State v.

Moore, 3d Dist. No. 14-06-53,

, quoting Teague, 2001-Ohio-

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2286. Where a trial court fails to impose a sentence on each count of a conviction,

the order is merely interlocutory.

citing State v. Hoelscher, 9th Dist. No.

05CA0085-M,

; State v. Waters, 8th Dist. No. 85691, 2005-

Ohio-5137, ¶16; State v. Taylor, 4th Dist. No. 94 CA 585,

; State

v. Brown (1989),

. Specifically, a trial court’s failure to

impose a term of community control on each conviction violates Crim.R. 32(C)

and renders the appellate court without jurisdiction to decide the case.

at ¶¶17-

18.

{¶13} Here, in March 2009, Williams pled guilty to five separate counts, to

wit: three counts of breaking and entering, one count of safecracking, and one

count of receiving stolen property. In May 2009, the trial court imposed one lump

five-year term of community control without specifying a specific community

control sentence for each of the five counts of which Williams was convicted.

Although Williams subsequently admitted to a community control violation and

the trial court imposed a twenty-eight-month prison term, it does not negate the

trial court’s original sentencing error in May 2009 of imposing one term of

community control for all five counts of which Williams was convicted, and

failing to sentence separately on each count.

{¶14} Our preference would be to treat the original sentencing as contrary

to law and not a final order, thereby depriving this Court of jurisdiction, because

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the trial court did not properly impose community control, meaning that it cannot

now revoke community control. However, where we previously found that there

was no final order in a similar case, the Supreme Court of Ohio reversed our

decision and required this Court to rule on the merits of the appeal. See State v.

Goldsberry, 3d Dist. No. 14-07-06,

(Goldsberry I), reversed by

State v. Goldsberry,

,

(Goldsberry II).

{¶15} In Goldsberry II, the Supreme Court of Ohio issued its reversal

without opinion, without comment on the original sentence, and without

instruction. It is this author’s opinion that the Supreme Court was concerned that

the defendant was imprisoned and in need of review of the trial court’s orders. On

remand, this Court then affirmed the sentence imposed by the trial court. See

State v. Goldsberry, 3d Dist. No. 14-07-06,

(Rogers, J.,

dissenting) (Goldsberry III).

{¶16} Due to the Supreme Court’s reversal of Goldsberry I, we are now

compelled to consider the current order of the trial court. Accordingly, we find it

necessary to reiterate the reasoning behind our conclusion in Goldsberry I that a

trial court must separately dispose of each count of which a defendant is

convicted.

{¶17} In 1995, the General Assembly enacted Senate Bill 2 (effective July

1, 1996), which eliminated felony probation and modified the procedure by which

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trial courts impose sentences for felony offenses. See State v. Wolfe, 5th Dist. No.

2008-CA-00064,

, citing Griffin & Katz, Ohio Felony

Sentencing Law (1998 Ed.) 394-396, Section S.2-T5.4. Prior to the effective date

of Senate Bill 2, a trial court would sentence an offender to specific terms of

imprisonment on each individual count of which the offender was convicted. If

the trial court deemed probation appropriate for the offender, it would then

suspend the prison terms and place the offender on probation. Id. at ¶17. Senate

Bill 2, however, radically altered this procedure. Trial courts now have the option

of sentencing offenders to either a term of imprisonment or to community control.

State v. Hoy, 3d Dist. Nos. 14-04-13, 14-04-14,

. It is truly

an either/or situation. The sentence imposed is either a specific term of

imprisonment on each count, or a specific term of community control on each

count.

{¶18} If imposing community control under the new system, a trial court

may choose to impose different lengths of time on each count, depending on the

degree of the offense. See R.C. 2929.15, 2929.16, 2929.17, 2929.18. For example,

a one-year term of community control may be sufficient for a conviction on a

felony of the fifth degree, while a trial court may wish to impose a three-year term

or longer for a conviction on a felony of the third degree. However, the total of all

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terms imposed may not exceed the statutory maximum of five years. R.C.

2929.15(A)(1).

{¶19} R.C. 2929.15 governs imposition of community control and

provides, in pertinent part:

If in sentencing an offender for a felony the court is not required to impose a prison term, a mandatory prison term, or a term of life imprisonment upon the offender, the court may directly impose a sentence that consists of one or more community control sanctions authorized pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code. * * * The duration of all community control sanctions imposed upon an offender under this division shall not exceed five years.

R.C. 2929.15(A)(1). This language chosen by the General Assembly refers to

sentencing "an offender for a felony." The word "a", in this context, clearly may

be equated with the word "each" and expresses the General Assembly's intent to

require the trial court to impose community control on "a" felony; in other words,

separately on each count. Additionally, as R.C. 2929.15(A)(1) provides that "the

court may directly impose a sentence that consists of one of more community

control sanctions * * *" (emphasis added), we believe that the General Assembly

intended community control to be a sentence, not a status or some other constraint

not a part of Ohio's felony-sentencing scheme. As such, we find no distinction

between an error in imposing a "lump" prison term sentence for multiple felonies

and in imposing a "lump" community control sentence for multiple felonies.

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{¶20} Finally, the Supreme Court of Ohio has repeatedly emphasized that

Ohio's felony-sentencing scheme focuses on each offense and sentence

individually and not as a group or "sentencing package." Recently, the Court

observed that:

Ohio's felony-sentencing scheme is clearly designed to focus the judge's attention on one offense at a time. Under R.C. 2929.14(A), the range of available penalties depends on the degree of each offense. For instance, R.C. 2929.14(A)(1) provides that "[f]or a felony of the first degree, the prison term shall be three, four, five, six, seven, eight, nine, or ten years." (Emphasis added.) R.C. 2929.14(A)(2) provides a different range for second-degree felonies. In a case in which a defendant is convicted of two first-degree felonies and one second-degree felony, the statute leaves the sentencing judge no option but to assign a particular sentence to each of the three offenses, separately. (Emphasis added.) The statute makes no provision for grouping offenses together and imposing a single, "lump" sentence for multiple felonies. Although imposition of concurrent sentences in Ohio may appear to involve a "lump" sentence approach, the opposite is actually true. Instead of considering multiple offenses as a whole and imposing one, overarching sentence to encompass the entirety of the offenses as in the federal sentencing regime, a judge sentencing a defendant pursuant to Ohio law must consider each offense individually and impose a separate sentence for each offense. See R.C. 2929.11 through 2929.19. Only after the judge has imposed a separate prison term for each offense may the judge then consider in his discretion whether the offender should serve those terms concurrently or consecutively. See State v. Foster,

,

,

, paragraph seven of the syllabus, P 100, 102, 105; R.C. 2929.12(A); State v. Mathis,

,

,

, paragraph three of the syllabus. Under the Ohio sentencing statutes, the judge lacks the authority to consider the offenses as a group and to impose only an omnibus sentence for the group of offenses. (Emphasis added.)

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State v. Saxon,

,

, ¶¶8-9.

{¶21} As the General Assembly intended community control to be a

sentence and a part of Ohio's felony-sentencing scheme, we believe that the

principles requiring the trial court to focus on one offense at a time and prohibiting

an omnibus sentence for a group of offenses apply equally to terms of community

control. In summary, we believe that, pursuant to the prior decisions of this Court

as well as other courts of appeal, the language of the applicable statutes, and the

principles of Ohio's felony-sentencing scheme, trial courts must separately dispose

of each count of which a defendant is convicted--including setting forth specific

terms of community control on each count.1

{¶22} The Supreme Court of Ohio has consistently found that, prior to the

enactment of R.C. 2929.191, a sentence that failed to include a required term of

post-release control or provide notice of post-release control was contrary to law,

and, therefore, void, requiring a remand to the trial court for a de novo sentencing

hearing.2 State v. Jordan,

,

; State v. Simpkins,

,

, State v. Singleton,

,

. See also State v. Bezak,

,

1 The preceding discussion, beginning at paragraph #17, originally appeared in my dissent in Goldsberry, 3d Dist. No. 14-07-06,

(Rogers, J., dissenting) (Goldsberry III). 2 We are aware of the recent modification of this stance in the Supreme Court’s decision of State v. Fischer,

; however that change does not cure a trial court’s failure to sentence separately on each individual count of which a defendant has been convicted.

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(Although the defendant [Bezak] was entitled to a de novo resentencing hearing

based upon the trial court’s failure to impose post-release control at his original

sentencing, he could not be subject to resentencing because he has already served

the prison term ordered by the trial court).

{¶23} Even after the enactment of R.C. 2929.191, the Court found that the

statute cannot have a retroactive application and, where a trial court failed to

properly impose or provide notice of a term of post-release control prior to the

statute’s effective date, the proper remedy was a de novo resentencing hearing.

Singleton,

. Likewise, it logically follows that a trial court’s

failure to properly impose a term of community control on each count would

render the sentence void as being contrary to law and would require a de novo

resentencing hearing to impose a sentence on each count. See State v. Cox, 3d

Dist. Nos. 2-09-31, 2-09-32,

.

{¶24} Accordingly, we find that, because the trial court failed to originally

sentence Williams to community control on each separate count of which he was

convicted, and instead sentenced him to one lump term of community control, it

was error for the trial court to impose a sentence on each count upon revocation of

one term of community control.

{¶25} We note that the majority in Goldsberry III chose to avoid the issue

of the original sentence being a non-final order by finding that it was barred by res

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judicata because there was no appeal of the original sentence. See Goldsberry III,

. We now find that a non-final order cannot become res

judicata simply because it was not appealed. See generally State v. Mitchell,

,

, ¶¶16-17. Had Goldsberry attempted to appeal

the original sentence, this Court would have found no jurisdiction. Therefore it is

illogical to argue that such an order becomes res judicata by failure to appeal,

when no appeal would have been allowed.

{¶26} The dissent is satisfied with the original sentencing, arguing that the

trial court properly apprised Williams of the terms of imprisonment that would be

imposed if he violated the terms of his community control. However, that view

presupposes that Williams had first been properly sentenced on each count. R. C.

2929.19(B)(5) states as follows:

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. [Emphasis added.]

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R. C. 2929.19(B)(5). In other words, the trial court must first sentence a defendant

to a term of community control on each offense, and then advise the defendant of

the specific term of imprisonment that will be imposed on each offense if

community control is revoked. In this case the trial court undeniably failed to

impose a sentence each count on which Williams was convicted.

{¶27} We therefore vacate both the sentence imposed upon revocation of

community control in December 2009, and the trial court’s original sentence

imposed in May 2009. We further remand the case to the trial court with

instructions to resentence Williams on each count of which he was convicted.

{¶28} Accordingly, we sustain Williams’ second assignment of error.

Assignments of Error Nos. I and III

{¶29} In his first assignment of error, Williams argues that the trial court

erred imposing a sentence that was significantly greater than that of his

accomplices.

{¶30} In his third assignment of error, Williams argues that the trial court

erred in failing to grant him thirty days of jail-time credit for the time he spent on

electronic home monitoring while on community control.

{¶31} Our resolution of Williams’ second assignment of error renders his

first and third assignments of error moot, and we decline to address them. App.R.

12(A)(1)(c).

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{¶32} Having found error prejudicial to the appellant herein, in the

particulars assigned and argued in his second assignment of error, we reverse the

judgment of the trial court and remand the matter for further proceedings

consistent with this opinion.

Judgment Reversed and Cause Remanded

WILLAMOWSKI, J., concurs in Judgment Only.

/jnc

SHAW, J., dissents.

{¶33} Contrary to the assertion of the lead opinion, the trial court did not

fail to specify a sentence for each of the five counts in this case. Nor did the trial

court simply order an aggregate term of imprisonment for all of the felony

convictions upon a potential violation of community control. On the contrary, the

trial court expressly sentenced the defendant, both at the sentencing hearing and in

its final judgment entry of sentence, to specific and separate terms of

imprisonment corresponding to each felony for which the defendant was

convicted.

{¶34} The trial court also sentenced the defendant to five years of

community control with eleven enumerated conditions. The trial court then

specifically informed the defendant and ordered that "any violation of this

sentence shall lead to a more restrictive sanction, a longer sanction, or a prison

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term of eleven (11) months as to each Count One, Count Two, Count Three and

Count Five; and a prison term of seventeen (17) months as to Count Four ***."

(Emphasis added.)

{¶35} The trial court then further Ordered that "[t]he sentences as to

Counts One, Two, Three and Five shall be served concurrently, one with the other,

and that this concurrent sentence shall be served consecutively with the sentence

imposed as to Count Four." The trial court then concluded its sentence with the

statement that "it is the Court's specific intention that the Defendant serves a term

of twenty-eight (28) months in prison." (Emphasis added.)

{¶36} Subsequently, upon the defendant's violation of the community

control, the trial court sentenced the defendant exactly as the trial court stated it

would in its original judgment entry of sentence as to each of the five counts and

in conformity with the intended aggregate prison term for all five counts as set

forth in that judgment. Under the provisions of the trial court's judgment of

sentence, the defendant could not have been more clearly apprised of the terms of

his community control and the exact prison terms that would be imposed upon him

for each of the five counts, if he violated the terms of his community control.

{¶37} For these reasons, I do not concur with the majority opinion and I

respectfully dissent. I would overrule the second assignment of error and proceed

to address the remaining assignments of error in this case.

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