[Cite as State v. Harper,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95718

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

KELLEN HARPER DEFENDANT-APPELLANT

JUDGMENT: REVERSED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-525015

BEFORE: Cooney, J., Kilbane, A.J., and Keough, J.

RELEASED AND JOURNALIZED: April 28, 2011 ATTORNEYS FOR APPELLANT 2

Robert L. Tobik Cuyahoga County Public Defender

By: John T. Martin Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: Lorraine Debose Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113

COLLEEN CONWAY COONEY, J.:

{¶ 1} Defendant-appellant, Kellen Harper (“Harper”), appeals the trial court’s

imposition of an 18-month prison term after finding that he violated his community control

conditions. Finding merit to the appeal and accepting the State’s concession, we vacate his

sentence and remand for resentencing.

{¶ 2} In August 2009, Harper pled guilty to attempted burglary and unlawful sexual

conduct with a minor. He was sentenced to two years of community control sanctions. In 3

August 2010, he was charged with violating his community control sanctions and sentenced to

two concurrent terms of eighteen months in prison.

{¶ 3} Harper now appeals, raising one assignment of error.

Imposition of Imprisonment

{¶ 4} In his sole assignment of error, Harper argues that the trial court erred in

imposing a term of imprisonment when the court failed at sentencing to advise him that a term

of imprisonment may be imposed if he violated community control sanctions. The State

concedes this issue.

{¶ 5} “Pursuant to R.C. 2929.19(B)(5) and R.C. 2929.15(B), a trial court sentencing

an offender to a community control sanction must, at the time of 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,

,

,

,

paragraph two of the syllabus.

{¶ 6} In the instant case, the record shows that the trial court failed to verbally advise

Harper during his original sentencing of the specific prison term that would be imposed if he

violated the community control conditions. Moreover, the trial court’s journal entry

sentencing Harper to community control sanctions is entirely devoid of any notification to

Harper as to the specific prison term he would face if he violated the community control 4

sanctions. When the trial court fails to comply with R.C. 2929.19(B)(5) and 2929.15

regarding community control sanctions, the court may not impose a prison sentence at a

subsequent violation hearing. See State v. Hayes, Cuyahoga App. No. 87642,

.

{¶ 7} Therefore, we find that the trial court erred in imposing a term of imprisonment

for the community control violation because Harper was not advised at his original sentencing

that he would be subject to prison time if he violated the community control sanction.

{¶ 8} Accordingly, the sole assignment of error is sustained.

Judgment reversed. Sentence vacated, and case remanded for resentencing.

It is ordered that appellant recover of said appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas 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.

______________________________________________ COLLEEN CONWAY COONEY, JUDGE

MARY EILEEN KILBANE, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR