[Cite as State v. McClurg,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2017 CA 0098 JAMES McCLURG

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of Common Pleas, Case No. 2012-CR-0339

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 25, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP JEFFREY P. UHRICH Prosecuting Attorney P.O. Box 1977 Richland County, Ohio Westerville, Ohio 43086

JOSEPH C. SNYDER Assistant Prosecuting Attorney 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 2017 CA 0098 2

Hoffman, P.J. {¶1} This case is before us based upon the remand issued by

the Supreme Court of Ohio in State v. McClurg, --- Ohio St.3d ---,

, ---

N.E.3d --- , in which the Court reversed our decision in State v. McClurg, 5th Dist.

Richland No. 17CA98,

(“McClurg I”), on the authority of State v. Howard,

--- Ohio St.3d ---,

, --- N.E.3d ---.

STATEMENT OF THE CASE

{¶2} On June 28, 2012, Appellant pled guilty to a Bill of Information charging him

with one count of burglary, in violation of R.C. 2911.12(A)(1), a felony of the third degree.

Appellant appeared before the trial court for sentencing on August 8, 2012. The trial court

imposed a two year prison term, but suspended the sentence and placed Appellant on

community control for 30 months. The trial court advised Appellant a violation of

community control could lead to the imposition of the two year prison term. As part of his

community control sanctions, Appellant was ordered to successfully complete

CROSSWAEH Community Based Correctional Facility (“CBCF”). The trial court

memorialized Appellant’s sentence via Sentencing Entry filed August 9, 2012.

{¶3} On February 4, 2013, a notice was filed with the trial court, alleging

Appellant had violated his community control sanctions. Specifically, Appellant failed to

successfully complete VOA Halfway House. Appellant entered VOA Halfway House on

October 3, 2012, as CROSSWAEH CBCF had a long wait list. Appellant was

unsuccessfully terminated from the program on January 30, 2013. Appellant appeared

before the trial court on February 15, 2013, and admitted the violation. Via Community

Control Violation Journal Entry filed February 15, 2013, the trial court continued Appellant Richland County, Case No. 2017 CA 0098 3

on community control “with the following conditions: enter and successfully complete a

CBCF.” February 15, 2013 Community Control Violation Journal Entry.

{¶4} On December 23, 2013, a notice was filed with the trial court, alleging

Appellant had again violated his community control sanctions. Appellant appeared before

the trial court of March 24, 2014, and admitted the violations. The trial court extended

Appellant's probation, but tolled the term until he was released from prison on an

unrelated case (“Case No. 2013-CR-839”). The trial court filed a Community Control

Violation Journal Entry on March 24, 2014. The entry did not specify the length of the

original suspended prison term which could be imposed upon a subsequent violation.

{¶5} On March 29, 2017, the trial court filed an entry captioned, “Additional

Community Control Sanctions”, which ordered Appellant to successfully complete a

program at CROSSWAEH CBCF. On September 11, 2017, after Appellant completed his

prison term in Case No. 2013-CR-839, a notice of probation violation was filed, alleging

Appellant failed to complete CBCF. Appellant filed a Motion and Memorandum Contra

Imposition of Prison Sanction on October 5, 2017. Therein, Appellant argued the trial

court failed to notify him of the specific prison sentence at his last probation violation

sentencing, and, as such, was prohibited from imposing a prison sanction for the current

community control violation. The state filed a response on October 20, 2017.

{¶6} Appellant admitted the probation violation at a hearing on October 25, 2017.

Via Community Control Violation Journal Entry filed October 27, 2017, the trial court

sentenced Appellant to the original two year prison term.

{¶7} Appellant appealed his sentence to this Court, raising the following

assignments of error: Richland County, Case No. 2017 CA 0098 4

I. THE TRIAL COURT ERRED IN OVERRULING THE

APPELLANT'S 10/5/17 MOTION AND MEMORANDUM CONTRA

IMPOSITION OF PRISON SANCTION, AND THEREAFTER

SENTENCING DEFENDANT TO SERVE A TWO YEAR PRISON

SENTENCE, ALTHOUGH NO PRISON SENTENCE WAS SPECIFIED IN

PREVIOUS COMMUNITY CONTROL VIOLATION SANCTION

SENTENCING ENTRY.

II. THE TRIAL COURT ERRED WHEN IT ADDED AN ADDITIONAL

COMMUNITY CONTROL VIOLATION TO CONDITIONS PREVIOUSLY

IMPOSED THREE YEARS PRIOR, WITHOUT AN ADDITIONAL

VIOLATION OR HEARING.

{¶8} In McClurg I, we sustained Appellant’s first assignment of error, vacated his

sentence, and remanded the matter to the trial court for resentencing. We found “the trial

court erred in imposing the suspended prison term in October, 2017, because it failed to

specifically inform Appellant of the possible two year prison sentence which could be

imposed upon a community control violation at his sentencing hearing in March, 2014.”

McClurg,

. We found Appellant’s second assignment of error to

be moot in light of our disposition of his first assignment of error.

at ¶ 20

{¶9} The state appealed our decision to the Ohio Supreme Court, which

reversed and remanded the matter to us “for application of State v. Howard, --- Ohio St.3d

---,

, --- N.E.3d ---.” State v. McClurg, --- Ohio St.3d ---,

,

--- N.E.3d ----, ¶ 1. The matter is now before us. Richland County, Case No. 2017 CA 0098 5

I

{¶10} Pursuant to the Ohio Supreme Court's decision and remand, we must

reexamine Appellant's first assignment of error applying State v.

{¶11} In State v. Howard, the Ohio Supreme Court addressed the issue of

“whether appellant, John M. Howard, received sufficient notice of the specific prison terms

that the trial court could impose before the court revoked his community-control sentence

and imposed the prison terms.” Id. at ¶ 1. The Howard Court held neither R.C.

2929.19(B) nor R.C. 2929.15(B) require a trial court to repeat notice of the specific prison

term a defendant could face for a violation of his community control when the defendant

was provided such notice at his initial sentencing hearing. Id. at ¶ 21.

{¶12} Upon application of Howard, as mandated by the remand order of

the Supreme Court of Ohio, we find Appellant received sufficient notice of the specific

prison term the trial court could impose before the court revoked his community-control

and imposed the prison term. Like the appellant in Howard, Appellant herein was properly

notified at his initial sentencing hearing of the prison term he could face if he were to

violate his community control and the potential prison term did not change between his

initial sentencing and the subsequent revocation hearing at which the court imposed the

prison term. Further, like the appellant in Howard, Appellant was not convicted of any

new offense in the intervening period for which additional prison time could have been

imposed and Appellant was aware throughout the period of his community control a

violation could result in a prison term of two years.

{¶13} Accordingly, we overrule Appellant’s first assignment of error. Richland County, Case No. 2017 CA 0098 6

II

{¶14} In his second assignment of error, Appellant contends the trial court erred

in imposing additional community control conditions without Appellant having committed

a new violation and without conducting a hearing.

{¶15} On August 8, 2012, the trial court sentenced Appellant to a two year prison

term, but suspended the sentence and placed Appellant on community control for 30

months. As part of his community control sanctions, Appellant was ordered to

successfully complete CROSSWAEH CBCF.

{¶16} As Appellant failed to successfully complete VOA Halfway House, the state

filed a probation violation on February 4, 2013. Appellant admitted the violation and the

trial court continued him on community control “with the following conditions: enter and

successfully complete a CBCF.” February 15, 2013 Community Control Violation Journal

Entry. On December 23, 2013, the state again filed a probation violation. Appellant

admitted he violated his community control. The trial court extended Appellant's

probation, but tolled the term until he was released from prison on an unrelated case.

March 24, 2014 Community Control Violation Journal Entry. Thereafter, on March 29,

2017, the trial court filed an entry captioned, “Additional Community Control Sanctions”,

which ordered Appellant to successfully complete a program at CROSSWAEH CBCF.

{¶17} On September 11, 2017, after Appellant completed his prison term in Case

No. 2013-CR-839, a probation violation was filed, alleging Appellant failed to complete

CBCF. Appellant filed a Motion and Memorandum Contra Imposition of Prison Sanction,

arguing the trial court failed to notify him of the specific prison sentence at his last

probation violation sentencing, and, as such, was now prohibited from imposing a prison Richland County, Case No. 2017 CA 0098 7

sanction for the current community control violation. Appellant appeared before the trial

court on October 25, 2017, and admitted the violation. The trial court sentenced Appellant

to the original two year prison term. October 27, 2017 Community Control Violation

Journal Entry.

{¶18} Appellant’s argument relies upon the trial court’s March 29, 2014 entry

captioned “Additional Community Control Sanctions”. Appellant asserts this entry places

additional conditions on him and such was erroneous as there was no new violation and

the trial court failed to conduct a hearing. We find Appellant’s reliance on the caption of

the March 29, 2014 entry misplaced.

{¶19} The March 29, 2014 entry is a pre-printed form. Although captioned

“Additional Community Control Sanctions”, the entry does not place a new condition on

Appellant’s community control. To the contrary, the entry restates the condition Appellant

continually failed to complete, to wit: successfully completing CBCF. This condition was

part of Appellant’s original sentence imposed on April 8, 2012, and memorialized in a

Sentencing Entry filed August 9, 2012. Richland County, Case No. 2017 CA 0098 8

{¶20} Based upon the foregoing, we find Appellant’s second assignment of error

is not well taken and overrule the same.

{¶21} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Hoffman, P.J. Gwin, J. and Delaney, J. concur