[Cite as State v. Barton, 2013-Ohio-307.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
State of Ohio, : : Plaintiff-Appellee, : : Case No. 12CA24 v. : : DECISION AND Josey C. Barton, : JUDGMENT ENTRY : Defendant-Appellant. : Filed: January 29, 2013 ______________________________________________________________________
APPEARANCES:
John A. Bay, BAY LAW OFFICE, L.L.C., Columbus, Ohio, for Appellant.
James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee. ______________________________________________________________________
Kline, J.:
{¶1} Josey C. Barton appeals the judgment of the Washington County Court of
Common Pleas, which convicted her of permitting drug abuse. Barton contends that
she is entitled to a new sentencing hearing because the trial court misinformed her of
the consequences of violating the terms of postrelease control. Because Barton has not
been prejudiced by the alleged error, we disagree. Accordingly, we affirm the judgment
of the trial court.
I.
{¶2} A Washington County Grand Jury indicted Barton on one count of
permitting drug abuse and one count of possession of drugs. Eventually, Barton and Washington App. No. 12CA24 2
the state negotiated a plea deal. Barton pled guilty to one count of permitting drug
abuse, a fifth-degree felony in violation of R.C. 2925.13(B) & 2925.13(C)(1)(3).
{¶3} The trial court held a sentencing hearing on June 5, 2012. The court
sentenced Barton to five years of community control. During the sentencing hearing,
the trial court informed Barton (1) that if she violated the terms of community control,
she could be sentenced to a prison term and (2) that if she were sentenced to prison,
she could be subject to a term of postrelease control. Barton bases her appeal on the
statements the trial court made with respect to postrelease control. Specifically, the trial
court advised Barton as follows:
Now, but rest assured, Ms. Barton, you violate any of
these [community control] rules or any of these
regulations, I am going to send you to prison for the
balance of your sentence. Okay? That’s just – that’s
an absolute assurance. So, for the next five years,
you’ve got a reason to get your act together, stay in
counseling, and get some marketable skills and make
something of your life. Because if you make me send
you to prison, I’ll do it.
And if you do make me send you to prison, upon
your release from prison, the Parole Authority has the
option to give you up to three years of post release
control. It would be very much like today. They
would set rules and regulations and they would Washington App. No. 12CA24 3
supervise you. You violate one of their rules or one of
their regulations, it’s a little different. There’s no due
process. You—they don’t get a court order, they don’t
bring you to court. They can kick your door in at two
a.m. and drag you back to prison. And they can take
you back for up to six months for something as simple
as skipping a counseling session, not showing up for
an appointment with your * * * officer. It doesn’t have
to be a crime, but if you commit a felony while you’re
under – under post release control, and you’re
convicted of that felony, the sentencing Judge in
Ohio, in addition to the sentence for the new felony,
has to add an additional one year in prison or three
year—or the time remaining on post release control in
prison, whichever’s longer, and that has to be
consecutive.” Tr. at 48-49.
{¶4} Barton appeals and asserts the following assignment of error: I. “The trial
court erred while advising Appellant Barton that violation of conditions of post release
control could result in a prison sanction without the protections of due process.”
II.
{¶5} Barton argues that the trial court erred by misinforming her of the
consequences of violating the terms of postrelease control. Washington App. No. 12CA24 4
{¶6} To resolve Barton’s appeal, we must interpret and apply various statutes
related to community control, postrelease control, and sentencing. “Thus, our review is
de novo.” State v. Lofton, 4th Dist. No. 11CA16, 2012-Ohio-2274, ¶ 7, citing State v.
Jenkins, 4th Dist. No. 10CA3389, 2011-Ohio-6924, ¶ 9.
{¶7} The trial court sentenced Barton to community control. The court did not
impose a prison sentence. But the court informed Barton that a violation of her
community control could result in a prison sentence, which could subject her to a period
of postrelease control following her release from prison. Then, the court told Barton that
the Parole Authority could send her back to prison without a court order for violating the
terms of postrelease control.
{¶8} Barton argues that the Parole Authority must hold a hearing before it can
send a defendant to prison for violating the terms of postrelease control. Barton claims
that she is entitled to a new sentencing hearing where she could be properly informed of
the consequences of violating the terms of postrelease control. We disagree.
{¶9} “It is axiomatic that in order for there to be reversible error, there must be
prejudice to the appellant.” State v. Rembert, 5th Dist. No. 04 CA 66, 2005-Ohio-4718,
¶ 15, citing State v. Dean, 94 Ohio App. 540, 16 N.E.2d 767 (1st Dist.1953); Tingue v.
State, 90 Ohio St. 368, 108 N.E. 222 (1914). And even assuming that the trial court
misinformed Barton of the consequences of violating the terms of postrelease control,
Barton cannot show prejudice.
{¶10} A trial court must properly notify a defendant regarding the applicable
terms of postrelease control. See State v. Munson, 8th Dist. No. 93229, 2010-Ohio-
1982, ¶ 14. However, R.C. 2929.19(B)(2)(d) provides, in relevant part, “if the Washington App. No. 12CA24 5
sentencing court determines at the sentencing hearing that a prison term is necessary
or required, the court shall * * * [n]otify the offender that the offender may be supervised
under [R.C. 2967.28] after the offender leaves prison if the offender is being sentenced
for a felony of the third, fourth, or fifth degree * * *.” (Emphasis added.) (R.C. 2967.28
governs postrelease control.)
{¶11} Here, the trial court did not sentence Barton to prison. Instead, it
sentenced Barton to community control under R.C. 2929.15. A trial court may impose a
prison sentence for a violation of the terms of a community control sanction. See R.C.
2929.15(B)(1)(c). And “[f]ollowing a community control violation, the trial court conducts
a second sentencing hearing. At this second hearing, the court sentences the offender
anew and must comply with the relevant sentencing statutes.” State v. Fraley, 105 Ohio
St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17.
{¶12} Currently, Barton is not subject to postrelease control based on her
community control sentence. Should Barton violate the terms of her community control
sanction, she could be sentenced to prison. But before the court could sentence Barton
to prison, it would have to hold another sentencing hearing. During that hearing, the
trial court would be required to comply with the relevant sentencing statutes, including
those related to postrelease control. Consequently, even if the trial court misinformed
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[Cite as State v. Barton, 2013-Ohio-307.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
State of Ohio, : : Plaintiff-Appellee, : : Case No. 12CA24 v. : : DECISION AND Josey C. Barton, : JUDGMENT ENTRY : Defendant-Appellant. : Filed: January 29, 2013 ______________________________________________________________________
APPEARANCES:
John A. Bay, BAY LAW OFFICE, L.L.C., Columbus, Ohio, for Appellant.
James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee. ______________________________________________________________________
Kline, J.:
{¶1} Josey C. Barton appeals the judgment of the Washington County Court of
Common Pleas, which convicted her of permitting drug abuse. Barton contends that
she is entitled to a new sentencing hearing because the trial court misinformed her of
the consequences of violating the terms of postrelease control. Because Barton has not
been prejudiced by the alleged error, we disagree. Accordingly, we affirm the judgment
of the trial court.
I.
{¶2} A Washington County Grand Jury indicted Barton on one count of
permitting drug abuse and one count of possession of drugs. Eventually, Barton and Washington App. No. 12CA24 2
the state negotiated a plea deal. Barton pled guilty to one count of permitting drug
abuse, a fifth-degree felony in violation of R.C. 2925.13(B) & 2925.13(C)(1)(3).
{¶3} The trial court held a sentencing hearing on June 5, 2012. The court
sentenced Barton to five years of community control. During the sentencing hearing,
the trial court informed Barton (1) that if she violated the terms of community control,
she could be sentenced to a prison term and (2) that if she were sentenced to prison,
she could be subject to a term of postrelease control. Barton bases her appeal on the
statements the trial court made with respect to postrelease control. Specifically, the trial
court advised Barton as follows:
Now, but rest assured, Ms. Barton, you violate any of
these [community control] rules or any of these
regulations, I am going to send you to prison for the
balance of your sentence. Okay? That’s just – that’s
an absolute assurance. So, for the next five years,
you’ve got a reason to get your act together, stay in
counseling, and get some marketable skills and make
something of your life. Because if you make me send
you to prison, I’ll do it.
And if you do make me send you to prison, upon
your release from prison, the Parole Authority has the
option to give you up to three years of post release
control. It would be very much like today. They
would set rules and regulations and they would Washington App. No. 12CA24 3
supervise you. You violate one of their rules or one of
their regulations, it’s a little different. There’s no due
process. You—they don’t get a court order, they don’t
bring you to court. They can kick your door in at two
a.m. and drag you back to prison. And they can take
you back for up to six months for something as simple
as skipping a counseling session, not showing up for
an appointment with your * * * officer. It doesn’t have
to be a crime, but if you commit a felony while you’re
under – under post release control, and you’re
convicted of that felony, the sentencing Judge in
Ohio, in addition to the sentence for the new felony,
has to add an additional one year in prison or three
year—or the time remaining on post release control in
prison, whichever’s longer, and that has to be
consecutive.” Tr. at 48-49.
{¶4} Barton appeals and asserts the following assignment of error: I. “The trial
court erred while advising Appellant Barton that violation of conditions of post release
control could result in a prison sanction without the protections of due process.”
II.
{¶5} Barton argues that the trial court erred by misinforming her of the
consequences of violating the terms of postrelease control. Washington App. No. 12CA24 4
{¶6} To resolve Barton’s appeal, we must interpret and apply various statutes
related to community control, postrelease control, and sentencing. “Thus, our review is
de novo.” State v. Lofton, 4th Dist. No. 11CA16, 2012-Ohio-2274, ¶ 7, citing State v.
Jenkins, 4th Dist. No. 10CA3389, 2011-Ohio-6924, ¶ 9.
{¶7} The trial court sentenced Barton to community control. The court did not
impose a prison sentence. But the court informed Barton that a violation of her
community control could result in a prison sentence, which could subject her to a period
of postrelease control following her release from prison. Then, the court told Barton that
the Parole Authority could send her back to prison without a court order for violating the
terms of postrelease control.
{¶8} Barton argues that the Parole Authority must hold a hearing before it can
send a defendant to prison for violating the terms of postrelease control. Barton claims
that she is entitled to a new sentencing hearing where she could be properly informed of
the consequences of violating the terms of postrelease control. We disagree.
{¶9} “It is axiomatic that in order for there to be reversible error, there must be
prejudice to the appellant.” State v. Rembert, 5th Dist. No. 04 CA 66, 2005-Ohio-4718,
¶ 15, citing State v. Dean, 94 Ohio App. 540, 16 N.E.2d 767 (1st Dist.1953); Tingue v.
State, 90 Ohio St. 368, 108 N.E. 222 (1914). And even assuming that the trial court
misinformed Barton of the consequences of violating the terms of postrelease control,
Barton cannot show prejudice.
{¶10} A trial court must properly notify a defendant regarding the applicable
terms of postrelease control. See State v. Munson, 8th Dist. No. 93229, 2010-Ohio-
1982, ¶ 14. However, R.C. 2929.19(B)(2)(d) provides, in relevant part, “if the Washington App. No. 12CA24 5
sentencing court determines at the sentencing hearing that a prison term is necessary
or required, the court shall * * * [n]otify the offender that the offender may be supervised
under [R.C. 2967.28] after the offender leaves prison if the offender is being sentenced
for a felony of the third, fourth, or fifth degree * * *.” (Emphasis added.) (R.C. 2967.28
governs postrelease control.)
{¶11} Here, the trial court did not sentence Barton to prison. Instead, it
sentenced Barton to community control under R.C. 2929.15. A trial court may impose a
prison sentence for a violation of the terms of a community control sanction. See R.C.
2929.15(B)(1)(c). And “[f]ollowing a community control violation, the trial court conducts
a second sentencing hearing. At this second hearing, the court sentences the offender
anew and must comply with the relevant sentencing statutes.” State v. Fraley, 105 Ohio
St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17.
{¶12} Currently, Barton is not subject to postrelease control based on her
community control sentence. Should Barton violate the terms of her community control
sanction, she could be sentenced to prison. But before the court could sentence Barton
to prison, it would have to hold another sentencing hearing. During that hearing, the
trial court would be required to comply with the relevant sentencing statutes, including
those related to postrelease control. Consequently, even if the trial court misinformed
Barton of the consequences of violating postrelease control, she cannot show prejudice
from the trial court’s alleged error.
{¶13} Accordingly, we overrule Barton’s assignment of error and affirm the
judgment of the trial court.
JUDGMENT AFFIRMED. Washington App. No. 12CA24 6
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the 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 Washington County Court of Common Pleas 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. Exceptions.
Harsha, J. & Abele, J.: Concur in Judgment & Opinion.
For the Court
BY:_____________________________ Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.