State v. Dinka

2022 Ohio 1365

• Court: Ohio Court of Appeals
• Decided: April 25, 2022
• Docket: CA2021-04-036
• Status: Published

Opinion

[Cite as State v. Dinka, 2022-Ohio-1365.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, : CASE NO. CA2021-04-036

Appellee, : OPINION 4/25/2022 : - vs - :

JOHN DINKA, :

Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 20CR37249

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.

Craig A. Newburger, for appellant.

M. POWELL, P.J.

{¶ 1} Appellant, John Dinka, appeals his sentence in the Warren County Court of

Common Pleas for domestic violence.

{¶ 2} Appellant was convicted of third-degree felony domestic violence in March

2021. During the April 1, 2021 sentencing hearing, the trial court advised appellant, "Your

sentence is 24 months. Place you on community control. Require you to complete a Warren CA2021-04-036

community based correctional facility program at CCC. Upon release, you'll be on a monitor

for 60 days." The trial court further advised appellant that "if there's a protection order in

place, you can't violate it or you're going to be violated here and you're going to serve 24

months." On April 2, 2021, the trial court issued its sentencing entry which provided that

appellant was "sentenced to three (3) years of community control on basic probation," and

that "[v]iolation of this sentence may lead to a longer or more restrictive sanction, or the

Court may impose a prison term of up to 24 months."

{¶ 3} Appellant appeals his sentence, raising one assignment of error:

{¶ 4} THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO TWENTY-

FOUR MONTHS OF COMMUNITY CONTROL ON THE RECORD, AND, SENTENCING

APPELLANT TO THREE YEARS OF COMMUNITY CONTROL IN THE SENTENCING

ENTRY.

{¶ 5} Appellant argues that the trial court issued a sentencing entry that did not

accurately reflect the sentence imposed at the sentencing hearing because the trial court

sentenced appellant to 24 months of community control at the sentencing hearing but

imposed three years of community control in the sentencing entry. The state argues there

is no variance or discrepancy between the sentence the trial court announced at the

sentencing hearing and the sentence imposed by the sentencing entry because "it is evident

that the court's reference to 24 months [at sentencing] related to the prison term that the

court reserved as a possible sanction if [appellant] violated the conditions of his community

control."

{¶ 6} It is well settled that a court speaks only through its journal entries and not by

oral pronouncement. State v. Starr, 12th Dist. Clermont Nos. CA2018-09-065 and CA2018-

09-066, 2019-Ohio-2081, ¶ 12. Notwithstanding this general rule, Crim.R. 43(A) provides

that "the defendant must be physically present at every stage of the criminal proceeding

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and trial, including * * * the imposition of sentence[.]" "Because a defendant is required to

be present when sentence is imposed, it constitutes reversible error for the trial court to

impose a different sentence in its judgment entry than was announced at the sentencing

hearing in defendant's presence." State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-

Ohio-6068, ¶ 79. Thus, "if there exists a variance between the sentence pronounced in

open court and the sentence imposed by a court's judgment entry, a remand for

resentencing is required." Id. Judgment entries imposing different sentences than were

pronounced in open court have been held invalid, even when they did not change or

increase the period of actual incarceration, or when it resulted in a downward modification

of the sentence. Id. at ¶ 82.

{¶ 7} Whether the trial court's reference to 24 months at the sentencing hearing

applied to the term of community control or the prison term reserved as a sanction for

violation of community control is ambiguous at best. What the record clearly shows,

however, is that the trial court's sentencing entry imposes a term of community control (i.e.,

three years) that was not imposed during the sentencing hearing. Thus, the sentence

imposed in the sentencing entry is not the same sentence imposed at the sentencing

hearing.

{¶ 8} A defendant is entitled to know his sentence at the sentencing hearing. State

v. Santiago, 8th Dist. Cuyahoga No. 101640, 2015-Ohio-1824, ¶ 19, citing Crim.R. 43. A

trial court errs when it issues a judgment entry imposing a sentence that differs from the

sentence pronounced in the defendant's presence. Id. at ¶ 18. The discrepancy between

the term of community control imposed at the sentencing hearing and by the subsequent

sentencing entry requires a new sentencing hearing. State v. Szafranski, 8th Dist.

Cuyahoga No. 107905, 2019-Ohio-4349, ¶ 76 (vacating the sentence and remanding for

resentencing where the trial court placed the defendant on community control at the

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sentencing hearing without stating the term of community control and where the sentencing

entry sentenced the defendant to five years of community control); Robinson, 2012-Ohio-

6068 at ¶ 85; State v. Smith, 10th Dist. Franklin No. 17AP-573, 2018-Ohio-3875, ¶ 7-8.

{¶ 9} Appellant's assignment of error is well-taken and sustained.

{¶ 10} The judgment of the trial court is reversed as to appellant's sentence and the

cause is remanded to the trial court for resentencing.

S. POWELL and BYRNE, JJ., concur.

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