State v. Esper

2014 Ohio 824

Opinion

[Cite as State v. Esper, 2014-Ohio-824.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99907

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DOUGLAS ESPER DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED FOR RESENTENCING

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-08-510153-A

BEFORE: Stewart, J., Kilbane, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: March 6, 2014 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender

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

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Adam M. Chaloupka Assistant County Prosecutor The Justice Center 1200 Ontario Street, 9th Floor Cleveland, OH 44113 MELODY J. STEWART, J.:

{¶1} In 2008, defendant-appellant Douglas Esper pleaded guilty to a single count

of third-degree burglary. The parties conditioned the plea upon the court ordering five

years of community control. The court agreed to the terms of the plea bargain and

advised Esper that if he violated community control, he would be subject to “at least a

two year sentence.” Esper later violated community control and a new judge sentenced

him to three years in prison. Esper complains that the court could not give him a

three-year sentence when it told him at sentencing that a violation of community control

would result in a two-year sentence.

{¶2} The state concedes error on authority of paragraph two of the syllabus to

State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837. That paragraph

states:

Pursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court sentencing an offender to a community control sanction must, at the time of the 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.

(Emphasis added.)

{¶3} The court informed Esper that a violation of community control would result

in a prison term of “at least two years.” If the court believed that the words “at least”

gave it leeway to impose a higher term, it was wrong. Brooks held that strict compliance

with R.C. 2929.19(B)(5) requires the trial court to “in straightforward and affirmative language, inform the offender at the sentencing hearing that the trial court will impose a

definite term of imprisonment of a fixed number of months or years, such as ‘twelve

months’ incarceration,’ if the conditions are violated.” The court was thus bound to

sentence Esper to the specific term stated at the time it accepted Esper’s guilty plea —

two years in prison. We sustain the assignment of error and remand for resentencing.

{¶4} This cause is reversed and remanded to the trial court for resentencing

consistent with this opinion.

It is ordered that appellant recover of appellee his 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 Cuyahoga

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.

MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., and PATRICIA ANN BLACKMON, J., CONCUR