[Cite as State v. Goldsberry, 2009-Ohio-6026.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO, CASE NO. 14-07-06
PLAINTIFF-APPELLEE,
v.
MICHAEL GOLDSBERRY, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court Trial Court No. 05 CR 08
Judgment Affirmed
Date of Decision: November 16, 2009
APPEARANCES:
Allison Boggs for Appellant
Terry L. Hord for Appellee Case No. 14-07-06
PRESTON, P.J.
{¶1} Defendant-Appellant, Michael E. Goldsberry, appeals the judgment
of the Union County Court of Common Pleas sentencing him to a sixty-month
prison term. We affirm.
{¶2} In January 2005, the Union County Grand Jury indicted Goldsberry
on five (5) counts of nonsupport of dependents in violation of R.C. 2919.21(A)(2),
felonies of the fifth degree, and on five (5) counts of nonsupport of dependents in
violation of R.C. 2919.21(B), all felonies of the fifth degree. Subsequently,
Goldsberry entered a plea of not guilty as to all counts in the indictment.
{¶3} In March 2005, Goldsberry withdrew his plea of not guilty and
entered a plea of guilty as to all counts in the indictment. The trial court accepted
Goldsberry’s guilty plea and sentenced him to three years of community control,
stating that:
The Court finds that [Goldsberry] has been convicted of: Five counts of Nonsupport of Dependants in violation of Ohio Revised Code Section 2919.21(A)(2), and Five counts of Nonsupport of Dependants in violation of ORC 2919.21(B), each a felony of the fifth degree. It is therefore ORDERED: [Goldsberry] be and hereby is placed on 3 years of Community Control[.] *** The Court further finds that the Court has notified the Defendant in writing and orally that if the conditions of community control are violated, the Court may impose a longer time under the same sanction, may impose a more restrictive sanction, or may impose a prison term on the Defendant and the
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Court hereby indicates that in the event the Court does impose a prison sentence on the offender if he/she violates community control, the Court has indicated the Defendant could receive a maximum prison term of up to 120 months.
(Mar. 23, 2005 JE, pp. 1-2, Doc. No. 18).
{¶4} In November 2005, the trial court held a community control
violation hearing and found that Goldsberry had violated the terms of his
community control. The trial court then ordered Goldsberry to complete an
additional one-hundred (100) hours of community service. Additionally, the trial
court stated that “[t]he Defendant is advised that if he violates any of the terms or
conditions of community control, the Court may impose a more restrictive
community control or the Defendant will be sent to prison for one hundred twenty
(120) months.” (Nov. 3, 2005 JE, pp. 1-2, Doc. No. 29).
{¶5} In January 2007, the trial court held a second community control
violation hearing and found that Goldsberry had again violated the terms of his
community control. The trial court then sentenced Goldsberry to a six-month
prison term on each conviction of nonsupport of dependents, to be served
consecutively, for a total prison term of sixty months, from which Goldsberry
appealed to this Court.
{¶6} In October 2007, this Court dismissed Goldsberry’s appeal in State
v. Goldsberry, 3d Dist. No. 14-07-06, 2007-Ohio-5493 (Goldsberry I), finding that
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the judgment entry issued by the trial court did not constitute a final appealable
order.
{¶7} In December 2008, the Supreme Court of Ohio reversed our decision
without discussion in Goldsberry I and remanded the matter for this Court to rule
on the merits of Goldsberry’s assignment of error. See State v. Goldsberry, 120
Ohio St.3d 275, 2008-Ohio-6103 (Goldsberry II).
{¶8} On remand, Goldsberry presents the following assignment of error
for our review.
THE TRIAL COURT ERRED WHEN IT IMPOSED A PRISON SENTENCE AT APPELLANT’S SECOND PROBATION VIOLATION HEARING WHEN THE COURT FAILED TO NOTIFY APPELLANT OF A SPECIFIC SENTENCE AT BOTH HIS ORIGINAL SENTENCING HEARING AND AT HIS FIRST PROBATION VIOLATION HEARING.
{¶9} In his sole assignment of error, Goldsberry argues that the trial court
erred when it imposed a prison sentence at his second community control violation
hearing because it failed to notify him of the specific sentence it would sanction at
both his original sentencing hearing and at his first community control violation1
hearing should he violate the terms and conditions of his community control.
Additionally, Goldsberry argues that, because the trial court stated that, upon a
1 With respect to the first community control hearing, Goldsberry specifically argues that “[h]e did violate the terms of his community control, which gave the court a second opportunity to rectify the problem of advising him of a specific prison sentence should he violate again, but the court only added the condition that he complete an addition 100m [sic] hours of community control should he violate again.” (Appellant’s Brief at 4).
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violation of the terms of community control, it would sentence him to an aggregate
one hundred twenty-month prison term, but then sentenced him to an aggregate
sixty-month prison term after his second community control violation, it is evident
that the trial court never intended a one hundred twenty-month prison term to be
the specific sentence it would impose. We find these arguments meritless.
{¶10} R.C. 2929.15(B) provides, in pertinent part:
The prison term, if any, imposed upon a violator pursuant to this division shall be within the range of prison terms available for the offense for which the sanction that was violated was imposed and shall not exceed the prison term specified in the notice provided to the offender at the sentencing hearing pursuant to division (B)[(5)] of section 2929.19 of the Revised Code.
(Emphasis added). R.C. 2929.19(B)(5) provides, in pertinent part:
The court shall notify the offender that, if the conditions of the sanction are violated, if the offender commits a violation of any law, or if the offender leaves this state without the permission of the court or the offender’s probation officer, the court may impose a longer time under the same sanction, may impose a more restrictive sanction, or may impose a prison term on the offender and shall indicate the specific prison term that may be imposed as a sanction for the violation, as selected by the court from the range of prison terms for the offense pursuant to section 2929.14 of the Revised Code.
(Emphasis added).
{¶11} In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814
N.E.2d 837, the Supreme Court of Ohio held that, in order to comply with R.C.
2929.19(B)(5), “[t]he judge should not simply notify the offender that if the
community control conditions are violated, he or she will receive ‘the maximum,’
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or a range, such as ‘six to twelve months,’ or some other indefinite term, such as
‘up to 12 months.’” Id. at ¶19. Instead, “[t]he judge is required to notify the
offender of the ‘specific’ term the offender faces for violating community
control.” Id. Additionally, the Court in Brooks held that, when a trial court fails to
provide proper notice of a specific term to the offender, “[t]he matter must be
remanded to the trial court for a resentencing under that provision with a prison
term not an option.” Id. at ¶33. Although a prison term is not an option at the
resentencing, the trial court may choose to impose a longer time under the same
sanction or impose a more restrictive sanction. See id at ¶33.
{¶12} Additionally, the trial court may, at the time of resentencing, notify
the offender of a specific prison term that will be imposed should he violate the
terms of community control again. State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-
7110, 821 N.E2d 995, ¶¶17-18. As the Supreme Court of Ohio stated in Fraley:
The notification requirement in R.C. 2929.19(B)(5) is meant to put the offender on notice of the specific prison term he or she faces if a violation of the conditions occurs. Following 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. The trial court could therefore comply with both the sentencing statutes and our holding in Brooks if at this second hearing the court notifies the offender of the specific prison term that may be imposed for a subsequent violation occurring after this second hearing. We believe that this process complies with the letter and spirit of R.C. 2929.19(B)(5) and 2929.15(B).
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(Internal citations omitted.) 2004-Ohio-7110, at ¶17. See, also, State v. Moton,
5th Dist. No. 2006 CA 0081, 2007-Ohio-6796, appeal not allowed by State v.
Moton, 117 Ohio St.3d 1461, 2008-Ohio-1635, 884 N.E.2d 69.
{¶13} Finally, where an offender is properly notified of a specific prison
term that will be imposed upon a community control violation, the offender
violates the terms of his community control, and the trial judge chooses to impose
a prison term, the “term imposed may not exceed the term the offender was
originally notified of under R.C. 2929.19(B)(5).” Brooks, 2004-Ohio-4746, at ¶22.
However, “[b]ecause the trial judge is not required to choose a prison term under
R.C. 2929.15, it follows that the trial judge could choose to impose a lesser term
of imprisonment than the one the offender was informed of under R.C.
2929.19(B)(5).” Id.
{¶14} Here, Goldsberry first argues that the trial court erred when it
imposed a prison sentence at his second community control violation hearing
because it failed to notify him of a specific sentence at both his original sentencing
hearing and at his first community control violation hearing. Goldsberry is correct
that, under Brooks, the trial court’s initial sentencing entry incorrectly advised him
that, if he violated his community control, he could receive a maximum prison
term of “up to 120 months.” (Mar. 3, 2005 JE, Doc. No. 18). However, after
Goldsberry’s first community control violation, the trial court specifically stated in
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its judgment entry2 that: “[t]he Defendant is advised that if he violates any of the
terms or conditions of community control, the Court may impose a more
restrictive community control or the Defendant will be sent to prison for one
hundred twenty (120) months.” (Nov. 3, 2005 JE, pp. 1-2, Doc. No. 29). Pursuant
to State v. Fraley, the trial was permitted to remedy its failure to provide
Goldsberry with proper notice under R.C. 2929.19(B)(5) at his initial sentencing
by properly advising Goldsberry at his community control violation hearing of the
specific term that it may impose should he violate community control again. 105
Ohio St.3d 13, 2004-Ohio-7110, at syllabus. Goldsberry was sentenced to sixty
(60) months imprisonment for his second community control violation, which was
after the trial court had provided proper notice of the specific prison term it would
impose if he violated his community control at his first community control
violation hearing. Therefore, pursuant to Fraley, the trial court did not err in
sentencing Goldsberry after it provided him proper notice under R.C.
2929.19(B)(5) at his first community control violation hearing. 2004-Ohio-7110.
{¶15} Goldsberry next argues that, because the trial court stated that, upon
violation of the terms of community control, it would sentence him to a one
hundred twenty-month prison term, but then later sentenced him to a sixty-month
2 Goldsberry has not provided a transcript of the Nov. 3, 2005 community control violation hearing, so the record does not indicate whether the trial court also orally advised Goldsberry of the reserved 120-month sentence. We, therefore, presume the regularity of the proceedings as to this issue. See, e.g., State v. Schaffer, 3d Dist. No. 4-08-07, 2008-Ohio-6183, ¶11.
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prison term after his second community control violation, it is evident that the trial
court never intended a one hundred twenty-month prison term to be the specific
sentence it would impose. We, again, disagree. Brooks is very clear that,
although a trial judge may not impose a prison term exceeding the term of which
the offender was originally notified, the trial judge may choose to impose a lesser
term of imprisonment. 2004-Ohio-4746, at ¶22. Therefore, the trial judge was
permitted to impose a sixty-month term instead of a one hundred twenty-month
term, and we reject Goldsberry’s argument that this decision invalidated the trial
court’s proper notification under R.C. 2929.19(B)(5).
{¶16} The dissent asserts that the trial court’s original sentencing entry and
subsequent sentencing entry failed to notify Goldsberry what specific prison term
it would impose on each of the ten (10) counts in the indictment should he violate
his community control. The dissent argues that the trial court erred by informing
Goldsberry of a “lump sum” prison term it would impose as to all ten (10) counts,
i.e. “120 months.” Goldsberry did not argue this on appeal; rather, the dissent has
raised it sua sponte, presumably as plain error. However, we believe the finality
of res judicata bars the dissent’s raising of plain error herein as Goldsberry never
filed a direct appeal from his original sentencing. See, e.g., State v. Wilson (June 9,
1989), 6th Dist. No. L-88-270; State v. Evans (May 16, 1990), 9th Dist. No.
89CA004587; State v. Moore (Mar. 12, 1992), 8th Dist. No. 62411; State v.
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Gaston, 8th Dist. No. 82628, 2003-Ohio-5825; State v. Price, 8th Dist. No. 83344,
2004-Ohio-1910.
{¶17} Even if plain error could be raised at this point, we recognize plain
error “‘with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.’” State v. Landrum (1990), 53 Ohio
St.3d 107, 111, 559 N.E.2d 710, quoting State v. Long (1978) 53 Ohio St.2d 91,
372 N.E.2d 804, paragraph three of the syllabus. For plain error to apply, the trial
court must have deviated from a legal rule, the error must have been an obvious
defect in the proceeding, and the error must have affected a substantial right. State
v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240. Under the plain error
standard, the appellant must demonstrate that the outcome of his trial would
clearly have been different but for the trial court’s errors. State v. Waddell (1996),
75 Ohio St.3d 163, 166, 661 N.E.2d 1043, citing State v. Moreland (1990), 50
Ohio St.3d 58, 552 N.E.2d 894. We cannot conclude that the trial court’s notice of
the “lump sum” sentence that it would impose should Goldsberry violate his
community control constitutes plain error in this case.
{¶18} The Court in Brooks acknowledged that “there are some situations in
which * * * something less than strict compliance [with R.C. 2929.19(B)(5)’s
notice requirement] will suffice.” 2004-Ohio-4746, at ¶32. The Court found that,
in some cases, “the statements made at the plea hearing or other notifications to
the offender may be used to clarify and supplement what is said at the sentencing
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hearing to the offender.” Brooks at ¶18 (emphasis in original and added). The
Court also provided one such factual scenario that would not require strict
compliance:
One such situation would involve an offender who is informed prior to sentencing (e.g., at a plea hearing) what the specific maximum term would be, and then at sentencing, the trial court definitively states that it will impose “the maximum” prison term if community control is violated, without stating what the maximum is. It would be overly rigid in that case to find that the offender’s knowledge of the maximum term for the offense would not satisfy the notice requirement of R.C. 2929.19(B)(5).
Brooks at ¶32.
{¶19} Goldsberry was charged with ten (10) counts of nonsupport of
dependents, all fifth degree felonies with possible prison terms of six (6) to twelve
(12) months on each count. (Doc. No. 1); R.C. 2919.21(A)(2), (B); R.C.
2929.14(A)(5). Throughout the proceedings, Goldsberry had notice that each of
the ten (10) counts carried a possible term of 6 to 12 months imprisonment. For
example, Goldsberry was informed at the arraignment “that Nonsupport of
Dependents, a fifth degree felony, could result in a prison term of 6, 7, 8, 9, 10, 11,
or 12 months * * * on each count.” (Doc. No. 5). In his entry withdrawing his
plea of not guilty, Goldsberry acknowledged that he was charged with ten (10)
counts of nonsupport of dependents, all fifth degree felonies, and that he
understood “the nature of the charges and that the potential sentencing range on a
fifth degree felony is 6 months up to 12 months * * * on each count.” (Doc. No.
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15). Goldsberry was further advised that if he was “granted community control at
any point in [his] sentence and if [he] violate[d] any of the conditions imposed,
[he] may/will be given a longer period through court control, greater restrictions,
or up to and including a prison term of 6 to 12 months on each fifth degree
felony.” (Id.).
{¶20} At the November 2005 community control violation hearing, the
trial court advised Goldsberry that he would be “sent to prison for one hundred
twenty (120) months” if he violated the terms or conditions of his community
control. (Nov. 3, 2005 JE, Doc. No. 29). The trial court’s notice of a lump sum of
120 months imprisonment at this hearing cannot be viewed in a vacuum. Rather,
the trial court’s hearing notice must be viewed in light of the “other notifications”
Goldsberry received and the fact that he pled guilty to ten (10) counts—all fifth
degree felonies with the same maximum potential term of 12 months
imprisonment. Brooks, 2004-Ohio-4746, at ¶18. Effectively, Goldsberry had
notice that the trial court was reserving 12 months on each of the ten (10) counts
based upon the prior notification and the fact that 120 months divided by 10 (the
number of counts) equals 12 months per count, which is the only possible way to
divide the 120 months that the trial court reserved. Therefore, we cannot conclude
that the trial court committed plain error when Goldsberry had sufficient notice of
the trial court’s reserved prison term as to each count pursuant to R.C. 2929.15(B)
and 2929.19(B)(5) as interpreted under the Brooks strict compliance exception.
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2004-Ohio-4746, at ¶¶18, 32. See, also, State v. Moffit, 9th Dist. No. 22957, 2006-
Ohio-3340.
{¶21} For all these reasons, Goldsberry’s assignment of error is overruled.
Having found no error prejudicial to the appellant herein in the particulars
assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI, J., concurs
ROGERS, J., dissents.
{¶22} I respectfully dissent from the opinion of the majority.
{¶23} When State v. Goldsberry, 3d Dist. No. 14-07-06, 2007-Ohio-5493
(Goldsberry I), was before this Court, we considered, sua sponte, whether the trial
court’s sentencing entry constituted a final appealable order. Consistent with the
previous decisions of this Court as well as several other courts of appeal, we
determined there was no final appealable order because the trial court’s original
sentencing entry failed to separately dispose of each count of which Goldsberry
was convicted.3 See Goldsberry I; State v. Moore, 3d Dist. No. 14-06-53, 2007-
Ohio-4941; State v. Sanchez, 2d Dist. No. 2006-CA-154, 2009-Ohio-813; State v.
Phillis, 4th Dist. No. 06CA75, 2007-Ohio-6893; State v. Waters, 8th Dist. No.
85691, 2005-Ohio-5137; State v. Cooper, 8th Dist. No. 84716, 2005-Ohio-754;
3 This author anticipated that, after our finding that there was no final appealable order, the trial court, sua sponte or on the motion of the prosecution or the defense, would have immediately resentenced Goldsberry.
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State v. Hicks, 8th Dist. No. 84418, 2004-Ohio-6113; State v. Goodwin, 9th Dist.
No. 23337, 2007-Ohio-2343; State v. Hoelscher, 9th Dist. No. 05CA0085-M,
2006-Ohio-3531; State v. Garner, 11th Dist. No. 2002-T-0025, 2003-Ohio-5222
(holding that “[n]owhere in R.C. 2929.15, which governs community control
sanctions, does it state that if a court chooses to sentence a person to something
other than a prison term the court may only impose a single term, regardless of the
number of charges”). However, the Supreme Court of Ohio reversed our decision,
without analysis, and remanded the matter for us to rule on the merits. See State v.
Goldsberry, 120 Ohio St.3d 275, 2008-Ohio-6103 (Goldsberry II). Accordingly, I
find it necessary to reiterate the reasoning behind our conclusion In Goldsberry I
that a trial court must separately dispose of each count of which a defendant is
convicted.
{¶24} In 1995, the General Assembly enacted Senate Bill 2 (effective July
1, 1996), which eliminated felony probation and modified the procedure by which
trial courts impose sentences for felony offenses. See State v. Wolfe, 5th Dist. No.
2008-CA-00064, 2009-Ohio-830, ¶¶15-16, citing Griffin & Katz, Ohio Felony
Sentencing Law (1998 Ed.) 394-396, Section S.2-T5.4. Prior to the effective date
of Senate Bill 2, a trial court would sentence an offender to specific terms of
imprisonment on each individual count of which the offender was convicted. If
the trial court deemed probation appropriate for the offender, it would then
suspend the prison terms and place the offender on probation. Id. at ¶17. Senate
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Bill 2, however, radically altered this procedure. Trial courts now have the option
of sentencing offenders to either a term of imprisonment or to community control.
State v. Hoy, 3d Dist. Nos. 14-04-13, 14-04-14, 2005-Ohio-1093, ¶18. It is truly
an either/or situation. The sentence imposed is either a specific term of
imprisonment on each count, or a specific term of community control on each
count.
{¶25} If imposing community control under the new system, a trial court
may choose to impose different lengths of time on each count, depending on the
degree of the offense. See R.C. 2929.15, 2929.16, 2929.17, 2929.18. For
example, a one-year term of community control may be sufficient for a conviction
on a felony of the fifth degree, while a trial court may wish to impose a three-year
term or longer for a conviction on a felony of the third degree. However, the total
of all terms imposed may not exceed the statutory maximum of five years. R.C.
2929.15(A)(1).
{¶26} R.C. 2929.15 governs imposition of community control and
provides, in pertinent part:
If in sentencing an offender for a felony the court is not required to impose a prison term, a mandatory prison term, or a term of life imprisonment upon the offender, the court may directly impose a sentence that consists of one or more community control sanctions authorized pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code. * * * The duration of all community control sanctions imposed upon an offender under this division shall not exceed five years.
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R.C. 2929.15(A)(1). This language chosen by the General Assembly refers to
sentencing “an offender for a felony.” The word “a”, in this context, clearly may
be equated with the word “each” and expresses the General Assembly’s intent to
require the trial court to impose community control on “a” felony; in other words,
separately on each count. Additionally, as R.C. 2929.15(A)(1) provides that “the
court may directly impose a sentence that consists of one of more community
control sanctions * * *” (emphasis added), I believe that the General Assembly
intended community control to be a sentence, not a status or some other constraint
not a part of Ohio’s felony-sentencing scheme. As such, I find no distinction
between an error in imposing a “lump” prison term sentence for multiple felonies
and in imposing a “lump” community control sentence for multiple felonies.
{¶27} Finally, the Supreme Court of Ohio has repeatedly emphasized that
Ohio’s felony-sentencing scheme focuses on each offense and sentence
individually and not as a group or “sentencing package.” Recently, the Court
observed that:
Ohio’s felony-sentencing scheme is clearly designed to focus the judge’s attention on one offense at a time. Under R.C. 2929.14(A), the range of available penalties depends on the degree of each offense. For instance, R.C. 2929.14(A)(1) provides that “[f]or a felony of the first degree, the prison term shall be three, four, five, six, seven, eight, nine, or ten years.” (Emphasis added.) R.C. 2929.14(A)(2) provides a different range for second-degree felonies. In a case in which a defendant is convicted of two first-degree felonies and one second-degree felony, the statute leaves the sentencing judge no option but to assign a particular sentence to each of the three offenses,
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separately. (Emphasis sic.) The statute makes no provision for grouping offenses together and imposing a single, “lump” sentence for multiple felonies.
Although imposition of concurrent sentences in Ohio may appear to involve a “lump” sentence approach, the opposite is actually true. Instead of considering multiple offenses as a whole and imposing one, overarching sentence to encompass the entirety of the offenses as in the federal sentencing regime, a judge sentencing a defendant pursuant to Ohio law must consider each offense individually and impose a separate sentence for each offense. See R.C. 2929.11 through 2929.19. Only after the judge has imposed a separate prison term for each offense may the judge then consider in his discretion whether the offender should serve those terms concurrently or consecutively. See State v. Foster, 109 Ohio St.3d 1, 2006-Ohio- 856, 845 N.E.2d 470, paragraph seven of the syllabus, ¶ 100, 102, 105; R.C. 2929.12(A); State v. Mathis, 109 Ohio St.3d 54, 2006- Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. Under the Ohio sentencing statutes, the judge lacks the authority to consider the offenses as a group and to impose only an omnibus sentence for the group of offenses. (Emphasis added.)
State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶¶8-9.
{¶28} As the General Assembly intended community control to be a
sentence and a part of Ohio’s felony-sentencing scheme, I believe that the
principles requiring the trial court to focus on one offense at a time and prohibiting
an omnibus sentence for a group of offenses apply equally to terms of community
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control.4 In summary, I believe that, pursuant to the prior decisions of this Court
as well as other courts of appeal, the language of the applicable statutes, and the
principles of Ohio’s felony-sentencing scheme, trial courts must separately dispose
of each count of which a defendant is convicted—including setting forth specific
terms of community control on each count.
{¶29} In his assignment of error, Goldsberry argues that the trial court
erred when it imposed a prison sentence at his second community control violation
hearing because it failed to notify him of a specific sentence at both his original
sentencing hearing and at his first community control violation hearing.
Specifically, Goldsberry asserts that the trial court could not impose a prison
sentence on him if it did not advise him at his original sentencing of a specific
prison term that it would impose upon a violation of the terms of community
control, even though the trial court advised him of an aggregate term at his first
4 Although I find that the principles requiring a trial judge to focus on each offense separately apply equally to prison sentences and community control sentences, I acknowledge that at least one appellate court has distinguished prison sentences and community control sentences on the basis that trial courts have discretion to impose multiple prison sentences consecutively or concurrently; whereas multiple terms of community control for different offenses must be imposed concurrently to each other and not consecutively. See State v. Lehman, 6th Dist. No. L-99-1140, 2000 WL 125795. But, see, State v. Culgan, 147 Ohio App.3d 19, 2001-Ohio-1944, ¶28 (finding that “[n]othing in the language of R.C. 2929.16 prohibits a sentencing court from ordering that multiple residential community sanctions be served consecutively”). Additionally, I note that, subsequent to Culgan, the Supreme Court of Ohio accepted review of a similar case, State v. Barnhouse, 4th Dist. No. 02CA22, 2002-Ohio-7082, as a certified conflict with Lehman, and held that a trial court may not impose consecutive jail sentences under R.C. 2929.16(A)(2). See State v. Barnhouse, 102 Ohio St.3d 221, 2004-Ohio-2492. However, the Supreme Court’s decision was limited to jail terms imposed for violations of community control sanctions under R.C. 2929.16(A)(2), and I express no opinion as to whether that holding is or is not relevant to whether periods of community control on multiple count indictments may be ordered to be consecutive. Additionally, I note that all of these cases were decided prior to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, which severed portions of the felony sentencing statutes requiring judicial fact finding before imposition of consecutive sentences.
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community control violation hearing. Additionally, Goldsberry argues that,
because the trial court stated that, upon a violation of the terms of community
control, it would sentence him to an aggregate one hundred twenty-month prison
term, but then sentenced him to an aggregate sixty-month prison term after his
second community control violation, it is evident that the trial court never intended
a one hundred twenty-month prison term to be the specific sentence it would
impose. While I find no harm or prejudice to Goldsberry due to the imposition of
less than the full one hundred twenty months, I do agree that the trial court failed
to properly advise him at either his original March 2005 sentencing or his
November 2005 community control violation hearing of specific prison terms that
it would impose on each count if he violated the terms of his community control
sanctions, and I would reverse on that basis.
{¶30} R.C. 2929.19(B) governs felony-sentencing hearings and provides,
in pertinent part, that if a community control sanction is imposed, “[t]he court
shall notify the offender that, if the conditions of the sanction are violated * * *
[the court may] impose a prison term on the offender and shall indicate the
specific prison term that may be imposed as a sanction for the violation[.]* * * ”
R.C. 2929.19(B)(5).
{¶31} In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, the
Supreme Court of Ohio emphasized the importance of trial courts’ strict
compliance with the specificity requirement of R.C. 2929.19(B)(5). In Brooks, the
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Court held that, in order to comply with R.C. 2929.19(B)(5), “[t]he judge should
not simply notify the offender that if the community control conditions are
violated, he or she will receive ‘the maximum,’ or a range, such as ‘six to twelve
months,’ or some other indefinite term, such as ‘up to 12 months.’ [Instead, t]he
judge is required to notify the offender of the ‘specific’ term the offender faces for
violating community control.” Id. at ¶19. The Supreme Court held that, when a
trial court fails to provide proper notice of a specific term to the offender, “[t]he
matter must be remanded to the trial court for a resentencing under that provision
with a prison term not an option.” Id. at ¶33. Additionally, as stated in the first
part of this analysis, Ohio’s felony-sentencing laws focus on each offense and
sentence individually and not as a group or sentencing package. See Saxon, supra.
{¶32} Particularly given the Supreme Court’s emphasis on specificity in
Brooks, and its emphasis on individual offenses and sentences in Saxon, it seems
axiomatic that, if R.C. 2929.19(B) requires the trial court to advise an offender of
a specific prison term that will be imposed if the offender violates sanctions, it
must do so as to each individual count. Otherwise, it cannot be a specific term,
but would be an aggregate term as was imposed in the case before us.
{¶33} Here, Goldsberry was convicted of ten counts of nonsupport of
dependants. Despite the presence of multiple counts, however, the trial court
notified him in March 2005 that, if he violated the terms of his community control,
he could receive a prison term of “up to 120 months.” Upon his violation of
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community control in November 2005, the trial court notified him that, if he
violated the terms of his community control for a second time, it would impose a
prison term of “one hundred twenty (120) months.” On neither occasion did the
trial court delineate what specific prison term it would impose on each of the ten
counts.
{¶34} Additionally, I disagree with the majority’s determination that the
unique factual circumstances presented in this case require an exception to the
notice requirements set forth in R.C. 2929.15(B) and 2929.19(B)(5). I agree with
the majority that the only possible way to divide a one hundred twenty-month
lump sentence among ten counts, each carrying a maximum twelve-month
sentence, is to allocate a twelve-month sentence on each of the ten counts, and the
majority’s observation that Brooks, 103 Ohio St.3d 134, at ¶32, acknowledged that
certain situations may require less than strict compliance with R.C. 2929.19(B)(5).
The majority also cites State v. Moffit, 9th Dist. No. 22957, 2006-Ohio-3340,
which adopted a similar rationale. However, I disagree that the factual scenario
before us falls into such an exception and that Goldsberry had effective notice that
the trial court was reserving a twelve-month sentence on each count. Both Brooks
and Moffit must be distinguished because both involved cases where the defendant
was convicted of only one count. I cannot find that a situation requiring a
defendant to divide a lump sum among ten counts, taking into consideration the
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possible maximum terms, in order to calculate the specific terms being reserved,
comports with the intent of the legislature in R.C. 2929.15(B) and 2929.19(B)(5).
{¶35} Finally, the most obvious flaw in the sentencing of Goldsberry is the
fact that he was convicted of ten counts, but received only one term of community
control. Because the trial court was required to sentence him on each count
separately, but only sentenced him to one term of community control, the
maximum sentence that could be imposed was twelve months, not ten times
twelve!
Under the Ohio sentencing statutes, the judge lacks the authority to consider the offenses as a group and to impose only an omnibus sentence for the group of offenses.
Saxon, 109 Ohio St.3d 176, at ¶9.
{¶36} The majority correctly stated the test for plain error: [f]or plain error
to apply, the trial court must have deviated from a legal rule, the error must have
been an obvious defect in the proceeding, and the error must have affected a
substantial right, citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68.
Here, the trial court deviated from the legal rule that a trial court must sentence on
each count separately; the deviation is clearly an obvious defect; and the
imposition of ten prison terms where the defendant is sentenced on only one count
greatly affects a substantial right.
{¶37} For these reasons, I would find that the trial court failed to properly
sentence Goldsberry, and further failed to properly advise Goldsberry at either his
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original March 2005 sentencing or his November 2005 community control
violation hearing of specific prison terms that it would impose on each count if he
violated the terms of his community control sanctions, and I would reverse and
remand the matter for resentencing.
/jnc
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