State v. Graham

2013 Ohio 4727

Opinion

[Cite as State v. Graham, 2013-Ohio-4727.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : Appellate Case No. 2012-CA-68 : Plaintiff-Appellee : Trial Court Case Nos. CRB1100923 : Trial Court Case Nos. CRB1200396 v. : Trial Court Case Nos. CRB1201108 : CELIA D. GRAHAM : (Criminal Appeal from : (Fairborn Municipal Court) Defendant-Appellant : :

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OPINION

Rendered on the 25th day of October, 2013.

BETSY A. DEEDS, Atty. Reg. #0076747, Fairborn Prosecutor’s Office, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee

SCOTT N. BLAUVELT, Atty. Reg. #0068177, 246 High Street, Hamilton, Ohio 45011 Attorney for Defendant-Appellant

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HALL, J.,

{¶ 1} This matter comes before us upon three delayed appeals filed by 2

defendant-appellant Celia D. Graham.

{¶ 2} In Fairborn Municipal Court case number CRB 1201108, Graham appeals

from her conviction and sentence on a misdemeanor theft charge. In Fairborn Municipal Court

case number CRB 1200396, she appeals from the revocation of community control for a

menacing conviction. In Fairborn Municipal Court case number CRB 1100923, she appeals

from the revocation of community control for a protection-order violation. The trial court

revoked community control in the latter two cases based upon Graham’s conviction on the

misdemeanor theft charge in case number CRB 1201108.

{¶ 3} In her sole assignment of error in all three cases, Graham contends the trial

court erred in imposing court costs as part of her sentence without advising her that a failure to

pay may result in an order to perform community service. For its part, the State concedes that

the trial court violated the applicable version of R.C. 2947.23(A)(1)(a) by neglecting to tell

Graham she could be required to perform community service if she does not pay court costs.

Both parties urge us to modify Graham’s sentences to eliminate the possibility of her being

required to perform community service.

{¶ 4} Upon review, we decline to modify Graham’s sentence in case number CRB

1200396 and case number CRB 1100923. As set forth above, she has filed a delayed appeal from

the trial court’s revocation of community control in those two cases. On July 5, 2013, this court

overruled her motion to pursue a delayed appeal from the judgment entry of conviction in case

number CRB 1200396 and case number CRB 1100923. Therefore, the only appeal before us in

those cases involves the trial court’s revocation of community control, not its initial imposition of

court costs at the time of her original sentencing. Graham makes no argument that the trial court 3

erred in revoking community control. Therefore, the trial court’s judgment entries revoking

community control in case number CRB 1200396 and case number CRB 1100923 are affirmed.

{¶ 5} With regard to case number CRB 1201108, however, Graham has filed a delayed

appeal from her conviction and sentence on a theft charge. The judgment entry of conviction

includes a jail sentence, a fine, and court costs. Our review of the record confirms the trial court’s

failure to advise Graham that she may be required to perform community service if she fails to

pay court costs. The State concedes that this omission by the trial court violated the version of

R.C. 2947.23(A)(1) in effect at the time of her November 2012 sentencing.1 As noted above,

both parties urge us to modify the trial court’s judgment to remove the possibility of community

service if court costs are not paid. We previously have applied this remedy (1) where a remand

for resentencing was impossible because the defendant’s sentence had been served or (2) where

such a remand would serve little purpose because of the defendant’s lengthy prison sentence. See,

e.g., State v. Blessing, 2d Dist. Clark No. 2011 CA 56, 2013-Ohio-392, ¶15.

{¶ 6} Although Graham’s sentence was not lengthy, her jail term appears to have been

served. In light of that fact, and in recognition of the State’s satisfaction with the remedy she

proposes, the trial court’s judgment in case number CRB 1201108 is hereby modified by

eliminating any possibility or requirement that she perform community service in lieu of court

costs. As so modified, the trial court’s judgment in that case is affirmed. Consistent with this

court’s prior approach, 2 case number CRB 1201108 is remanded for the trial court to make

1 We note that “[t]he statute currently provides that the failure to give this notice does not affect the court’s ability to require community service and, effective March 22, 2013, the trial court is no longer required to give this notice to offenders who receive a prison sentence.” State v. Haney, 2d Dist. Montgomery No. 25344, 2013-Ohio-1924, ¶21. 2 See, e.g., State v. Parson, 2d Dist. Montgomery No. 25123, 2013-Ohio-1069, ¶17. 4

whatever record of the modification it deems appropriate.

FROELICH and WELBAUM, JJ., concur.

Copies mailed to:

Betsy A. Deeds Scott N. Blauvelt Hon. Beth W. Root