[Cite as State v. Hart, 2019-Ohio-3926.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-18-1204
Appellee Trial Court No. CR0201501283
v.
Adam Hart DECISION AND JUDGMENT
Appellant Decided: September 27, 2019
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
SINGER, J.
{¶ 1} Appellant, Adam Hart, appeals from the August 23, 2018 judgment of the
Lucas County Court of Common Pleas, revoking appellant’s community control sanction
imposed June 10, 2016, and sentencing him to four 3-year terms of imprisonment, to be served consecutively, for an aggregate term of 12 years in prison. For the reasons which
follow, we affirm. On appeal, appellant asserts the following single assignment of error:
The trial court did not comply with R.C. 2929.11 and R.C. 2929.12
in sentencing appellant to serve a term of twelve years in the Ohio
Department of Rehabilitation and Corrections.
{¶ 2} On May 1, 2015, the trial court convicted appellant, following acceptance of
his guilty plea, to four counts of robbery, in violation of R.C. 2911.02(A)(2), a felony of
the second degree. Appellant was sentenced to a three-year prison term for Count 1 and
to five years of community control for Counts 2, 3, and 4. Appellant was notified that
violation of the community control sanctions could lead to imposition of a prison term of
“twelve years.”1
{¶ 3} On June 13, 2016, the trial court granted appellant’s motion for judicial
release pursuant to R.C. 2929.20(J)(1) and (K) and imposed three years of community
control on Count 1 with conditions that nearly mirrored that of the conditions previously
imposed for Counts 2, 3, and 4. Appellant was notified that if he violated the terms of
community control, the court could reimpose the reduced sentence pursuant to R.C.
2929.20(K).
1 We note that the trial court erroneously indicated the specific ceiling prison term would be 12 years but this included the 3-year prison term imposed for Count 1. The error, however, is eliminated after appellant is granted judicial release on Count 1 and given a community control sanction.
2. {¶ 4} From the period appellant was released to his most recent violation,
appellant was found non-compliant 12 times and the trial court imposed additional
sanctions with respect to four violations. At appellant’s most recent community control
violation hearing on August 23, 2018, appellant admitted to using illicit substances, not
refraining from further criminal activity, not reporting to police contact within 48 hours,
and not adhering to the Lucas County Drug Court curfew. On August 24, 2018, the court
revoked appellant’s four community control sanctions and resentenced appellant to
impose three-year terms of imprisonment on all four counts, to be served consecutively,
for a total of 12 years of imprisonment, with credit for time already served.
{¶ 5} On appeal, appellant argues the court imposed the sanction for the
community control violation without consideration of the requirements of R.C. 2929.11
and 2929.12, because the court focused on his history of violating the terms of his
community control without consideration of any mitigating factors. Appellant
acknowledged that he was an addict and that the underlying conviction on his most recent
violation was a misdemeanor not a felony, and asserts his recent criminal behavior
reinforces the notion that “appellant is still in need of treatment for his substance abuse
and, likely, mental health issues.”
{¶ 6} The imposition of a penalty for violation of a community control sanction is
controlled by R.C. 2929.15(B). A second sentencing hearing is required, at which “the
court sentences the offender anew and must comply with the relevant sentencing
statutes.” State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 11,
3. quoting State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17, citing
State v. Martin, 8th Dist. Cuyahoga No. 82140, 2003-Ohio-3381, ¶ 35. A trial court
exercises its discretion in deciding the penalty to impose for a violation of community
control. R.C. 2929.15(B)(1); State v. Diehl, 6th Dist. Wood No. WD-18-041, 2019-Ohio-
3818.
{¶ 7} Because the penalty is a new felony sentence, we review the sentence
pursuant to R.C. 2953.08(G)(2). Id. Relevant to an appeal of a penalty imposed for a
community control violation, R.C. 2953.08(G) provides that
we may increase, reduce, or otherwise modify a sentence that is appealed
under this section or may vacate the sentence and remand the matter to the
sentencing court for resentencing. The appellate court's standard for review
is not whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly and
convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings
under [R.C. 2929.13 (B) or (D), 2929.14(B)(2)(e) or (C)(4), 2929.20(I)],
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 8} In determining whether a sentence is clearly and convincingly contrary to
law, the appellate court must ensure that the trial court has adhered to all applicable
4. rules and statutes in imposing the sentence. See State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124, ¶ 14; State v, Borden, 6th Dist. Wood No. WD-18-015,
2019-Ohio-424, ¶ 13-14; State v. Hite, 6th Dist. Lucas No. L-17-1048, 2018-Ohio-998,
¶ 12.
{¶ 9} The trial court has discretion to continue the community control sanction,
impose a more restrictive sanction, or impose a prison term as a penalty. R.C.
2929.15(B)(1). In exercising its discretion, the trial court must “consider both the
seriousness of the original offense leading to the imposition of community control and
the gravity of the community control violation.” State v. Brooks, 103 Ohio St.3d 134,
2004-Ohio-4746, 814 N.E.2d 837, ¶ 20.
{¶ 10} If a prison term is imposed, the trial court must impose a term within the
statutory range set forth in R.C. 2929.14. R.C. 2929.15(B)(1)(c) and (3). Furthermore,
the term can be no greater than the ceiling term specified in the notice given at the
original sentencing hearing as the term the court could impose for a violation of
community control. R.C. 2929.15(B)(3); Brooks at ¶ 21-23. Finally, if the trial court
imposes consecutive penalties for the violation of multiple community control sanctions,
the court must comply with R.C. 2929.14(C)(4).
{¶ 11} R.C. 2929.14(A)(2) provides that the statutory sentencing range for a
second-degree felony is two-to-eight years. At appellant’s original sentencing hearing
and at the judicial release hearing, appellant was notified that if he violated his
community control sanction, the court could impose three-year prison terms for each
5. offense to be served consecutively, for a total prison term up to 12 years. Accordingly,
appellant was properly notified of the specific prison terms that could be imposed for
violating his terms of community control.
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[Cite as State v. Hart, 2019-Ohio-3926.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-18-1204
Appellee Trial Court No. CR0201501283
v.
Adam Hart DECISION AND JUDGMENT
Appellant Decided: September 27, 2019
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
SINGER, J.
{¶ 1} Appellant, Adam Hart, appeals from the August 23, 2018 judgment of the
Lucas County Court of Common Pleas, revoking appellant’s community control sanction
imposed June 10, 2016, and sentencing him to four 3-year terms of imprisonment, to be served consecutively, for an aggregate term of 12 years in prison. For the reasons which
follow, we affirm. On appeal, appellant asserts the following single assignment of error:
The trial court did not comply with R.C. 2929.11 and R.C. 2929.12
in sentencing appellant to serve a term of twelve years in the Ohio
Department of Rehabilitation and Corrections.
{¶ 2} On May 1, 2015, the trial court convicted appellant, following acceptance of
his guilty plea, to four counts of robbery, in violation of R.C. 2911.02(A)(2), a felony of
the second degree. Appellant was sentenced to a three-year prison term for Count 1 and
to five years of community control for Counts 2, 3, and 4. Appellant was notified that
violation of the community control sanctions could lead to imposition of a prison term of
“twelve years.”1
{¶ 3} On June 13, 2016, the trial court granted appellant’s motion for judicial
release pursuant to R.C. 2929.20(J)(1) and (K) and imposed three years of community
control on Count 1 with conditions that nearly mirrored that of the conditions previously
imposed for Counts 2, 3, and 4. Appellant was notified that if he violated the terms of
community control, the court could reimpose the reduced sentence pursuant to R.C.
2929.20(K).
1 We note that the trial court erroneously indicated the specific ceiling prison term would be 12 years but this included the 3-year prison term imposed for Count 1. The error, however, is eliminated after appellant is granted judicial release on Count 1 and given a community control sanction.
2. {¶ 4} From the period appellant was released to his most recent violation,
appellant was found non-compliant 12 times and the trial court imposed additional
sanctions with respect to four violations. At appellant’s most recent community control
violation hearing on August 23, 2018, appellant admitted to using illicit substances, not
refraining from further criminal activity, not reporting to police contact within 48 hours,
and not adhering to the Lucas County Drug Court curfew. On August 24, 2018, the court
revoked appellant’s four community control sanctions and resentenced appellant to
impose three-year terms of imprisonment on all four counts, to be served consecutively,
for a total of 12 years of imprisonment, with credit for time already served.
{¶ 5} On appeal, appellant argues the court imposed the sanction for the
community control violation without consideration of the requirements of R.C. 2929.11
and 2929.12, because the court focused on his history of violating the terms of his
community control without consideration of any mitigating factors. Appellant
acknowledged that he was an addict and that the underlying conviction on his most recent
violation was a misdemeanor not a felony, and asserts his recent criminal behavior
reinforces the notion that “appellant is still in need of treatment for his substance abuse
and, likely, mental health issues.”
{¶ 6} The imposition of a penalty for violation of a community control sanction is
controlled by R.C. 2929.15(B). A second sentencing hearing is required, at which “the
court sentences the offender anew and must comply with the relevant sentencing
statutes.” State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 11,
3. quoting State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17, citing
State v. Martin, 8th Dist. Cuyahoga No. 82140, 2003-Ohio-3381, ¶ 35. A trial court
exercises its discretion in deciding the penalty to impose for a violation of community
control. R.C. 2929.15(B)(1); State v. Diehl, 6th Dist. Wood No. WD-18-041, 2019-Ohio-
3818.
{¶ 7} Because the penalty is a new felony sentence, we review the sentence
pursuant to R.C. 2953.08(G)(2). Id. Relevant to an appeal of a penalty imposed for a
community control violation, R.C. 2953.08(G) provides that
we may increase, reduce, or otherwise modify a sentence that is appealed
under this section or may vacate the sentence and remand the matter to the
sentencing court for resentencing. The appellate court's standard for review
is not whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly and
convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings
under [R.C. 2929.13 (B) or (D), 2929.14(B)(2)(e) or (C)(4), 2929.20(I)],
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 8} In determining whether a sentence is clearly and convincingly contrary to
law, the appellate court must ensure that the trial court has adhered to all applicable
4. rules and statutes in imposing the sentence. See State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124, ¶ 14; State v, Borden, 6th Dist. Wood No. WD-18-015,
2019-Ohio-424, ¶ 13-14; State v. Hite, 6th Dist. Lucas No. L-17-1048, 2018-Ohio-998,
¶ 12.
{¶ 9} The trial court has discretion to continue the community control sanction,
impose a more restrictive sanction, or impose a prison term as a penalty. R.C.
2929.15(B)(1). In exercising its discretion, the trial court must “consider both the
seriousness of the original offense leading to the imposition of community control and
the gravity of the community control violation.” State v. Brooks, 103 Ohio St.3d 134,
2004-Ohio-4746, 814 N.E.2d 837, ¶ 20.
{¶ 10} If a prison term is imposed, the trial court must impose a term within the
statutory range set forth in R.C. 2929.14. R.C. 2929.15(B)(1)(c) and (3). Furthermore,
the term can be no greater than the ceiling term specified in the notice given at the
original sentencing hearing as the term the court could impose for a violation of
community control. R.C. 2929.15(B)(3); Brooks at ¶ 21-23. Finally, if the trial court
imposes consecutive penalties for the violation of multiple community control sanctions,
the court must comply with R.C. 2929.14(C)(4).
{¶ 11} R.C. 2929.14(A)(2) provides that the statutory sentencing range for a
second-degree felony is two-to-eight years. At appellant’s original sentencing hearing
and at the judicial release hearing, appellant was notified that if he violated his
community control sanction, the court could impose three-year prison terms for each
5. offense to be served consecutively, for a total prison term up to 12 years. Accordingly,
appellant was properly notified of the specific prison terms that could be imposed for
violating his terms of community control.
{¶ 12} We further note that a sentencing court is not required to use any specific
language or make specific findings to demonstrate that it considered the applicable
sentencing criteria. See State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000);
State v. Bonner, 6th Dist. Erie No. E-17-043, 2018-Ohio-3083, ¶ 51; State v. Thebeau,
6th Dist. Ottawa No. OT-14-017, 2014-Ohio-5598, ¶ 16. In the case before us, the court
expressly stated at the hearing on the violations of the community control sanctions that
prior to sentencing, it had considered:
the record, oral statements, any victim impact statement, the [pre-sentence
investigation] prepared, also the letter received, as well as the principles
and purposes of sentencing, [sic] has balanced the seriousness and
recidivism factors.
The sentencing entry reflects the same considerations, specifically noting that the
principles and purposes of sentencing are set forth in R.C. 2929.11 and the seriousness
and recidivism factors are set forth in R.C. 2929.12.
{¶ 13} First, we find the trial court properly imposed appellant’s original sentence
of three years in regard to Count 1 when it found that appellant had violated the terms
and conditions of his community control sanctions as it reserved the right to do so as
provided by R.C. 2929.20(K). There is no requirement under R.C. 2929.20(K) that the
6. court make any considerations or findings of fact regarding reimposition of the reduced
sentence.
{¶ 14} Second, as to the penalties imposed for the violation of community control
sanctions imposed for Counts 2, 3, and 4, the trial court specifically stated at the
sentencing hearing and in its judgment entry that it considered the factors set forth in
R.C. 2929.11 and 2929.12. Furthermore, we agree with the state that the trial court took
appellant’s addiction and lack of prior felony convictions into consideration when it
granted his request for judicial release and each time appellant was found to have violated
community control when it decided to reprimand appellant or impose more restrictive
sanctions rather than revoke his community control.
{¶ 15} Accordingly, we conclude that the sentence was not contrary to law and
find appellant’s sole assignment of error not well-taken.
{¶ 16} Having found that the trial court did not commit error prejudicial to
appellant and that substantial justice has been done, the judgment of the Lucas County
Court of Common Pleas is affirmed. Appellant is ordered to pay the court costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
7. State v. Hart C.A. No. L-18-1204
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Thomas J. Osowik, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
8.