[Cite as State v. Heath, 2026-Ohio-685.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO Case No. 25 CAA 06 0044 & 25 CAA 08 0063
Plaintiff - Appellee Opinion And Judgment Entry
-vs- On Motion for Reconsideration, Appeal from the Court of Common Pleas, Case Nos. 25 CRI JEFFREY HEATH 02 0122 & 23 CRI 03 0112
Defendant - Appellant Judgment: Affirmed
Date of Judgment Entry: April 13, 2026
BEFORE: Andrew J. King; William B. Hoffman; Robert G. Montgomery, Judges
APPEARANCES: MELISSA A. SCHIFFEL, KATHERYN L. MUNGER, for Plaintiff- Appellee; CHRISTOPHER BAZELEY, for Defendant-Appellant.
King, P.J.
{¶ 1} Plaintiff-Appellee the State of Ohio has filed an application for
reconsideration, or in the alternative, en banc consideration of our February 27, 2026
decision in State v. Heath 2026-Ohio-685 (5th Dist.) (Montgomery dissenting), which
granted Defendant-Appellant Heath's first assignment of error and found moot his
second assignment of error. For the following reasons, we grant the State's motion for
reconsideration, deny the State's motion for en banc consideration, vacate our February
27, 2026 opinion, and affirm the judgment of the trial court.
Motions to Reconsider {¶ 2} The test generally applied upon the filing of a motion for reconsideration in
the court of appeals is whether the motion calls to the attention of the court an obvious
error in its decision, or raises an issue for consideration that was either not considered at
all or was not fully considered by the court when it should have been Matthews v.
Matthews, 5 Ohio App.3d 140, 450 N.E.2d 278 (10th Dist.1981).
{¶ 3} The State's motion calls to our attention an error of law. The State points to
our reliance on State v. Ward 2021-Ohio-1320 (1st Dist.) which is misplaced in light of
changes to R.C. 2929.14(B)(4) after the Ward decision was published. Specifically, the
State argues the majority in the previous case erred in concluding the trial court had failed
to adequately reserve a prison sentence in the event Heath violated the terms and
conditions of his community control. The argument is well taken. Accordingly, we grant
the motion for reconsideration, vacate our February 27, 2026 opinion, and issue this
opinion in its place.
Facts and Procedural History
{¶ 4} On July 28, 2023, Heath pled no contest one count of illegal use of a minor
in sexually oriented material and one count of pandering sexually oriented material
involving a minor, felonies of the second degree. By judgment entry filed September 6,
2023 the trial court sentenced Heath to three years of community control. Heath was
advised that violation of community control could result in a prison term of up to 20 years.
{¶ 5} On May 28, 2025, in case number 25 CR I 02 0122, the trial court revoked
Heath's community control after he pled guilty to one count of attempted pandering
sexually-oriented matter involving a juvenile. In the 2025 case the trial court sentenced
Heath to 15 months. For the 2023 case, the trial court imposed sentences of 3 to 6 years on each count. The trial court ordered Heath to serve all three sentences consecutively for
an aggregate total of 12 to 15 years in prison.
{¶ 6} Heath timely filed an appeal challenging the adequacy of the trial court's
notification that consecutive sentences could be imposed should his community control
be revoked, and the imposition of consecutive sentences when his community control was
revoked. On February 27, 2026, we rendered an opinion finding the trial court had failed
to reserve a specific sentence in the event Heath violated the terms of his community
control. Heath at ¶ 19. The matter is now before this court for reconsideration. Heath
responded to the State's motion for reconsideration and not argue against the motion, but
did argue his second assignment of error should also be examined upon reconsideration.
We therefore reconsider Heath's two assignments of error as follows:
I
{¶ 7} "HEATH'S SENTENCES IN CASE NUMBER 23 CRI 03 0112 ARE
CONTRARY TO LAW BECAUSE THE TRIAL COURT FAILED TO PROPERLY RESERVE
THE SENTENCING RANGE AT HIS ORIGINAL SENTENCING."
II
{¶ 8} "THE TRIAL COURT'S IMPOSITION OF CONSECUTIVE SENTENCES,
BOTH INTERNALLY IN CASE NUMBER 23 CRI 02 0112 AND WITH CASE NUMBER
25 CRI 02 0122, IS CONTRARY TO LAW BECAUSE THE TRIAL COURT FAILED TO
ADVISE HEATH THAT CONSECUTIVE SENTENCES COULD BE IMPOSED AT HIS
ORIGINAL SENTENCING IN CASE NUMBER 23 CRI 03 0112."
{¶ 9} In his first assignment of error, Heath argues the trial court failed to
properly reserve a sentencing range that could be imposed in the event he violated the conditions of his community control. He argues his sentences are therefore contrary to
law under R.C. 2953.08(G)(2). We disagree.
Felony Sentence Review
{¶ 10} This court reviews felony sentences using the standard of review set forth in
R.C. 2953.08. State v. Marcum, 2016-Ohio-1002, ¶ 22; State v. Howell, 2015-Ohio-4049,
¶ 31 (5th Dist.). Subsection (G)(2) sets forth this court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court 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 division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law. {¶ 11} "Clear and convincing evidence is that measure or degree of proof which is
more than a mere 'preponderance of the evidence,' but not to the extent of such certainty
as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
Sentencing and Community Control
{¶ 12} R.C. 2929.19(B)(4) governs the imposition of community control and sets
forth certain sentencing hearing requirements when a trial court imposes a community
control sanction. That section states:
(4) If the sentencing court determines at the sentencing hearing that
a community control sanction should be imposed and the court is not
prohibited from imposing a community control sanction, the court
shall impose a community control sanction. 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 range from which the prison
term may be imposed as a sanction for the violation, which shall be
the range of prison terms for the offense that is specified pursuant to section 2929.14 of the Revised Code and as described in section
2929.15 of the Revised Code.
{¶ 13} Emphasis added.
{¶ 14} The foregoing section indicates its mandates must be met at the sentencing
hearing. Therefore, "notification generally is deficient when the trial court's statements to
an offender of a possible term of imprisonment occurs at a plea hearing and is not
repeated at a later sentencing hearing." State v. Brooks, 2004-Ohio-4746, ¶ 17.
The State's Arguments
{¶ 15} In support of its argument to affirm, the State cites several cases beginning
with State v. Grimm, 2023-Ohio-4458 (7th Dist.). In that matter the trial court advised
Grimm "Now, if you violate these sanctions, you risk prison sentences of up to 12 months
on each, possibly consecutive; meaning you could go to prison for up to two years; do you
understand?" On appeal the Seventh District affirmed this notification because a range
was given.
{¶ 16} The State next cites State v. Adkins, 2025-Ohio-4526 (11th Dist.), however,
the quote cited by the State is from State v. Thompson, 2024-Ohio-3361 (4th Dist.), not
Adkins. Thompson involved two cases, one in which defendant Thompson entered pleas
to three counts and the second involving a plea to one count. In the first case, the trial
court sentenced Thompson to two years of community control reserving an 18-month
prison term on one count and a 12-month prison term on the other, to be served
consecutively for a maximum sentence of 30 months, in the event Thompson violated his
community control. In the second case, the trial court also sentenced Thompson to two
years of community control and reserved an 18-month prison term. During the combined sentencing hearings in both cases, the trial court notified Thompson that in the event her
community control was revoked, she could be sent to prison for a total of 48 months.
Thompson ¶ 3. The State in this matter quotes the exchange between the Court and
Thompson, specifically:
"You know, by placing you on community control, I've reserved the
entire prison terms. So you know, this is your chance to prove to the
community that you can change your ways. If you've lied to us, you're
not ready for treatment, or you can't pull through with the treatment,
the Court absolutely intends to send you to prison, you know, and the
victim will get what she asked for, because right now, the entire
amounts, you got 30 plus - 48, so you're looking at a total of 48
months. So you can go for up to four years. You understand that?
{¶ 17} Thompson at ¶ 3.
{¶ 18} On appeal, the Fourth District found this language adequate as the trial
court had "inquired whether Thompson understood that if she violated her community
control, she was 'looking at a total of 48 months.' " Id. at ¶ 13.
{¶ 19} Next the State cites State v. Pruitt, 2024-Ohio-5434 (3d Dist.). In that
matter Pruitt pled guilty to a single third-degree felony. During his sentencing the trial
court notified Pruitt that "[i]f the conditions of community control sanctions imposed 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 of thirty-six months." Id. ¶ 12. Further,
the trial court advised Pruitt that it "intend[ed] to impose a prison term of thirty-six months if there is a community control violation." Pruitt subsequently violated his
community control and was sentenced to a 24-month prison term. Id.
{¶ 20} On appeal, Pruitt argued the trial court failed to notify him of the range from
which a prison term could be imposed if he violated his community control. The Third
District disagreed finding:
Even though the better practice would have been for the trial court
to inform Pruitt of the range of the prison term that could be
imposed if he violated the terms and conditions of his community-
control sanctions, Pruitt's sentence is not contrary to law since the
trial court unequivocally notified Pruitt of the maximum term that
would be imposed. Accord Wells at ¶ 16. Indeed, to us, the trial court
informed Pruitt of the top end of the range of possible prison terms,
which, under the facts presented does not render his sentence
contrary to law. See State v. Monroe, 2020-Ohio-597, ¶ 41 (2d Dist.)
("For all revocations, the prison term must be within the range of
prison terms available for the offense for which community control
had been imposed and the term may not exceed the prison term
specified in the notice provided to the offender at the original
sentencing hearing."). Therefore, because the trial court imposed a
lesser term of imprisonment, Pruitt's sentence is not contrary to law.
See State v. Monroe, 2020-Ohio-597, ¶ 41 (2d Dist.) ("For all
revocations, the prison term must be within the range of prison terms
available for the offense for which community control had been imposed and the term may not exceed the prison term specified in
the notice provided to the offender at the original sentencing
hearing."). Therefore, because the trial court imposed a lesser term
of imprisonment, Pruitt's sentence is not contrary to law. See
Goldsberry, 2009-Ohio-6026, at ¶ 15 (3d Dist.) (determining 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").
{¶ 21} Pruitt at ¶ 13.
{¶ 22} In contrast, the State cites State v. Van Den Eynde, 2023-Ohio-1790 (3d
Dist.). In that matter Van Den Eynde pled guilty to two fifth-degree felonies and was
placed on community control. During sentencing, the trial court made only vague
references to the possibility of Van Den Eynde serving a prison term, and it was not clear
whether the references were in regard to a prison term in the event of a community control
violation. Id., ¶ 8. The trial court made no reference to the potential duration of a prison
term nor did it reference any range of a potential sentence. Id. ¶ 9. When Van Den Eynde
violated her community control, the trial court imposed eleven-month prison term for
each of Van Den Eynde's convictions and ordered her to serve the sentences
consecutively. Id. ¶ 2
{¶ 23} On appeal, the State argued, as does the State here, that changes to R.C.
2929.14(B)(4) changed the degree of notification required under the statute. The trial
court noted: While changing the content of the notification from an
announcement of a "specific prison term" to a recitation of the "range
of prison terms for the offense," the revisions to R.C. 2929.19(B)(4)
have not changed the fact that a trial court is still required to
"indicate" the reserved prison term that may be imposed for a
community control violation. R.C. 2929.19(B)(4). In other words, the
revisions may affect the content of the notification but do not affect
the necessity or manner of the notification. Since the foundations of
the Brooks decision remain intact, we will continue to follow its
directives.
{¶ 24} Id. at ¶ 15 citing State v. Brooks, 2004-Ohio-4746. The Third District
reversed the trial court's sentence finding it had not complied with the mandates of R.C.
2929.14(B)(4). Id. ¶ 16.
Heath's Sentences
{¶ 25} Turning to matter at bar, in the 2023 case, on July 28, 2023, Heath entered
pleas of no contest to one count of illegal use of a minor in sexually oriented material and
one count of pandering sexually oriented material involving a minor, felonies of the
second degree. The trial court accepted Heath's pleas, convicted him, and ordered a
presentence investigation.
{¶ 26} The trial court held a sentencing hearing on September 5, 2023, sentenced
Heath to a period of community control, and advised: If Mr. Heath were to violate the requirements of his community
control sentence, I could extend to a full five years the period of time
when he would be on probation here with me in the case. I could add
other conditions and consequences to the community control terms,
that might be more jail days, house arrest, and other consequences
too. I could of course, still impose prison terms on the case as well.
If I imposed any prison terms because Mr. Heath violated the
requirements of his community control sentence, prison terms in the
case, between these two charges could last for as long as 20 years.
{¶ 27} Transcript of September 5, 2023 sentencing at 13.
{¶ 28} In its September 6, 2023 sentencing judgment entry, the trial court
indicated: "It was further ORDERED that a violation of this Sentence could lead to a
longer or more restrictive Sanction or Sanctions, and a prison term of up to 20 years."
{¶ 29} Per R.C. 2929.14(A)(2), prison terms for a felony of the second degree
committed on or after March 22, 2019, "shall be an indefinite prison term with a stated
minimum term selected by the court of two, three, four, five, six, seven, or eight years
and a maximum term that is determined pursuant to section 2929.144 of the Revised
Code. . . . " Heath's offenses were committed in 2023, thus his maximum possible
sentence pursuant to R.C. 2929.144 was 12 years on each count.
{¶ 30} As in Pruitt, supra, the better practice would have been to advise Heath of
the of the range of prison terms he would face in the event of a community control violation, we nonetheless find the trial court's advisements complied with the
requirements of R.C. 2929.19 (B)(4).
{¶ 31} The first assignment of error is overruled.
{¶ 32} In his second assignment of error, Heath argues the trial court erred in
imposing consecutive sentences both internally in the 2023 case and consecutive to the
sentence in the 2025 case. We agree in part, and disagree in part.
{¶ 33} The default rule in Ohio is that "a prison term, jail term, or sentence of
imprisonment shall be served concurrently with any other prison term, jail term, or
sentence of imprisonment imposed by a court of this state, another state, or the United
States." R.C. 2929.41(A). "In order to impose consecutive terms of imprisonment, a trial
court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing
hearing and incorporate its findings into its sentencing entry, but it has no obligation to
state reasons to support its findings." State v. Bonnell, 2014-Ohio-3177, ¶ 37.
{¶ 34} In support of his argument, Heath cites State v. Jones, 2022-Ohio-4485.
Jones was on community control in Harrison County when she committed new offenses
in Jefferson County. The Harrison County Court had properly reserved a two-year
sentence in the event of a community-control violation. In the Jefferson County case,
Jones received a prison term of three years. Thereafter, upon finding Jones had violated
her community control, the Harrison County court revoked her community control,
imposed the reserved two-year sentence and ordered Jones to serve the sentence
consecutively to the Jefferson County sentence.
{¶ 35} On appeal, Jones argued the Harrison County court could not order its
sentence served consecutively to the Jefferson County case. The Seventh District Court of Appeals found the trial court had the authority to impose a consecutive sentence for the
community-control violation and was under no obligation at the time it imposed
community control to notify Jones that sentencing upon revocation could include a
consecutive sentence. Id. at ¶ 34. Jones appealed to the Supreme Court of Ohio. The Court
reversed the Seventh District finding:
[A] reserved prison term may be ordered to be served consecutively
to any other sentence at a community-control-revocation hearing if
notice was given when the prison term was reserved that the term
could be required to be served consecutively to another prison term
at the time of revocation. This is not to say that such notice must be
given. Rather, the notice must be given if the trial court wants to later
have the option to impose a consecutive sentence if, in its discretion,
a consecutive sentence is necessary to fulfill the purposes and
principles of felony sentencing. See R.C. 2929.11.1.
{¶ 36} State v. Jones, 2022-Ohio-4485, ¶ 15. The Court additionally found "when
a reserved prison term or terms are imposed in the context of an existing prison term, a
court may not require that they be served consecutively unless notice of a potential
consecutive sentence was given at the time of sentencing to community control. Absent
such prior notice, the reserved prison sentence must be imposed to run concurrently with
the existing prison term. R.C. 2929.15(B)(3) and 2929.41(A). Id. at ¶ 17.
{¶ 37} Heath also cites State v. Crose, 2023-Ohio-880 (3d Dist.). Crose was on
community control in Crawford County when she committed new offenses in Richland County. Richland County imposed a prison sentence. Thereafter, the Crawford County
court found Crouse had violated her community control, revoked her community control,
and sentenced her to a prison term to be served consecutively to the sentence in the
Richland County case. Because the Crawford County trial court had failed to advise Crose
she could be subject to consecutive sentences in the event of a new conviction, the Third
District Court of Appeals found her sentence was contrary to law. Id. ¶ 20.
{¶ 38} In this matter, Heath's signed plea agreement in the 2023 case reads in
relevant part "I have been advised by the court and counsel and understand that prison
terms for multiple charges, even if consecutive sentences are not mandatory, may be
imposed consecutively by the court." Plea of No Contest, July 28, 2023, docket item 51.
There is no transcript of the change of plea hearing, and we therefore presume the
regularity of that hearing.
{¶ 39} During sentencing in his 2023 case, the trial court advised Heath that
should he violate the terms of his community control it could impose prison terms, and
those prison terms "between these two charges could last for as long as 20 years." T. 13.
In its sentencing judgment entry, the trial court indicated "It was further ordered that a
violation of this sentence could lead to a longer or more restrictive sanction or sanctions,
and a prison term of up to 20 years." Judgment Entry on Sentence, September 6, 2023,
docket item 57.
{¶ 40} We find this language adequately advised Heath he could be ordered to
serve consecutive sentences for the 2023 convictions.
{¶ 41} While we agree that Heath was not advised that the reserved prison
sentence could be imposed to run consecutively to an existing prison term, as noted by
the State, there was no "existing" prison term when Heath was sentenced to prison in this matter. We therefore find the consecutive sentences imposed in this matter are not
contrary to law.
Conclusion
{¶ 42} Based on the foregoing, we find the State has satisfied the grounds for
reconsideration under App.R. 26(A)(1). We therefore, grant appellant's application for
reconsideration. Upon reconsideration and based on changes to R.C. 2929.14(B)(4), we
find that the trial court adequately reserved prison terms and Heath was adequately
advised of the potential for consecutive prison terms.
{¶ 43} For the reasons stated in our accompanying Opinion, the judgment of the
Delaware County Court of Common Pleas is affirmed.
{¶ 44} Costs are waived.
By: King, P.J.
Hoffman, J. and
Montgomery, J. concur.