[Cite as State v. Keenan, 2020-Ohio-1077.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2019-P-0002 - vs - :
JOSHUA L. KEENAN, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR 00731 D.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).
Christopher J. Boeman, P.O. Box 582, Willoughby, Ohio 44096 (For Defendant- Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Joshua L. Keenan, appeals the trial court’s imposition of an
eighteen-month prison term following revocation of community control. We affirm.
{¶2} In October 2017, appellant pleaded guilty to one count of receiving stolen
property, a fourth-degree felony under R.C. 2913.51. After accepting the plea and finding
appellant guilty, the trial court referred the case to the county probation department for a
presentencing investigation pending sentencing. Appellant failed to appear for sentencing and a warrant was issued for his arrest. After appellant was apprehended,
the sentencing hearing was held.
{¶3} At the sentencing hearing, the trial court sentenced appellant to an
eighteen-month prison term. However, finding appellant amenable to community control,
the prison term was suspended for five years. After citing specific conditions of
community control, the trial court informed appellant that if he violated, he would go to
prison.
{¶4} In its sentencing entry, the trial court did not impose a suspended prison
term. Instead, the court imposed community control sanctions as consistent with the
purposes and principles of felony sentences and then restated the conditions of
community control. The judgment also stated: “The Court notified the Defendant if the
Defendant violates the terms of said community control sanctions the Defendant may
receive a more restrictive community control sanction or the Defendant will serve a
specific prison term of eighteen months.”
{¶5} As a condition of community control, appellant was required to complete a
rehabilitation program. Within two months of entering the facility, appellant escaped, and
the trial court again issued a warrant for his arrest. The state moved to revoke community
control and a hearing was set for May 7, 2018. However, appellant’s whereabouts
remained unknown until October 2018, when it was discovered that he had been
convicted of escape in a neighboring county and was serving a separate one-year term.
The revocation hearing did not go forward until December 21, 2018.
{¶6} At the outset of the proceeding, appellant admitted the violation and asked
that his prison term be served concurrently with his one-year escape sentence. The trial
2 court accepted the admission, revoked community control, and ordered him to serve
eighteen-months in prison, consecutive to the escape sentence.
{¶7} Appellant raises one assignment of error for review:
{¶8} “The trial court abused its discretion to the prejudice of Mr. Keenan when it
did not notify him at his sentencing hearing, in straightforward and affirmative language,
that he may be sentenced to prison for eighteen months if he violated the conditions of
his community control sanctions.”
{¶9} Appellant asserts his eighteen-month sentence must be vacated because
during the original sentencing hearing the trial court did not comply with the notification
requirement of R.C. 2929.19(B)(4). That provision states:
{¶10} “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 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
and as described in section 2929.15 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 issue before the Ohio Supreme Court was whether the provisions of R.C. 2929.15(B)
3 and R.C. 2929.19(B)(5)1 mandate that a trial court inform a defendant at the time of his
sentencing of the specific prison term he will be required to serve for a violation of his
community control sanction. In the first part of its decision, Brooks held that the
notification required under R.C. 2929.19(B)(5) must be stated to the defendant during the
sentencing hearing. Id. at ¶ 15. Accordingly, if the sole notification is stated at a change-
of-plea hearing or in the sentencing judgment, the statute has not been satisfied. Id. at ¶
17. In the second part of its decision, Brooks held that in informing a defendant of the
sentence he may be required to serve as a result of a violation, the trial court must strictly
comply with the specific prison term language of the statute:
{¶12} “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.” Id. at paragraph two of the syllabus.
{¶13} Thus, the specific prison term requirement is not met when the trial court
tells a defendant that the potential prison term could be “up to” a certain number of years
or months or that the potential term could fall within a range of years or months. Id. at ¶
26-27.
{¶14} In the final part of its decision, Brooks states that there could be some
situations in which substantial compliance was acceptable: “One such situation would
involve an offender who is informed prior to sentencing (e.g., at a plea hearing) what the
1 When Brooks decision was issued, the provision presently set forth in R.C. 2929.19(B)(4) was delineated in R.C. 2929.19(B)(5). The wording of the present version of R.C. 2929.19(B)(4) is identical to the version of R.C. 2929.19(B)(5) interpreted by the Brooks court.
4 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.” Id. at ¶ 32.
{¶15} Even though strict compliance is necessary in regard to the exact duration
of the potential prison term, it is not necessary to expressly inform the defendant that the
term could be imposed for a community control violation; i.e., that portion of the required
notification can be inferred.
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[Cite as State v. Keenan, 2020-Ohio-1077.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2019-P-0002 - vs - :
JOSHUA L. KEENAN, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR 00731 D.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).
Christopher J. Boeman, P.O. Box 582, Willoughby, Ohio 44096 (For Defendant- Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Joshua L. Keenan, appeals the trial court’s imposition of an
eighteen-month prison term following revocation of community control. We affirm.
{¶2} In October 2017, appellant pleaded guilty to one count of receiving stolen
property, a fourth-degree felony under R.C. 2913.51. After accepting the plea and finding
appellant guilty, the trial court referred the case to the county probation department for a
presentencing investigation pending sentencing. Appellant failed to appear for sentencing and a warrant was issued for his arrest. After appellant was apprehended,
the sentencing hearing was held.
{¶3} At the sentencing hearing, the trial court sentenced appellant to an
eighteen-month prison term. However, finding appellant amenable to community control,
the prison term was suspended for five years. After citing specific conditions of
community control, the trial court informed appellant that if he violated, he would go to
prison.
{¶4} In its sentencing entry, the trial court did not impose a suspended prison
term. Instead, the court imposed community control sanctions as consistent with the
purposes and principles of felony sentences and then restated the conditions of
community control. The judgment also stated: “The Court notified the Defendant if the
Defendant violates the terms of said community control sanctions the Defendant may
receive a more restrictive community control sanction or the Defendant will serve a
specific prison term of eighteen months.”
{¶5} As a condition of community control, appellant was required to complete a
rehabilitation program. Within two months of entering the facility, appellant escaped, and
the trial court again issued a warrant for his arrest. The state moved to revoke community
control and a hearing was set for May 7, 2018. However, appellant’s whereabouts
remained unknown until October 2018, when it was discovered that he had been
convicted of escape in a neighboring county and was serving a separate one-year term.
The revocation hearing did not go forward until December 21, 2018.
{¶6} At the outset of the proceeding, appellant admitted the violation and asked
that his prison term be served concurrently with his one-year escape sentence. The trial
2 court accepted the admission, revoked community control, and ordered him to serve
eighteen-months in prison, consecutive to the escape sentence.
{¶7} Appellant raises one assignment of error for review:
{¶8} “The trial court abused its discretion to the prejudice of Mr. Keenan when it
did not notify him at his sentencing hearing, in straightforward and affirmative language,
that he may be sentenced to prison for eighteen months if he violated the conditions of
his community control sanctions.”
{¶9} Appellant asserts his eighteen-month sentence must be vacated because
during the original sentencing hearing the trial court did not comply with the notification
requirement of R.C. 2929.19(B)(4). That provision states:
{¶10} “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 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
and as described in section 2929.15 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 issue before the Ohio Supreme Court was whether the provisions of R.C. 2929.15(B)
3 and R.C. 2929.19(B)(5)1 mandate that a trial court inform a defendant at the time of his
sentencing of the specific prison term he will be required to serve for a violation of his
community control sanction. In the first part of its decision, Brooks held that the
notification required under R.C. 2929.19(B)(5) must be stated to the defendant during the
sentencing hearing. Id. at ¶ 15. Accordingly, if the sole notification is stated at a change-
of-plea hearing or in the sentencing judgment, the statute has not been satisfied. Id. at ¶
17. In the second part of its decision, Brooks held that in informing a defendant of the
sentence he may be required to serve as a result of a violation, the trial court must strictly
comply with the specific prison term language of the statute:
{¶12} “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.” Id. at paragraph two of the syllabus.
{¶13} Thus, the specific prison term requirement is not met when the trial court
tells a defendant that the potential prison term could be “up to” a certain number of years
or months or that the potential term could fall within a range of years or months. Id. at ¶
26-27.
{¶14} In the final part of its decision, Brooks states that there could be some
situations in which substantial compliance was acceptable: “One such situation would
involve an offender who is informed prior to sentencing (e.g., at a plea hearing) what the
1 When Brooks decision was issued, the provision presently set forth in R.C. 2929.19(B)(4) was delineated in R.C. 2929.19(B)(5). The wording of the present version of R.C. 2929.19(B)(4) is identical to the version of R.C. 2929.19(B)(5) interpreted by the Brooks court.
4 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.” Id. at ¶ 32.
{¶15} Even though strict compliance is necessary in regard to the exact duration
of the potential prison term, it is not necessary to expressly inform the defendant that the
term could be imposed for a community control violation; i.e., that portion of the required
notification can be inferred.
{¶16} “The trial court stated: ‘If there was a sentence imposed in this particular
situation, it will be a sentence of 36 months.’ The trial court explained, and appellant was
on notice, that she was being placed on intense supervision; by necessary implication,
she was on notice she was not being sent directly to prison. The trial court made clear
there were terms and conditions with which she must comply. Viewing the overall context
of appellant’s sentence, the trial court’s statement indicates her intense supervision was
conditional and not absolute, i.e., it would persist only insofar as appellant complied with
those terms and conditions. * * * Hence, the only reasonable conclusion that can be
drawn from the court’s express statement is that a prison sentence would be imposed
only if appellant violated the conditions of her supervision. The court’s failure to include
the statement, ‘if you violate the conditions, a sentence will be imposed,’ is
inconsequential as the surrounding circumstances of the advisement placed appellant on
reasonable notice that a violation would result in the suspended prison sentence being
imposed.” State v. Payne, 2015-Ohio-5037, 53 N.E.3d 872, ¶ 22 (11th Dist.), reversed
on other grounds by State v. Payne, 2015-Ohio-5073, 53 N.E.3d 872, ¶ 22 (11th Dist.),
rev’d on other grounds by State v. Thomas, 2018-Ohio-1024, 109 N.E.3d 12 (11th Dist.).
5 {¶17} Here, besides challenging the trial court’s compliance with the notification
requirement of R.C. 2929.19(B)(4), appellant asserts that during the original sentencing
hearing, the court did not properly inform him that he would be subject to a community
control sanction. Although the trial court did not specifically state that it was imposing a
community control sanction, it did expressly find that appellant was amenable to such a
sanction. Moreover, the trial court informed him that he would be placed on intensive
supervision for one year, followed by four years of general supervision. The court further
informed him of the specific conditions he would be required to follow, including the
completion of a rehabilitation program and the need to maintain employment once he was
released. Therefore, appellant was given ample notice that he was not going to prison
immediately, but instead would be subject to various conditions under the supervision of
the county probation department, i.e., community control.
{¶18} As to the specific prison term requirement of R.C. 2929.19(B)(4), after the
trial court made its finding concerning appellant’s amenability to community control, the
court stated that it was sentencing him to eighteen months in prison but was also
suspending the prison term for five years.2 As noted, the trial court then discussed the
nature of the probation department’s supervision over him and the nature of the conditions
he had to satisfy. At the end of that discussion, the court stated: “In the event you violate
and go to prison, upon your release from prison the Adult Parole Authority could choose
to supervise you for up to three years.” (Emphasis added).
{¶19} The italicized portion of the foregoing sufficiently informs appellant that if he
failed to comply with the conditions recited by the trial court, he could go to prison as a
2 Appellant’s brief does not raise any challenge to the propriety of this part of the trial court’s colloquy during the sentencing hearing.
6 result. Furthermore, because the only prior reference made by the trial court to a prison
term indicated that the length of the sentence would be eighteen months, the only
reasonable interpretation appellant could draw from the court’s statements was that he
could go to prison for eighteen months if he violated. To this extent, the court’s statements
during the sentencing hearing were sufficient to not only inform appellant of the specific
duration of his potential prison term, but also inform him of what could lead to the
imposition of that term.
{¶20} In addition, consistent with Brooks, this case involves a situation in which
strict compliance with R.C. 2929.19(B)(4) at the sentencing hearing was not needed. As
part of the change-of-plea hearing, held four months before the sentencing hearing, the
trial court informed appellant that the maximum sentence he could receive for receiving
stolen property was eighteen months. The trial court then asked appellant: “You
understand if you’re given a community-based sanction, you’ll have certain rules and
regulations you have to follow? If you violate those rules and regulations, you could be
sentenced to prison for up to eighteen months?” Appellant responded that he understood.
{¶21} Given the trial court’s use of the “up to” language and the fact that the court’s
questioning occurred at the change-of-plea hearing, the foregoing colloquy is not
sufficient to establish proper notification under R.C. 2929.19(B)(4). But, when considered
together with the statements the trial court made to appellant at the sentencing hearing,
the colloquy reinforces the conclusion that appellant was fully aware when the community
control sanction was imposed that he faced an eighteen-month prison term if he violated.
The trial court, therefore, had the authority to impose that term when appellant admitted
the violation.
7 {¶22} Appellant’s sole assignment is without merit. The judgment of the Portage
County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH J.,
concur.