State v. Renick

2021 Ohio 2578

• Court: Ohio Court of Appeals
• Decided: July 27, 2021
• Docket: 20-CA-00016
• Status: Published

Opinion

[Cite as State v. Renick, 2021-Ohio-2578.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Earle E. Wise, J. -vs- : : SHILO RENICK, : Case No. 20-CA-00016 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Perry County Court of Common Pleas, Case No. 20-CR- 0024

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 27, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH A. FLAUTT JAMES A. ANZELMO Perry County Prosecutor 446 Howland Dr. 111 North High Street Gahanna, Ohio 43230 P.O. Box 569 New Lexington, Ohio 43764-0569 Perry County, Case No. 20-CA-00016 2

Baldwin, J.

{¶1} Defendant-appellant Shilo Renick appeals his conviction and sentence from

the Perry County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 1, 2020, the Perry County Grand Jury indicted appellant on one

count of violating a protection order in violation of R.C. 2919.27(A)(2), a felony of the fifth

degree, and one count of receiving stolen property in violation of R.C. 2913.51(A), a felony

of the fourth degree. At his arraignment on June 18, 2020, appellant entered a plea of not

guilty to the charges.

{¶3} Thereafter, on September 22, 2020, appellant entered a plea of no contest

to the offense of violating a protection order and was found guilty of the same. The

remaining charge was dismissed. Pursuant to a Judgment Entry filed on October 1, 2020,

the trial court ordered that appellant be sentenced to eleven (11) months in prison, but

suspended the sentence and placed appellant on three years of community control. The

trial court also ordered appellant to serve 90 days in jail and suspended that time. At the

September 29, 2020 sentencing hearing, the trial court advised appellant as follows:

{¶4} THE COURT: So if at any point in time in this case you go to prison, when

you are released from the prison the Adult Parole Authority, if they choose to, can

supervise your behavior out on the street for three years. If they do that, they will put

conditions on your behavior.

If you violate any of those conditions, they could return you to the prison for up to

90 days for each violation. If there would be repeated violations, they could send you

back for up to one-half of whatever sentence I impose. Perry County, Case No. 20-CA-00016 3

So, for example, if I gave you 12 months on this, they could send you back for 6

months. It’s always one-half.

Transcript of September 29, 2020 hearing at 8.

{¶5} Appellant now appeals, raising the following assignments of error on

appeal:

{¶6} “I. THE TRIAL COURT UNLAWFULLY SUBJECTED RENICK TO POST-

RELEASE CONTROL, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS,

GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.”

{¶7} “II. THE TRIAL COURT UNLAWFULLY ORDERED RENICK TO SERVE

CONSECUTIVE SENTENCES FOR HIS OFFENSES, IN VIOLATION OF HIS RIGHTS

TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.”

{¶8} “III. RENICK RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

WHEN HIS TRIAL COUNSEL FAILED TO MOVE FOR A DISMISSAL OF THE

CHARGES AGAINST RENICK ON GROUNDS THAT THE PROSECUTION

DESTROYED POTENTIALLY USEFUL EVIDENCE.”

I

{¶9} Appellant, in his first assignment of error, argues that, at the sentencing

hearing, the trial court failed to accurately inform him of the consequences of violating

post-release control and that, therefore, his post-release control must be vacated. Perry County, Case No. 20-CA-00016 4

{¶10} “Post-release control is a period of supervision that occurs after a prisoner

has served his or her prison sentence and is released from incarceration, during which

the individual is subject to specific sanctions with which he or she must comply.” State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 35. It is settled that “a trial

court has a statutory duty to provide notice of post release control at the sentencing

hearing” and that “any sentence imposed without such notification is contrary to

law.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶

23, superseded by statute as stated in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-

6434, 920 N.E.2d 958, ¶ 22-23. Concomitantly, because a court is generally said to speak

only through its journal, the trial court is “required to incorporate that notice into its journal

entry imposing sentence.” Id. at ¶ 17. State v. Grimes, 151 Ohio St.3d 19, 85 N.E.3d 700,

¶7, 2017-Ohio-2927.

{¶11} R.C. 2929.19(B)(2)(f) unambiguously requires that the court notify the

offender that if the offender violates post-release control, the parole board may impose a

prison term of up to one-half of the stated prison term originally imposed upon the

offender. R.C. 2929.19(B)(2)(f) does not impose any other notification requirements on

trial courts.

{¶12} In the case sub judice, appellee concedes that the trial court incorrectly

advised appellant that he would be sentenced to prison for an additional ninety days on

a first violation and did not advise appellant that the parole board may impose a prison

term of up to one-half of the stated prison term originally imposed upon him. However,

appellant’s community control has been terminated and, consequently, appellant cannot

be sentenced to prison and later subjected to post-release control upon his release. Perry County, Case No. 20-CA-00016 5

{¶13} Appellant’s first assignment of error is, therefore, overruled as moot.

II

{¶14} Appellant, in his second assignment of error, contends that this Court must

vacate the sanction that appellant faces for violating community control because the trial

court imposed that sanction in contravention of the sentencing statutes.

{¶15} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a

sentence and remand for sentencing where we clearly and convincingly find that either

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), or 2929.20(l), or the sentence is otherwise contrary to

law. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.

{¶16} “Split sentences are prohibited in Ohio. Generally, pursuant to the felony-

sentencing statutes, a court must impose either a prison term or a community-control

sanction as a sentence for a particular felony offense—a court cannot impose both for a

single offense. State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512,

¶ 31.” State v. Paige, 2018-Ohio-813, 153 Ohio St. 3d 214, 216, 103 N.E.3d 800, 802.

{¶17} In the case sub judice, the trial court informed appellant that if he violated

community control, he faced eleven months in prison and ninety days in jail. Jail is

a community residential sanction under R.C. 2929.16. Thus, the trial court was not

authorized to subject appellant to a prison sentence as well as a jail term for violating

community control. Perry County, Case No. 20-CA-00016 6

{¶18} 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. State v. Brooks, 103 Ohio St.3d

134, 2004-Ohio-4746, ¶29. When a defendant is sentenced to community control on a

count of conviction and notified at that time of the specific prison term he or she faces

should he or she violate his community control, the defendant is only sentenced to

community control sanctions and is not sentenced to that prison

term. State v. Duncan, 12th Dist. Butler Nos. CA2015-05-086 & CA2015-06-108, 2016-

Ohio-5559, ¶21.

{¶19} As noted by appellant, while the trial court sentenced appellant to eleven

months in prison and then suspended the sentence and placed appellant on three years

of community control, the proper procedure would have been to place appellant on

community control and advise him of the prison sentence which would be imposed for a

violation of community control.

{¶20} However, appellant’s community control has been terminated without a

prison sentence being imposed against him and, consequently, appellant’s second

assignment of error is, therefore, moot.

{¶21} Appellant’s second assignment of error is overruled as moot.

III

{¶22} Appellant, in his third assignment of error, maintains that he received

ineffective assistance of trial counsel when his trial counsel failed to move for a dismissal Perry County, Case No. 20-CA-00016 7

of the charges against him on the grounds that the prosecution destroyed potentially

useful evidence.

{¶23} To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell

below an objective standard of reasonable representation, and (2) that counsel's errors

prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the

result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–

688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable

probability” is “probability sufficient to undermine confidence in the

outcome.” Strickland at 694.

{¶24} At the September 22, 2019 plea hearing before the trial court, appellant

indicated to the trial court that “[t]he interrogation tapes that I was interrogated on on this,

they’re just—they’re vanished. I mean, it’s just like they’re gone.” Transcript of September

22, 2019 hearing at 17. Appellant now argues that trial counsel was ineffective in failing

to move for a dismissal of the charges against appellant on the grounds that the

prosecution destroyed potentially useful evidence.

{¶25} Appellant’s unsworn statement is the only indication that the recording of

appellant’s interview was destroyed. Moreover, there is nothing in the record establishing

that the same was exculpatory.

{¶26} We find that appellant has failed to establish any deficient performance by

trial counsel and had failed to establish that the alleged deficient performance prejudiced

him. Perry County, Case No. 20-CA-00016 8

{¶27} Appellant’s third assignment of error is, therefore, overruled.

{¶28} Accordingly, the judgment of the Perry County Court of Common Pleas is

affirmed.

By: Baldwin, P.J.

Hoffman, J. and

Wise, Earle, J. concur.