[Cite as State v. Wareham, 2013-Ohio-1494.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-12-10
v.
LOVELL C. WAREHAM, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court Trial Court No. 10-CR-0066
Judgment Affirmed
Date of Decision: April 15, 2013
APPEARANCES:
Shane M. Leuthold for Appellant
Clifford J. Murphy for Appellee Case No. 3-12-10
ROGERS, J.
{¶1} Defendant-Appellant, Lovell Wareham, appeals the judgment of the
Court of Common Pleas of Crawford County finding that he violated his
community control and sentencing him to an 11-month prison term. On appeal,
Wareham argues that the trial court erred by: (1) failing to consider and make
findings regarding the potential for sanctions that were less severe than prison; and
(2) recommending that Wareham’s sentence for his community control violation
be served consecutively to his sentence in another case. For the reasons that
follow, we affirm the trial court’s judgment.
{¶2} On April 18, 2010, the Crawford County Grand Jury indicted
Wareham on one count of breaking and entering in violation of R.C. 2911.13, a
felony of the fifth degree. He pleaded guilty and the trial court sentenced
Wareham to three years of community control on July 20, 2010. As part of his
community control, Wareham was instructed to obey all federal, state, and local
laws. When imposing community control, the trial court notified Wareham that
“[v]iolation of this sentence shall lead to a more restrictive sanction, a longer
sanction, or a prison term of twelve (12) months.” (Docket No. 12, p. 3).
{¶3} On February 24, 2012, the State moved to revoke Wareham’s
community control. The basis for the motion was the State’s discovery that
Wareham was involved in a sexual relationship with a 13-year old child. This
-2- Case No. 3-12-10
relationship gave rise to a separate case in which Wareham faced a charge of
unlawful sexual contact with a minor, a felony of the fourth degree. A community
control violation hearing was conducted on July 16, 2012, but the trial court
abstained from entering a judgment at that time since Wareham’s trial in the
unlawful sexual contact case was still pending.1
{¶4} On August 20, 2012, the trial court conducted another community
control violation hearing. The State represented that before the hearing, Wareham
was convicted of unlawful sexual contact with a minor, but that he had not yet
received his sentence in that matter. The trial court then orally stated its finding
and sentence:
I’m gonna find based upon the testimony that I heard that you violated your probation and, of course, the conviction is a violation of your probation; and your Community Control is going to be revoked and you’re gonna serve an 11-month sentence in the state penitentuary [sic]. I’ll make a notation that’s to be served consecutive with any violation you get in your new case, however, that’s up to the judge, the sentencing judge on that.2 Tr., p. 5-6.
On September 6, 2012, the trial court issued a judgment entry revoking
Wareham’s community control and imposing an 11-month prison term for his
1 The record before us does not contain the transcript of the July 16, 2012 hearing or the filings from Wareham’s case relating to unlawful sexual contact with a minor. 2 Wareham was sentenced to three years of community control. As such, the trial court should have referred to Wareham violating community control, not probation.
-3- Case No. 3-12-10
violation.3 The trial court furthered ordered that the “prison sentence shall be
served consecutively to any other prison sentence the defendant is under.”
(Docket No. 23, p. 1-2).
{¶5} Wareham filed this timely appeal, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED IN NOT CONSIDERING ANY OF THE LESS SEVERE SANCTIONS, OTHER THAN PRISON, WHEN SENTENCING APPELLANT, AND FOR FAILING TO MAKE ANY FINDINGS AS TO WHY THE LESS SEVERE SANCTIONS WOULD NOT BE APPROPRIATE.
Assignment of Error No. II
THE VISITING JUDGE ERRED BY ORDERING THE COMMUNITY CONTROL SANCTION TO RUN CONSECUTIVE WITH A NEW CHARGE THAT APPELLANT HAD YET TO BE SENTENCED ON.
{¶6} In his first assignment of error, Wareham argues that the trial court
improperly failed to consider less severe sanctions than prison for his community
3 We note that the trial court’s judgment entry fails to state the basis for its revocation of Wareham’s community control. Since the trial court orally stated the basis for the revocation at the hearing, this does not amount to reversible error. E.g., State v. Osborn, 3d Dist. No. 9-05-35, 2006-Ohio-1890, ¶ 10 (“[A]n oral statement made on the record by the court in lieu of a written statement is deemed to satisfy the [due process] requirement of a written statement * * *.”), citing State v. Delaney, 11 Ohio St.3d 231, 235 (1984). Although this does not create reversible error, we are mindful that such “oral ‘explanations’” are not “condone[d]” by the Supreme Court of Ohio. Delaney at 235.
-4- Case No. 3-12-10
control violation and failed to make findings regarding those sanctions. We
disagree.
{¶7} R.C. 2929.15(B) governs the imposition of sanctions for a
defendant’s violation of his community control. It provides, in pertinent part, as
follows:
(1) If the conditions of a community control sanction are violated or if the offender violates a law * * *, the sentencing court may impose one or more of the following penalties:
(a) A longer time under the same sanction if the total time under the sanction does not exceed the five-year limit specified in division (A) of this section;
(b) A more restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the Revised Code;
(c) A prison term on the offender pursuant to Section 2929.14 of the Revised Code.
(2) The prison term, if any, imposed upon a violator pursuant to this division shall be within the range of prison terms available for the offense for which the sanction that was violated was imposed and shall not exceed the prison terms specified in the notice provided to the offender at the sentencing hearing pursuant to division (B)(2) of Section 2929.19 of the Revised Code. R.C. 2929.15(B).
{¶8} The trial court has significant discretion in sentencing a defendant
for a community control violation, so long as it is consistent with the purposes and
principles of sentencing and with notification provided by the trial court when
imposing the community control sanctions. See R.C. 2929.15(B)(2); State v.
Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 20 (stating that a trial court has “a
-5- Case No. 3-12-10
great deal of latitude in sentencing” an offender for a community control
violation). In setting such a term, the trial court need not make findings or give
reasons for imposing a maximum sentence or more than a minimum sentence.
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus;
see also State v. Anderson, 2d Dist. No. 24657, 2012-ohio-957, ¶ 11 (applying
Foster framework to sentencing for community control violations). Still, when
sentencing an offender for a community control violation, 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.” Brooks at
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[Cite as State v. Wareham, 2013-Ohio-1494.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-12-10
v.
LOVELL C. WAREHAM, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court Trial Court No. 10-CR-0066
Judgment Affirmed
Date of Decision: April 15, 2013
APPEARANCES:
Shane M. Leuthold for Appellant
Clifford J. Murphy for Appellee Case No. 3-12-10
ROGERS, J.
{¶1} Defendant-Appellant, Lovell Wareham, appeals the judgment of the
Court of Common Pleas of Crawford County finding that he violated his
community control and sentencing him to an 11-month prison term. On appeal,
Wareham argues that the trial court erred by: (1) failing to consider and make
findings regarding the potential for sanctions that were less severe than prison; and
(2) recommending that Wareham’s sentence for his community control violation
be served consecutively to his sentence in another case. For the reasons that
follow, we affirm the trial court’s judgment.
{¶2} On April 18, 2010, the Crawford County Grand Jury indicted
Wareham on one count of breaking and entering in violation of R.C. 2911.13, a
felony of the fifth degree. He pleaded guilty and the trial court sentenced
Wareham to three years of community control on July 20, 2010. As part of his
community control, Wareham was instructed to obey all federal, state, and local
laws. When imposing community control, the trial court notified Wareham that
“[v]iolation of this sentence shall lead to a more restrictive sanction, a longer
sanction, or a prison term of twelve (12) months.” (Docket No. 12, p. 3).
{¶3} On February 24, 2012, the State moved to revoke Wareham’s
community control. The basis for the motion was the State’s discovery that
Wareham was involved in a sexual relationship with a 13-year old child. This
-2- Case No. 3-12-10
relationship gave rise to a separate case in which Wareham faced a charge of
unlawful sexual contact with a minor, a felony of the fourth degree. A community
control violation hearing was conducted on July 16, 2012, but the trial court
abstained from entering a judgment at that time since Wareham’s trial in the
unlawful sexual contact case was still pending.1
{¶4} On August 20, 2012, the trial court conducted another community
control violation hearing. The State represented that before the hearing, Wareham
was convicted of unlawful sexual contact with a minor, but that he had not yet
received his sentence in that matter. The trial court then orally stated its finding
and sentence:
I’m gonna find based upon the testimony that I heard that you violated your probation and, of course, the conviction is a violation of your probation; and your Community Control is going to be revoked and you’re gonna serve an 11-month sentence in the state penitentuary [sic]. I’ll make a notation that’s to be served consecutive with any violation you get in your new case, however, that’s up to the judge, the sentencing judge on that.2 Tr., p. 5-6.
On September 6, 2012, the trial court issued a judgment entry revoking
Wareham’s community control and imposing an 11-month prison term for his
1 The record before us does not contain the transcript of the July 16, 2012 hearing or the filings from Wareham’s case relating to unlawful sexual contact with a minor. 2 Wareham was sentenced to three years of community control. As such, the trial court should have referred to Wareham violating community control, not probation.
-3- Case No. 3-12-10
violation.3 The trial court furthered ordered that the “prison sentence shall be
served consecutively to any other prison sentence the defendant is under.”
(Docket No. 23, p. 1-2).
{¶5} Wareham filed this timely appeal, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED IN NOT CONSIDERING ANY OF THE LESS SEVERE SANCTIONS, OTHER THAN PRISON, WHEN SENTENCING APPELLANT, AND FOR FAILING TO MAKE ANY FINDINGS AS TO WHY THE LESS SEVERE SANCTIONS WOULD NOT BE APPROPRIATE.
Assignment of Error No. II
THE VISITING JUDGE ERRED BY ORDERING THE COMMUNITY CONTROL SANCTION TO RUN CONSECUTIVE WITH A NEW CHARGE THAT APPELLANT HAD YET TO BE SENTENCED ON.
{¶6} In his first assignment of error, Wareham argues that the trial court
improperly failed to consider less severe sanctions than prison for his community
3 We note that the trial court’s judgment entry fails to state the basis for its revocation of Wareham’s community control. Since the trial court orally stated the basis for the revocation at the hearing, this does not amount to reversible error. E.g., State v. Osborn, 3d Dist. No. 9-05-35, 2006-Ohio-1890, ¶ 10 (“[A]n oral statement made on the record by the court in lieu of a written statement is deemed to satisfy the [due process] requirement of a written statement * * *.”), citing State v. Delaney, 11 Ohio St.3d 231, 235 (1984). Although this does not create reversible error, we are mindful that such “oral ‘explanations’” are not “condone[d]” by the Supreme Court of Ohio. Delaney at 235.
-4- Case No. 3-12-10
control violation and failed to make findings regarding those sanctions. We
disagree.
{¶7} R.C. 2929.15(B) governs the imposition of sanctions for a
defendant’s violation of his community control. It provides, in pertinent part, as
follows:
(1) If the conditions of a community control sanction are violated or if the offender violates a law * * *, the sentencing court may impose one or more of the following penalties:
(a) A longer time under the same sanction if the total time under the sanction does not exceed the five-year limit specified in division (A) of this section;
(b) A more restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the Revised Code;
(c) A prison term on the offender pursuant to Section 2929.14 of the Revised Code.
(2) The prison term, if any, imposed upon a violator pursuant to this division shall be within the range of prison terms available for the offense for which the sanction that was violated was imposed and shall not exceed the prison terms specified in the notice provided to the offender at the sentencing hearing pursuant to division (B)(2) of Section 2929.19 of the Revised Code. R.C. 2929.15(B).
{¶8} The trial court has significant discretion in sentencing a defendant
for a community control violation, so long as it is consistent with the purposes and
principles of sentencing and with notification provided by the trial court when
imposing the community control sanctions. See R.C. 2929.15(B)(2); State v.
Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 20 (stating that a trial court has “a
-5- Case No. 3-12-10
great deal of latitude in sentencing” an offender for a community control
violation). In setting such a term, the trial court need not make findings or give
reasons for imposing a maximum sentence or more than a minimum sentence.
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus;
see also State v. Anderson, 2d Dist. No. 24657, 2012-ohio-957, ¶ 11 (applying
Foster framework to sentencing for community control violations). Still, when
sentencing an offender for a community control violation, 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.” Brooks at
¶ 20.
{¶9} The record here supports the trial court’s imposition of an 11-month
sentence for Wareham’s community control violation. Wareham violated his
community control by engaging in an ongoing sexual relationship with a 13-year
old child. At the second community control hearing, Wareham’s attorney tended
to downplay such behavior as simply “overly chasing the ladies.” Tr., p. 4.
Additionally, the trial court indicated that Wareham’s admission to the
relationship at the second hearing contradicted his earlier representations at the
first hearing. In light of this evidence, Wareham’s violation of community control
resulted from abhorrent and generally unrepentant behavior. Based on the gravity
of his violation and the seriousness of his original conviction for breaking and
-6- Case No. 3-12-10
entering, we are unable to find that the trial court’s sentence was contrary to law.
See Anderson at ¶ 14 (affirming sentence for community control violation despite
the defendant’s argument that the trial court should have considered and imposed a
less severe sanction). We also note that the trial court’s sentence for the
community control violation was consistent with the notification given to
Wareham when he was originally sentenced on the breaking and entering
conviction.
{¶10} Wareham cites to State v. McPherson, 142 Ohio App.3d 274 (4th
Dist. 2001), in support of his position that trial courts must consider and make
findings regarding lesser severe sanctions when imposing sentence for a
community control violation. However, a review of McPherson reveals that it
does not apply in this matter. There, the Fourth District found that the trial court
inappropriately sentenced the defendant because it imposed an automatic prison
sentence without consideration of the purposes and principles of felony
sentencing. Further, the court found that the trial court failed to properly advise
the defendant of the potential prison term for a violation of his community control.
Id at 282-83. This matter implicates neither the trial court’s automatic imposition
of a prison term, nor its failure to advise the defendant of a potential prison term.
Additionally, any guidance indicating that findings are necessary regarding lesser
severe sanctions is inapposite since McPherson predates Foster and its elimination
-7- Case No. 3-12-10
of judicial fact-finding requirements for the imposition of sentences within the
relevant statutory range. As such, we decline to apply McPherson here.
{¶11} Accordingly, we overrule Wareham’s first assignment of error.
{¶12} In his second assignment of error, Wareham argues that the trial
court erred by ordering that the sentence for Wareham’s community control
violation run consecutively to his sentence for unlawful sexual contact with a
minor. We disagree.
{¶13} We must initially resolve the appropriate scope of the record
regarding this assignment of error. The State attached a judgment entry from
Wareham’s unlawful sexual contact with a minor case to its appellate brief in this
matter. However, neither this entry nor any other filing from that case is included
in the record for this matter. As such, the entry is not properly before us and we
decline to consider it when addressing Wareham’s argument. See App.R. 9(A)(1)
(outlining the contours of the appellate record); Deitz v. Deitz, 3d Dist. No. 14-11-
06, 2012-Ohio-130, ¶ 8 (stating that materials attached to appellate brief and not
part of record are precluded from consideration).
{¶14} After reviewing the trial court’s judgment entry of sentencing, we
find that Wareham misapprehends its effect on his sentence. The judgment entry
does not refer to Wareham’s conviction in the unlawful sexual contact case, nor
-8- Case No. 3-12-10
does it state that his sentence for the community control violation is to run
consecutively to his sentence in that case. Rather, the judgment entry merely
states that Wareham’s sentence in this matter is to “run consecutively to any other
prison sentence [he] is under.” (Docket No. 23, p. 1-2). Based on this language
and the fact that Wareham had not been sentenced in his unlawful sexual contact
case at the time of the sentencing hearing, we are unable to find that the trial court
ordered Wareham to serve his sentence in this matter consecutively to any
sentence he received in the unlawful sexual contact case.4 Further, the trial court’s
explicit statement at the sentencing hearing that it would leave the decision
regarding consecutive sentences to the sentencing judge in the unlawful sexual
contact case reinforces our finding.
{¶15} Since the trial court did not order Wareham to serve his sentence for
the community control violation consecutively to his sentence in the unlawful
sexual contact case, there is no basis for this assignment of error. See State v.
Hines, 8th Dist. No. 84218, 2005-Ohio-4421, ¶ 14 (overruling the defendant’s
assignment of error challenging consecutive sentences since the judgment entry
reflected that the trial court did not impose consecutive sentences).
{¶16} Accordingly, we overrule Wareham’s second assignment of error.
4 Indeed, since the judgment entry fails to refer to any other sentence, it fails to order that Wareham serve his sentence for the community control violation consecutively to any sentence, whether it be the one he received in the unlawful sexual contact case or any other.
-9- Case No. 3-12-10
{¶17} Having found no error prejudicial to Wareham, in the particulars
assigned and argued, we affirm the trial court’s judgment.
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/jlr
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