State v. Wood

2015 Ohio 4243

• Court: Ohio Court of Appeals
• Decided: October 14, 2015
• Docket: C-150197
• Status: Published

Opinion

[Cite as State v. Wood, 2015-Ohio-4243.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-150197 TRIAL NO. B-1404854 Plaintiff-Appellee, : O P I N I O N. vs. :

SHANA WOOD, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: October 14, 2015

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michele Berry, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

MOCK, Judge.

{¶1} Defendant-appellant Shana Wood pled guilty to misuse of credit

cards, a fifth-degree felony. The trial court sentenced her to ten months in prison.

Wood now appeals, bringing forth three assignments of error, all related to the

sentence imposed.

{¶2} Because the trial court failed to properly notify Wood about her

postrelease-control obligations, we remand this cause for the trial court to correct

that portion of Wood’s sentence and provide the required postrelease-control

notification. The judgment of the trial court is otherwise affirmed.

Sentencing

{¶3} In her first assignment of error, Wood essentially argues that her

sentence is contrary to law. We disagree.

{¶4} We review Wood’s sentence under the standard of review set forth in

R.C. 2953.08(G). See State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 9 (1st

Dist.). Under that statute, we may modify or vacate a sentence only if we “clearly and

convincingly find” that the record does not support the sentencing court’s mandatory

findings or that the sentence is contrary to law. R.C. 2953.08(G)(2).

{¶5} Wood first argues her prison term is contrary to law because the trial

court was required to sentence her to community control under R.C.

2929.13(B)(1)(a). But a review of the record demonstrates that the trial court

actually had the discretion to impose a prison term.

{¶6} R.C. 2929.13(B)(1)(a) provides that for a nonviolent fourth- or fifth-

degree felony, a court must impose a community-control sanction of at least a year’s

2 OHIO FIRST DISTRICT COURT OF APPEALS

duration if all of the following are met: (1) the offender has not previously been

convicted of or pleaded guilty to a felony; (2) the most serious charge at the time of

sentencing is a fourth- or fifth-degree felony; (3) if, in a case where the court believes

that no acceptable community-control sanctions are available, the court requests a

community-control option from the department of rehabilitation and correction, and

the department identifies an appropriate program; and (4) the offender has not been

convicted of or pleaded guilty to a misdemeanor offense of violence committed

during the two years before the commission of the offense for which the court is

imposing sentence. State v. Jones, 1st Dist. Hamilton No. C-130625, 2014-Ohio-

3345, ¶ 8.

{¶7} But there is an exception to this rule. A sentencing court has the

discretion to impose a prison term for a fourth- or fifth-degree felony if one of 11

criteria listed in R.C. 2929.13(B)(1)(b)(i) through (xi) applies. Id. at ¶ 9. Here, R.C.

2929.13(B)(1)(b)(iii) applies, because Wood violated a condition of her bond when

she failed to appear at the originally scheduled sentencing. Eventually, a capias was

issued for her arrest. Because she had violated a condition of her bond, the trial

court had the discretion to impose a prison term.

{¶8} Next, Wood argues that her sentence is contrary to law because the

trial court failed to make any findings under R.C. 2929.11 and 2929.12 as to why she

was not amenable to community control. This argument is meritless. R.C. 2929.11

and 2929.12 do not require the trial court to make findings. State v. Alexander, 1st

Dist. Hamilton Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 24.

{¶9} Therefore, we hold that Wood’s sentence was not clearly and

convincingly contrary to law. The first assignment of error is overruled.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} In her second assignment of error, Wood maintains that the trial court

erred by failing to notify her at the sentencing hearing of her postrelease-control

obligations. The state concedes this error.

{¶11} When a trial court fails to properly advise an offender about

postrelease control, the court has violated its statutory duty, and the portion of the

offender’s sentence relating to postrelease control is void. See State v. Williams, 1st

Dist. Hamilton No. C-081148, 2010-Ohio-1879, ¶ 20. Because the trial court failed to

provide Wood with the proper postrelease-control notification, we sustain the second

assignment of error, and we remand this cause for the trial court to apply the

procedures outlined in R.C. 2929.191 to correct the postrelease-control-related

sentencing errors.

{¶12} In the third assignment of error, Wood argues that her counsel was

ineffective for failing to object to the imposition of a prison term instead of

community control and for failing to object to the trial court’s failure to notify her of

postrelease control at the sentencing hearing.

{¶13} To prevail on her claim, Wood “must show that [her] counsel’s

representation fell below an objective standard of reasonableness” and that she was

prejudiced by counsel’s deficient performance. See Strickland v. Washington, 466

U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶14} After reviewing the record, we find, with respect to trial counsel’s

failure to object to the imposition of a prison term, that Wood cannot show that her

counsel’s representation fell below an objective standard of reasonableness where

the trial court had the discretion to impose a prison term. And Wood cannot

demonstrate that she was prejudiced by her counsel’s failure to object to the trial

4 OHIO FIRST DISTRICT COURT OF APPEALS

court’s failure to notify her about postrelease control. In fact, the lack of notification

worked to Wood’s benefit. If she is not notified of her postrelease-control obligations

prior to being released from prison, she will not be subject to postrelease-control.

Accordingly, the third and final assignment of error is overruled.

{¶15} Therefore, this cause is remanded for the trial court to properly notify

Wood about her postrelease-control obligations. The judgment of the trial court is

otherwise affirmed.

Judgment affirmed in part, reversed in part, and cause remanded.

HENDON, P.J., and Cunningham, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.