2018 Ohio 2730
Ohio Ct. App.2018Background
- Wayne Turner pled guilty in 2016 to attempted felonious assault and domestic violence; the trial court ordered 18 months of community control on each count and announced 30-month prison terms "suspended" in favor of community control.
- In June 2017 the court found Turner violated community control, terminated his community control, and stated the "original sentence will be ordered into execution."
- The initial journal entry after revocation listed a blanket 30-month prison term without specifying separate sentences for each count.
- This court sua sponte remanded for a nunc pro tunc entry; the trial court later issued a nunc pro tunc entry specifying 30 months on each count to be served concurrently.
- The appellate court reversed and remanded, holding (1) the allied-offenses argument was barred by res judicata and (2) the trial court failed to conduct a new sentencing at the revocation hearing in compliance with R.C. 2929.11/2929.12 and Crim.R. 32(A).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether felonious assault and domestic violence were allied offenses requiring merger | State: not raised at revocation; default position that merger need not be addressed now | Turner: offenses should have merged and not produced separate punishments | Overruled as res judicata — allied-offense challenge must be raised on direct appeal |
| Whether trial court considered R.C. 2929.11/2929.12 and complied with sentencing procedure at revocation | State: court executed original sentence after finding violation | Turner: court failed to sentence anew, did not state individual terms, and denied counsel/prosecutor opportunity to speak | Sustained — sentencing at revocation was defective; sentence vacated and remanded for resentencing |
Key Cases Cited
- State v. Fraley, 105 Ohio St.3d 13 (Ohio 2004) (community-control revocation requires a new sentencing hearing)
- State v. Jackson, 150 Ohio St.3d 362 (Ohio 2016) (reaffirmed that revocation sentencing is a new sentencing under R.C. 2929.15(B))
- State v. Lester, 130 Ohio St.3d 303 (Ohio 2011) (requirements for a final appealable order)
- State v. Saxon, 109 Ohio St.3d 176 (Ohio 2006) (res judicata bars issues that could have been raised on direct appeal)
- State v. Anderson, 143 Ohio St.3d 173 (Ohio 2015) (trial court may impose either prison or community control, but not both for the same offense)
- State v. Jacobs, 189 Ohio App.3d 283 (Ohio App. 2010) (trial court must choose and impose either prison or community control, not both)