Lead Opinion
I. Facts and Procedural History
{¶ 1} On Oсtober 10, 2001, defendant-appellant, Ronald J. Brooks, pled guilty to a felony of the fifth degree. At the combined plea and sentencing hearing, appellant was informed, pursuant to Crim.R. 11(C)(2)(a), that the maximum sentence for a fifth-degree felony is 12 months’ incarceration. After accepting
{¶ 2} On November 14, 2002, appellant pled guilty to violating the conditions of his community control and was sentenced to eight months in prison. See R.C. 2929.15(B) and 2929.14. At that hearing, appellant’s attorney argued to the trial court that appellant could not be sentenced for this viоlation because the trial court at the original October 10, 2001 sentencing failed to inform appellant under R.C. 2929.19(B)(5) of the “specific prison term” that may be imposed for such a violation. The trial court rejected this argument.
{¶ 3} The Court of Appeals for the Ninth District affirmed the judgment of the trial court and upheld appellant’s sentence. Finding its judgment in conflict with the judgments of the Fourth District Court of Appeals in State v. McPherson (2001),
II. R.C. 2929.15(B) and 2929.19(B)(5)
{¶ 4} The issue certified for our review is “[Wjhether or not R.C. 2929.15[B], second sentence, read in pari materia with R.C. 2929.19(B)(5), second sentence, requires that a court sentencing a defendant to a community control sanction must, at the time of such sentencing, notify the defendant of the specific prison term it may impose for a violation of such sanction, as a prerequisite to imposing a prison term on the defendant for such a violation.”
{¶ 5} The parties agree that appellant has served the term of imprisonment imposed by the trial court for his violation of community control and that the certified issue therefore is moot as to appellant. However, we find that the situation before us is capable of repetition yet evading review, and we therefore proceed to consider the certified issue. See Adkins v. McFaul (1996),
{¶ 7} R.C. 2929.15(B), which details procedures for a trial court tо follow when an offender has violated the conditions of community control, reiterates the three options available to the sentencing court that are mentioned in R.C. 2929.19(B)(5) and further provides that if an offender violates the conditions and the court chooses to impose a prison term under R.C. 2929.14, the prison term “shall not exceed the prison term specified in the notice provided to the offender at the sentencing hearing pursuant to division (B)(3) [sic, (B)(5)] of section 2929.19 of the Revised Code.”
{¶ 8} We begin by agreeing with those courts that have found that, when a trial court judge gives no notice whatsoever under R.C. 2929.19(B)(5) to an offender being sentenced to community control of any prison term that may be imposed if the conditions of community control are violated, a prison term may not be imposed for violation of the conditions. See, e.g., State v. Jones, 7th Dist. No. 02 HA 547,
{¶ 9} This case requires us to consider the extent of notification required under R.C. 2929.19(B)(5) and the point at which that notification must be given. The decisions of Ohio courts of appeals are in conflict over precisely how trial court judges must comply with R.C. 2929.19(B)(5) in sentencing an offender to a term of community control.
{¶ 10} As illustrated by the four cases named by the court of appeals as being in conflict with its decision, some appellate districts have held that a trial сourt must strictly comply with R.C. 2929.19(B)(5) and that anything less than strict compliance requires reversal of any prison term later imposed under R.C. 2929.15(B) for the offender’s violation of community control conditions. See, e.g., Grodhaus,
III. Elements of Statutory Compliance
{¶ 12} Before considering substantial compliance, we first examine the elements of full compliance under R.C. 2929.19(B)(5).
{¶ 13} There are two main variables to examine in evaluating a trial court’s compliance with the notification requirement of R.C. 2929.19(B)(5). The first is, when was the notification given (e.g., at a plea hearing, at the sentencing hearing, in a journal entry, or at some other point)? The second is, exactly what language did the trial court use in the notification? For example, did the trial court affirmatively and explicitly notify the offender of a specific number of months or yеars the offender would face if community control conditions were violated, or did the court simply notify the offender that he or she would get “the maximum”? Did the court give the offender a range of possible terms such as “six to twelve months,” or tell the offender that he or she faced “up to” a particular length of time, such as “up to twelve months”? Or did it use some other language to convey the term faced?
A. Time of Notification
{¶ 14} This court recently considered whether a trial court imposing consecutive sentences, or imposing a nonminimum sentence on a first offender, must fulfill certain statutory sentencing obligations at the sentencing hearing, or whether the court may choose to fulfill those requirements either at the sentencing hearing or in a written journal entry. State v. Comer,
{¶ 15} The reasoning in Comer applies in considering when the trial court must provide the notification required under R.C. 2929.19(B)(5) in sentencing an offender to community control. Accordingly, we hold that, pursuant to R.C. 2929.19(B)(5), a trial court sentencing an offender to a community control sanction is required to deliver the statutorily detailed notifications at the sentencing hearing.
{¶ 17} Furthermore, in light of our explicit holding based on Comer that compliance with R.C. 2929.19(B)(5) must come at the sentencing hearing, wе find that notification generally is deficient when the trial court’s statement to an offender of a possible term of imprisonment occurs at a plea hearing and is not repeated at a later sentencing hearing. See State v. Larson, 12th Dist. No. CA-2003-07-059,
{¶ 18} Given the above, notification given in a court’s journal entry issued after sentencing does not comply with R.C. 2929.19(B)(5). Nor do statements made to an offendеr at a separate plea hearing. However, in some cases, as will be discussed later, the statements made at the plea hearing or other notifications to the offender may be used to clarify or supplement what is said later at the sentencing hearing to the offender.
B. Language Used in Notifying
{¶ 19} Having established that the statutory scheme envisions the sentencing hearing itself as the time when the notification must be given, we next consider what language the trial court should use. By choosing the word “specific” in R.C. 2929.19(B)(5) to desсribe the notification that a trial judge must give when sentencing an offender to community control, the General Assembly has made clear that the judge shall, in straightforward and affirmative language, inform the offender at the sentencing hearing that the trial court will impose a definite term of imprisonment of a fixed number of months or years, such as “twelve months’ incarceration,” if the conditions are violated. To comply with the literal terms of the statute, the judge should not simply notify the offender that if the community control conditions are violated, he or she will receive “the maximum,” or a range, such as “six to twelve months,” or some other indefinite term, such as “up to 12 months.” The judge is required to notify the offender of the “specific” term the offender faces for violating community control.
{¶ 21} A legitimate concern raised by the statutory procedure is that, while R.C. 2929.19(B)(5) requires the judge to state the “specific term” the offender faces in the event of a violation, that term is not necessarily what the offender will receive if a violation occurs. When the trial court first imposes the conditions for community control, the court has no way of predicting what the violation might be. Recognizing that community control violations can range from relatively minor to very major and that the conditions imposed vary greatly depending upon the facts of each case, R.C. 2929.15(B) gives the trial judge wide discretion when sentencing a violator.
{¶ 22} Under R.C. 2929.15(B), the trial court may impose (1) a longer time of community control under the same sanction, (2) a mоre restrictive sanction, thereby changing the conditions of community control, or (3) a prison term. If the trial judge chooses a prison term, the term imposed may not exceed the term the offender was originally notified of under R.C. 2929.19(B)(5). Because the trial judge is not required to choose a prison term under R.C. 2929.15, it follows that the trial judge could choose to impose a lesser term of imprisonment than the one the offender was informed of under R.C. 2929.19(B)(5).
{¶ 23} R.C. 2929.19(B)(5) notification is meant to put the offender on notice оf the specific prison term he or she faces if a violation of the conditions occurs. However, from the trial court’s perspective, the notice does little more than set a ceiling on the potential prison term, leaving the court with the discretion to impose a lesser term than the offender was notified of when a lesser term is appropriate. As the court of appeals did in the instant case, some courts have focused on this factor to support a substantial-compliаnce approach to the “specific prison term” notification requirement of R.C. 2929.19(B)(5). See, e.g., Housley,
TV. Reasons for Strict Compliance
{¶ 24} While we recognize the statutory complexities that have caused some courts to reject a strict-compliance view of R.C. 2929.19(B)(5) as overly literal, we
{¶ 25} Our interpretation squares with a dominant purpose of current sentencing procedures, truth in sentencing, which aims to eliminate indefinite sentences in favor of specific terms, to increase certainty and predictability in sentencing. See Woods v. Telb (2000),
{¶ 26} A recurrent scenario involves a trial court that gave notice to the offender under R.C. 2929.19(B)(5) that the trial court would impose “up to” a certain number of months or years for a violation. See, e.g., Grodhaus,
{¶ 27} We determine that because R.C. 2929.19(B)(5) is so clear in requiring that the offender be notified of the specific term that awaits a violation of
{¶ 28} In reviewing the cases, we note that much of the difficulty in complying with R.C. 2929.19(B)(5) has occurred as judges adapt to the new sentencing procedurеs. While community control is similar to the former concept of probation, there are significant differences between the two. These differences require a trial judge imposing community control to focus with special care on the relevant statutes and not to approach it as a form of probation.
{¶ 29} For all the foregoing reasons, we hold that 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 thе 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.
{¶ 30} We recognize that a trial court could simply inform every offender that he or she will receive whatever definite term is the allowable maximum and thereby retain full discretion in every case to impose that term should the violation of the conditions of community control be seriоus. For example, in this case, the trial court could have informed the offender at the initial sentencing hearing that if he violated the conditions of his community control, it would impose a “specific term” of 12 months’ incarceration, the maximum term allowed for a fifth-degree felony under R.C. 2929.14(A)(5).
{¶ 31} The parties have pointed out nothing in R.C. Chapter 2929 that would explicitly forbid such a practice. However, the intent underlying R.C. 2929.19(B)(5) is obviously for the trial court to predict what the consequences should be for a pоssible future violation of the conditions and to assign a numbered specific term consonant with its prediction. Even though this prediction is necessarily speculative, a trial court that simply notifies every offender of the maximum term in all cases would not be conscientiously implementing the intent of R.C. Chapter 2929.
{¶ 32} Although this opinion has focused on the necessity of strict compliance with R.C. 2929.19(B)(5) and imparting the statutory notice at the sentencing hearing, there are some situations in which we believe that something less than strict compliance will suffice. One such situation would involve an offender who is informed prior to sentencing (e.g., at a plea hearing) what the 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. It would be overly rigid in that case to find that the offender’s knowledge of the maximum term for the offense would not satisfy the notice requirement of R.C. 2929.19(B)(5).
{¶ 34} Based on all of the foregoing, the judgment of the court of appeals is reversed.
Judgment reversed.
Notes
. We recognize that in this case, the trial court proceeded to sentence appellant immediately after the plea hearing was held. In this situation, we see no reason to consider the plea hearing and sentencing hearing to be two separate hearings for purposes of R.C. 2929.19(B)(5).
. When a trial court sentences an offender who has violated conditions of community control and the defendant did not receive notice of the specific term under R.C. 2929.19(B)(5) so that a prison term is not an option, the trial court at the R.C. 2929.15 sentencing must choose one of the other options under R.C. 2929.15(B) (imposing a longer time under the same sanction or imposing a more restrictive sanction). We do not reach the issue of whether a trial judge who, in that situation, at the time of the R.C. 2929.15(B) sentencing, informs the offender of the specific term he or she faces for a violation of the conditions of community control may subsequently impose a prison term if the offender violates conditions of community control a second time.
Concurrence in Part
concurring in part and dissenting in part.
{¶ 35} Although I concur in paragraph one of the syllabus, I respectfully dissеnt from paragraph two. I disagree with the majority’s holding that R.C. 2929.15(B) and 2929.19(B)(5) require the trial court to 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 later violation.
{¶ 37} Moreover, I do not believe that the majority’s interpretation was intended by the General Assembly. A trial court has no way of predicting a dеfendant’s future behavior. Thus, the sentencing court has no way of knowing whether the defendant will violate community control, and if so, how serious the violation will be. The majority’s reading of the statutes today ties the hands of the trial court.
{¶ 38} The majority recognizes that a trial court could simply inform every offender that he or she will receive whatever definite term is the allowable maximum and thereby retain full discretion in every case to impose that term should the violation of the conditions of community control be serious. But the majority contends that in doing so, a trial court would not be “conscientiously implementing the intent of R.C. Chapter 2929.” It would be difficult to imagine a scenario where trial courts would not choose this option, since courts can always sentence the offender to less than the original term.
{¶ 39} In my view, the trial court’s journal entry put Brooks on notice that he could receive a prison term of six to twelve months if he violated community control, and this was in compliance with R.C. 2929.19(B)(5). Further, I agree with the reasoning in State v. Housley, 12th Dist. No. CA2002-07-060,
{¶ 40} Accordingly, I respectfully dissent from paragraph two of the syllabus.
Concurrence in Part
concurring in paragraph one of the syllabus.
{¶ 41} I concur only with paragraph оne of the syllabus. I write to express my view that a trial court does not offend R.C. 2929.19(B)(5) by informing an