State v. DiehlState v. Diehl
Thomas P. Kurt, for appellant.
SINGER, J.
{¶ 1} Appellant, Amanda Ter Doest, n.k.a. Diehl, appeals from the May 21, 2018 judgment of the Wood County Court of Common Pleas, which revoked appellant‘s community control sanction imposed January 16, 2013, and sentenced her to two 18-
{¶ 2} Appellant sets forth two assignments of error:
I. The trial court erred in imposing consecutive prison sentences without making the findings required by
Ohio Revised Code § 2929.14(C)(4) at the time of the imposing sentence.II. The trial court erred in refusing to consider the mitigating evidence of appellant‘s gambling compulsion, in violation of
Ohio Revised Code § 2929.12(C)(4) .
Standard of Review
{¶ 3} Because the imposition of the penalty for a community control violation is considered a new sentence, we hold that our standard of review of this new sentence is limited by
{¶ 4} Finding that our holding is in conflict with other appellate districts, we hereby certify the record in this case to the Supreme Court of Ohio for review and final determination of this issue.
{¶ 5}
* * * may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That 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),2929.20(I) ], whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
Background
{¶ 6} In 2013, the original sentencing court acceptance appellant‘s guilty pleas and convicted appellant of three felony offenses: two counts of grand theft (both fourth-degree felonies) and one count of theft (a fifth-degree felony). The trial court found a prison term was not an option because appellant did not have a prior offense. Therefore,
{¶ 7} Over the next few years, the Wood County Adult Probation Department filed several petitions seeking revocation of appellant‘s community control for failure to make timely restitution payments and committing theft from another employer. Each time, the trial court continued appellant‘s community control. A final petition, which led to the current appeal, was filed on October 17, 2017, alleging two violations of the conditions of her community control sanctions. The first violation was based on the fact that appellant had been charged with one count of grand theft of $70,000 and twelve counts of forgery involving another employer. The second violation was that she had only paid $27,160.12 toward the $99,935 of restitution she was ordered to pay in 2013. At the revocation hearing held on January 5, 2018, appellant admitted to the violations and that her absence of nine months had stayed the expiration of her community control sanctions.
{¶ 8} Appellant was sentenced for the community control violations on May 18, 2018. At the sentencing hearing, appellant asserted the trial court should continue her community control because her recent crimes were due to a gambling compulsion.
{¶ 9} Prior to sentencing appellant, the trial court noted it had reviewed the 2012 presentence investigation report, which had not indicated a gambling addiction. The trial court also stated it had considered the overriding principles of felony sentencing,
First Assignment of Error
{¶ 10} In the case before us, the appellant asserts in her first assignment of error the trial court failed to comply with
{¶ 11} Before we can address the issue of whether the penalties imposed in this case were contrary to law and/or whether the
Multiple Community Control Sanctions and Penalties for Violations
{¶ 12} When a community control sanction is imposed as a sentence for a conviction, the trial court must also provide the offender with notice that if the conditions of the community control sanction is violated, the court may impose a prison term as a penalty and the court must notify the offender of the specific prison term which the court could impose.
{¶ 13} Imposing a penalty for violation of a community control sanction is authorized by
{¶ 14} Instead of imposing a suspended sentence as was previously done,
{¶ 15} In exercising its discretion, 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. Unlike the prior system of probation, there is no predetermined penalty. Jackson at ¶ 13-14. The trial court‘s
{¶ 16} Furthermore, if a prison term is imposed as a penalty, the trial court must impose a definite prison term “within the range of prison terms” permitted under
Application of the Law to the Facts of this Appeal
{¶ 17} In this case, it is clear that the trial court at the original sentencing hearing did not make any of the required findings to impose consecutive prison terms as a penalty for the violations of the multiple community control sanctions and, therefore, the notice of the specific prison term was contrary to law to this extent. Therefore, the trial court could not impose consecutive prison terms for the later violations of the community
Second Assignment of Error
{¶ 18} Appellant argues in her second assignment of error that the trial court did not consider her gambling compulsion as factors of mitigating circumstances,
{¶ 19} Upon a review of the sentencing hearing transcript, we find the trial court did consider appellant‘s assertion that she had a gambling addiction. But, the court found that her assertion conflicted with the fact that appellant never claimed a gambling addiction prior to her original sentence in this case. Furthermore, the court found appellant was a threat to society because she had stolen from two additional employers while on community control. Therefore, we find the trial court did satisfy its duty under
{¶ 20} Having found that the trial court did commit error prejudicial to appellant and that substantial justice has not been done, the judgment of the Wood County Court of
Certification of Conflict
{¶ 21} Pursuant to
{¶ 22} The parties are directed to
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Arlene Singer, J.
Thomas J. Osowik, J. CONCUR.