STATE OF OHIO, Plaintiff-Appellee, - vs - SHANNON L. DUNCAN, Defendant-Appellant.
CASE NOS. CA2015-05-086, CA2015-06-108
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
8/29/2016
[Cite as State v. Duncan, 2016-Ohio-5559.]
M. POWELL, P.J.
Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Scott N. Blauvelt, 315 South Monument Street, Hamilton, Ohio 45011, for defendant-appellant
M. POWELL, P.J.
{1} Defendant-appellant, Shannon Duncan, appeals a decision of the Butler County Court of Common Pleas revoking her community control and sentencing her to an aggregate 15-year prison term.
{2} The facts of this case involve two criminal cases. During a plea hearing on March 9, 2007, appellant pled guilty in Case No. CR2006-10-1877 (the “robbery case“) to one count of aggravated robbery (Count 2), one count of robbery (Count 3), and one count of complicity to aggravated robbery (Count 12). The written plea agreement provided that “Any prison term given on Count Twelve shall run concurrent to Counts Two & Three.” The plea agreement further provided, “I understand that if I violate the terms or conditions of a community control sanction, the Court may extend the time for which I am subject to this sanction up to a maximum of 5 years, impose a more restrictive sanction, or imprison me for up to the maximum stated term allowed for the offense(s) of which I am found guilty.”
{3} At the outset of the plea hearing, the trial court addressed the plea agreement as follows:
I have a plea form indicating that Ms. Duncan would be entering a plea to Count II, charging aggravated robbery, a felony of the first degree; Count III, charging robbery, a felony of the third degree; and Count XII, charging complicity to aggravated robbery, a felony of the first degree. That by virtue of this plea, [Ms. Duncan] is subjecting herself to a possible maximum prison term of 15 years total, which would be the maximum term on Count II, the maximum term on Count III, with an agreement that if a prison term was imposed on Count XII, it would have to run concurrent with the time imposed on Counts II and III. Is that an accurate statement?
The prosecutor replied that it was.
{4} The trial court subsequently advised appellant that it was “not inclined to consider community control as a sanction in this case,” “I know I‘m going to send you to prison, but I just don‘t know for how long or what the appropriate period would be,” “as I stated earlier, that could be a sentence of up to 15 years in prison,” and “you understand that upon acceptance of your guilty plea, I could send you to prison for 15 years?” Each time, appellant replied she understood. Appellant then entered her guilty plea.
{5} In April 2007, the trial court sentenced appellant to a five-year prison term on Count 2. No prison terms were imposed on Counts 3 and 12. Rather, the trial court sentenced appellant to five years of community control on both Counts 3 and
{6} In October 2012, appellant pled guilty in Case No. CR2012-07-1142 to one count of failure to comply with the order or signal of a police officer (the “failure to comply case“). As a result, appellant was charged with violating the terms of her community control on Counts 3 and 12 in the robbery case. On December 10, 2012, the trial court found that appellant had violated her community control but continued it with additional sanctions, and separately sentenced appellant to five years of community control in the failure to comply case.
{7} During the sentencing hearing, the trial court advised appellant that if she violated her community control, she would be sentenced to a 5-year prison term on Count 3, a 10-year prison term on Count 12, and a 36-month prison term on the failure to comply count, all to be served consecutively for an aggregate prison sentence of 18 years. The judgment entry in the robbery case further provided, “Violation of any of this sentence shall lead to a more restrictive sanction, a longer sanction, or a prison term of 5 years as to Count Three and 10 years as to Count Twelve to run consecutive to each other and consecutive to [the failure to comply case].” Appellant did not object during the sentencing hearing and did not appeal the judgment entry.
{8} In 2013, and again in 2014, appellant was charged with violating the terms of her community control in both the robbery and failure to comply cases. Ultimately, the trial court continued community control in both cases. As before, the judgment entries in the robbery case provided that “Violation of any of this sentence shall lead to a more restrictive sanction, a longer sanction, or a prison term of 5 years as to Count Three and 10 years as to Count Twelve to run consecutive to each other and consecutive to [the failure to comply case].”1 Appellant did not appeal the judgment entries.
{9} In 2015, following her conviction for obstructing official business and her admission she had relapsed and used cocaine and heroin, appellant was once again charged with violating the terms of her community control in both the robbery and failure to comply cases. On March 31, 2015, the trial court held a hearing on the community control violations. Following appellant‘s admission to violating the terms of her community control, the trial court revoked community control in both
{10} On appeal, appellant raises three assignments of error. The first and third assignments of error will be addressed together.
{11} Assignment of Error No. 1:
{12} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, IN VIOLATION OF THE DUE PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, WHERE THE COURT DID NOT FULFILL UNEQUIVOCAL SENTENCING PROMISES EXPRESSED AT A PLEA HEARING.
{13} Assignment of Error No. 3:
{14} THE TRIAL COURT LACKED JURISDICTION AND ERRED IN REVOKING COMMUNITY CONTROL WHERE THE ORIGINAL JUDGMENT PLACING APPELLANT UNDER COMMUNITY CONTROL SANCTIONS WAS VOID.
{15} Appellant argues that the consecutive five-year and ten-year prison terms she received in 2015 following revocation of her community control on Counts 3 and 12 in the robbery case violated the promise made at the 2007 plea hearing and in her plea agreement that “[a]ny prison term given on Count Twelve shall run concurrent to Counts Two & Three.” Consequently, appellant argues her 2007 guilty plea and conviction are void and not barred by the doctrine of res judicata. Appellant further argues that because her 2007 guilty plea and conviction are void, she was not properly placed on community control in 2007 and “the trial court was without jurisdiction to revoke said community control and to impose a prison sentence upon revocation.” The state argues that appellant‘s claim is barred by res judicata because appellant should have appealed the 2007 sentencing entry placing her on community control on Counts 3 and 12 in the robbery case. The state cites this court‘s decision in State v. Painter, 12th Dist. Clermont No. CA2012-04-031, 2013-Ohio-529, in support of its argument.
{16}
If the sentencing court determines at the sentencing hearing that a community control sanction should be imposed and the court is not prohibited from imposing a community control sanction, the court shall impose a community control sanction. The court shall notify the offender that, if the conditions of the sanction are violated, * * * the court may impose a longer time under the same sanction, may impose a more restrictive sanction, or may impose a prison term on the offender and shall indicate the specific prison term that may be imposed as a sanction for the violation, as selected by the court from the range of prison terms for the offense
pursuant to [R.C.] 2929.14[.]2
{17}
{18} Pursuant to the foregoing, it is possible that the specific prison term of which notice is given pursuant to
{19} “‘[F]elony sentencing statutes, contained primarily in
{20} The Ohio Supreme Court has held that
pursuant to
R.C. 2929.19(B)[4] and2929.15(B) , a trial court sentencing an offender to a community control sanction must, at the time of the sentencing, 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 subsequent violation.
State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 29.
{21} Hence, the purpose of the community control statute is not to sentence a defendant to a specific prison term and then suspend or reserve that prison term. Berry, 2012-Ohio-4660 at ¶ 25. Rather, the purpose of the statute is to notify the defendant of a specific prison term that may be imposed if the defendant violates community control. Brooks at ¶ 23 (
{22} “It is well-established that any penalty imposed for violating a condition of one‘s community control sanctions is a punishment for that violation and not for the original underlying offense.” State v. Richter, 12th Dist. Clermont No. CA2014-06-040, 2014-Ohio-5396, ¶ 8; see also State v. Catron, 12th Dist. Clermont No. CA2001-03-040, 2001 WL 1567238, *1 (Dec. 10, 2001) (sanctions for violating community control are not punishment for the original offense); Davis, 2016-Ohio-879 at ¶ 17 (a revocation of community control punishes the failure to comply with the terms and conditions of community control).
{23} Painter, which the state relies upon for its argument that appellant‘s claim is barred by res judicata, involved a prison sentence that was suspended upon condition of compliance with the terms of community control. That is, the trial court sentenced Painter to several years in prison but suspended execution of the sentence and placed Painter on community control. When Painter was ordered to serve the suspended sentence after he was found in violation of the terms of his community control, he appealed, attacking the original conviction and sentence. We held that “a sentence is imposed when it is pronounced.” Painter, 2013-Ohio-529 at ¶ 18. Consequently, a prison sentence that was “pronounced” but suspended when the defendant was placed on community control, must be challenged on direct appeal of the judgment entry that initially sets forth the suspended sentence, that is, at the time the prison sentence is “pronounced,” and not when community control is later revoked and the prison sentence is imposed at that time. Id. (While an imposed sentence may be stayed or otherwise held in abeyance, as in the case when the accused is placed on community control, it is nevertheless sufficiently established for purposes of appeal).
{24} We first find that the “suspended sentence” scenario in Painter is not applicable here. In the case at bar, unlike in Painter, the trial court did not impose prison sentences on Counts 3 and 12 in the robbery case, suspend the sentences, and place appellant on community control. Rather, the trial court sentenced appellant to community control on Counts 3 and 12 and notified appellant pursuant to
{25} In light of
{26} In sentencing Painter to a suspended prison sentence and placing him on community control, it appears the trial court in that case treated community control in the manner probation was formerly treated. As the Ohio Supreme Court noted in Anderson, prior to the 1995 Senate
{27} Therefore, we hereby clarify that the holding in Painter applies in those instances where there is a “suspended” prison term, but not to the notice of a potential prison term required by
{28} In light of the foregoing, it follows that appellant‘s claim is not barred by res judicata. Because the prison sentence imposed in 2015 for appellant‘s violation of her community control in the robbery case was a punishment for that violation, and not a sentence for the original underlying robbery offenses, res judicata does not apply and appellant may appeal the trial court‘s 2015 judgment entry sentencing her to 15 years in prison for violation of the terms of her community control.
{29} The fact that appellant‘s claim is not barred by res judicata does not mean, however, that it is meritorious. Appellant argues that her 2007 guilty plea and conviction in the robbery case are void because the consecutive five-year and ten-year prison terms she received in 2015 following the revocation of her community control on Counts 3 and 12 in the robbery case breached the promise made at the 2007 plea hearing and in her plea agreement that “[a]ny prison term given on Count Twelve shall run concurrent to Counts Two & Three.” In essence, appellant asserts she did not receive the benefit of her plea agreement. Appellant cites this court‘s decision in State v. Bonnell, 12th Dist. Clermont No. CA2001-12-094, 2002-Ohio-5882, in support of her argument.
{30} “When a
{31} Following plea negotiations in Bonnell, the state agreed to amend a charge from robbery to attempted robbery and the trial court agreed not to sentence the defendant to prison. However, at the sentencing hearing, the trial court sentenced the defendant to a maximum prison sentence. The trial court did not give the defendant any notice that it intended to deviate from the terms of the plea agreement. This court found “reversible error * * * because the trial court explicitly promised [the defendant] it would not sentence him to prison, then failed to follow through on its promise at the sentencing hearing without stating its intention and without giving [the defendant] the opportunity to withdraw his plea.” Bonnell, 2002-Ohio-5882 at ¶ 22. We find that Bonnell is not applicable here.
{32} In the case at bar, appellant was clearly advised at the plea hearing and in the written plea agreement that upon the trial court‘s acceptance of her guilty plea, appellant could be sentenced up to 15 years in prison on all three charges in the robbery case, as follows: the maximum prison term on Count 2, the maximum prison term on Count 3, and any prison term imposed on Count 12 to run concurrent to Counts 2 and 3. When sentenced a month later, however, appellant was sentenced to a prison term on Count 2 only and to community control on Counts 3 and 12, to commence upon her release from prison on Count 2.
{33} Because appellant was sentenced in 2007 to community control on Count 12, she cannot claim that she did not receive the benefit of her plea agreement. Consistent with the plea agreement, no prison sentence was imposed on Count 12 (“any prison time given on Count Twelve shall run concurrent to Counts two and Three“). There was, therefore, no prison term on Count 12 to be served concurrently with prison terms on Counts 2 and 3. It was not until appellant violated her community control for the fourth time and her community control was revoked in 2015 in the robbery case that she received consecutive five-year and ten-year prison terms for those community control violations. It is well-established that any penalty imposed for violating community control is a punishment for that violation and not for the original underlying offense. Richter, 2014-Ohio-5396 at ¶ 8. Hence, the consecutive prison sentences appellant received in 2015 were for violating her community control in the robbery case, and not for the original underlying robbery offenses in Counts 3 and 12.
{34} We therefore find that appellant‘s 2007 guilty plea and conviction are not void, that she was properly sentenced to community control in 2007, and that the trial court had jurisdiction in 2015 to revoke her community control in the robbery case and impose the aggregate 15-year prison sentence upon revocation.
{35} Appellant‘s first and third assignments of error are accordingly overruled.
{36} Assignment of Error No. 2:
{38} Appellant argues the trial court erred in imposing consecutive sentences following the revocation of her community control because the court failed to make the required statutory findings under
{39} As stated earlier, “any penalty imposed for violating a condition of one‘s community control sanctions is a punishment for that violation and not for the original underlying offense.” Richter, 2014-Ohio-5396 at ¶ 8; Catron, 2001 WL 1567238 at *1 (sanctions for violating community control are not punishment for the original offense); State v. Artz, 2d Dist. Champaign No. 2014-CA-34, 2015-Ohio-3789, ¶ 11 (a revocation of community control punishes the failure to comply with the terms and conditions of community control).
{40} In Williams, this court held that the time for a trial court to make the required statutory findings for imposing consecutive sentences pursuant to
{41} However, the Ohio Supreme Court has held that “[f]ollowing a community control violation, the trial court conducts a second sentencing hearing. At this second hearing, the court sentences the offender anew and must comply with the relevant sentencing statutes.” (Emphasis added.) State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, ¶ 17. See also State v. Heinz, Slip Opinion No. 2016-Ohio-2814, ¶ 15 (quoting Fraley at ¶ 17); State v. Osborne, 11th Dist. Lake No. 2004-L-068, 2005-Ohio-4895.
{42} Accordingly, in light of Fraley, Heinz, and
{43} In light of the foregoing, our clarification of Painter under the previous assignments of error, and the fact Williams relied upon Painter, we believe it necessary to revisit our holding in Williams.
{44} Williams involved the appeal of a trial court‘s decision sentencing the defendant to community control with “potential 36-month prison terms on counts two and three to be served * * * consecutively to a 36-month prison term on count four,” should the defendant violate his community control. The defendant appealed his sentence, arguing the trial court was required to comply with
{45} Relying on our holding in Painter that a sentence is imposed when it is pronounced, this court held that “the time for a defendant to challenge the imposition of reserved consecutive sentences is on direct appeal of the judgment that initially sets forth the reserved sentence.” Williams, 2013-Ohio-3410 at ¶ 40. In so ruling, this court noted how our decision in Painter was inapposite of this court‘s previous decisions in State v. Sneed, 12th Dist. Butler No. CA2004-06-153, 2005-Ohio-1078, and State v. Madaffari, 12th Dist. Butler No. CA2004-08-193, 2005-Ohio-3625, and ultimately overruled Sneed and Madaffari as follows:
In Sneed and Madaffari, the defendants were sentenced to community control, with consecutive prison terms reserved. After the defendants violated the terms of their community control and were ordered to serve their reserved consecutive sentences, the defendants appealed, arguing that the trial court was required to make the requisite statutory findings to impose consecutive sentences at the initial sentencing hearing. We rejected the defendants’ arguments, stating that “[t]he sentencing statutes under R.C. Chapter 2929 indicate that findings and reasons, if applicable, must be given when a prison sentence is imposed.” “Thus, it follows that a trial court is required to make the statutory findings and supporting reasons under R.C. 2929.14[C](4), not when it sentences a defendant to community control, but when it actually imposes a consecutive prison term.”
Given our holding in Painter * * * that a sentence is imposed when it is first pronounced, we hereby overrule Sneed and Madaffari to the extent that those cases indicate that a reserved sentence is not imposed until after revocation of community control. The time for a defendant to challenge the imposition of reserved consecutive sentences is on direct appeal of the judgment entry which initially sets forth the sentence.
(Citations omitted.) Williams at ¶ 41-42.
{46} In relying upon Painter and overruling Sneed and Madaffari, we failed to
{47} In holding that a trial court is required to make the requisite statutory findings under
{48} We now address whether the trial court complied with
{49} Pursuant to
- The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense. - At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{50} “In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
{51} The record shows that while the trial court‘s April 2, 2015 sentencing entry imposing consecutive prison terms on Counts 3 and 12 in the robbery case includes
{52} We therefore vacate appellant‘s consecutive sentences in the robbery case and remand this matter to the trial court for resentencing. On remand, the trial court shall consider whether consecutive sentences are appropriate under
{53} Appellant‘s second assignment is sustained.
{54} Judgment affirmed in part and reversed in part and cause remanded to the trial court for the sole purpose of resentencing consistent with this opinion.
S. POWELL and RINGLAND, JJ., concur.