THE STATE OF OHIO, APPELLANT, v. FRALEY, APPELLEE.
Nos. 2004-0225 and 2004-0276
Supreme Court of Ohio
December 30, 2004
105 Ohio St.3d 13, 2004-Ohio-7110
O‘CONNOR, J.
{9} There are other reasons disqualification is not appropriate.
{10} First, disqualification is not required based on the existence of similarities between the two election-contest cases pending in this court. The decision in this case will be completely separate from Justice O‘Connor‘s resolution of the allegations in the Chief Justice-election contest and will not preclude Justice O‘Connor from reaching conclusions contrary to any that I may make in this case.
{11} Second, I have no economic interest in this presidential-election contest. As noted previously, this case is separate from the Chief Justice-election contest being considered by Justice O‘Connor.
{12} Third, the rulings on contestors’ December 17, 2004 motion--first to await a response (104 Ohio St.3d 1432, 2004-Ohio-6995, 819 N.E.2d 1117) and then to deny the motion (104 Ohio St.3d 1443, 2004-Ohio-7119, 819 N.E.2d 1125)--were based on the language of S.Ct.Prac.R. XIV(4)(B) and (C) and the contestors’ failure to present sufficient, credible evidence to support their motion. The fact that these rulings were adverse to contestors does not demonstrate bias or prejudice. See In re Disqualification of Kimbler (1999), 88 Ohio St.3d 1217, 723 N.E.2d 1104. “To hold otherwise would afford each litigant who is adversely affected by the action or inaction of a judge the opportunity to seek the judge‘s disqualification.” In re Disqualification of Hall (2001), 94 Ohio St.3d 1230, 763 N.E.2d 599.
{13} Based on the foregoing, the contestors’ emergency motion to disqualify me is overruled. I do not recuse myself.
Motion overruled.
Clifford O. Arnebeck Jr., Robert J. Fitrakis, Susan Truitt, and Peter Peckarsky, for contestors.
I. Facts and Procedural History
{1} Defendant-appellee, Earl Fraley, was indicted on, and pleaded guilty to, one count of gross sexual imposition, a felony of the third degree, in violation of
{2} In December 1999, Fraley entered a guilty plea to the charge of failure to register, a felony of the fifth degree, in violation of
{3} On May 8, the court found that Fraley had again violated the terms and conditions of his community control in case No. 97-CR-479. The court held that the violations were not so serious as to require the termination of community control sanctions.
{4} On April 9, 2002, Fraley again pleaded guilty to violating the terms and conditions of his community control in both case No. 97-CR-479 and No. 99-CR-504. The trial court found that Fraley had violated the terms and conditions of community control but that again, the violations were not of such a nature as to require the termination of his community control sanctions. For the first time, the trial court notified Fraley at the hearing that if he violated the community control sanctions again, a prison term would be imposed of four years in case No. 97-CR-479 and nine months in case No. 99-CR-504, and the sentences would run consecutively.
{5} On November 12, 2002, a hearing was held to determine whether Fraley had again violated the terms and conditions of his community control sanctions in both cases. Fraley admitted to a new DUI offense, which violated the terms and conditions of his community control sanctions in both case No. 97-CR-479 and No. 99-CR-504. The court terminated Fraley‘s community control in both cases and found that “pursuant to
{6} The Court of Appeals for the Sixth District reversed the judgment of the trial court and remanded the cause for further proceedings. The appellate court held that the trial court must notify a defendant at the initial sentencing hearing of a specific term of imprisonment that may be imposed for violating community control sanctions. Because the trial court did not specify a specific term until the April 9, 2002 hearing, the appellate court found that the trial judge was without the authority to impose prison terms.
{7} The Sixth District Court of Appeals certified that a conflict existed with the decision of the Ninth District Court of Appeals in State v. Sutherlin, 154 Ohio App.3d 765, 2003-Ohio-5265, 798 N.E.2d 1137. The cause is now before us upon
II. R.C. 2929.19(B)(5) and 2929.15(B)
{8} The question certified to us for determination is whether
{9}
{10}
{11} We have held, “Pursuant to
{13} In this case, the Sixth District Court of Appeals held that the trial court must notify the defendant at his initial sentencing hearing of the specific prison term that may be imposed as a sanction for a violation of a community control sanction in order to comply with
III. An Element of Statutory Compliance: Time of Notification
{14} Fraley does not allege a constitutional violation. Our examination is limited to statutory interpretation. We examined full compliance and substantial compliance with sentencing statutes in State v. Brooks, and we noted that there are two main variables to examine in evaluating compliance with the notification requirement of
A. Time of Notification When Only One Community Control Violation Occurs
{15}
B. Notification When There Are Multiple Violations of Community Control
{16} Our holding in Brooks did not address “whether a trial judge who, * * * at the time of the
{17} The notification requirement in
{18} We therefore hold that pursuant to
{19} In the case at bar, Fraley, at his initial sentencing hearing in March 1998, was sentenced to five years’ community control. He was notified only by journal entry that harsher sanctions, including up to five years of imprisonment, could be imposed if he failed to comply with the sanctions. After this original sentencing hearing, Fraley violated community control four times. After each of the first two violations, the sentencing court continued the previous sanctions and failed to notify Fraley at the sentencing hearings of any specific prison term. At his third violation hearing in April 2002, however, the trial court additionally notified Fraley that if he violated the community sanctions again, specific prison terms would be imposed. Accordingly, at the April 2002 hearing, Fraley was notified of a specific term of imprisonment, in compliance with the requirements
{20} Based on all the foregoing, the judgment of the court of appeals is reversed.
Judgment reversed.
F.E. SWEENEY, LUNDBERG STRATTON and O‘DONNELL, JJ., concur.
RESNICK, J., concurs in judgment only.
MOYER, C.J., dissents.
PFEIFER, J., dissents.
MOYER, C.J., dissenting.
{21}
{22} In the instant case, the trial court notified Fraley of the specific prison term that could be imposed for a violation of his community control sanction at his third community-control-violation hearing. The majority holds that this notification satisfied
{23} As the majority relates,
{24} We must give meaning to the words of
{25} I would affirm the judgment of the court of appeals.
PFEIFER, J., dissenting.
{26} Recently, in State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, we very clearly interpreted
{27} The failure to set forth with specificity the term of incarceration for a violation of community control at sentencing means that an offender can never receive incarceration for violating his community control related to that offense. The authority to order incarceration comes at the sentencing hearing on the original charge. Repeated violations of community control do not invest the trial court with any additional authority to order incarceration.
Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellant.
Jeffrey J. Whitacre, Erie County Public Defender, for appellee.