THE STATE OF OHIO, APPELLEE, v. HOWARD, APPELLANT.
SLIP OPINION NO. 2020-OHIO-3195
SUPREME COURT OF OHIO
Decided June 9, 2020.
2020-Ohio-3195
Sеntencing—Community control—Consecutive sentences—R.C. 2929.15(B)—R.C. 2929.19(B)—R.C. 2929.14(C)(4)—Sentencing court that notifies defendant at initial sentencing of specific prison term defendant could receive if community control is revoked need not repeat notification at intervening revocation hearings before prison term can be imposed upon revocation of community control—Sentencing court must make statutorily required consecutive-sentences findings when it imposes consecutive sentences following revocation of community control—Court of appeals’ judgment affirmed in part and reversed in part. (No. 2018-0376—Submitted March 27, 2019—Decided June 9, 2020.) APPEAL from the Court of Appeals for Franklin County, No. 17-AP-242, 2017-Ohio-8747.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Howard, Slip Opinion No. 2020-Ohio-3195.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
{¶ 1} In this appeal, we determine whether appellant, John M. Howard, received sufficient notice of the specific prison terms that the trial court could impose before the court revoked his community-control sentence and imposed the prison terms. We also determine at what stage a trial court must make the consecutive-sentences findings required under
Facts and Procedural Background
{¶ 2} On January 8, 2014, following a bench trial, the Franklin County Court of Common Pleas convicted Howard of importuning, a fifth-degree felony, and attempted unlawful sexual conduct with a minor, a fourth-degree felony. At Howard‘s sentencing hearing, the court agreed with the probation department that “intensive supervision” under community control was an appropriate sentence and would not demean the seriousness of Howard‘s offenses. The court noted that Howard had no prior arrests and that no victim was harmed in the commission of the offenses.1
{¶ 3} The court stated:
So, I am going to place him on prоbation for three years. He is to obtain and maintain employment. It will be intensive supervision on the sex offender case load. I will notify the defendant here and now that in the event that he fails to comply with probation, I will impose a sentence of 17 months in prison on Count 2, 11 months in prison on Count 1. Those two sentences will be consecutive to one another in the event that he violates probation. I want him to sign that document, simply indicating that I have so advised him.
{¶ 4} The court also awarded Howard jail-time credit, ordered him to pay court costs, and notified him of his duty to register as a Tier II sexually oriented offеnder.
{¶ 5} The court‘s sentencing entry stated:
After the imposition of Community Control, the Court * * * notified the Defendant, orally and in writing, what could happen if Defendant violates Community Control. The Court further indicated that if the Community Control is revoked Defendant will be sentenced to a prison term of seventeen (17) months as to Count Two to run consecutive with eleven (11) months as to Count One.
Howard signed a document acknowledging that he had received oral and written notice of his potential prison terms.
{¶ 6} On direct appeal to the Tenth District, Howard argued that his convictions were against the manifest weight of the evidence, but he did not challenge his sentence. The court of appeals affirmed his convictions and sentence in November 2014. State v. Howard, 10th Dist. Franklin No. 14AP-239, 2014-Ohio-5103.
{¶ 7} In October 2016, the trial court held a hearing on the state‘s request to revoke Howard‘s community control. Howard admitted to violating the terms of his community control by traveling outside his county of residence without permission on two occasions and committing a traffic offense during one of those occasions. The court declined to revoke Howard‘s community control, but it extended the duration of the community control and added a condition requiring Howard to complete a mental-health treatment program. The court also stated, “And if I see you again, Mr. Howard, plan on going to the penitentiary. All right?”
{¶ 8} In March 2017, the court held another revocation hearing as a result of additional community-control violations, which Howard admitted. Specifically, Howard admitted to having been terminated from the mental-health treatment program and to having viewed YouTube videos and magazines that were prohibited under his community-control conditions. The court revoked Howard‘s community control and imposed the prison sentence that it had notified Howard of at his initial sentencing hearing: 17 months for his conviction for attempted unlаwful sexual conduct with a minor and 11 months for his importuning conviction, to be served consecutively. During the hearing, the court stated:
And I believe Judge Sheward, when he imposed this, he made the finding that consecutive sentences
are necessary to punish the defendant or to protect the public from future crime. I further find that the sentences are not disproportionate to the seriousness of the conduct or danger posed by the defendant to the public; that two or more offenses are part of one or more courses of conduct; and the harm caused is so great or unusual that a single prisоn term would not adequately reflect the seriousness of the conduct.
{¶ 9} Howard appealed to the Tenth District, arguing that the trial court had erred by failing to notify him at his first community-control revocation hearing of the specific prison terms the court could impose if he were to violate his community-control conditions again. He also argued that the court had failed to make the consecutive-sentences findings required under
{¶ 10} The Tenth District affirmed. Regarding notice, the court determined that “proper notification at the original sentencing hearing or any subsequent community control violation hеaring of the proper prison term that may be imposed is legally sufficient as a prerequisite to imposing a prison term on the offender for such a subsequent violation.” 2017-Ohio-8747, ¶ 18. With respect to consecutive-sentences findings, the court determined that when the trial court revoked Howard‘s community control it merely enforced its original prison sentence and was not required to make the findings. Id. at ¶ 24. The court also determined that Howard had been required to present any alleged error regarding the consecutive sentences on direct appeal from his original sentence. Id.
{¶ 11} We accepted Howard‘s discretionary appeal, which raises the same two challenges that Howard raised below and a third challenge asserting that the appellate court erred when it determined that he had been required to raise his consecutive-sentences challenge on direct appeal from his original sentence.
Analysis
{¶ 12} We first note that Howard has served his consecutive prison terms and has been released from prison.2 He remains on postrelease control, however. This appeal is not moot because if Howard‘s prison terms were to be vacated, he would not be subjеct to postrelease control. In addition, a modification of Howard‘s
stated prison terms could affect the potential penalty for a violation of his postrelease-control conditions. See
The trial court provided Howard sufficient notice of the specific prison terms he could receive if his community control were to be revoked
{¶ 13}
{¶ 14} The statutorily mandated notice regarding the specific prison term that the trial court could impose becomes relevant when the offender violates his community control. The penalties available to a court sentencing an offender for a community-control violation are prescribed in
{¶ 15} Three months after we decided Brooks, we determined that a trial court can cure its failure to notify an offender at his initial sentencing hearing of the potential, specific prison term if it provides that notice at a revocation hearing that occurs before the revocation hearing at which the trial court imposes the prison term. State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995. Here, there is no dispute that Howard received proper notice at his initial sentencing hearing of the specific prison terms he could face if he were to violate his community-control conditions. But Howard argues that Fraley requires a trial court to repeat the notice at the revocation heаring immediately preceding the revocation hearing at which the court imposes the prison term.
{¶ 16} We find that Fraley is distinguishable because Howard received proper notice of his potential prison terms at his initial sentencing hearing. Fraley had been initially sentenced to community control, but the court failed to notify him at his initial sentencing hearing of the specific prison term he could face if he violated his community-control conditions. Id. at ¶ 1. Fraley then violated his community control by failing to fulfill his sex-offender registration requirements, which led to a new conviction and second community-control sentence that wаs ordered to run concurrently with the first community-control sentence. Id. at ¶ 2. When the sentencing court imposed the second community-control sentence, it again failed to correctly notify Fraley of the specific prison term he could face if he violated his community control. See id. Fraley then violated the conditions of his first community-control sentence, and the trial court declined to revoke his community control in that case. Fraley then violated the conditions of both of his community-control sentences. Id. at ¶ 3-4. At the hearing regarding those violations, the trial court notified Fraley for the first time that another violation could result in prison terms of four years regarding his first case and nine months regarding his second case, with the terms to run consecutively. Id. at ¶ 4. Fraley then violated his community-control sentences again by driving while under the influence. As a result, the court terminated his community-control sentences and imposed the consecutive prison terms. Id. at ¶ 5.
{¶ 17} The Sixth District Court of Appeals reversed Fraley‘s prison sentences because he had not received notice of those potential sentences at his initial sentencing hearing. Id. at ¶ 6. We accepted the state‘s
{¶ 18} First, unlike Fraley, Howard was properly notified at his initial sentencing hearing of the prison terms he could face if he were to violаte his community control and the potential prison terms did not change between his initial sentencing and the second revocation hearing at which the court imposed the prison terms. In other words, Howard was not convicted of any new offense in the intervening period for which additional prison time could have been imposed. He was aware throughout the period of his community control that a violation could result in consecutive prison terms of 17 and 11 months.
{¶ 19} Second, to accept Howard‘s reading of Fraley, we would have to conclude that our holding in Fraley was that a trial court must repeat the prison-term notification at every revocation hearing in order to preserve its ability to sentence an offender to prison for violating community control. As we said in Fraley, a court sentencing an offender at a revocation hearing “sentences the offender anew and must comply with the relevant sentencing statutes.” Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, at ¶ 17. We have since affirmed that determination in other contexts. See State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965, ¶ 15 (acknowledging the state‘s right to be present at a revocation hearing); State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 14 (holding that a revocation hearing is a sentencing hearing for purposes of the allocution requirements in
{¶ 20} Thus, we look to the relevant sentencing statutes,
{¶ 21} At Howard‘s first revocation hearing, the court extended the term of his community control, as it was permitted to do under
{¶ 22} At Howard‘s second revocation hearing, the court imposed the exact prison terms that it had provided Howard notice of at his initial sentencing hearing.
A trial court must make statutorily required consecutive-sentences findings when it imposes consecutive sentences following the revocation of community control
{¶ 23}
{¶ 24} At Howard‘s initial sentencing hearing, the trial court notified him that hе could face consecutive prison terms if he were to violate his community control. But the record is devoid of any evidence that the trial court made the statutorily required consecutive-sentences findings at the initial sentencing hearing or included them in the sentencing entry. However, at that time, Howard‘s prison terms were only potential in nature. See Brooks at ¶ 31 (noting that the specific prison term communicated to a defendant pursuant to
{¶ 25} We disagree with the Tenth District‘s conclusion that when the trial revoked Howard‘s community control it “did not literally sentence Howard” and instead “enforced the sentenсe previously imposed.” 2017-Ohio-8747 at ¶ 24. It is true that the court sentenced Howard to exactly the same prison terms that it had provided Howard notice of at his initial sentencing hearing, including the consecutive nature of those terms. Nonetheless, the court performed more than an administrative function at the revocation hearing and did not merely impose a predetermined sentence. See Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, at ¶ 13. The court had discretion under
community-control sentence would not demean the seriousness of Howard‘s offenses.
{¶ 27} But even if the court had made the consecutive-sentences findings at Howard‘s initial sentencing hearing,
{¶ 28} As noted above, Howard has served his consecutive prison terms and is currently on postrelease control. Whether the trial court can revisit the consecutive-sentence findings, and whether resentencing may affect the duration of his postrelease control is not before us, and we express no view on those issues.
Conclusion
{¶ 29} For the foregoing reasons, we affirm the Tenth District‘s judgment in part and reverse it in part and remand the case to the trial court for any necessary proceedings.
Judgment affirmed in part and reversed in part, and cause remanded.
FRENCH, DEWINE, and DONNELLY, JJ., concur.
KENNEDY, J., concurs in part and dissents in part, with an opinion joined by STEWART, J.
FISCHER, J., dissents, with an opinion.
KENNEDY, J., concurring in part and dissenting in part.
{¶ 30} I concur in the judgment of the majority opinion with the exception of the portion that reaches the merits of appellant John M. Howard‘s challenge to the trial court‘s consecutive-sentences findings. An assignment of error raising that challenge was properly before the Tenth District Court of Appeals and was fully briefed and argued below. See 2017-Ohio-8747. I would remand this cause to the court of appeals to allow that court to address in thе first instance whether the trial court made the required findings pursuant to
{¶ 31} We did not accept for review the issue whether the trial court made the necessary findings under
{¶ 32} While it may be more convenient to resolve here the issue whether the trial court complied with
{¶ 33} Accordingly, I would remand the cause to the court of appeals for it to determine whether the trial court complied with
{¶ 34} Therefore, I concur in part and dissent in part.
STEWART, J., concurs in the foregoing opinion.
FISCHER, J., dissenting.
{¶ 35} The majority opinion holds that as long as a trial court notifies an offender at his or her initial sentencing hearing of the specific prison term that may be imposed following the revocation of the offender‘s community-control sanction, the trial court is not required to repeat that notification at subsequent community-control revocation hearings before it can impose a prison sеntence. Because I do not believe that the majority opinion‘s conclusion is supported by this court‘s precedent or Ohio‘s statutory scheme governing community-control sanctions, I respectfully dissent.
Community-control sanctions and truth in sentencing
{¶ 36} We are presented with yet another case demonstrating the complexities of Ohio‘s statutory scheme governing community-control sanctions. Given the procedural posture of this case, it seems necessary to emphasize that community control is not the same as probation. See Cleveland Bar Assn. v. Cleary, 93 Ohio St.3d 191, 192, 754 N.E.2d 235 (2001), fn. 1. In 1996, the General Assembly replaced probation with community-control sanctions. Compare Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7470-7474 (“S.B. 2“) with former R.C. 2951.02, 1995 Am.Sub.H.B. No. 167, 146 Ohio Laws, Part II, 2245, 2278; seе also State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 14, 22. Probation was a period of time served during the suspension of a prison sentence, while community-control sanctions are imposed as the sentence for an offense. State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965, ¶ 14. “[O]ne of the overriding goals” of S.B. 2 was “truth in sentencing.” Anderson at ¶ 22.
{¶ 37} To have truth in sentencing, the offender must be correctly notified of his or her sentence.
{¶ 38} The statute makes no substantive distinction between the initial sentencing hearing and subsequent sentencing hearings. After the initial reference in
{¶ 39} On two recent occasions, this court has reaffirmed that an offender who is sentenced at a community-control revocation hearing is sentenced anew. See Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965; State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237. In Heinz, this court acknowledged that a community-control revocation hearing is indeed a sentencing hearing at which the offender is sentenced anew and that the requirements of
{¶ 40} Given our precedent, I am not convinced by the determination in the majority opinion that a trial court is not required to provide the notifications required by
{¶ 41} But even if there could be some carry-over effect, such an effect would not apply in this case, because the trial court did not, as the majority opinion determines, sentence appellant, John M. Howard, to the same community-control sanction at his first community-control revocation hearing. Majority opinion at ¶ 21. A trial court, upon finding that an offender has violated his or her community control conditions, may impose “a longer time under the same sanction,” “[a] more restrictive sanction under
{¶ 42} Because the trial court had been required to sentence Howard “anew” at his community-control-revocation hearing and because he received a more restrictive sanction at that hearing, the trial court was required to notify him at that hearing of the specific prison term that he could receive if he were to violate the conditions of his community-control sanction. Because the trial court did not notify Howard of the specific prison term he could receive, the court was barred from imposing a prison term. See Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, at ¶ 15, 29, 33. That conclusion is compelled by this court‘s precedent, “the letter and spirit” of
Conclusion
{¶ 43} This court has consistently treated community-control revocation hearings as sentencing hearings at which the offender is sentenced “anew” and at which the trial court must comply with the notification requirements contained in
{¶ 44} Therefore, I respectfully dissent.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert, Assistant Prosecuting Attorney, for appellee.
Koenig & Owen, L.L.C., and Charles A. Koenig, for appellant.