STATE OF OHIO, Plaintiff-Appellee, vs. SEAN C. JACQUILLARD, Defendant-Appellant.
APPEAL NO. C-130021
TRIAL NO. B-0700868
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
October 30, 2013
[Cite as State v. Jacquillard, 2013-Ohio-4778.]
SYLVIA S. HENDON, Presiding Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Sentences Vacated in Part and Cause Remanded for Resentencing
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Curan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
{¶1} Defendant-appellant Sean Jacquillard has appealed from the trial court’s entry revoking his community control and imposing sentence. Because the trial court failed to make the necessary findings before imposing consecutive sentences, failed to properly inform Jacquillard of the potential consequences he faced for a violation of his postrelease-control obligations, and failed to properly consider whether Jacquillard was entitled to credit for time served while incarcerated in Florida, we vacate in part the sentences imposed and remand this cause for resentencing.
Procedural History
{¶2} Jacquillard pled guilty to two counts of nonsupport of dependants, pursuant to
{¶3} In April of 2010, Jacquillard was found guilty of violating his community control. The trial court terminated Jacquillard’s community control and imposed an aggregate sentence of 24 months’ imprisonment. But the court granted Jacquillard a 90-day stay before the sentence took effect. Jacquillard absconded during that period. In November of 2012, Jacquillard was arrested in Florida. After Jacquillard was returned to Ohio, the trial court conducted another sentencing hearing. It imposed a sentence of 12 months’ imprisonment for each offense, to be served consecutively. And it granted Jacquillard jail-time credit for 28 days served
Sentencing
{¶4} In his first assignment of error, Jacquillard argues that the trial court erred in the imposition of sentence.
{¶5} He first contends that the trial court erred by sentencing him to a period of incarceration, rather than extending his community control.
{¶6} Jacquillard next contends that the trial court erred by imposing consecutive sentences without making the requisite findings under
{¶7} Jacquillard further argues that the trial court erred by failing to properly inform him regarding postrelease control. When imposing sentence, the trial court informed Jacquillard that he would be subject to a three-year period of postrelease control upon being released from prison. The trial court further told Jacquillard that if he violated his postrelease control, he would be returned to prison for anywhere from “zero to three years.” This latter information was not accurate.
{¶8}
{¶9} In State v. Brown, this court discussed what type of action by the trial court constituted sufficient notification to a defendant regarding postrelease control. State v. Brown, 1st Dist. Hamilton Nos. C-020162, C-020163, and C-020164, 2002-Ohio-5983. We held that postrelease-control notification requires some verbal exchange between the trial court and the defendant, and that the court may not rely solely on notification language contained in a sentencing entry, which is typically never seen by the defendant. Id. at ¶ 27. We acknowledged that notification
{¶10} Following our review of the record, we find that the facts of this case do not comply with the type of notification required by Brown. Although the plea form signed by Jacquillard contained the correct language regarding postrelease control, the court did not comply with the second part of the notification requirement. While it attempted a verbal dialogue with Jacquillard, that dialogue contained incorrect information about the potential length of imprisonment Jacquillard faced for a violation of postrelease control. We cannot say that the court’s verbal exchange ensured that Jacquillard understood the postrelease-control language contained on the plea form. When informing a defendant about the consequences of a postrelease-control violation, a trial court is not required to read the statutory language verbatim. But it must ensure that it correctly informs the defendant about the required information. We sustain in part Jacquillard’s assignment of error, and remand this cause for the trial court to correctly inform Jacquillard of his postrelease-control obligations and the consequences for violating those obligations.
{¶11} Jacquillard last contends in this assignment of error that the trial court erred in failing to give him credit for time served while incarcerated in Florida and awaiting extradition and transport to Ohio.
{¶13} The trial court’s statement was not an accurate reflection of the law.
{¶14} The first assignment of error is sustained in part and overruled in part.
Ineffective Assistance
{¶15} In his second assignment of error, Jacquillard contends that his trial counsel was ineffective for failing to object to the aforementioned sentencing issues. To establish ineffective assistance, a defendant must demonstrate that his counsel’s performance was deficient and that the defendant was prejudiced by that deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶16} We do not find counsel’s performance to be ineffective. First, the record clearly indicates that the court considered giving Jacquillard credit for the time that he was incarcerated in Florida, but ultimately declined to do so. We cannot find that counsel failed to bring this issue to the court’s attention. Nor was counsel ineffective for failing to have argued that the trial court failed to make the requisite findings before imposing consecutive sentences. Counsel had no opportunity to raise this argument during the sentencing hearing, because trial courts are not required to make these findings on the record and may instead fill out a felony-sentencing worksheet when imposing consecutive sentences. We last consider counsel’s failure to object to the trial court’s incorrect instruction regarding postrelease control. We cannot find counsel to have been ineffective on these grounds.
{¶17} Jacquillard’s second assignment of error is overruled.
{¶18} Jacquillard’s first assignment of error contending that the trial court erred in the imposition of sentence is overruled in part and sustained in part. The trial court’s imposition of consecutive sentences is vacated. On remand, the trial court must comply with
Judgment accordingly.
HILDEBRANDT and CUNNINGHAM, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.