State v. PolusState v. Polus
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Mark E. Mulligan, Ottawa County Prosecuting Attorney, for appellee.
James F. Schaller, II, for appellant.
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HANDWORK, J.
{¶ 1} This is an accelerated appeal from a judgment of the Ottawa County Court of Common Pleas, which found that appellant, Walter N. Polus, had violated the terms of his community control sanction, imposed on November 27, 2006. On June 23, 2008, appellant was ordered to serve concurrent sentences as follows: five years for burglary, in violation of
{¶ 2} On April 17, 2009, in State v. Polus, 6th Dist. No. OT-08-040, 2009-Ohio-1810, this court allowed appellant‘s first appellate counsel to withdraw pursuant to Anders v. California (1967), 386 U.S. 738. Having found a potential error upon our own review, we assigned appellant new appellate counsel, who raises the following sole assignment of error:
{¶ 3} “The trial court erred in sentencing the defendant-appellant to prison terms of five years and twelve months for violations of community control when the trial court failed to comply with the notice requirements of
{¶ 4}
{¶ 5} “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, if the offender commits a violation of any law, or if the offender leaves this state without the permission of the court or the offender‘s probation officer, 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
{¶ 6} As set forth in State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, paragraph one of the syllabus, a trial court sentencing an offender to a community control sanction is required to deliver the statutorily detailed notifications in
{¶ 7} In this case, the trial court stated the following to appellant on the record during the October 12, 2006 sentencing hearing:
{¶ 9} “I could extend your probation for up to five years. I could impose more restrictive conditions of probation, including local time, house arrest, ankle bracelets, all that sort of thing. And if all else fails, I would sentence you to twelve months on the felony five and would sentence up to five years on the felony three.”
{¶ 10} Upon review of the record, we find that the trial court failed to strictly comply with the notification requirements set forth in
{¶ 12} On consideration whereof, this court finds that appellant was improperly sentenced to prison for violating the terms of his community control. Accordingly, we vacate the Ottawa County Court of Common Pleas’ June 23, 2008 judgment entry of sentencing and remand this matter to the trial court for resentencing in accordance with this decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT VACATED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J. _______________________________
JUDGE
Mark L. Pietrykowski, J. _______________________________
Thomas J. Osowik, P.J. JUDGE CONCUR.
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JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.