State v. RosserState v. Rosser
DECISION AND JUDGMENT ENTRY
{¶ 1} John Rosser appeals the trial court‘s judgment sentencing him to an eighteen-month prison term for violating community control sanctions. He contends that the sentencing statutes prohibited the court from imposing that sentence.
{¶ 2}
{¶ 3} In May of 2001, appellant pled guilty to burglary and grand theft. In October of 2001, the court sentenced appellant to community control for five years. Its entry recites that the court “notified [appellant] of the sanctions if he violates community control including the maximum prison term of up to 1 ½ years.” The entry also stated: “Violation of any of this sentence shall lead to a more restrictive sanction including but not limited to a prison commitment of up to 1 ½ years.”
{¶ 4} Following appellant‘s third community control violation, the trial court sentenced him to eighteen months imprisonment.
{¶ 5} Appellant timely appealed the trial court‘s judgment and raises the following assignment of error: “The trial court erred when it sentenced Mr. Rosser to 18 months in prison after a violation of community control sanctions when it had not previously set a specific prison term pursuant to
{¶ 6} In his sole assignment of error, appellant argues that the trial court erroneously sentenced him to an eighteen-month prison term when it failed to specify a prison term at his original sentencing hearing.
{¶ 7} The state agrees that the court did not, in accordance with our decision in State v. Grodhaus (2001), 144 Ohio App.3d 615, inform appellant at the sentencing hearing of the specific prison sentence it would impose if he violated community control. However, the state asserts that the court subsequently corrected this error when, following appellant‘s second community control violation, the court filed an entry that advised appellant that a future community control violation could result in a prison term of one year for burglary and six months for grand theft. The state asserts: “[I]nstead of waiting for an appeal to be taken on the Defendant‘s sentence, the Court chose to correct the record on its own, which it could have done pursuant to a remand after an appeal.”
{¶ 8} Recently, the Ohio Supreme Court has resolved the precise issue presented here. See State v. Brooks, 103 Ohio St. 134, 2004-Ohio-4746, 814 N.E.2d 837. In Brooks, the court held that a trial court may not impose a prison term upon a community control violator, unless the court, “at the time of the sentencing, notif[ies] the offender of the specific prison term that may be imposed for a violation of the conditions of the sanction.” Id. at paragraph two of the syllabus. Brooks specifically states that “a trial court sentencing an offender to a community control sanction is required to deliver the statutorily detailed notifications at the sentencing hearing.” Id. at ¶ 15. The court rejected the argument that a subsequently filed journal entry could satisfy
{¶ 9} Brooks comports with our previous decision in Grodhaus, where we stated that
{¶ 10} In this case, the trial court‘s prison sentence violates Brooks and our earlier decisions. The court did not notify appellant at the sentencing hearing of the specific prison term that it would impose if appellant violated community control. Under these circumstances, Brooks states that the proper remedy is to remand the matter to the trial court for re-sentencing “with a prison term not an option.” Id. at ¶ 33.
{¶ 11} Accordingly, we sustain appellant‘s first assignment of error, reverse the trial court‘s judgment, and remand for re-sentencing.
JUDGMENT REVERSED AND REMANDED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED AND REMANDED and that the Appellant recover of Appellee costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, P.J. Abele, J.: Concur in Judgment