Case Information
*1
[Cite as
State v. Sheffield
,
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95434
STATE OF OHIO
PLAINTIFF-APPELLEE vs.
MICHAEL SHEFFIELD
DEFENDANT-APPELLANT JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas Case No. CR-475002
BEFORE: Keough, J., Stewart, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: May 19, 2011 *2 ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KOUGH, J.: Defendant-appellant, Michael Sheffield, appeals from the trial
court’s judgment finding him in violation of community control sanctions and sentencing him to eight years incarceration. Finding merit to the appeal, we reverse.
I In March 2006, Sheffield pleaded guilty to one count of misuse of credit cards, a felony of the third degree; three third-degree felony theft *3 counts; thirteen fourth-degree felony theft counts; three fifth-degree felony theft counts; and one count of forgery, a fourth degree felony. On April 10, 2006, the trial court sentenced Sheffield. Defense
counsel explained that Sheffield’s conduct “occurred because of an overwhelming cycle of drug use [and] drug addiction” and asked the court to impose community control sanctions with inpatient drug treatment. The trial court sentenced Sheffield to five years of community control sanctions with conditions and ordered him to pay $25,000 in restitution. At the end of the sentencing hearing, the judge warned Sheffield that if he violated the community control sanctions, the judge would send him to prison. Specifically, the judge told him: “Let me spell that out for you. You have four F3's. Five years on each F3. Eighteen months on 15 F4’s. You have two F5’s, 12 months for each of those. I’ll run them consecutive. I’ll lock you up, throw away the key, because we have to protect your family and the rest of society.” The subsequent journal entry stated: “Violation of the terms and conditions may result in more
restrictive sanctions, or a prison term of 5 years as approved by law. (5 years each F-3, 18 months each F-4 and 12 months each F-5, counts to run concurrent to each other).”
{¶ 6} After sentencing, Sheffield successfully completed 102 days of a 120-day inpatient drug treatment program at Fresh Start. But then, while on a 48-hour pass, he used cocaine with an acquaintance. He returned to Fresh Start and admitted to using cocaine even before being tested.
{¶ 7} On August 16, 2006, at a violation hearing, Sheffield admitted that he had violated the terms of his community control. The trial judge sentenced him to eight years incarceration. Subsequently, on September 19, 2006, the trial court issued a
nunc pro tunc entry regarding the original sentencing entry to reflect that “violation of the terms and conditions may result in more restrictive sanctions, or a prison term of 44 years, 6 months as approved by law. (Counts to run consecutive to each other).”
II Sheffield contends that his eight-year sentence is invalid because: (1) he lacked adequate notice that failing a single drug test could result in the termination of community control; and (2) the trial court’s original sentencing entry stated that violation of community control would result in a prison term of five years. Sheffield contends that he did not have notice that a single failed
drug test would result in the revocation of his probation because the trial judge told him at sentencing:
{¶ 11} “If you have a relapse, if you think you are going to test positive in any way, it’s better to come in and fess up, say ‘I screwed up.’ There are going to be consequences, but it won’t be as bad as if you don’t show up. If we have to track you down, if you commit more felonies while you are out on probation, you are going to be a violator of this probation.” Sheffield argues that in light of this advisement, he did not have adequate notice that using illegal drugs while on community control sanctions would result in revocation of community control. He further contends that because he did just what the judge had told him to do, i.e., admit his relapse and “fess up,” the trial court abused its discretion and violated his due process rights by finding that he violated community control. We find no merit to these arguments. First, Sheffield did not raise any lack-of-notice argument at the
violation hearing; he argued only that the trial judge should continue
community control because this was his first failed drug test, he immediately
admitted his mistake, and he had otherwise been successful at Fresh Start.
Because he did not raise the argument below, he has waived it for purposes of
appeal.
State ex rel. Zollner v. Indus. Comm.
(1993),
prove a violation of community control conditions.
State v. Hayes
,
*6
Cuyahoga App. No. 87642,
will not be disturbed on appeal absent an abuse of discretion.
State v.
McCord
, Cuyahoga App. No. 92268,
offenders on community control. R.C. 2929.19(B)(5) provides that if a
sentencing court decides to place an offender on community control, that
court “shall notify the offender that, if the conditions of the sanction are
violated * * * [the court] may impose a prison term on the offender and shall
indicate the specific prison term that may be imposed as a sanction for the
violation * * *.” A trial court sentencing an offender to a community control
sanction must, at the time of sentencing, notify the offender of the specific
prison term that may be imposed for a violation of the conditions of the
sanction, as a prerequisite to imposing a prison term on the offender for a
subsequent violation.
State v. Brooks
, 103 Ohio St.3d 134,
prison term because it did not notify him at the original sentencing hearing of the specific prison term that it would impose if he violated community control. We disagree. The trial judge told him, “[y]ou have four F3’s. Five years on each F3. Eighteen months on 15 F4’s. You have two F5’s, 12 months for each of those. I’ll run them consecutive.” Although it would *8 have been better if the judge had added up the number of years for Sheffield, it is apparent that he told him the definite sentence he would receive for each count in the event of a violation, i.e., the judge told him he would receive the maximum prison term for each offense if he violated community control. We find the trial court’s advisement to constitute a “specific” term as required by R.C. 2929.19(B)(5). In Brooks , supra, the Ohio Supreme Court noted that to comply
with R.C. 2929.19(B)(5), “the judge shall, in straightforward and affirmative language, inform the offender at the sentencing hearing that the trial court will impose a definite term of imprisonment of a fixed number of months or years, such as ‘twelve months’ incarceration,’ if the conditions are violated.” Id. at ¶19. It noted further that there are some situations where it would be “overly rigid” to conclude that the trial court had not complied with the requirements of R.C. 2929.19(B)(5). Id. at ¶32. Specifically, it found that where a defendant is advised at the plea hearing what the specific maximum term would be, and then at sentencing, the trial court states that it will impose “the maximum” prison term if community control is violated, without stating what the maximum is, it would be “overly rigid” to find that the trial court’s advisement did not comply with the notice requirement of R.C. 2929.19(B)(5). Id. *9 In this case, Sheffield was advised at the plea hearing of the
maximum prison term for each offense. At sentencing, he was advised of the specific maximum term that would be imposed for each offense if he violated community control. Accordingly, we hold that it would be overly rigid to find that the trial court’s advisement did not constitute strict compliance with R.C. 2929.19(B)(5). Sheffield next contends that even if the language at sentencing
were sufficient to impose a prison term, the length of the term was limited to five years because the original journal entry of sentencing indicated that violation of community control sanctions “may result in more restrictive sanctions, or a prison term of 5 years as approved by law. (5 years on each F-3, 18 months each F-4 and 12 months each F-5, counts to run concurrent to each other).” He argues that the trial court could not avoid the five-year limit by issuing a nunc pro tunc entry changing five years to 44 years, 6 months after it had already revoked his probation and imposed an eight-year sentence. In Brooks , the Ohio Supreme Court found that “the purpose
behind R.C. 2929.19(B)(5) notification is to make the offender aware
before a
violation
of the specific prison term that he or she will face for a violation.”
(Emphasis sic.) Id. at ¶33. Further, “[i]t is axiomatic that ‘[a] court of
record speaks only through its journal entries.’”
Hernandez v. Kelly
, 108
*10
Ohio St.3d 395,
may be used to correct mathematical calculations and typographical or
clerical errors and, hence, may be used to correct a sentencing entry to reflect
the sentence the trial court imposed upon a defendant at a sentencing
hearing.
State v. Spears
, Cuyahoga App. No. 94089,
Reversed and remanded.
It is ordered that appellant recover from 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 common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR