[Cite as State v. McClurg, 2018-Ohio-3840.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJAMES MCCLURG 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P.J. 

Hon. William B. Hoffman, J. 

Hon. Patricia A. Delaney, J. 

Case No. 17CA98 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of 

Common Pleas, Case No. 2012CR0339 

JUDGMENT: Vacated and Remanded 

DATE OF JUDGMENT ENTRY: September 20, 2018 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

GARY BISHOP JEFFREY P. UHRICH 

Prosecuting Attoney Law Office of Jeffrey P. Uhrich 

Richland County, Ohio P.O. Box 1977 

 Westerville, OH 43086 

By: JOSEPH C. SNYDER 

Assistant Prosecuting Attorney 

38 South Park Street 

Mansfield, OH 44902 
[Cite as State v. McClurg, 2018-Ohio-3840.]

Hoffman, J. 

{¶1} Defendant-appellant James McClurg appeals the October 27, 2017 

Community Control Violation Journal Entry entered by the Richland County Court of 

Common Pleas, which found him guilty of violating his community control after Appellant 

admitted such violation, and sentenced him to a two year prison term. Plaintiff-appellee 

is the state of Ohio. 

STATEMENT OF THE CASE 

{¶2} On June 28, 2012, Appellant pled guilty to a Bill of Information charging him 

with one count of burglary, in violation of R.C. 2911.12(A)(1), a felony of the third degree. 

The trial court sentenced Appellant to 30 months of community control with a two year 

suspended prison term to be served upon any violation of his probation. 

{¶3} On February 4, 2013, a notice was filed with the trial court, alleging 

Appellant had violated his community control sanctions. Appellant appeared before the 

trial court on February 15, 2013, and admitted the violations. The trial court continued 

Appellant on community control with the additional requirement he successfully complete 

a program at a community-based correction facility (“CBCF”). The trial court filed a 

Community Control Violation Journal Entry on February 15, 2013. 

{¶4} On December 23, 2013, a notice was filed with the trial court, alleging 

Appellant had again violated his community control sanctions. Appellant appeared before 

the trial court of March 24, 2014, and admitted the violations. The trial court extended 

Appellant’s probation, but tolled the term until he was released from prison on an 

unrelated case (“Case No. 2013-CR-839”). The trial court filed a Community Control 
Violation Journal Entry on March 24, 2014, however, the entry did not indicate the length 

of the original suspended prison term that could be imposed upon a subsequent violation. 

{¶5} On March 29, 2017, the trial court filed an entry captioned, “Additional 

Community Control Sanctions”, which ordered Appellant to successfully complete a 

program at Crosswaeh CBCF as an additional community control sanction. On 

September 11, 2017, after Appellant completed his prison term in Case No. 2013-CR839, a notice of probation violation was filed, alleging Appellant failed to complete CBCF. 

Appellant filed a Motion and Memorandum Contra Imposition of Prison Sanction on 

October 5, 2017. Therein, Appellant argued the trial court failed to notify him of the 

specific prison sentence at his last probation violation sentencing, and, as such, was now 

prohibited from imposing a prison sanction for the current community control violation. 

The state filed a response on October 20, 2017. 

{¶6} Appellant admitted the probation violation on October 25, 2017. Via 

Community Control Violation Journal Entry filed October 27, 2017, the trial court 

sentenced Appellant to the original two year prison term. 

{¶7} It is from this judgment entry, Appellant appeals, raising the following 

assignments of error: 

 I. THE TRIAL COURT ERRED IN OVERRULING THE 

APPELLANT’S 10/5/17 MOTION AND MEMORANDUM CONTRA 

IMPOSITION OF PRISON SANCTION, AND THEREAFTER 

SENTENCING DEFENDANT TO SERVE A TWO YEAR PRISON 

SENTENCE, ALTHOUGH NO PRISON SENTENCE WAS SPECIFIED IN 
PREVIOUS COMMUNITY CONTROL VIOLATION SANCTION 

SENTENCING ENTRY. 

 II.THE TRIAL COURT ERRED WHEN IT ADDED AN ADDITIONAL 

COMMUNITY CONTROL VIOLATION TO CONDITIONS PREVIOUSLY 

IMPOSED THREE YEARS PRIOR, WITHOUT AN ADDITIONAL 

VIOLATION OR HEARING. 

I. 

{¶8} In his first assignment of error, Appellant contends the trial court erred in 

overruling his Motion and Memorandum Contra Imposition of Prison Sanction, and 

sentencing him to serve a two year prison term when a prison term had not been specified 

in the March 24, 2014 Community Control Violation Journal Entry. 

{¶9} Appellant relies upon the Ohio Supreme Court’s decision in State v. Fraley, 

105 Ohio St.3d 13, 2004–Ohio–7110, in support of his position the trial court was required 

to re-advise him of the specific prison term he faced at each subsequent community 

control violation hearing. We agree. 

{¶10} In Fraley, the trial court failed to inform the defendant at his initial sentencing 

hearing of the prison term which could be imposed if he violated the terms of his 

community control. Id. at ¶ 19. The trial court did, however, notify Fraley by journal entry 

that harsher sanctions, including up to five years of imprisonment, could be imposed if he 

failed to comply with the sanctions. Id. At a later hearing, when Fraley was continued on 

community control, the trial court specifically advised him he would be sentenced to a 

prison term of four years for a community control violation. Id. The Ohio Supreme Court 
considered “whether a trial court is mandated to notify a defendant at the initial sentencing 

hearing of a specific term of imprisonment that could be imposed if a defendant violates 

the terms and conditions of his community control, or whether such notification may come 

at a later sentencing hearing.” Id. at ¶ 11. (Emphasis added.) 

{¶11} The Fraley Court answered the question in the affirmative, holding the 

“original sentencing hearing is the time when the notification must be given for the court 

to impose a prison term upon a defendant's first community control violation.” Id. at ¶ 15. 

(Emphasis in original.) The Fraley Court further noted, for subsequent violations, a prison 

term may be imposed if the court properly notified the defendant of the specific prison 

term when continuing or “resentencing” the defendant to community control. The Court 

held, when there are multiple violations of community control, “a trial court sentencing an 

offender upon a violation of the offender's community control sanction must, at the time 

of such sentencing, notify the offender of the specific prison term that may be imposed 

for an additional violation of the conditions of the sanctions as a prerequisite to imposing 

a prison term on the offender for a subsequent violation.” Id. at ¶ 18. (Emphasis added.) 

{¶12} The state asserts the trial court gave Appellant adequate warning of the 

specific sentence which would be imposed upon violation of his community control 

sanctions at his original sentencing; therefore, the trial court was not required to re-advise 

him of the penalties for a subsequent violation. The state relies upon State v. Hodge, 8th 

Dist. Cuyahoga No. 93245, 2010-Ohio-78, 2010 WL 125861, in support of its position. 

{¶13} In Hodge, the appellant pled guilty to one count of breaking and entering. 

Id. at para. 2. The trial court sentenced him to one year of community control sanctions 

and advised him: “Any violations of this order may result in imposing a longer period of 
supervision, more restrictive community control sanctions or a prison term. The fine for 

violation of this order will be $2500. The prison term for violation of this order will be 12 

months in prison.” Id. The appellant violated his community control sanctions twice. Id.

at para. 3. After the first violation, the court ordered him to complete inpatient drug 

treatment, and stated in its judgment entry “community control is continued with prior 

conditions.” Id. After the second violation, the trial court sentenced the appellant to nine 

months in prison. Id. On appeal, the appellant, relying on the Fraley, argued the trial court 

erred in sentencing him to prison because it did not advise him again after his first violation 

a prison term could be imposed. 

{¶14} The Eighth District Court of Appeals declined to follow Fraley, finding: 

 While we agree that the language in Fraley might support that 

conclusion, in context, it does not. Fraley is based upon a wholly different 

set of facts than our case at bar. Hodge's original sentence was not legally 

deficient; Fraley's was. 

 We construe the holding of the Supreme Court in Fraley narrowly to 

mean that a trial court that fails to notify a defendant of the specific penalty 

he will face upon violation of community control sanctions at the initial 

sentencing, may “cure” that failure at a subsequent violation hearing by then 

advising the defendant of the definite term of imprisonment that may be 

imposed upon any subsequent finding of violation. We find nothing in the 

statute or Fraley that requires a legally adequate notification in the first 

instance to be given over and over again. Id.at 9. 
{¶15} In her dissent in Hodge, Judge Colleen Conway Cooney wrote: 

 I respectfully dissent. I read the syllabus of State v. Fraley, 105 Ohio 

St.3d 13, 821 N.E.2d 995, 2004-Ohio-7110, to clearly state that a trial court 

sentencing an offender upon a violation of community control must, at the 

time of such sentencing, notify the offender of the specific prison term that 

may be imposed for an additional violation of the conditions as a 

prerequisite to imposing a prison term for a subsequent violation. 

 In the instant case, the trial court failed to notify Hodge at the October 

2008 violation hearing of the specific prison term he faced for a subsequent 

violation. Therefore, I would reverse the trial court's imposition of a prison 

term. Id. at 12 and 13. 

{¶16} We agree with Judge Conway Cooney’s dissent and find the syllabus in 

Fraley is clear. The syllabus reads: 

 Pursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court 

sentencing an offender upon a violation of the offender's community control 

sanction must, at the time of such sentencing, notify the offender of the 

specific prison term that may be imposed for an additional violation of the 

conditions of the sanction as a prerequisite to imposing a prison term on the 

offender for a subsequent violation. Fraley, supra at syllabus. 
{¶17} Although the trial court notified Appellant at his original sentencing hearing 

and in the entry which memorialized it of the specific sentence of imprisonment which 

could be imposed upon a probation violation, the trial court failed to re-advise Appellant 

of the sentence when he appeared in court on March 24, 2014, upon a subsequent 

violation. As the Ohio Supreme Court explained: 

 The notification requirement in R.C. 2929.19(B)(5) is meant to put 

the offender on notice of the specific prison term he or she faces if a violation 

of the conditions occurs. Following a community control violation, the trial 

court conducts a second sentencing hearing. At this second hearing, the 

court sentences the offender anew and must comply with the relevant 

sentencing statutes. State v. Martin, 8th Dist. No. 82140, 2003-Ohio-3381, 

2003 WL 21474154, at ¶ 35. The trial court could therefore comply with both 

the sentencing statutes and our holding in Brooks if at this second hearing 

the court notifies the offender of the specific prison term that may be 

imposed for a subsequent violation occurring after this second hearing. We 

believe that this process complies with the letter and spirit of R.C. 

2929.19(B)(5) and 2929.15(B). 

Fraley, supra at 17. (Emphasis added.) 

{¶18} Accordingly, we find the trial court erred in imposing the suspended prison 

term in October, 2017, because it failed to specifically inform Appellant of the possible 
two year prison sentence which could be imposed upon a community control violation at 

his sentencing hearing in March, 2014. 

{¶19} Appellant’s first assignment of error is sustained. 

II. 

{¶20} In light of our disposition of Appellant’s first assignment of error, we find 

Appellant’s second assignment of error to be moot. 

{¶21} The sentence of the Richland County Court of Common Pleas is vacated 

and the matter remanded for resentencing. 

By: Hoffman, J. 

Gwin, P.J. and 

Delaney, J. concur