[Cite as State v. Wacker, 2019-Ohio-3997.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

ASHTABULA COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NOS. 2019-A-0044

 - vs - : 2019-A-0045 

MARCUS T. WACKER, : 

 Defendant-Appellant. : 

Criminal Appeals from the Conneaut Municipal Court, Case Nos. 2017 TRC 01537 and 

2018 CRB 00043. 

Judgment: Reversed. 

Kyle B. Smith, Conneaut Law Director, and Christopher M. Newcomb, Assistant 

Conneaut Law Director, 294 Main Street, Conneaut, OH 44030 (For PlaintiffAppellee). 

Phillip L. Heasley and Marie Lane, Ashtabula County Public Defender, Inc., 4817 State 

Road, Suite 202, Ashtabula, OH 44004 (For Defendant-Appellant). 

CYNTHIA WESTCOTT RICE, J. 

{¶1} Appellant, Marcus T. Wacker, appeals from the judgment of the Conneaut 

Municipal Court, finding him guilty of community control violations in two separate 

cases, and sentencing him to consecutive terms of 175 and 180 days in jail in each of 

the separate matters. We reverse the trial court’s sentence. 

{¶2} Appellant originally pleaded guilty to two separate first-degree 

misdemeanor offenses in two separate cases; to wit: in Case No. 17 TRC 1537, 
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operating a vehicle while under the influence (“OVI”) and in Case No. 18 CRB 43, 

assault. In the OVI case, he was sentenced in February 2018 to 180 days, with 175 

days suspended and placed upon supervised community control. Thereafter, in April 

2018, appellant was sentenced in the assault case to 180 days, all of which were 

suspended, on conditions of supervised community control. 

{¶3} After failing to follow the terms of his community control, separate motions 

to revoke were filed in each case. In the OVI case, the motion alleged appellant 

violated community control when he “failed to attend and complete the driver 

intervention program; failed to follow any recommended treatment program; failed to 

attend probation appointment on June 26, 2018; failed UDS for [THC] and 

benzodiazepines on March 4, 2019.” In the assault case, the motion alleged appellant 

violated community control when he “failed to attend probation appointment on June 26, 

2018 and failed to complete comprehensive diagnostic reassessment at Signature 

Health within 30 days, by May 23, 2018.” 

{¶4} On March 19, 2019, the trial court held a hearing on both motions to 

revoke. At a pre-revocation hearing, the record reflects appellant waived his right to 

counsel; and prior to the revocation hearing, the court confirmed appellant still wished to 

proceed pro se. After receiving evidence from two probation officers, the trial court 

found appellant guilty on both separate violations. Appellant was subsequently 

sentenced and received 175 days in jail in the OVI case and 180 days in jail in the 

assault case, to be served consecutively. Appellant now appeals and assigns three 

errors. His first alleges: 
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{¶5} “The trial court erred in imposing consecutive jail sentences in appellant’s 

revocation hearing.” 

{¶6} Under his first assignment of error, appellant argues the trial court erred in 

ordering him to serve the jail terms from his original convictions consecutively after 

revoking community control. He maintains the trial court’s failure to state, in its original 

judgments on conviction, that a violation of community control could result in the 

imposition of consecutive sentences invalidates the underlying order. In other words, 

he maintains the trial court was without authority to run the sentences consecutive after 

revocation because they were not originally imposed consecutively. 

{¶7} The state maintains the trial court was not required “to explain consecutive 

sentencing” to appellant during the original sentencing proceedings. Rather, the state 

argues, the trial court was simply imposing sentences that had already been issued in 

separate cases. And, because appellant knew jail time was possible if he violated, the 

court did not err in imposing a consecutive term. 

{¶8} We first point out that the state misconstrues appellant’s argument. 

Appellant is not asserting the trial court was required to explain the possibility of 

consecutive sentences during the original, separate sentencing proceedings. Rather, 

he is arguing the trial court could not make the sentences run consecutively after 

revoking community control because they were not originally imposed consecutively in 

the initial judgment(s) on conviction. 

{¶9} With this clarification in mind, appellant cites State v. Fankle, 2d Dist. 

Montgomery Nos. 26350, 26351, 26352, 2015-Ohio-1581, in support of his position. In 

Fankle, the defendant received a 180-day suspended jail sentence and was placed on 
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community control. Two months later, the defendant was charged with two additional 

crimes and received two 180-day jail terms, to run concurrently with each other, with 

120 days suspended. He was again placed on community control. One month later, the 

defendant was charged with violating a protection order. For this violation, the trial court 

imposed a 180-day jail term, revoked the community control in the first two cases, and 

reinstated the prior suspended sentences. The trial court ran each 180-day term 

consecutively. On appeal, the defendant did not take issue with the trial court’s 

authority to order his sentence from the third case to run consecutively with the 

sentences arising from his first and second. Instead, he argued that the trial court 

lacked authority to run the sentences of the first two cases consecutively because the 

trial court had not included language regarding consecutive sentences in these 

judgment entries. The Second District agreed. 

{¶10} While acknowledging that the trial court could not have included 

consecutive sentencing language in the first judgment entry, as it was the sole sentence 

at the time, the court emphasized the second sentencing entry failed to include 

consecutive-sentencing language, despite the existence of the first conviction. Because 

the trial court had the ability to include such language, or at least expressly inform the 

defendant, but failed to do so, the Second District concluded the first two sentences 

were concurrent jail terms. And the trial court’s order to run the suspended sentences 

consecutively was an impermissible modification of the defendant’s previously entered 

definite sentences. Id. at ¶8. The facts of Fankle are legally analogous to the matter 

before this court. 
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{¶11} Both judgments from the Conneaut Municipal Court are “form entries” in 

which the trial court wrote in the details of the conviction and checked boxes for the 

conditions of community control it elected to impose. Each judgment entry includes a 

condition which provides the sentence could be served “[c]onsecutive to all other 

[s]entences in all other cases” if a defendant violates community control. The trial court 

did not check this box in either judgment entry. In the OVI case, appellant was 

sentenced in February 2018 to a suspended 180-day term and placed on community 

control. As it was the only matter pending at the time, it would make little sense for the 

trial court to indicate that sentence would be served consecutively with other cases in 

the event of a violation. Because, however, appellant was sentenced in the assault 

case one month after the OVI case, the trial court had the ability to check the box and 

thereby require appellant to serve the sentences consecutively in the event his 

community control was revoked as a result of a violation. The trial court failed to do so 

and thus it lacked authority to run the sentences consecutively after revocation. 

{¶12} R.C. 2929.41(B)(1) provides: “A jail term or sentence of imprisonment for 

a misdemeanor shall be served consecutively to any other prison term, jail term, or 

sentence of imprisonment when the trial court specifies that it is to be served 

consecutively * * *.” The trial court did not specify appellant could serve the sentences 

for the OVI and assault consecutively in either judgment entry. Had the court checked 

the box indicating “[c]onsecutive to all other [s]entences in all other cases,” appellant 

would have been on notice of the potential for such a sentence, although the full 

implication of this condition is, at best, ambiguous. Further, as no transcript of the 

original sentencing hearing was filed with this court, we have no way of knowing 
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whether appellant was placed on notice of the possibility of consecutive sentencing 

during those proceedings. When the trial court revoked appellant’s community control 

and imposed the suspended sentences, it was ordering into execution definite jail terms 

it had previously imposed. By ordering the terms to be served consecutively, it 

impermissibly transcended the definite term of confinement it had previously ordered. 

We therefore hold the trial court erred in ordering appellant to serve the previously 

suspended sentences consecutively after revoking community control. 

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

{¶14} Appellant’s second assignment of error provides: 

{¶15} “The trial court erred in accepting appellant’s waiver of counsel in his 

revocation hearing.” 

{¶16} Appellant contends the trial court failed to fully inquire into whether he fully 

understood the nature of his right to counsel before accepting his relinquishment of the 

same. He cites the trial court’s initial inquiry at the revocation hearing where the trial 

court noted appellant was representing himself pro se. The court then asked: “Do you 

still wish to do that?” To which appellant responded: “Correct.” 

{¶17} Crim.R. 32.3 sets forth the procedural framework for community control 

revocation hearing. Subsection (B) governs a defendant’s right to counsel in such 

proceedings. It provides, in relevant part: 

{¶18} Where a defendant convicted of a serious offense is unable to 

obtain counsel, counsel shall be assigned to represent the 

defendant, unless the defendant after being fully advised of his or 

her right to assigned counsel, knowingly, intelligently, and 

voluntarily waives the right to counsel. Where a defendant 

convicted of a petty offense is unable to obtain counsel, the court 

may assign counsel to represent the defendant. 
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{¶19} Appellant was convicted of two petty offenses (i.e., offenses that involve a 

penalty of up to six months confinement.). The rule indicates, if a defendant is unable to 

obtain counsel, the court may assign counsel. The language of the rule suggests 

representation by counsel during a revocation hearing is discretionary and the trial 

court’s discretion is only activated upon a defendant’s representation that he or she is 

unable to obtain counsel. Appellant did not state he was unable to obtain counsel, but 

merely indicated he wished to represent himself. In this respect, the court’s 

discretionary authority to assign counsel was not triggered. 

{¶20} Regardless of this point, the record reveals a pre-revocation hearing was 

held before the court at which appellant waived representation by counsel. Appellant 

did not produce a transcript of the pre-revocation hearing. “The duty to provide a 

transcript for appellate review falls upon the appellant. This is necessarily so because 

an appellant bears the burden of showing error by reference to matters in the record.” 

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980) citing State v. Skaggs, 

53 Ohio St.2d 162 (1978). As appellant has not provided a complete record of all 

proceedings relevant to the error he assigns, we shall presume regularity below. 

{¶21} Appellant’s second assignment of error lacks merit. 

{¶22} Appellant’s third assignment of error provides: 

{¶23} “Did the trial court err by improperly considering Signature Health reports 

in revoking appellant’s probation?” 

{¶24} Appellant contends the trial court erred in considering unauthenticated 

records from a counseling clinic appellant visited pursuant to his community control 

conditions vis-à-vis the OVI conviction. We do not agree. 
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{¶25} A community control revocation hearing is not a criminal trial, and, as a 

result, the state does not have the burden of establishing a violation with proof beyond a 

reasonable doubt. State v. Stockdale, 11th Dist. Lake No. 96-L-172, 1997 WL 663688, 

*3 (Sept. 26, 1997). Rather, the state need only present evidence of a substantial nature 

showing that the probationer has breached a term or condition of her probation. Id.; see 

also State v. Hilson, 7th Dist. No. 11-MA-95, 2012-Ohio-4536, ¶10. “[A] revocation 

hearing is an informal one, ‘structured to assure that the finding of a * * * violation will be 

based on verified facts and that the exercise of discretion will be informed by an 

accurate knowledge of the (defendant’s) behavior.’” State v. Orr, 11th Dist. No. 2008-G2861, 2009-Ohio-5515, ¶21, quoting State v. Alexander, 1st Dist. No. C-070021, 2007-

Ohio-5457, at ¶7. 

{¶26} While the trial court did peruse a Signature Health report in open court, no 

objection was entered. Moreover, the testimonial evidence demonstrated appellant 

failed to adhere to many and various conditions of his community control. To wit, 

evidence was adduced that he was to attend and complete driver intervention; he also 

failed to follow recommended treatment and failed to attend two probation 

appointments; he additionally tested positive for THC and benzodiazepines; and, finally, 

he failed to complete a diagnostic assessment at Signature Health within 30 days. Any 

error in the court’s consideration of the unauthenticated document is rendered harmless 

by the weight of the evidence supporting the revocation. 

{¶27} Appellant’s third assignment of error lacks merit. 

{¶28} For the reasons discussed in this opinion, the judgment of the Conneaut 

Municipal Court sentencing appellant to consecutive jail terms is reversed. Because 
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appellant could only be sentenced to concurrent terms, the maximum jail sentence he 

could receive was 180 days. The judgment at issue was entered on March 19, 2019; as 

such, appellant was eligible for release on September 14, 2019. It is therefore the order 

of this court that appellant be immediately released from the Ashtabula County Jail. 

MATT LYNCH, J., concurs, 

TIMOTHY P. CANNON, J., concurs with a Concurring Opinion. 

_____________________ 

TIMOTHY P. CANNON, J., concurring. 

{¶29} I concur with the judgment of the majority but write separately to expound 

upon why I believe it is appropriate in this case to follow the Second District’s opinion in 

State v. Fankle, 2d Dist. Montgomery Nos. 26350, et seq., 2015-Ohio-1581. 

{¶30} Pursuant to R.C. 2929.25(A)(1), a trial court has two options when 

sentencing an offender for a misdemeanor. The sentencing court may either (a) 

“directly impose a sentence that consists of one or more community control sanctions” 

or (b) “impose a jail term * * *, suspend all or a portion of the jail term imposed, * * * and 

place the offender under a community control sanction.” 

{¶31} In Fankle, the sentencing court did not directly impose sentences that 

consisted of community control sanctions. Rather, it imposed jail terms upon the 

offender, suspended a portion of the jail terms imposed, and then placed the offender 

under community control sanctions. When it imposed the partially suspended jail term 

in the second case, the sentencing court “said nothing about the possibility of 

consecutive jail terms if community control were revoked.” Fankle, supra, at ¶11. It was 
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because the sentencing court chose option (b) under R.C. 2929.25(A)(1) that the 

Second District was “compelled to conclude that the trial court imposed concurrent jail 

terms.” Id.; see R.C. 2929.41(B)(1) (“A jail term or sentence of imprisonment for a 

misdemeanor shall be served consecutively to any other prison term, jail term, or 

sentence of imprisonment when the trial court specifies that it is to be served 

consecutively * * *.”) (emphasis added). 

{¶32} Here, the trial court also chose option (b) when sentencing appellant. It 

imposed definite jail terms, suspended all or a portion of the jail terms imposed, and 

placed appellant under community control sanctions. When it imposed the suspended 

jail term in the second case, the trial court chose not to advise appellant, at least not in 

the sentencing form entry, that a violation of those sanctions could result in consecutive 

jail terms. 

{¶33} On the other hand, if the trial court had chosen option (a) when sentencing 

appellant, i.e., if it had directly imposed a sentence of community control, I believe the 

outcome here would have been different. In that scenario, pursuant to R.C. 

2929.25(A)(3), the trial court is required to notify the offender that the court may do one 

of the three things set forth in R.C. 2929.25(A)(3)(a), (b) or (c) upon finding a violation of 

the community control sanctions. There is no such requirement if the sentence is 

imposed under option (b). When an offender is sentenced for violating community 

control that was directly imposed, a definite jail term is not imposed until the sentencing 

hearing for the violation. This is because the jail term is actually being imposed for 

violating community control. Thus, the trial court would have the discretion at that time 

to impose consecutive jail terms. 
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{¶34} I recognize we have no transcript of the original sentencing hearing. It 

may be that the trial court orally advised appellant that the suspended sentence could 

be imposed consecutively to any other sentence. However, if there is a sentence 

imposed under subsection (b), the advisement that the sentence could be consecutive 

needs to be included in the original sentencing entry.