[Cite as State v. Scott , 2021-Ohio-1368.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2020- A -0016 - vs - : DAVID A. SCOTT, : Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas , Case No. 2017 CR 0628.

Jud g ment: Affirmed and remanded.

Colleen M. O’Toole , Ashtabula County Prosecutor, and Shelley M. Pratt , Assistant Prosecutor, Ashtabula County Prosecutor’s Office, 25 West Jeffe rson Street, Jefferson, OH 44047 ( For Plaintiff-Appellee )

. Michael A. Hiener , P.O. Box 1, Jefferson, OH 44047 ( For Defendant-Appellant )

.

MATT LYNCH, J. {¶1} Defendant-appellant, David A. Scott, appeals from proceedings b efore the Ashtabula County Court of Common Pleas, finding that he was in violation of community control sanctions and imposing sentence. For the following rea sons, we affirm the judgment of the lower court and remand this matter for the cour t to issue a new sentencing entry nunc pro tunc as explained in the body of this opinion. {¶2} On May 19, 2019, Scott was sentenced to two years of intensive community control following pleas of guilty to Attempted Corrupting Anoth er with Drugs (Count One),2 a felony of the third degree in violation of R.C. 2925.02(A) an d (C)(1), and Aggravated Trafficking in Drugs (Count Two), a felony of the fourth degree in violation of R.C. 2925.03(A)(1) and (C)(1)(a). Scott was advised: “Violation of this sentence may lead to a longer or more restrictive sanction for defendant, up to and including a prison term of thirty-six (36) months on Count One and eighteen (18) months on Count Two, to be served consecutive with each other, for a total of fifty-four ( 54) months.” {¶3} On March 4, 2020, the Ashtabula County Adult Probation Departme nt filed a Complaint for Violation of Probation [Community Control] alle ging the following: The defendant [Scott] has not complied with this condition of probation in that Count 1, on October 2, 2019, the defendant admitted to using methamphetamine. Count 2, on October 7, 2019 , the defendant tested positive for methamphetamine, amphetamine, and MDMA. Count 3, on December 19, 2019, the defendant admitted to using heroin. Count 4, on January 2, 2020, the def endant tested positive for methamphetamine, amphetamine, MDMA, and fentanyl. Count 5, on February 24, 2020, the defendant tested positive for heroin, morphine, methamphetamine, and amphetamine

. {¶4} On March 11, 2020, Scott appeared in court and pled guilty to t he Complaint for Violation of Community Control. The trial court ordered Sc ott to serve a thirty-sixmonth prison term for Attempted Corrupting Another with Drugs c onsecutively with an eighteen-month prison term for Aggravated Trafficking for a tot al of fifty-four months. {¶5} On March 17, 2020, Scott filed a Notice of Appeal. {¶6} On December 18, 2020, counsel for Scott filed a Motion for Leav e to Withdraw pursuant to Anders v. California

. {¶7} On December 24, 2020, this court issued a Judgment Entry explai ning our procedure in such cases: When an attorney files a brief pursuant to Anders, it is premised upon the realization, after reviewing the entire court record,3 that there are no meritorious issues to present on appeal. Whe n this occurs, pursuant to Anders, certain steps are to be followed by counsel, appellant, and the court of appeals. Therefore, appellant is granted (30) days from the date of this entry to file his own submission, if he so chooses, which raise s any arguments in support of the appeal. We note that appellant is not required to file a pro se submission. This court will examine the record and all proceedings to determine whether the appeal is wholly frivolous. If the court finds the appeal to be frivolous, it may grant permission for counsel to withdraw and dismiss the appeal or proceed to a decision on the merits. If the court finds that there are arguable legal point s on the merits, new counsel will be appointed. On December 29, 2020, the State filed its Response to the Motio n for Leave to Withdraw. Scott has not raised any arguments in support of the appeal. A ccordingly, we will proceed to conduct an independent review of the record, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). {¶8} “The court hearing an appeal [of a felony sentence] shall revie w the record, including the findings underlying the sentence or modification given by the sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase , reduce, or otherwise modify a sentence that is appealed under this section or may va cate the sentence and remand the matter to the sentencing court for resentencing * * * if it clearly and convincingly finds * * * [t]hat the sentence is * * * contrary to law.” R.C. 2953.08(G)(2)(b). Revocation of Community Control {¶9} The procedure for revoking community control is as follows: (A) Hearing. The court shall not impose a prison term for violation of the conditions of a community control sanction or revoke pro bation except after a hearing at which the defendant shall be present and apprised of the grounds on which action is proposed. The defend ant may be admitted to bail pending hearing.4 (B) Counsel. The defendant shall have the right to be represented by retained counsel and shall be so advised. Where a defendant convicted of a serious offense is unable to obtain counsel, cou nsel shall be assigned to represent the defendant, unless the defend ant after being fully advised of his or her right to assigned couns el, knowingly, intelligently, and voluntarily waives the right to c ounsel. Where a defendant convicted of a petty offense is unable to obt ain counsel, the court may assign counsel to represent the defendan t.

Crim.R. 32.3. {¶10} “Criminal Rule 32.3(A) merely requires a trial court to (1) hol d a hearing, (2) where the defendant is present, (3) and apprised of the grounds on which action is proposed.” (Citation omitted.) State v. Mayle , 2017-Ohio-8942, 101 N.E.3d 490, ¶ 18 (11th Dist.). {¶11} In the present case, a preliminary hearing on the Complaint was held on March 9, 2020, at which Scott was present and represented by co unsel. Prior to the hearing, Scott had been personally served with the Complaint. At the preliminary hearing, evidence was taken on the record from the probation officer who filed the Complaint regarding the violations alleged therein. Based on the evidenc e, the trial court scheduled a final hearing for March 11. At the final hearing, Scott was again present with counsel. Scott acknowledged that he had been served with the allegations of misconduct, waived the final hearing, and admitted the violations. {¶12} Based on the record we find no error in the proceedings to revo ke community control. Sentencing Hearing {¶13} The Ohio Supreme Court has affirmed that a hearing to impose a sentence for a violation of community control is a sentencing hearing an d, therefore, compliance with the relevant sentencing statutes is required. State v. Jackson , 150 Ohio St.3d 362,5 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 11 (cases cited). {¶14} “The court shall hold a sentencing hearing” and “ask the offend er whether the offender has anything to say as to why sentence should not be imposed upon the offender.” R.C. 2929.19(A); Crim.R. 32(A). In the present cas e, Scott was afforded his right of allocution at the March 11 hearing at which he was sen tenced. {¶15} A sentencing court must comply with the following: [I]f the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following: (a) Impose a stated prison term * * *; (b) In addition to any other information, include in the senten cing entry the name and section reference to the offense or offenses , the sentence or sentences imposed and whether the sentence or sentences contain mandatory prison terms, if sentences are impo sed for multiple counts whether the sentences are to be served concurrently or consecutively, * * *;

* * * (e) Notify the offender that the offender may be supervised under section 2967.28 of the Revised Code after the offender le aves prison if the offender is being sentenced for a felony of the t hird, fourth, or fifth degree that is not subject to division (B)(2)( d) of this section. * * *. (f) Notify the offender that, if a period of supervision is imp osed following the offender’s release from prison, as described in d ivision (B)(2)(d) or (e) of this section, and if the offender violates that supervision or a condition of post-release control imposed under division (B) of section 2967.131 of the Revised Code, the parole board may impose a prison term, as part of the sentence, of up to one-half of the definite prison term originally imposed u pon the offender as the offender’s stated prison term or up to one-half of the minimum prison term originally imposed upon the offender as par t of the offender’s stated non-life felony indefinite prison term. * * *. (g)(i) Determine, notify the offender of, and include in the se ntencing entry the total number of days, including the sentencing date b ut6 excluding conveyance time, that the offender has been confined for any reason arising out of the offense for which the offender is being sentenced and by which the department of rehabilitation and correction must reduce the definite prison term imposed on the offender as the offender’s stated prison term * * *. (Footnote omitted.) R.C. 2929.19(B)(2). {¶16} In the present case, the sentencing court duly complied with th e foregoing provisions: It imposed two stated prison terms for offenses ide ntified by name and code section and ordered the terms to be served consecutively. It a dvised Scott that he would be subject to three years of post-release control and what the terms and conditions of his post-release control would be. This notice was presented to Sc ott in written form, signed by him, and filed with the court. Finally, the court granted S cott jail time credit of twentyfive days. {¶17} “[T]he court shall advise the defendant of the defendant’s righ t, where applicable, to appeal or to seek leave to appeal the sentence i mposed.” Crim.R. 32(B)(2). In the present case, the trial court advised Scott: “[Y]ou have 30 days from today’s date to file any appeal with the Eleventh District Court of Appeals. You have a right to a free court-appointed lawyer in the Court of Appeals, and you have a right to a free transcript of all court proceedings that can be prepared for you at no cos t to you.” {¶18} Based on the record we find no error in the conduct of the sent encing hearing. The Prison Terms Imposed {¶19} “If the conditions of a community control sanction are violated * * *, the sentencing court may impose upon the violator * * * [a] prison term * * * not [to] exceed the prison term specified in the notice provided to the offende r at the sentencing hearing.”7 R.C. 2929.15(B)(1)(c) and (3). At the time he was sentenced fo r the underlying felonies, Scott was advised that, if he violated community control, he co uld be sentenced to consecutive thirty-six-month and eighteen-month prison terms fo r Attempted Corrupting Another with Drugs and Aggravated Trafficking in Drugs respecti vely. These sentences are within the prescribed range for third- and fourth-degree fe lonies. R.C. 2929.14(A)(3)(b) and (4). {¶20} Based on the record we find no error in the prison terms impose d.

Consecutive Sentences {¶21} The Ohio Revised Code provides, in relevant part, as follows re garding consecutive felony sentences: If multiple prison terms are imposed on an offender for convict ions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecut ive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct a nd to the danger the offender poses to the public, and if the court a lso finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to s ection 2929.16, 2929.17, or 2929. 18 of the Revised Code, or was under post-release control for a pr ior offense. (b) At least two of the multiple offenses were committed as par t of one or more courses of conduct, and the harm caused by two o r more of the multiple offenses so committed was so great or unus ual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriou sness of the offender’s conduct. (c) The offender’s history of criminal conduct demonstrates tha t consecutive sentences are necessary to protect the public from future crime by the offender.8 R.C. 2929.14(C)(4). {¶22} Under R.C. 2929.14(C)(4), a sentencing court is required to mak e three distinct findings in order to require an offender to serve cons ecutive prison terms: (1) that

consecutive sentences are “neces sary to protect the public from future crime or to punish the offender”; (2) that consecutive sentences are “not dispropo rtionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public”; (3) “and * *

* also” that one of the circumstances described in subdivision (a) to (c) is present. State v. Beasley , 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 252. {¶23} Moreover, “a trial court is required to make the findings manda ted by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its fin dings into its sentencing entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. {¶24} In the present case, the trial court made the following finding s at the sentencing hearing: The Court finds that consecutive sentences are necessary to pro tect the public from future crimes and to punish [Scott], and that consecutive sentences are not disproportionate to the seriousne ss of [his] conduct or the danger that [he] pose[s] to the public. * * * The Court also finds that [his] history of criminal conduct demonstrates that consecutive sentences are necessary to protec t the public from future crimes. The court’s sentencing Entry, however, only reiterates the firs t two findings and omits the finding that Scott’s history of criminal conduct demonstrates t hat consecutive sentences are necessary to protect the public from future crimes. The En try provides: “The Court

further finds for the reasons stated on the record that consecu tive terms should be imposed because it is necessary to protect the public and punis h the defendant.9 Consecutive sentences are not disproportionate to the conduct o f the defendant and to the danger he poses to the public.” {¶25} This court has been confronted with this identical omission in a prior appeal.

State v. Burke , 11th Dist. Trumbull Nos. 2018-T-0032 and 2018-T-0035, 2019-Oh io-1951, ¶ 153. It was noted that “‘a trial court’s failure to incorpor ate the findings required by R.C. 2929.14(C) in the sentencing entry after making those findings at the sentencing hearing does not render the sentence contrary to law’ and may be correc ted via a nunc pro tunc entry.” (Citation omitted.) Id. at ¶ 152. The proper procedure, therefore, is to affirm the judgment but “remand [the] matter for the trial court to issue a nunc pro tunc sentencing entry, incorporating the R.C. 2929.14(C)(4)(c) finding that was made at the sentencing hearing.” Id. at ¶ 154 (cases cited). {¶26} Based on the record we find no reversible error in the impositi on of consecutive prison terms although the case must be remanded for the trial court to issue a new sentencing entry nunc pro tunc. {¶27} Having thus duly conducted an independent review of the record, we conclude that the present ap peal is wholly frivolous inasmuch as it is devoid of reversible

error. The matter is remanded for the trial court to issue a n ew sentencing entry nunc pro tunc for the reasons indicated above. Appellate counsel’s Moti on for Leave to Withdraw is granted.

MARY JANE TRAPP, P.J., THOMAS R. WRIGHT, J.,

concur.