[Cite as State v. McClurg , 2020-Ohio-4228.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Patricia A. Delane y , J. -vs- Case No. 2017 CA 0098 JAMES McCLURG Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of Common Pleas, Case No. 2012-CR-0339

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: Au g ust 25, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t

GARY BISHOP JEFFREY P. UHRICH Prosecutin g Attorne y P.O. Box 1977 Richland Count y , Ohio Westerville, Ohio 43086

JOSEPH C. SNYDER Assistant Prosecutin g Attorne y 38 South Park Stree t Mansfield, Ohio 44902Richland Count y , Case No. 2017 CA 0098 2

Hoffman, P.J. {¶1} This case is before us based upon the remand issued by the Supreme Court of Ohio in State v. McClurg , --- Ohio St.3d ---, 2020-Ohio-3696, --- N.E.3d --- , in which the Court reversed our decision in State v. McClurg , 5th Dist. Richland No. 17CA98, 2018-Ohio-3840 (“ McClurg I ”), on the authority of State v. Howard , --- Ohio St.3d ---, 2020-Ohio-3195, --- N.E.3d ---.

STATEMENT OF THE CASE {¶2} On June 28, 2012, Appellant pled guilty to a Bill of Informatio n charging him with one count of burglary, in violation of R.C. 2911.12(A)(1), a felony of the third degree. Appellant appeared before the trial court for sentencing on Aug ust 8, 2012. The trial court imposed a two year prison term, but suspended the sentence and placed Appellant on community control for 30 months. The trial court advised Appel lant a violation of community control could lead to the imposition of the two year prison term. As part of his community control sanctions, Appellant was ordered to successfu lly complete CROSSWAEH Community Based Correctional Facility (“CBCF”). The trial court memorialized Appellant’s sentence via Sentencing Entry filed Au gust 9, 2012. {¶3} On February 4, 2013, a notice was filed with the trial court, a lleging Appellant had violated his community control sanctions. Specif ically, Appellant failed to successfully complete VOA Halfway House. Appellant entered VOA Halfway House on October 3, 2012, as CROSSWAEH CBCF had a long wait list. Appel lant was unsuccessfully terminated from the program on January 30, 2013. Appellant appeared before the trial court on February 15, 2013, and admitted the v iolation. Via Community Control Violation Journal Entry filed February 15, 2013, the tr ial court continued AppellantRichland Count y , Case No. 2017 CA 0098 3

on community control “with the following conditions: enter and successfully complete a CBCF.” February 15, 2013 Community Control Violation Journal E ntry. {¶4} On December 23, 2013, a notice was filed with the trial court, alleging Appellant had again violated his community control sanctions. A ppellant 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 release d 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. The entry did not s pecify the length of the original suspended prison term which could be imposed upon a su bsequent violation. {¶5} On March 29, 2017, the trial court filed an entry captioned, “A dditional Community Control Sanctions”, which ordered Appellant to succes sfully complete a program at CROSSWAEH CBCF. On September 11, 2017, after Appella nt completed his prison term in Case No. 2013-CR-839, a notice of probation viol ation was filed, alleging Appellant failed to complete CBCF. Appellant filed a Motion and Memorandum Contra Imposition of Prison Sanction on October 5, 2017. Therein, Appe llant argued the trial court failed to notify him of the specific prison sentence at h is last probation violation sentencing, and, as such, was prohibited from imposing a prison sanction for the current community control violation. The state filed a response on Octo ber 20, 2017. {¶6} Appellant admitted the probation violation at a hearing on Octo ber 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} Appellant appealed his sentence to this Court, raising the foll owing assignments of error:Richland Count y , Case No. 2017 CA 0098 4

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.

{¶8} In McClurg I , we sustained Appellant’s first assignment of error, vacated h is sentence, and remanded the matter to the trial court for resent encing. We found “the trial court erred in imposing the suspended prison term in October, 2 017, because it failed to specifically inform Appellant of the possible two year prison s entence which could be imposed upon a community control violation at his sentencing he aring in March, 2014.” McClurg , 2018-Ohio-3840 at ¶ 18. We found Appellant’s second assignm ent of error to be moot in light of our disposition of his first assignment of error. Id . at ¶ 20 {¶9} The state appealed our decision to the Ohio Supreme Court, whic h reversed and remanded the matter to us “for application of State v. Howard , --- Ohio St.3d ---, 2020-Ohio-3195, --- N.E.3d ---.” State v. McClurg , --- Ohio St.3d ---, 2020 -Ohio- 3696, --- N.E.3d ----, ¶ 1. The matter is now before us.Richland Count y , Case No. 2017 CA 0098 5

I {¶10} Pursuant to the Ohio Supreme Court's decision and remand, we mu st reexamine Appellant's first assignment of error applying State v. Howard , supra. {¶11} In State v. Howard , the Ohio Supreme Court addressed the issue of “whether appellant, John M. Howard, received sufficient notice of the specific prison terms that the trial court could impose before the court revoked his community-control sentence and imposed the prison terms.” Id . at ¶ 1. The Howard Court held neither R.C. 2929.19(B) nor R.C. 2929.15(B) require a trial court to repeat notice of the specific prison term a defendant could face for a violation of his community co ntrol when the defendant was provided such notice at his initial sentencing hearing. Id . at ¶ 21. {¶12} Upon application of Howard , as mandated by the remand order of the Supreme Court of Ohio, we find Appellant received sufficien t notice of the specific prison term the trial court could impose before the court revok ed his community-control and imposed the prison term. Like the appellant in Howard , Appellant herein was properly notified at his initial sentencing hearing of the prison term h e could face if he were to violate his community control and the potential prison term did not change between his initial sentencing and the subsequent revocation hearing at whi ch the court imposed the prison term. Further, like the appellant in Howard , Appellant was not convicted of any new offense in the intervening period for which additional pris on time could have been imposed and Appellant was aware throughout the period of his co mmunity control a

violation could result in a prison term of two years. {¶13} Accordingly, we overrule Appellant’s first assignment of error.Richland Count y , Case No. 2017 CA 0098 6

II {¶14} In his second assignment of error, Appellant contends the trial court erred in imposing additional community control conditions without App ellant having committed a new violation and without conducting a hearing. {¶15} On August 8, 2012, the trial court sentenced Appellant to a two year prison term, but suspended the sentence and placed Appellant on commun ity control for 30 months. As part of his community control sanctions, Appellant was ordered to successfully complete CROSSWAEH CBCF. {¶16} As Appellant failed to successfully complete VOA Halfway House, the state filed a probation violation on February 4, 2013. Appellant adm itted the violation and the trial court continued him on community control “with the follow ing conditions: enter and successfully complete a CBCF.” February 15, 2013 Community Con trol Violation Journal Entry. On December 23, 2013, the state again filed a probation violation. Appellant admitted he violated his community control. The trial court ext ended Appellant's probation, but tolled the term until he was released from priso n on an unrelated case. March 24, 2014 Community Control Violation Journal Entry. Ther eafter, on March 29, 2017, the trial court filed an entry captioned, “Additional Com munity Control Sanctions”, which ordered Appellant to successfully complete a program at C ROSSWAEH CBCF. {¶17} On September 11, 2017, after Appellant completed his prison ter m in Case No. 2013-CR-839, a probation violation was filed, alleging Appe llant failed to complete CBCF. Appellant filed a Motion and Memorandum Contra Impositio n of Prison Sanction, arguing the trial court failed to notify him of the specific pr ison sentence at his last probation violation sentencing, and, as such, was now prohibite d from imposing a prisonRichland Count y , Case No. 2017 CA 0098 7

sanction for the current community control violation. Appellant appeared before the trial court on October 25, 2017, and admitted the violation. The tri al court sentenced Appellant to the original two year prison term. October 27, 2017 Communi ty Control Violation Journal Entry. {¶18} Appellant’s argument relies upon the trial court’s March 29, 20 14 entry captioned “Additional Community Control Sanctions”. Appellant asserts this entry places

additional conditions on him and such was erroneous as there wa s no new violation and the trial court failed to conduct a hearing. We find Appellant ’s reliance on the caption of the March 29, 2014 entry misplaced. {¶19} The March 29, 2014 entry is a pre-printed form. Although capti oned “Additional Community Control Sanctions”, the entry does not pl ace a new condition on Appellant’s community control. To the contrary, the entry rest ates the condition Appellant continually failed to complete, to wit: successfully completing CBCF. This condition was part of Appellant’s original sentence imposed on April 8, 2012, and memorialized in a Sentencing Entry filed August 9, 2012.Richland Count y , Case No. 2017 CA 0098 8

{¶20} Based upon the foregoing, we find Appellant’s second assignment of error

is not well taken and overrule the same. {¶21} The judgment of the Richland Coun ty Court of Common Pleas is af firmed.

By: Hoffman, P.J. Gwin, J. and Delaney, J. concur