[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. Delaney, 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: August 25, 2020 

 

APPEARANCES: 

 

For Plaintiff-Appellee For Defendant-Appellant

 

GARY BISHOP JEFFREY P. UHRICH 

Prosecuting Attorney P.O. Box 1977 

Richland County, Ohio Westerville, Ohio 43086 

 

JOSEPH C. SNYDER 

Assistant Prosecuting Attorney 

38 South Park Street 

Mansfield, Ohio 44902 

 

 
Richland County, 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 Information 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 August 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 Appellant 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 successfully complete 

CROSSWAEH Community Based Correctional Facility (“CBCF”). The trial court 

memorialized Appellant’s sentence via Sentencing Entry filed August 9, 2012. 

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

Appellant had violated his community control sanctions. Specifically, 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. Appellant was 

unsuccessfully terminated from the program on January 30, 2013. Appellant appeared 

before the trial court on February 15, 2013, and admitted the violation. Via Community 

Control Violation Journal Entry filed February 15, 2013, the trial court continued Appellant 
Richland County, 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 Entry. 

{¶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. The entry did not specify the length of the 

original suspended prison term which 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. On September 11, 2017, after Appellant completed his 

prison term in Case No. 2013-CR-839, 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 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 at a hearing 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} Appellant appealed his sentence to this Court, raising the following 

assignments of error: 
Richland County, 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 his 

sentence, and remanded the matter to the trial court for resentencing. We found “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.” 

McClurg, 2018-Ohio-3840 at ¶ 18. We found Appellant’s second assignment 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, which 

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 County, Case No. 2017 CA 0098 5 

I 

{¶10} Pursuant to the Ohio Supreme Court's decision and remand, we must 

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 control 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 sufficient notice of the specific 

prison term the trial court could impose before the court revoked 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 he 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 which 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 prison time could have been 

imposed and Appellant was aware throughout the period of his community control a 

violation could result in a prison term of two years. 

{¶13} Accordingly, we overrule Appellant’s first assignment of error.

 
Richland County, 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 Appellant 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 community 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 admitted the violation and the 

trial court continued him on community control “with the following conditions: enter and 

successfully complete a CBCF.” February 15, 2013 Community Control Violation Journal 

Entry. On December 23, 2013, the state again filed a probation violation. Appellant 

admitted he violated his community control. The trial court extended Appellant's 

probation, but tolled the term until he was released from prison on an unrelated case. 

March 24, 2014 Community Control Violation Journal Entry. Thereafter, 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. 

{¶17} On September 11, 2017, after Appellant completed his prison term in Case 

No. 2013-CR-839, a probation violation was filed, alleging Appellant failed to complete 

CBCF. Appellant filed a Motion and Memorandum Contra Imposition of Prison Sanction, 

arguing 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 
Richland County, 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 trial court sentenced Appellant 

to the original two year prison term. October 27, 2017 Community Control Violation 

Journal Entry. 

{¶18} Appellant’s argument relies upon the trial court’s March 29, 2014 entry 

captioned “Additional Community Control Sanctions”. Appellant asserts this entry places 

additional conditions on him and such was erroneous as there was 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 captioned 

“Additional Community Control Sanctions”, the entry does not place a new condition on 

Appellant’s community control. To the contrary, the entry restates 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 County, 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 County Court of Common Pleas is affirmed. 

By: Hoffman, P.J. 

Gwin, J. and 

Delaney, J. concur