[Cite as State v. Klein, 2016-Ohio-5315.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

MEIGS COUNTY 

STATE OF OHIO, : Case No. 15CA12 

 Plaintiff-Appellee, : 

v. : DECISION AND 

 JUDGMENT ENTRY 

TRAVIS KLEIN, : 

 Defendant-Appellant. : RELEASED 08/03/2016 

APPEARANCES: 

Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Ohio Public 

Defender, Columbus, Ohio, for appellant. 

Colleen S. Williams, Meigs County Prosecuting Attorney, and Jeremy L. Fisher, Meigs County 

Assistant Prosecuting Attorney, Pomeroy, Ohio, for appellee. 

Hoover, J. 

{¶1} Defendant-Appellant, Travis Klein (“Klein”), appeals the judgment of the Meigs 

County Court of Common Pleas, which revoked his community control and sentenced him to the 

Ohio Department of Rehabilitation and Correction for eighteen months. 

{¶2} On appeal, Klein contends that the trial court erred in finding that he violated 

community control. Klein argues that the community control sentence is void because he was 

originally placed on community control without the trial court considering a presentence 

investigation report. In essence, Klein claims that since the community control sentence is void, 

he cannot be found to be in violation of that void sentence. Next, Klein makes the alternative 

argument that even if the community control sentence is not void, he never actually admitted to 
Meigs App. No. 15CA12 2 

the violations of the community control. Klein further contends that the state of Ohio (“State”) 

failed to present proof of any violation. 

{¶3} The State concedes that the trial court was required by R.C. 2951.03(A)(1) and 

Crim.R. 32.2 to order and consider a presentence investigation report prior to imposing 

community control for a felony offense and therefore acted contrary to law. However, the State 

argues that notwithstanding the fact that the trial court acted contrary to law, the community 

control sentence was voidable, not void. The State contends that since the community control 

sentence was only voidable, the principles of res judicata apply; and since Klein did not file a 

direct appeal on his community control sentence, he is now barred by res judicata from raising 

the issues here. In response to Klein’s alternative argument that he did not enter an admission, 

the State contends that Klein’s attorney entered the admission of the violation for Klein to the 

trial court; and thus, Klein did enter an admission to all the allegations contained in the Motion to 

Revoke.

{¶4} With respect to Klein’s first assignment of error, we agree with both parties and 

find the imposition of community control without first considering a presentence investigation 

report was indeed contrary to law. However, we also find that the original community control 

sentence was not authorized by law; and consequently the sentence was void. Therefore, we 

sustain Klein’s first assignment of error. 

{¶5} As for the second assignment of error, Klein’s defense counsel informed the trial 

court that Klein intended to admit to the allegations. At no time did Klein repudiate his counsel’s 

statement. However, in light of our disposition on the first assignment of error, we find the 

second assignment of error to be moot. 
Meigs App. No. 15CA12 3 

{¶6} Accordingly, we vacate and reverse the judgment of the trial court, vacate the 

community control sentence, and remand for resentencing consistent with this decision. 

I. Facts and Procedural History 

{¶7} In August 2013, Klein pleaded guilty to (1) non-support of dependents, a violation 

of R.C. 2919.21, a felony of the fifth degree; and (2) attempted tampering with evidence, a 

violation of R.C. 2923.02 and R.C. 2921.12(A)(1), a felony of the fourth degree. The trial court 

accepted the guilty pleas. After accepting the guilty pleas, the following exchange took place: 

TRIAL COURT: * * * For the record, a PSI has already been done and we’re 

going to go ahead and proceed to sentencing unless there’s some good reason not 

to proceed. Anything, Defense Counsel? 

ATTORNEY BUNCE: Your Honor, we would like you to go ahead and proceed 

to sentencing now. 

The trial court later said: “The Court has considered pre-sentence investigation report. I think it’s 

been prepared on this case. * * *” The Judgment Entry dated August 30, 2013, for Klein’s 

sentencing also states that the trial court considered the “pre-sentence report prepared.” 

{¶8} Klein was sentenced to community control for a period of sixty months, with an 

underlying sentence of eighteen months, on the attempted tampering with evidence charge. Klein 

was also sentenced to twelve months imprisonment for the non-support of dependents charge. 

The trial court ordered that the community control sentence run consecutively to the twelvemonth prison term. No appeal was taken from either of the cases. 

{¶9} In the summer of 2014, Klein was released from prison after serving his twelve 

months on the non-support case. After Klein was released, however, he never reported to the 
Meigs App. No. 15CA12 4 

necessary authorities. In addition, in July 2015, Klein was arrested upon allegations of illegal 

assembly or possession of chemicals for the manufacture of methamphetamine. Thus, a motion 

to revoke community control was filed in July 2015. 

{¶10} On July 23, 2015 a probable cause and final hearing was held on the motion to 

revoke community control. Initially, Klein’s counsel told the trial court, “It is [Klein’s] intention 

to admit to the allegations contained in the motion. We see no need to delay sentencing on that 

matter, Judge. * * *” After Klein’s counsel informed the court of his intention to admit to the 

allegations, Klein requested that he be permitted to “spend a couple days with my kids because 

this just came out of nowhere really.” In response, the trial court denied Klein’s request. Klein 

did not voice any denial of the allegations contained in the motion. Nor did Klein disavow his 

counsel’s statement that he intended to admit the allegations. 

{¶11} The trial court proceeded to sentence Klein to eighteen months in the custody of 

the Ohio Department of Rehabilitation and Correction on the revocation of community control 

for the original attempted tampering with evidence charge. At no time during the revocation 

proceedings did Klein question whether a presentence investigation report had been considered 

prior to issuing the original sentence. 

{¶12} This timely appeal followed. Despite the trial court stating that it had considered 

the presentence investigation report prior to originally sentencing Klein to community control 

and despite the judgment entry reflecting that the presentence report was prepared, the parties 

stipulated during these appellate proceedings that no presentence investigation report had been 

prepared in the case. 

II. Assignments of Error 

{¶13} Klein assigns the following errors for our review: 
Meigs App. No. 15CA12 5 

First Assignment of Error: 

The trial court erred by finding that Mr. Klein violated community control 

imposed without a presentence investigation report. R.C. 2929.15; R.C. 2951.03; 

Judgment Entry (July 27, 2015); Judgment Entry (Aug. 30, 2013); Stipulated 

Correction of the Record (Nov. 9, 2015); T. p. 17 (July 23, 2015). 

Second Assignment of Error: 

The trial court erred by finding that Mr. Klein violated his community control 

sanctions without any evidence of a violation and in the absence of an admission. 

Fifth and Fourteenth Amendments to the United States Constitution; R.C. 

2929.15; R.C. 2951.03; Judgment Entry (July 27, 2015); Judgment Entry (Aug. 

30, 2013); T.p. 17 (July 23, 2015). 

III. Law and Analysis 

{¶14} In his first assignment of error, Klein contends that the trial court erred in finding 

that he violated community control when his original community control sentence was imposed 

without a presentence investigation report. We agree with Klein. 

A. Standard of Review 

{¶15} When reviewing felony sentences we apply the standard of review set forth in 

R.C. 2953.08(G)(2). See State v. Brewer, 2014–Ohio–1903, 11 N.E.3d 317, ¶ 33 (4th Dist.) (“we 

join the growing number of appellate districts that have abandoned the Kalish plurality’s secondstep abuse-of-discretion standard of review; when the General Assembly reenacted R.C. 

2953.08(G)(2), it expressly stated that ‘[t]he appellate court’s standard of review is not whether 

the sentencing court abused its discretion’ ”). R.C. 2953.08(G)(2) specifies that an appellate 

court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the 

court clearly and convincingly finds that “the record does not support the sentencing court’s 

findings” under the specified statutory provisions or “the sentence is otherwise contrary to law.” 

B. The Imposed Sentence was Contrary to Law. 
Meigs App. No. 15CA12 6 

{¶16} The Supreme Court of Ohio has recently held in State v. Amos, 140 Ohio St.3d 

238, 2014-Ohio-3160, 17 N.E.3d 528, ¶16:

A trial court acts contrary to law when it imposes a sentence of one or more 

community-control sanctions on a felony offender without first ordering and 

reviewing a presentence investigation report. 

Therefore, according to Supreme Court precedent, it is clear that the trial court acted contrary to 

law. 

C. The Imposed Sentence was Not Authorized by Law. 

{¶17} Although the sentence imposed without considering a presentence investigation is 

contrary to law, we must also consider whether or not the sentence was authorized by law. This 

is necessary because the Supreme Court of Ohio and this Court have held that if an imposed 

sentence is not authorized by law, it is void. State v. Pippen, 4th Dist. Scioto No. 14CA3595, 

2014-Ohio-4454, ¶ 11, citing State v. Billiter, 134 Ohio St.3d 103, 2012–Ohio–5144, 980 N.E.2d 

960, ¶ 10. “[S]entences not authorized by statute are void and subject to being vacated.” State v. 

Stump, 4th Dist. Athens No. 13CA10, 2014-Ohio-1487, ¶ 15, citing State v. Rohda, 135 Ohio 

App.3d 21, 25, 732 N.E.2d 1018 (3d Dist.1999); State v. Hooks, 135 Ohio App.3d 746, 735 

N.E.2d 523 (10th Dist.2000); State v. Lee, 1st Dist. Hamilton No. C–120307, 2013–Ohio–1811, 

¶ 26. “This rule cannot be circumvented.” Stump at ¶ 15. 

{¶18} If the sentence is merely voidable, then principles of res judicata would apply, and 

since Klein did not file a direct appeal on the original community control sentence, he would 

now be barred by principles of res judicata of raising the arguments in his first assignment of 

error. See State v. Literal, 4th Dist. Scioto No. 12CA3479, 2012-Ohio-6298 ¶ 6. On the other 
Meigs App. No. 15CA12 7 

hand, if the original community control sentence is void, then the principles of res judicata do not 

apply; and the sentence may be reviewed at any time even by collateral attack. State v. Fischer,

128 Ohio St.3d 92, 2010–Ohio–6238, 942 N.E.2d 332 ¶ 40. 

{¶19} With respect to our determination of whether Klein’s imposed sentence was 

authorized by law, we look to the Supreme Court of Ohio’s language in Amos, 140 Ohio St.3d 

238, 2014-Ohio-3160, 17 N.E.3d 528. In Amos, the Supreme Court of Ohio made the following 

findings, albeit reluctantly: 

But we are not the legislature, and our pursuit of a logical understanding of the 

sentencing scheme cannot overlook the plain language of the statute and rule that 

govern these cases. The state has argued that based on R.C. 2951.03(A)(1) and 

Crim.R. 32.2, a community-control sentence is always subject to a presentence 

investigation and that a trial court that fails to order a presentence investigation 

is not authorized to place an offender on a community-control sentence. 

Reluctantly, we must agree. R.C. 2951.03(A)(1) specifically states that “[n]o 

person who has been convicted of or pleaded guilty to a felony shall be placed 

under a community control sanction until a written presentence investigation 

report has been considered by the court,” and Crim.R. 32.2 states that “[i]n felony 

cases the court shall * * * order a presentence investigation and report before 

imposing community control sanctions or granting probation.” These provisions 

are simply too clear to ignore. 

 (Emphasis added.) Id. at ¶ 14. Thus, the Supreme Court of Ohio evidently agrees with 

the argument that “a trial court that fails to order a presentence investigation is not 

authorized to place an offender on a community-control sentence.” Id. at ¶ 14. 
Meigs App. No. 15CA12 8 

{¶20} In this case, Klein had entered into a plea agreement wherein he would be placed 

on community control for the attempted tampering with evidence conviction. The transcript 

reveals that the trial court stated at the hearing that it had considered a presentence investigation 

report. Thus, it is understandable that defense counsel failed to object to the failure to consider a 

presentence investigation report prior to sentencing Klein to community control. Nonetheless, 

“[a] sentence not authorized by statute * * * cannot be imposed because it is included in a plea 

agreement, or because defense counsel failed to object at the sentencing hearing.” Stump, 2014-

Ohio-1487, at ¶ 15.

{¶21} In addition to the holding in Amos, to determine whether the imposed sentence 

was authorized by law, we must also examine the applicable law. R.C. 2951.03(A)(1) states that: 

“No person who has been convicted of or pleaded guilty to a felony shall be placed under a 

community control sanction until a written presentence investigation report has been considered 

by the court.* * *” Crim.R. 32.2 further states: “In felony cases the court shall * * * order a 

presentence investigation report before imposing community control sanctions * * *.” Both the 

statute and the criminal rule of procedure mandate that a trial court shall order and consider a 

presentence investigation report prior to imposing community control sanctions. Here, the trial 

court did not consider a presentence investigation report before imposing sentence, and thus the 

sentence was not authorized by law. The original community control sentence is consequently 

void. 

{¶22} We would be remiss if we failed to address the case State v. Knuckles, 9th Dist. 

Summit No. 27571, 2015-Ohio-2840. In Knuckles, the Ninth District Court of Appeals resolved 

the same issue in this case with the opposite result. The Ninth District reasoned:
Meigs App. No. 15CA12 9 

The Ohio Supreme Court recently held that a trial court that fails to order a 

presentence investigation is not authorized to place an offender on a communitycontrol sentence. State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, ¶ 14-15 

(O’Neill, J., with three Justices concurring in judgment only). The Court did not 

conclude that a community control sentence imposed in violation of R.C. 

2951.03(A)(1) is void. Instead, the Court held that “A trial court acts contrary to 

law when it imposes a sentence of one or more community-control sanctions on a 

felony offender without first ordering and reviewing a presentence investigation 

report.” Amos at ¶ 16. 

The Court’s reference to the trial court’s action being “contrary to law” does not 

suggest that the sentence is void. Rather, it is the standard that the Eighth District 

applied in the companion cases before the Supreme Court, State v. Richmond, 8th 

Dist.No. 97531, 2012-Ohio- 3946 and State v. Amos, 8th Dist.No. 97719, 2012-

Ohio-3954. Both Amos and Richmond reviewed the sentences according to the 

test set forth in State v. Kalish, 120 Ohio St.3d 23, 2008- Ohio-4912, which 

requires, as a first step, to determine whether the trial court complied with the 

applicable sentencing statues to conclude whether the sentence is contrary to law. 

By affirming Richmond, and reversing Amos, the Supreme Court held that a 

sentencing court acts contrary to law when it imposes a community control 

sentence without a presentence investigation. In simpler terms, the sentencing 

court committed an error that results in a voidable, not a void, judgment. 
Meigs App. No. 15CA12 10 

Neither the Supreme Court nor the Eighth District concluded that either sentence 

was void. A trial court’s failure to order a presentence investigation report in 

violation of R.C. 2951.03(A)(1) makes the judgment imposing sentence merely 

voidable, rather than void. And the voidable judgment is subject to the limitations 

of res judicata. See Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238 at ¶ 40. 

Because the trial court’s violation of R.C. 2951.03(A)(1) made Mr. Knuckles’ 

sentences imposing community control voidable, and not void, he was required to 

challenge his sentences on direct appeal. He did not appeal from the judgment 

entries sentencing him to community control in 2010 and 2012. Thus, Mr. 

Knuckles’ claim that his sentences to community control were contrary to law is 

barred by res judicata. Mr. Knuckles’ assignments of error are overruled. 

(Emphasis sic.) Knuckles at ¶¶ 9-12. 

{¶23} Although our sister appellate court recognizes that a trial court that fails to order a 

presentence investigation is not authorized to impose a community control sentence on an 

offender, it ultimately concludes that such sentence is voidable, not void. The Ninth District 

seems to rely heavily on the fact that the Amos court did not find the sentence to be void. It must 

be noted, however, that whether the sentence was void or voidable was not at issue in the Amos 

case. In that case, the issues were raised in a timely appeal from a community control sentence 

that was imposed without a presentence investigation. 

{¶24} Since the Supreme Court of Ohio in Amos agreed that “a trial court that fails to 

order a presentence investigation is not authorized to place an offender on a community-control 

sentence,” we cannot follow the Ninth District’s rationale. It seems that the Ninth District does 
Meigs App. No. 15CA12 11 

not examine the fact that the trial court was not authorized to impose the sentence. It simply 

states that the sentence was voidable, not void. Accordingly, we decline to follow the Knuckles

case especially in light of the Supreme Court of Ohio’s and this Court’s precedent that if an 

imposed sentence is not authorized by law, it is void. See Pippen, 2014-Ohio-4454, at ¶ 11, 

citing Billiter, 134 Ohio St.3d 103, 2012–Ohio–5144, 980 N.E.2d 960, at ¶ 10. 

{¶25} We fully understand that, upon remand, Klein will simply be re-sentenced after 

considering a presentence investigation report. The result of this decision then may seem to be a 

waste of judicial and prosecutorial resources, especially since this matter proceeded pursuant to a 

plea agreement. Nonetheless, as judges, we must follow the law as set forth by the legislature. 

The General Assembly explicitly stated in R.C. 2951.03(A)(1) that: “No person who has been 

convicted of or pleaded guilty to a felony shall be placed under a community control sanction 

until a written presentence investigation report has been considered by the court.* * *” This 

statute is written in mandatory, not permissive, terms. We cannot legislate judicially. We must 

reverse.

IV. Conclusion 

{¶26} Klein’s first assignment of error is sustained. The community control sentence on 

the attempted tampering with evidence conviction was contrary to law and not authorized by 

law; accordingly, it is void and is vacated. The judgment of the trial court revoking the 

community control is also vacated and reversed. This matter is remanded for re-sentencing 

consistent with this opinion.

{¶27} Our resolution of Klein’s first assignment of error renders his second assignment 

of error moot; and we decline to address it. See App.R. 12(A)(1)(c).
Meigs App. No. 15CA12 12 

JUDGMENT REVERSED AND CAUSE REMANDED. 
Meigs App. No. 15CA12 13 

JUDGMENT ENTRY 

 

 It is ordered that the JUDGMENT IS REVERSED and that the CAUSE BE 

REMANDED for further proceedings consistent with this opinion. Appellee shall pay the costs. 

 The Court finds that reasonable grounds existed for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Meigs County 

Court of Common Pleas to carry this judgment into execution. 

 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed sixty days upon the bail previously posted. The 

purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an 

application for a stay during the pendency of proceedings in that court. If a stay is continued by 

this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of 

the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day 

appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. 

Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, 

the stay will terminate as of the date of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

Abele, J. & McFarland, J.: Concur in Judgment and Opinion. 

 For the Court 

 BY: ____________________________ 

 Marie Hoover, Judge 

 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and 

the time period for further appeal commences from the date of filing with the clerk.