[Cite as State v. Buttery, 2018-Ohio-2651.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO

STATE OF OHIO, 

Plaintiff-Appellee, 

 vs. 

ROBERT BUTTERY, 

Defendant-Appellant. 

: 

: 

: 

: 

: 

 APPEAL NO. C-170141 

 TRIAL NO. B-1506464 

 

 O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: July 6, 2018 

Paula E. Adams, Assistant Hamilton County Prosecuting Attorney, for PlaintiffAppellee, 

William F. Oswall, Jr., for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

2

DETERS, Judge. 

{¶1} Defendant-appellant Robert Buttery appeals the trial court’s judgment 

revoking his community control and imposing an 18-month prison term. Buttery 

argues that the trial court lacked subject-matter jurisdiction to revoke his community 

control because his original conviction was on appeal. We hold that the trial court 

retains jurisdiction over community-control violations during the pendency of an 

appeal from the underlying judgment, therefore, we affirm. 

{¶2} In 2015, Buttery was charged with failing to register based upon a 

juvenile gross-sexual-imposition adjudication. In July 2016, Buttery pleaded no 

contest, and the trial court found him guilty and sentenced him to community 

control. Buttery filed a notice of appeal. In March 2017, while Buttery’s appeal was 

pending in this court, Buttery’s probation officer filed a notice with the trial court 

that Buttery had violated several conditions of his community control. In April 2017, 

the trial court revoked Buttery’s community control and sent Buttery to prison. 

Buttery then filed the notice of appeal herein. In December 2017, this court affirmed 

Buttery’s 2016 conviction. See State v. Buttery, 1st Dist. Hamilton No. C-160609, 

2017-Ohio-9113. 

{¶3} In a single assignment of error, Buttery argues that the trial court 

lacked subject-matter jurisdiction to revoke his community control during the 

pendency of his appeal from the 2016 underlying conviction, and therefore the 

judgment must be vacated. 

{¶4} As a general rule, when a notice of appeal is filed, a trial court lacks 

jurisdiction, “except to take action in aid of the appeal.” State ex rel. Special 

Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 
OHIO FIRST DISTRICT COURT OF APPEALS 

3

162 (1978). But, a trial court retains jurisdiction not inconsistent with that of the 

appellate court to review, affirm, modify, or reverse the order from which the appeal 

is taken. Yee v. Erie Cty. Sheriff’s Dept., 51 Ohio St.3d 43, 533 N.E.2d 1354 (1990). 

{¶5} R.C. 2929.15(B)(1) provides that a sentencing court may impose one or 

more penalties upon a person who has violated community-control sanctions. Under 

R.C. 2929.15(B)(1), “[t]he revocation of community control is an exercise of the 

sentencing court’s criminal jurisdiction[.]” State v. Heinz, 146 Ohio St.3d 374, 2016-

Ohio-2814, 56 N.E.3d 965, ¶ 15. Moreover, “ ‘following a community control 

violation, the trial court conducts a second sentencing hearing. At this second 

hearing, the court sentences the offender anew * * *.’ ” Id., quoting State v. Fraley, 

105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17. 

{¶6} As conceded by Buttery, other courts have considered whether a trial 

court has jurisdiction to preside over a community-control violation while the 

underlying judgment is on appeal, and those courts have concluded that the trial 

court retains jurisdiction, because the underlying judgment is not affected. See State 

v. Manson, 3d Dist. Union Nos. 14-98-50, 14-98-55 and 14-98-58, 1999 WL 417027 

(May 28, 1999); State v. Jordan, 8th Dist. Cuyahoga Nos. 56493 and 58074, 1989 

WL 142374 (Nov. 22, 1989). This court has held that a trial court retained 

jurisdiction to grant a defendant’s motion for shock probation, which was filed while 

the underlying judgment was on appeal, because “the mere filing of a notice of appeal 

does not deprive the trial court of its authority to enforce its own judgment.” State v. 

Lett, 58 Ohio App.2d 45, 46, 388 N.E.2d 1386 (1st Dist.1978). 

{¶7} Although Lett is not a community-control case, the same reasoning 

applies: An appeal from an underlying judgment does not prevent a trial court from 
OHIO FIRST DISTRICT COURT OF APPEALS 

4

enforcing its criminal judgment. Furthermore, the legislature has explicitly vested 

trial courts with authority to revoke community-control sanctions in R.C. 

2929.15(B). Therefore, we hold that the trial court had jurisdiction to sentence 

Buttery for a community-control violation during the pendency of his appeal from 

the underlying judgment of conviction. We overrule Buttery’s assignment of error. 

The judgment of the trial court is affirmed. 

Judgment affirmed. 

MOCK, P.J., andMILLER, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.