[Cite as State v. Esper, 2014-Ohio-824.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 99907

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

DOUGLAS ESPER

 DEFENDANT-APPELLANT

JUDGMENT:

REVERSED AND REMANDED 

FOR RESENTENCING 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-08-510153-A 

BEFORE: Stewart, J., Kilbane, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: March 6, 2014 
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: John T. Martin 

Assistant Public Defender 

310 Lakeside Avenue, Suite 200 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Adam M. Chaloupka 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 9th Floor 

Cleveland, OH 44113 
MELODY J. STEWART, J.: 

{¶1} In 2008, defendant-appellant Douglas Esper pleaded guilty to a single count 

of third-degree burglary. The parties conditioned the plea upon the court ordering five 

years of community control. The court agreed to the terms of the plea bargain and 

advised Esper that if he violated community control, he would be subject to “at least a 

two year sentence.” Esper later violated community control and a new judge sentenced 

him to three years in prison. Esper complains that the court could not give him a 

three-year sentence when it told him at sentencing that a violation of community control 

would result in a two-year sentence. 

{¶2} The state concedes error on authority of paragraph two of the syllabus to 

State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837. That paragraph 

states: 

Pursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court sentencing an 

offender to a community control sanction must, at the time of the 

sentencing, notify the offender of the specific prison term that may be 

imposed for a violation of the conditions of the sanction, as a prerequisite to 

imposing a prison term on the offender for a subsequent violation. 

(Emphasis added.) 

{¶3} The court informed Esper that a violation of community control would result 

in a prison term of “at least two years.” If the court believed that the words “at least” 

gave it leeway to impose a higher term, it was wrong. Brooks held that strict compliance 

with R.C. 2929.19(B)(5) requires the trial court to “in straightforward and affirmative 
language, inform the offender at the sentencing hearing that the trial court will impose a 

definite term of imprisonment of a fixed number of months or years, such as ‘twelve 

months’ incarceration,’ if the conditions are violated.” The court was thus bound to 

sentence Esper to the specific term stated at the time it accepted Esper’s guilty plea — 

two years in prison. We sustain the assignment of error and remand for resentencing. 

{¶4} This cause is reversed and remanded to the trial court for resentencing 

consistent with this opinion. 

It is ordered that appellant recover of appellee his costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. A certified 

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

Appellate Procedure. 

 

 

MELODY J. STEWART, JUDGE 

MARY EILEEN KILBANE, P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR