[Cite as State v. Scott, 2019-Ohio-400.]

 

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

DONALD F. SCOTT, SR. 

Defendant-Appellant 

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Appellate Case No. 28039 

Trial Court Case No. 2014-CR-1862 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 8th day of February, 2019. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 

West Third Street, 5th Floor, Dayton, Ohio 45422 

 Attorney for Plaintiff-Appellee 

 

DONALD F. SCOTT, SR., #729-570, P.O. Box 69, London, Ohio 43140 

 Defendant-Appellant, Pro Se 

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FROELICH, J. 

{¶ 1} Donald F. Scott, Sr., appeals from a judgment of the Montgomery County 

Court of Common Pleas, which denied his pro se motions to “vacate a void, illegal 

sentence,” for summary judgment on his motion to vacate void sentence, and for findings 

of fact and conclusions of law. For the following reasons, the trial court’s judgment will 

be affirmed. 

{¶ 2} On June 18, 2014, Scott was indicted on four counts of felonious assault 

(deadly weapon), all second-degree felonies. The charges alleged that Scott caused or 

attempted to cause serious physical harm to Starr Vanhoose and to Lewis London by 

means of a car and a bat. Scott pled no contest to two counts of felonious assault -- 

Count 1 (Vanhoose, bat) and Count 4 (London, car). The plea form indicated that Scott 

was eligible for community control and that he faced eight years in prison on each count 

if he violated community control. Scott agreed to pay restitution and to have no contact 

with Vanhoose or London. Sentencing was scheduled for September 22, 2014. 

{¶ 3} On September 22, 2014, Scott informed the court that he wished to withdraw 

his plea, and he filed a written motion on September 25, 2014; that motion was 

subsequently withdrawn. 

{¶ 4} On November 17, 2014, after a presentence investigation, the trial court 

orally sentenced Scott to community control for up to five years. The trial court informed 

Scott that he faced eight years in prison, to be served consecutively, if he violated the 

terms of his community control. The court’s written judgment entry, which was consistent 

with its oral pronouncement, was filed on November 18, 2014. 

{¶ 5} On December 2, 2015, the court filed notice that a community control 
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violation hearing had been scheduled, and on January 28, 2016, an amended notice was 

filed. On February 11, 2016, after a hearing, the trial court continued Scott on community 

control subject to the previous sanctions with three modifications: (1) Scott must serve 90 

days in the Montgomery County Jail; (2) Scott must appear for a status hearing on April 

4, 2016, and (3) Scott must complete 140 hours of community service.

{¶ 6} On April 22, 2016, the trial court found Scott to be an absconder based on a 

representation by Scott’s community control officer that Scott’s whereabouts had been 

unknown since March 14, 2016. A capias was issued for his arrest. Scott was arrested 

on July 8, 2016. 

{¶ 7} On July 14, 2016, the court filed a notice of community control revocation 

hearing. On October 6, 2016, the trial court revoked Scott’s community control and 

sentenced him to three years in prison on each count, be served concurrently. The court 

informed Scott that he would be subject to three years of post-release control upon his 

release from prison. Scott appealed from the trial court’s revocation of his community 

control. We affirmed the trial court’s judgment. State v. Scott, 2d Dist. Montgomery No. 

27299, 2017-Ohio-4100. Scott subsequently sought to reopen his direct appeal, but we 

denied his application. State v. Scott, 2d Dist. Montgomery No. 27299 (Oct. 18, 2017). 

{¶ 8} In September 2017, Scott filed a pro se motion to “vacate costs and fines” 

(although no fines had been imposed), and in November 2017, he sought judicial 

release. The trial court granted the motion to waive costs, but denied the motion for 

judicial release. 

{¶ 9} On January 3, 2018, Scott filed a pro se “motion to vacate a void, illegal 

sentence.” He claimed that the trial court lacked the authority to impose a prison 
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sentence for a violation of community control, because the court imposed maximum and 

consecutive sentences at his original sentencing without making the required statutory 

findings. Scott argued that (1) “it is not applicable to have informed the DefendantAppellant of the specific prison term that could be imposed if he violated the conditions of 

his community control sanctions,” (2) the trial court did not adequately explain its reasons 

for imposing maximum, consecutive sentences, and (3) the court’s decision to impose 

maximum, consecutive sentences was clearly and convincingly contrary to law. Scott 

asserted that the imposition of community control was therefore void, that he could not 

be found to have violated community control sanctions, and thus his “violation and eightyear sentence” must be vacated. Scott supported his motion with a copy of the 

November 17, 2014 sentencing hearing transcript. 

{¶ 10} On January 25, 2018, Scott filed a pro se motion for summary judgment 

motion seeking a ruling on his motion to vacate void sentence. On May 7, 2018, Scott 

filed a motion for the trial court to include findings of fact and conclusions of law in its 

decision on his motions. 

{¶ 11} On June 5, 2018, the trial court overruled Scott’s pro se motions. The trial 

court stated that Scott’s community control sentence was not contrary to law, that the 

court properly informed Scott of the maximum sentence he faced if he violated community 

control, and that the court did not impose maximum or consecutive sentences upon 

revoking his community control. The trial court concluded that Scott’s sentence upon the 

revocation of community control was not void, and therefore any challenge to his 

sentence was barred by res judicata. 

{¶ 12} Scott appeals from the trial court’s judgment, claiming that his conviction 
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and sentence are “illegal and void.” He raises arguments similar to those made before 

the trial court. 

{¶ 13} At the outset, the State asserts that this appeal is moot, because Scott has 

been released from prison. The Ohio Department of Rehabilitation and Correction 

(ODRC) website indicates that Scott was released from prison on October 2, 2018, and 

that he is presently on three years of post-release control. 

{¶ 14} We have stated that an appeal from the prison sentence imposed upon the 

revocation of community control is moot where the defendant “has served that prison 

sentence, and there is no indication that [the defendant] is on post-release control or is 

subject to collateral liability.” (Emphasis added.) State v. Bailey, 2d Dist. Montgomery 

No. 26882, 2016-Ohio-5158, ¶ 12; State v. Roberts, 2017-Ohio-481, 84 N.E.3d 339, ¶ 15 

(2d Dist.). Here, although Scott has completed his prison sentence, Scott is serving 

three years of post-release control, which subjects him to numerous conditions and 

consequences if he violates its conditions. In light of his placement on post-release 

control, we conclude that Scott’s appeal is not moot, even though he completely served 

the prison sentence imposed by the trial court. 

{¶ 15} Scott asserts that the trial court’s imposition of community control was void, 

which rendered void the court’s subsequent imposition of a prison term upon revocation 

of community control. The State responds that the trial court’s sentences were not void 

and that Scott’s arguments are barred by res judicata. 

{¶ 16} “Pursuant to the doctrine of res judicata, a valid final judgment on the merits 

bars all subsequent actions based on any claim arising out of the transaction or 

occurrence that was the subject matter of the previous action.” State v. Collins, 2d Dist. 
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Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio 

St.3d 379, 653 N.E.2d 226 (1995). The res judicata bar applies to any issue that was 

raised or could have been raised in a criminal defendant’s prior appeal from his conviction 

or any other final appealable order. See State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 

104 (1967). 

{¶ 17} R.C. 2929.19(B)(4) requires a trial court imposing community control 

sanctions to notify the offender at sentencing that, 

if the conditions of the sanction are violated, if the offender commits a 

violation of any law, or if the offender leaves this state without the 

permission of the court or the offender’s probation officer, the court may 

impose a longer time under the same sanction, may impose a more 

restrictive sanction, or may impose a prison term on the offender and shall 

indicate the specific prison term that may be imposed as a sanction for the 

violation, as selected by the court from the range of prison terms for the 

offense pursuant to section 2929.14 of the Revised Code. 

(Emphasis added.) This notification “is meant to put the offender on notice of the specific 

prison term he or she faces if a violation of the conditions occurs. However, from the 

trial court’s perspective, the notice does little more than set a ceiling on the potential 

prison term, leaving the court with the discretion to impose a lesser term than the offender 

was notified of when a lesser term is appropriate.” State v. Brooks, 103 Ohio St.3d 134, 

2004-Ohio-4746, 814 N.E.2d 837, ¶ 23. 

{¶ 18} The trial court is not required to notify a defendant at a community control 

revocation hearing of the maximum prison sentence that may be imposed. State v. 
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Norman, 2d Dist. Clark Nos. 2017-CA-40 and 2017-CA-41, 2018-Ohio-993, ¶ 19. “That 

notification must have been provided at the original sentencing (if no prior revocation 

hearing had been held) or at the most recent revocation hearing (if multiple revocation 

hearings had been held).” Id., citing State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 

821 N.E.2d 995. 

{¶ 19} Upon revoking a defendant’s community control, the trial court may 

(1) lengthen the term of the community control sanction; (2) impose a more restrictive 

community control sanction; or (3) impose a prison term on the offender, provided that 

the prison term is within the range of prison terms available for the offense for which 

community control had been imposed and the term does not exceed the prison term 

specified in the notice previously provided to the offender. R.C. 2929.15(B); see Brooks

at paragraph two of the syllabus; Fraley. “When an offender’s community control is 

revoked and multiple prison terms are imposed for the underlying offenses, the trial court 

must make the findings under R.C. 2929.14(C)(4) before imposing consecutive sentences 

at the revocation sentencing hearing.” State v. Artz, 2d Dist. Champaign No. 2014-CA34, 2015-Ohio-3789, ¶ 12, citing, e.g., State v. West, 2d Dist. Montgomery No. 24998, 

2012-Ohio-4615 (noting that the prison sentence for violating community control was not 

imposed until the revocation sentencing hearing, and that the trial court was required to 

comply with R.C. 2929.14(C)(4) to impose consecutive sentences). 

{¶ 20} The trial court provided the required notifications to Scott at his November 

17, 2014 sentencing. Of relevance, the trial court informed Scott that he faced eight 

years in prison on each count of felonious assault, to be served consecutively, if he 

violated the terms of his community control. The maximum eight-year sentence was 
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within the authorized statutory range for a felony of the second degree. The trial court 

re-imposed community control on February 11, 2016; the trial court’s judgment entry 

reflects that Scott again faced eight years on each count, to be served consecutively, if 

he violated the conditions of his community control. (The record does not include a 

transcript of the February 2016 revocation hearing.) 

{¶ 21} The trial court did not make findings under R.C. 2929.14(C)(4) at Scott’s 

original sentencing to impose consecutive sentences, but such findings were not required 

until the trial court imposed consecutive sentences at a revocation hearing. When 

Scott’s community control was revoked, the trial court imposed three years in prison, to 

be served concurrently; the trial court did not impose consecutive sentences. 

Accordingly, the trial court was not required, at any time, to make consecutive sentence 

findings under R.C. 2929.14(C)(4). The three-year sentence was within the statutory 

range for a felonious assault conviction. 

{¶ 22} Upon review of the record, the trial court’s impositions of community control 

in November 2014 and February 2016 were not void, and the trial court’s imposition of 

concurrent three-year prison terms in October 2016 was not void. Accordingly, the 

doctrine of res judicata applies, and all challenges to Scott’s three-year sentence should 

have been raised in his appeal from the court’s revocation of community control. 

{¶ 23} Scott’s assignments of error are overruled. 

{¶ 24} The trial court’s judgment will be affirmed. 

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DONOVAN, J. and HALL, J., concur. 
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Copies sent to: 

Mathias H. Heck 

Michael P. Allen 

Donald F. Scott, Sr. 

Hon. Michael W. Krumholtz