[Cite as State v. Evans, 2023-Ohio-2854.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO,

 Plaintiff-Appellee,

 vs.

SHIRLEY EVANS,

 Defendant-Appellant.

:

:

:

:

:

APPEAL NO. C-220562 

 TRIAL NO. B-1901785

 

O P I N I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas

 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause 

Remanded

Date of Judgment Entry on Appeal: August 16, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christopher Bazely, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS

2

ZAYAS, Judge.

{¶1} Shirley Evans appeals from her conviction for child endangerment 

following a guilty plea. Evans argues that the indictment was defective, rendering her 

plea involuntary and her sentence void. She further argues that the trial court failed 

to advise her of the potential penalties for a community-control violation. For the 

following reasons, we affirm the trial court’s judgment in part, reverse the judgment 

in part, and remand the cause to the trial court. 

Factual Background

{¶2} Shirley Evans was indicted for felonious assault and three charges of 

child endangerment for striking a five-year-old foster child and causing serious 

physical harm. Evans proceeded to a jury trial, and after three witnesses had testified, 

she entered into a plea agreement with the state. Evans agreed to plead guilty to count 

three of the indictment charging her with child endangerment in violation of R.C. 

2919.22(A), a felony of the third degree. In exchange, the other three counts were 

dismissed. 

{¶3} The trial court accepted the guilty plea after engaging in a lengthy 

colloquy and ensuring that Evans understood the ramification of the plea and the 

rights she was waiving. The court found her guilty, sentenced her to three years of 

community control, and notified her that if she violated her community control, she 

would be sentenced to a prison term of 36 months. The court did not notify her that 

if she committed a violation of any law or left the state without permission, she would 

be in violation of her community control and subject to sanctions.

{¶4} Evans now appeals, contending that count three of the indictment was 

defective because it purported to charge a third-degree felony but actually charged a 
OHIO FIRST DISTRICT COURT OF APPEALS

3

misdemeanor of the first degree rendering her sentence voidable, her plea was not 

knowingly, intelligently, or voluntarily made due to the defective indictment, the 

defective indictment rendered the sentence void, and the trial court failed to advise 

her of the requirements and potential penalties for violating community control as 

required by R.C. 2929.19(B)(4).

Count Three of the Indictment

{¶5} The first three assignments of error are based on the premise that the 

indictment was defective because it purported to charge a third-degree felony but 

actually charged a misdemeanor of the first degree and will be addressed together. 

Evans argues that her guilty plea was not knowingly, intelligently, or voluntarily 

entered, and the sentence is voidable or void because she was charged with a firstdegree misdemeanor, but convicted of and sentenced for a third-degree felony.

{¶6} Count three of the indictment stated that Shirley Evans, being the 

parent, guardian custodian, or person in loco parents of D.A., a child under 18 years 

of age, recklessly created a substantial risk of harm to the child by violating a duty of 

care, and the violation resulted in serious physical harm to D.A., in violation of R.C. 

2919.22(A), a felony of the third degree.

{¶7} R.C. 2919.22(E)(2) sets forth the penalties for a violation of division (A), 

and states in relevant part:

(2) If the offender violates division (A) or (B)(1) of this section, 

endangering children is one of the following, and, in the circumstances 

described in division (E)(2)(e) of this section, that division applies:

(a) Except as otherwise provided in division (E)(2)(b), (c), or (d) of this 

section, a misdemeanor of the first degree;
OHIO FIRST DISTRICT COURT OF APPEALS

4

* * *

(c) If the violation is a violation of division (A) of this section and results 

in serious physical harm to the child involved, a felony of the third 

degree;

{¶8} Here, the indictment charged Evans with a violation of division (A) and 

specified that the violation resulted in serious physical harm. Under R.C. 

2919.22(E)(2)(c), the offense is a felony of the third degree. See State v. Pepka, 125 

Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 2 (“Pursuant to the Ohio Revised 

Code, the only circumstance in which child endangering in violation of R.C. 

2919.22(A) is a third-degree felony is when the victim suffers serious physical harm. 

R.C. 2919.22(E)(2)(c).”). Therefore, the indictment properly charged Evans with child 

endangering as a felony of the third degree. See id. at ¶ 23 (explaining that 

endangering children in violation of R.C. 2919.22(A) is a third-degree felony when it 

results in serious physical harm to the victim).

{¶9} Because the indictment properly charged Evans with a third-degree 

felony, her plea was knowingly, intelligently, and voluntarily entered and the sentence 

is not voidable or void. 

{¶10} Accordingly, we overrule her first, second, and third assignments of 

error.

Community Control Notifications

{¶11} In her fourth assignment of error, Evans contends that she is entitled to 

a new sentencing hearing because the trial court failed to advise her of all the 

requirements and potential penalties for violating community control as required by 

R.C. 2929.19(B)(4).
OHIO FIRST DISTRICT COURT OF APPEALS

5

{¶12} R.C. 2929.19(B)(4) provides:

If the sentencing court determines at the sentencing hearing that a 

community control sanction should be imposed and the court is not 

prohibited from imposing a community control sanction, the court shall 

impose a community control sanction. The court shall notify the 

offender 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 range from which the prison term 

may be imposed as a sanction for the violation, which shall be the range 

of prison terms for the offense that is specified pursuant to section 

2929.14 of the Revised Code and as described in section 2929.15 of the 

Revised Code.

{¶13} Here, the record reflects that the trial court informed Evans that if she 

violated her community control she would be sentenced to a prison term of 36 months. 

The court did not inform her that if she violated any laws or left the state without 

permission that she would be subject to additional sanctions, including a prison term.

{¶14} The state questions whether this issue is ripe for appeal since a 

community-control violation has not yet occurred. This court recently noted that the 

Ninth and Sixth Appellate Districts determined that resentencing was the proper

remedy for the omission of the notifications required by R.C. 2929.19(B)(4) when the 

appellants appealed from the initial imposition of community control. See State v. 
OHIO FIRST DISTRICT COURT OF APPEALS

6

Elliot, 1st Dist. Hamilton No. C-220339, 2023-Ohio-1459, ¶ 24-25, citing State v. 

Colburne, 9th Dist. Summit No. 27553, 2015-Ohio-4348, and State v. Jones, 6th Dist. 

Lucas No. L-03-1321, 2005-Ohio-5736. In Colburne, “the trial court did not notify Mr. 

Colburne that violating the conditions of community control, violating another law, or 

leaving the state without permission could result in additional sanctions, including the 

prison terms outlined by the trial court.” Colburne at ¶ 29. In Jones, the trial court 

failed to notify Jones that the prison term could be imposed if he committed a violation 

of any law or left the state without permission of his probation officer. Jones at ¶ 14. 

We agree that a remand to provide the notifications is the proper remedy.

{¶15} We sustain the fourth assignment of error.

Conclusion

{¶16} Therefore, we vacate the sentence and remand the cause to provide the 

proper notifications consistent with this opinion. We affirm the trial court’s judgment 

in all other respects.

Judgment affirmed in part, reversed in part, and cause remanded.

CROUSE, P.J., and BERGERON, J., concur.

Please note:

The court has recorded its own entry this date.