[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 , f

or Defendant

- App ellant.OHIO FIRST DISTRICT COURT OF APPEALS

2 Z AYAS , J udge. 

### {¶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 fo r 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 Ba ckground 

### {¶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 en tered into a ple a agreement with the state. Evans agreed to plead guilty to count three o f the indictment charging her with child endangerment in violation of R.C. 2919.22(A), a felony of the third degree. In exchange, the ot her three counts were dismiss ed

. 

### {¶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 contr ol, 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 violatio n of her communi ty control and subject to sanctions

. 

### {¶4} Evans now appeals , contending that count three of the indictment wa s defective because it purported to charge a third

- degree felony but actually charged aOHIO FIRST DISTRICT COURT OF APPEALS

3 misdemeanor of the first degree rendering her se ntence voidable, her plea was not knowingly, intelligently, or voluntarily made due to the defective indictment, the defective indictment rendered the sentence void, and t he trial court failed to advise her of the requirements and potential penalties for v iolating communi ty 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 ch arged a misdemea nor of the first degree and will be addressed together. Evans argue s that her guilty plea was not knowingly, intelligently, or voluntarily entered, and the sentence is voidable or void because she was charged with a first

degree misdemeano r, 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 r isk of harm to t he 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),

a nd states i n rel evant 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 o therwise pr ovide d 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 t hird degree ; 

### {¶8} Her e, 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, 20 10
- Oh io

- 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).”). Th erefo re, the indictment properly charged Evans with child endangering as a felony of the third degree. See id. at ¶ 23 (e xplaining that endangering children in violation of R.C. 2919.22(A) is a third

- degree felony when it results in serious phy sical harm to th e v ictim ). 

### {¶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 assignment s o f

error. Community Control Notifications 

### {¶11} In her fourth assignment of error, Evans contends that she is entitled to a new sentencing hearing because t he tr ial court failed to advise her of all the requirements and potential penalties for violating commun ity 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 co mmunity control san ction, 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 wi thout the permis sio n 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 t he prison term

m ay 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 rec ord reflects tha t t he 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 woul d be subject to add itional 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 Six th Appellate Districts deter mined that resen ten cing 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
- Oh io

- 1459, ¶ 24

- 25 , c iting 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, violat ing 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 ter m could be impos ed i f 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 prov ide the notifications is the proper remedy

. 

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

### {¶16} Theref

ore, we vacate the sentence and remand the cause to provide the proper notifi cations 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.

C ROUSE , P.J., and B ERGERON , J., concur .

Please not e: The court has recorded its own entry this date.