[Cite as State v. Vawter, 2024-Ohio-131.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

HANCOCK COUNTY

STATE OF OHIO, CASE NO. 5-23-28

 PLAINTIFF-APPELLEE,

 v.

VICTOR A. VAWTER, O P I N I O N

 DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court

Trial Court No. 2022 CR 00003

Judgment Reversed and Vacated

Date of Decision: January 16, 2024

APPEARANCES:

W. Alex Smith for Appellant

Steven M. Powell for Appellee
Case No. 5-23-28

-2-

WALDICK, J. 

{¶1} Defendant-appellant, Victor A. Vawter (“Vawter”), appeals the June 

26, 2023 judgment of the Hancock County Court of Common Pleas, in which the 

trial court resentenced Vawter due to an oversight at the original sentencing hearing 

held in 2022. For the reasons set forth below, we reverse.

Factual and Procedural Background

{¶2} On January 4, 2022, the Hancock County Grand Jury returned a twocount indictment against Vawter. Count 1 of the indictment charged Vawter with

Trafficking in a Fentanyl-Related Compound, a fifth-degree felony in violation of 

R.C. 2925.03, and Count 2 charged Trafficking in a Fentanyl-Related Compound, a 

fourth-degree felony in violation of R.C. 2925.03.

{¶3} On January 26, 2022, Vawter was arraigned and he entered initial 

pleas of not guilty.

{¶4} On March 28, 2022, a change of plea hearing was held. At that time, 

Vawter withdrew his pleas of not guilty and pled guilty to both counts of the 

indictment. The trial court ordered a presentence investigation and scheduled 

sentencing for a later date.

{¶5} On August 18, 2022, a sentencing hearing was held and Vawter was 

sentenced to a five-year term of community control on each count, to be served 

concurrently. That sentence was journalized by entry filed on August 19, 2022. 
Case No. 5-23-28

-3-

{¶6} The August 19, 2022 judgment entry of sentencing states, in relevant 

part, that “[t]he defendant was informed that violation of any conditions of their 

community control sanction, violations of law, or leaving the state without the 

permission of the Court may result in imposition of a reserved prison term on each 

count from the range of prison terms for the offenses as detailed below”, and it was 

then noted that the reserved prison sentence for Count 1 was in the range of 6 to 12 

months and that the reserved prison sentence for Count 2 was in the range of 6 to 

18 months. (8/19/22 Judgment Entry, Docket No. 21). However, the transcript of 

the August 18, 2022 sentencing hearing reflects that the trial court neglected to 

advise Vawter on the record as to the reserved range of prison terms in the event

prison sentences were subsequently to be imposed following a community control 

violation.

{¶7} On June 5, 2023, the trial court filed a judgment entry that reads in 

relevant part:

This matter comes before the court on Docket review. The Defendant 

in this matter was sentenced to community control supervision. As a 

result of the ruling of the Third District Court of Appeals in State v. 

VanDenEynde, Case No. 5-22-38, issued on May 30, 2023, IT IS 

HEREBY ORDERED that this matter shall come on for ReSentencing on June 26, 2023, at 9:00 a.m.

(Emphasis sic.) (6/5/23 Judgment Entry, Docket No. 41).

{¶8} In the case referenced by the trial court, State v. Van Den Eynde, 3d 

Dist. Hancock No. 5-22-38, 2023-Ohio-1790, this Court reversed a prison sentence 
Case No. 5-23-28

-4-

that had been imposed following a community control violation because the trial 

court failed to expressly reserve a stated range of potential prison terms at the time 

of the defendant’s original sentencing hearing, as required by R.C. 2929.19(B)(4) 

and State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746. 

{¶9} In the instant case, it appears from the record that, following the 

release of this Court’s decision in Van Den Eynde, the trial court determined it had 

not adequately given the notice required by R.C. 2929.19(B)(4) to Vawter at his 

sentencing hearing, and therefore had failed to reserve the right to impose a prison 

term in the event Vawter should violate his community control.

{¶10} On June 8, 2023, Vawter filed a motion in opposition to the 

resentencing hearing, asserting that the trial court lacked the jurisdiction and 

authority to reopen the case and hold a new sentencing hearing at that time. Vawter 

noted that, pursuant to State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, the trial 

court would be able to provide the R.C. 2929.19(B)(4) notice at a subsequent 

community control violation hearing, should one be held. However, because there 

was no alleged community control violation pending at that time, Vawter argued

that holding a resentencing hearing was improper.

{¶11} On June 9, 2023, the trial court filed a judgment entry overruling 

Vawter’s objection to the resentencing. In that decision, the trial court reasoned that 

it had erred at the original sentencing hearing in failing to notify Vawter pursuant 

to R.C. 2929.19(B)(4) of the range of prison terms being reserved. Based on that 
Case No. 5-23-28

-5-

error, the trial court found Vawter’s original sentence to be invalid and therefore 

ruled that the court was not precluded from revisiting its original judgment of 

sentencing. The trial court also applied the following rationale to its decision:

Finally, from a practical standpoint, the proposed resentencing is 

consistent with what the Defendant acknowledges would be 

appropriate under Fraley. The Defendant acknowledges that the 

Court could fix this error following a community control 

violation/revocation hearing. The arguments of the Defendant are 

therefore that the Court cannot correct the error by resentencing the 

Defendant, but it would be perfectly acceptable for a violation of 

community control to be filed for the smallest, most technical 

violation of the terms of community control, for the Court to find the 

Defendant to be in violation of community control, and then sentence 

the Defendant to the exact same terms of community control and fix 

the error. This does not seem to be required by Fraley * * * .

(6/9/23 Judgment Entry, Docket No. 44).

{¶12} On June 26, 2023, a resentencing hearing was held and the trial court 

sentenced Vawter to the same five-year term of community control as had been 

originally ordered in 2022, upon the same terms and conditions as the original 

sentence of community control. (6/26/23 Tr., 8-9). The trial court then advised 

Vawter that, should he violate the terms of community control, he could be subject 

to more restrictive terms of community control or, alternatively, the trial court could 

terminate the community control and order Vawyter to serve a prison sentence from 

within the range of prison terms available for the offenses at issue, being a range of 

6 to 12 months on the fifth-degree felony and a range of 6 to 18 months on the 

fourth-degree felony. (6/26/23 Tr., 9-11).
Case No. 5-23-28

-6-

{¶13} On July 18, 2023, Vawter filed the instant appeal. Vawter raises two 

assignments of error for our review, which we shall jointly address.

First Assignment of Error

The trial court erred by sua sponte resentencing appellant when 

the original sentence was not attacked on direct appeal, nor had a 

probation violation, nor a mandate from the Court of Appeals.

Second Assignment of Error

Vawter’s 2023 resentencing violated the Double Jeopardy Clause 

of the 5th Amendment.

{¶14} In both assignments of error, Vawter asserts that the trial court erred 

in resentencing him in June of 2023, after a valid and therefore final sentence had 

already been imposed in August of 2022.

{¶15} Pursuant to R.C. 2953.08(G)(2), an appellate court may reverse a 

sentence “only if it determines by clear and convincing evidence that the record does 

not support the trial court’s findings under relevant statutes or that the sentence is 

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the 

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), 

paragraph three of the syllabus.
Case No. 5-23-28

-7-

{¶16} At issue in this appeal are the sentencing requirements set forth in 

R.C. 2929.19(B)(4), and the decisions of the Supreme Court of Ohio that have 

analyzed and applied those requirements.

R.C. 2929.19(B)(4) reads as follows:

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.

{¶17} In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, the Supreme 

Court of Ohio examined a prior version of R.C. 2929.19(B)(4), then numbered as 

R.C. 2929.19(B)(5), which in relevant part provided that, in sentencing an offender 

to community control, a trial 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 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.
Case No. 5-23-28

-8-

{¶18} In Brooks, the Ohio Supreme Court identified two main issues to 

consider in evaluating a trial court’s compliance with R.C. 2929.19(B)(5): first, the 

point in time at which the notice must be given and, secondly, the extent of the 

notice required by the statute and the language that must be used by a trial court 

when giving the notice. Brooks, at ¶ 13. As to the former, the Supreme Court held 

that “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.” Brooks, at ¶ 29. 

The Supreme Court specifically held that this notice must be given “at the 

sentencing hearing” and that “notification given in a court’s journal entry issued 

after sentencing does not comply with R.C. 2929.19(B)(5).” (Emphasis added.) 

Brooks, at ¶¶ 15-18. 

{¶19} Shortly after the Brooks decision was issued, the Supreme Court of 

Ohio again considered the issue of the timing of the notification required by R.C. 

2929.19(B)(5) in State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110. In Fraley, 

the trial court originally sentenced the defendant to community control but did not 

notify the defendant at the original sentencing hearing of a specific prison term that 

could be imposed should the terms of community control be violated. Id., at ¶ 1. 

However, at a subsequent community control violation hearing where the defendant 

was found to have violated his community control but was continued on community 
Case No. 5-23-28

-9-

control, the trial court then informed the defendant pursuant to R.C. 2929.19(B)(5) 

of the specific prison terms that could be imposed should there be further 

community control violations. Id., at ¶ 4. The defendant subsequently violated his 

community control again, and the trial court terminated the community control and 

imposed a prison sentence, which the defendant then appealed. Id., at ¶¶ 5-7.

{¶20} On appeal, the defendant in Fraley argued that the lack of the R.C. 

2929.19(B)(5) prison term notification at the original sentencing hearing prohibited 

the trial court from imposing a prison sentence in the case. Fraley, supra, at ¶¶ 6-8. 

When the Supreme Court of Ohio considered the issue, the Court held that when a 

community control violation occurs, and a defendant is found to have committed a 

violation, “the court sentences the offender anew [.]” Id., at ¶ 17. Accordingly, the 

Ohio Supreme Court held that a trial court “could therefore comply with both the 

sentencing statutes and our holding in Brooks if at this second hearing the court 

notifies the offender of the specific prison term that may be imposed for a 

subsequent violation occurring after this second hearing.” Id. On that basis, the 

Supreme Court found that the trial court in that case was authorized to impose a 

prison term because the trial court had complied with the notice requirement in R.C. 

2929.19(B)(5) by correcting the initial Brooks violation at a later sentencing 

hearing. Id., at ¶19.

{¶21} In the instant case, as previously noted, the trial court relied on the 

decision of the Supreme Court of Ohio in State v. Fraley, supra, in overruling 
Case No. 5-23-28

-10-

Vawter’s objection to being resentenced. We find that the trial court interpreted

Fraley too broadly. The Fraley decision does not authorize or support holding the 

resentencing that occurred in this case, even though, as the trial court pointed out, 

Fraley clearly authorizes correcting the R.C. 2929.19(B)(4) notice at a community 

control violation hearing, should there be one. 

{¶22} As detailed above, the Supreme Court of Ohio determined in Fraley

that a Brooks violation at an initial sentencing hearing could be subsequently 

remedied by providing the R.C. 2929.19(B)(5), now R.C. 2929.19(B)(4), notice at 

a subsequent community control violation hearing. However, the decision in Fraley 

was based strictly on the rationale that a community control violation hearing 

constitutes another sentencing hearing and, therefore, notifying a defendant at such 

a hearing of the prison term that may be imposed for a subsequent community 

control violation satisfies the requirement that the notice be given at the sentencing 

hearing. We find nothing in the Fraley decision that supports the proposition that a 

new sentencing hearing can be held for the sole purpose of correcting a Brooks

violation that occurred at the original sentencing.

{¶23} Our decision here is also guided by the well-established rule that “trial 

courts lack authority to reconsider their own valid final judgments in criminal 

cases.” State ex rel. White v. Junkin, 80 Ohio St.3d 335, 338, 686 N.E.2d 267 (1997), 

citing State ex rel. Hansen v. Reed, 63 Ohio St.3d 597, 589 N.E.2d 1324 (1992). 

That rule stems from the fact that the Double Jeopardy Clause protects a defendant’s 
Case No. 5-23-28

-11-

right to finality for an acquittal and prevents multiple punishments for the same 

conviction. Brook Park v. Necak, 30 Ohio App.3d 118, 506 N.E.2d 936 (1986), 

citing Benton v. Maryland, 395 U.S. 784, 795-796, 89 S.Ct. 2056, 23 L.Ed.2d 707 

(1969).

{¶24} In the instant case, notwithstanding the general rule concerning the 

finality of judgments in criminal cases, the trial court reasoned that a resentencing 

hearing was appropriate because the original sentence was invalid due to the error 

at the original sentencing hearing in failing to notify Vawter of the prison terms 

being reserved pursuant to R.C. 2929.19(B)(4). For that reason, the trial court found 

that it was not precluded from revisiting its original judgment of sentencing. 

{¶25} In that regard, we note that there was previously a line of Ohio 

Supreme Court precedent that may have supported the trial court’s rationale that 

such an error at sentencing rendered the sentence void and therefore not final. See, 

e.g., State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795. 

However, the Supreme Court of Ohio “realigned” its “void-sentence jurisprudence” 

in State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, and State v. Henderson, 

161 Ohio St.3d 285, 2020-Ohio-4784. Pursuant to Harper and Henderson, 

“sentences based on an error” are voidable, not void, “if the court imposing the 

sentence has jurisdiction over the case and the defendant.” Henderson, at ¶ 1; see 

also Harper at ¶ 4. If a sentencing error renders a defendant’s sentence voidable, 
Case No. 5-23-28

-12-

the error must be challenged on direct appeal, or the sentence will be subject to res 

judicata. Harper, at ¶ 43.

{¶26} In this case, there is no claim that the trial court lacked subject-matter 

jurisdiction over Vawter’s case or personal jurisdiction over Vawter himself when 

he was originally sentenced in August of 2022. Accordingly, even assuming 

arguendo that the Brooks error at sentencing rendered the sentence voidable, the 

sentence was not challenged on direct appeal. As a result, Vawter had a legitimate 

expectation of finality in his sentence when that original sentence was imposed in 

2022, and the protections of the Double Jeopardy Clause prohibited the trial court 

from reopening the case in 2023 to reconsider or amend the final judgment

previously entered.

{¶27} We therefore sustain Vawter’s two assignments of error.

Conclusion

{¶28} Having found error prejudicial to the defendant-appellant, Victor A. 

Vawter, in the particulars assigned and argued, the June 26, 2023 judgment of the 

Hancock County Court of Common Pleas is reversed and vacated.

Judgment Reversed and Vacated

WILLAMOWSKI, P.J. AND ZIMMERMAN, J., concur