[Cite as State v. Nethers, 2014-Ohio-1579.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellee : Hon. Sheila G. Farmer, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case No. 13-CA-67 

 : 

WILLIAM J. NETHERS : 

 : 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of 

Common Pleas, Case No. 12 CR 00213 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: April 7, 2014 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

KENNETH W. OSWALT WILLIAM T. CRAMER 

LICKING CO. PROSECUTOR 470 Olde Worthington Road, Ste. 200 

JUSTIN T. RADIC Westerville, OH 43082 

20 S. Second St., Fourth Floor 

Newark, OH 43055 

 
Licking County, Case No. 13-CA-67 2 

Delaney, J. 

{¶1} Appellant William J. Nethers appeals from the July 2, 2013 judgment entry 

of the Licking County Court of Common Pleas revoking his community control sanction 

and imposing a term of six months. Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} This case arose when appellant accepted $5,952 from a victim to install a 

furnace and air conditioning unit and then failed to do any of the work. Appellant was 

charged with one count of theft pursuant to R.C. 2913.02(A)(1) and/or (A)(2), a felony of 

the fifth degree. On October 30, 2012, appellant appeared before the trial court and 

changed his plea to guilty, was found guilty, and sentenced to a term of one year of 

community control. Appellant was given 30 days to pay the balance of the restitution; if 

he failed to pay the restitution, the trial court would impose a prison term of six months. 

{¶3} On May 15, 2013, appellant was back before the trial court on the first 

stage of a motion to revoke community control. The probation department alleged 

appellant failed to report to probation after sentencing and the trial court found probable 

cause existed. 

{¶4} At the second-stage hearing on July 21, 2013, appellant argued the only 

terms and conditions of his probation were those related to him by the trial court during 

sentencing, to wit, payment of the balance of restitution. 

{¶5} Appellee called one witness, appellant’s supervising probation officer, who 

testified appellant received a copy of the terms and conditions of his probation and 

signed same on the day he was sentenced, October 30, 2012. He was ordered to pay 

restitution in addition to standard court costs, supervision fees, and attorney fees. He 
Licking County, Case No. 13-CA-67 3 

was also given an appointment card stating the date and time of his next appointment 

with the probation department. Appellant signed the terms and conditions 

acknowledging receipt. 

{¶6} Appellant never showed up for any probation appointments after the date 

of sentencing. He did pay the balance of restitution. He made two $25 payments 

toward court costs in October and November, but made no subsequent payments. The 

probation department deemed appellant to be in violation for failure to appear for 

appointments and failure to pay costs. 

{¶7} On cross examination, the probation officer stated she would not have told 

appellant his probation period would be extinguished by payment of restitution because 

the probation period, by its terms, lasted for one year. 

{¶8} The trial court found appellant to be in violation of the terms of his 

community control sanction and therefore revoked community control and imposed a 

term of six months which appellant was permitted to serve in the county jail. 

{¶9} Appellant now appeals from the judgment entry of revocation and 

imposition of sentence. 

{¶10} Appellant raises one assignment of error: 

ASSIGNMENT OF ERROR 

{¶11} “I. THE TRIAL COURT VIOLATED DUE PROCESS AND R.C. 

2929.19(B)(5) BY IMPOSING A PRISON TERM FOR VIOLATING COMMUNITY 

CONTROL CONDITIONS ON REPORTING AND PAYMENT OF COSTS AND FEES 

AFTER THE TRIAL COURT ADVISED APPELLANT AT SENTENCING THAT HE 
Licking County, Case No. 13-CA-67 4 

WOULD BE SUBJECT TO A PERIOD OF INCARCERATION ONLY IF HE FAILED TO 

PAY RESTITUTION WITHIN 30 DAYS.” 

ANALYSIS 

{¶12} Appellant argues the trial court erred in revoking his community control 

sanction because his community control was premised solely upon payment of the 

balance of restitution, not upon compliance with any other terms and conditions of 

probation. 

{¶13} R.C. 2929.19(B)(4) states: 

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 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.) 
Licking County, Case No. 13-CA-67 5 

{¶14} Appellant argues the trial court erred, not in failing to advise appellant of 

the specific term that might be imposed, but in failing to advise him of the terms and 

conditions with which he must comply. Appellant contends the trial court stated he was 

only required to pay the balance of restitution, and for the trial court to revoke 

community control and impose a prison term for violations of any other terms or 

conditions violates the Ohio Supreme Court’s holding in State v. Brooks, 103 Ohio St.3d 

134, 136, 2004-Ohio-4746, 814 N.E.2d 837. We disagree. 

{¶15} In Brooks, supra, the Ohio Supreme Court held, pursuant to R.C. 

2929.19(B)(5) [now R.C. 2929.19(B)(4)], supra, a trial court sentencing an offender to a 

community control sanction must notify the offender, at the time of the sentencing, 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. 2004-Ohio-4746 at ¶ 13. To comply with the term “specific” the sentencing 

court “should not simply notify the offender that in the event of a violation he will receive 

‘the maximum’ or another indefinite term such as ‘up to 12 months,” 'but should inform 

the defendant, in straightforward and affirmative language, of the fixed number of 

months or years the trial court can impose. Id. at ¶ 19. 

{¶16} In the instant case, we find the trial court complied with R.C. 2929.19(B)(4) 

and advised appellant he was subject to a one-year period of community control subject 

to following through with the terms and conditions of probation; otherwise he was 

subject to a prison term of 6 months. Appellant met with the probation officer, signed 

and acknowledged the terms and conditions of probation, and made two payments 
Licking County, Case No. 13-CA-67 6 

toward court costs before he stopped paying, belying his argument he was unaware of 

any terms and conditions beyond restitution. 

{¶17} We find the trial court complied with R.C. 2929.14(B)(4) and are unwilling 

to extend the holding of Brooks to imply the trial court must, at sentencing, advise the 

appellant of each and every term and condition of probation when that is the role of 

court services personnel. Nothing in Brooks or R.C. 2929.14(B)(4) requires such a 

finding, particularly when the evidence establishes appellant signed and acknowledged 

the terms and conditions of his community control sanction. 

{¶18} Appellant’s sole assignment of error is overruled. 

CONCLUSION 

{¶19} The sole assignment of error is overruled and the judgment of the Licking 

County Court of Common Pleas is affirmed. 

By: Delaney, J. and 

Hoffman, P.J. 

Farmer, J., concur.