[Cite as State v. Rose , 2020-Ohio-3605.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, Appellee,

- vs -

JEREMY ROSE, Appellant. :

:

:

:

:

: CASE NO. CA2019-05-054

O P I N I O N 7/6/2020

CRIMINAL APPEAL FROM WARREN CO UNTY COURT OF COMMON PLEAS Case No. 18CR34932

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee Thomas G. Eagle Co., L.P.A., Thomas G. Eagle, 3400 N. State Rou te 741, Lebanon, Ohio 45036, for appellant

HENDRICKSON, P.J. {¶ 1} Appellant, Jeremy Rose, appeals from the sentence he received i n the Warren County Court of Common Pleas following the revocation of his community control. For the reasons set forth below, we affirm his sentence. {¶ 2} On February 22, 2019, appellant pled guilty to one count of obs tructing official business in violation of R.C. 2921.31(A), a felony of the fifth degree, one count of assault inWarren CA2019-05-054

- 2 - violation of R.C. 2903.13(A), a misdemeanor of the first degree , and three counts of violating a protection order in violation of R.C. 2919.27(A)(1), felonies of the fifth degree. The charges arose out of appellant's interactions with H.L., the mo ther of two of his children, despite an order of protection preventing him from having conta ct with her. On one occasion, appellant went to H.L.'s home, where he had a physica l altercation with H.L.'s

father. {¶ 3} On April 3, 2019, the trial court sentenced appellant to five y ears of community control. Appellant was placed on electronically monitored hous e arrest and ordered to complete a mental health assessment and follow all recommendati ons, to refrain from having contact with H.L.'s father, to complete a corrective thi nking class and the Batterer's Intervention Program, and to obtain a valid driver's license. Appellant was advised that a violation of the terms of his community control could result in the imposition of a 12-month prison sentence for obstructing official business, a 180-day ja il sentence for assault, and 6- month prison sentences for each conviction of violating a prote ction order. The court informed appellant that each prison term for violating a protec tion order would be served consecutively to each other and consecutively to the sentence f or obstructing official business, for a total prison sentence of 30 months. {¶ 4} On April 24, 2019, less than a month after sentencing, appellan t's probation officer filed a report asserting that appellant had broken four terms of his community control. The probation officer alleged appellant (1) failed to comply wi th the rules of his electronic monitoring, (2) was found in possession of drug paraphernalia, (3) was found in possession of firearm ammunition, and (4) failed to enroll in the Batterer 's Intervention Program as ordered. Appellant denied the violations, and a violation hear ing was held on May 8, 2019. After hearing from six witnesses, including appellant and H.L., the trial court found appellant guilty of all charged violations.Warren CA2019-05-054

- 3 - {¶ 5} The trial court revoked appellant's community control and sente nced appellant to 12 months in prison for obstructing official busin ess, six months in jail for assault, and six months in prison for each of the three counts of violating a protection order. The six-month jail sentence for assault was run concurrently to the 12-month prison term for obstructing official business. The six-month prison terms for each count of violating a protection order were ordered to be served consecutively to eac h other and consecutively to the 12-month prison sentence for obstructing official busine ss, for a total prison term of 30 months. At the time the trial court revoked appellant's com munity control and imposed the consecutive sentences, the court made the consecutive-sente ncing findings required by R.C. 2929.14(C)(4). Fifteen days later, on May 23, 2019, th e trial court held a resentencing hearing in order to make a finding that the commun ity control violations committed by appellant were not technical in nature. {¶ 6} Appellant appealed from the revocation of his community control , assigning the following as his only assignment of error: {¶ 7} THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES

ON A COMMUNITY CONTROL VIOLATION. {¶ 8} In his sole assignment of error, appellant argues that the tria l court erred in imposing consecutive prison terms for his violation of communit y control because "the original sentencing did not include statutory findings required for imposition of consecutive sentences." Appellant contends that when the trial court initi ally sentenced him on April 3, 2019 to community control and advised him of the prison terms t hat could be imposed for violating the terms of his community control, the trial court w as required, at that time, to make consecutive-sentencing findings. Appellant maintains that because the consecutivesentence findings were not made at the April 3, 2019 hearing, t he trial court could not lawfully impose consecutive sentences upon revoking community c ontrol in May 2019.Warren CA2019-05-054

- 4 - {¶ 9} In State v. Brooks , 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 29, the Ohio Supreme Court held that "pursuant to R.C. 2929.19(B)[4] and 292 9.15(B), a trial court sentencing an offender to a community control sanction must, at the time of sentencing, notify the offender of the specific prison term that may be imp osed for a violation of the conditions of the sanction, as a prerequisite to imposing a pri son term on the offender for a subsequent violation." The trial court complied with the requi rements of R.C. 2929.19(B)(4) and 2929.15(B) at the time it imposed appellant's sentence on A pril 3, 2019. The court notified appellant that he could face consecutive prison terms if he were to violate his community control. Contrary to appellant's assertions, the cou rt was not required to make the consecutive-sentencing findings at that time. See State v. Duncan , 12th Dist. Butler Nos. CA2015-05-086 and CA2015-06-108, 2016-Ohio-5559, ¶ 41-47 ( holding that a trial court is required to make the requisite R.C. 2929.14[C][4] cons ecutive-sentencing findings "not when it sentences a defendant to community control, but wh en it actually imposes a consecutive prison term" upon revocation of community control); State v. Howard , Slip Opinion No. 2020-Ohio-3195, ¶ 24-27 (holding that consecutive p rison terms are "not imposed until the trial court revoke[s] [a defendant's] communi ty control," at which time, the R.C. 2929.14[C][4] findings are required to be made). After al l, at appellant's April 3, 2019 sentencing, appellant's prison terms "were only potential in na ture." Id. at ¶ 24. {¶ 10} As the supreme court has explained, "[f]ollowing a community co ntrol violation, the trial court conducts a second sentencing hearing . At this second hearing, the court sentences the offender anew and must comply with the relevant sentencing statutes. " (Emphasis added.) State v. Fraley , 105 Ohio St.3d 13, 2004-Ohio-7110, ¶ 17. At the new sentencing hearing, the court has the discretion to impose the prison term it previously notified the offender of, to impose a shorter prison term, or t o impose no prison term at all. R.C. 2929.15(B); Howard at ¶ 25. If the court decides to impose a prison term for a v iolationWarren CA2019-05-054

- 5 - of community control, the prison term must comply with R.C. 292 9.14. See R.C. 2929.15(B)(1)(c); State v. Glenn , 12th Dist. Butler No, CA2019-05-088, 2020-Ohio-2880, ¶ 12. "R.C. 2929.14(C)(4) becomes relevant when 'multiple prison terms are imposed. '" (Emphasis sic.) Howard at ¶ 27, citing R.C. 2929.14(C)(4). Where a court chooses to impose a prison term for multiple offenses after revoking a def endant's community control, "R.C. 2919.14(C)(4) require[s] the court to make the required c onsecutive-sentencing findings at that time ." (Emphasis added.) Id. at ¶ 25. After all, a prison term is "not imposed until the trial court revoke[s] [the offender's] community cont rol." Id. at ¶ 27. {¶ 11} Accordingly, as the consecutive-sentencing findings were not re quired to be made until the trial court revoked appellant's community contro l and imposed consecutive sentences for the community control violations, we find no meri t to appellant's argument that consecutive-sentencing findings were required to be made a t the April 3, 2019 hearing.

Based on this court's decision in Duncan and the Ohio Supreme Court's decision in Howard , we decline appellant's invitation to adopt the Sixth District C ourt of Appeals' holding in State

v. Diehl , 6th Dist. Wood No. WD-18-041, 2019-Ohio-3818. 1 Furthermore, as appellant does not dispute and the record reflects that the court made the nec essary R.C. 2929.14(C)(4) consecutive-sentencing findings at the May 8, 2019 revocation h earing, we find no error in

1. In State v. Diehl , 6th Dist. Wood No. WD-18-041, 2019-Ohio-3818, the Sixth Distr ict Court of Appeals reversed a trial court's imposition of consecutive sentences up on the revocation of a defendant's community control. The court determined that the trial court was require d to make consecutive sentencing findings at the initial sentencing hearing, even though the defendant was being placed on community control at that time. The Sixth District stated, in relevant part, that the trial court at the original sentencing hearing did not make any of the required findings to impose consecutive prison terms as a penal ty for the violation of the multiple community control sanctions and, ther efore, the notice of the specific prison term was contrary to law to this extent. Therefore, the trial court could not impose consecutive prison terms for t he later violations of the community control.

Id. at ¶ 17. The state appealed the Sixth District's decision to the Ohio Supreme Court, who accepted jurisdiction of the case and ordered that the cause be held for the court's decision in State v. Howard , Case No. 2018-0376. See State v. Diehl , 158 Ohio St.3d 1421, 2020-Ohio-647 (Entry Granting Discretion ary Appeal).Warren CA2019-05-054

- 6 - the trial court's imposition of consecutive sentences. Appella nt's sole assignment of error

is overruled. {¶ 12} Judgment affirmed.

S. POWELL and RINGLAND, JJ., concur.