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State v. White

Court of Appeals of Ohio, Fourth District, Hocking

September 29, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
ROBERT WHITE, Defendant-Appellant.

          Ryan Shepler, Kernen & Shepler, L.L.C., Logan, Ohio, for appellant.

          Benjamin E. Fickel, Hocking County Prosecuting Attorney, Logan, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          WILLIAM H. HARSHA, JUDGE

         {¶1} After Robert White pleaded guilty to three felony counts of intimidation, three misdemeanor counts of aggravated menacing, and three misdemeanor counts of telecommunications harassment, the Hocking County Court of Common Pleas merged his misdemeanor charges and sentenced him to five years of community control.

         {¶2} In this consolidated appeal White asserts that the trial court erred by failing to merge his felony counts of intimidation at his original sentencing hearing. White did not raise this issue during the proceedings so he forfeited all but plain error. The trial court did not err by failing to merge these offenses because the record indicates they were committed separately, i.e., at three distinct dates separated by more than four months. Because White failed to carry his burden of proof on the merger issue, we overrule his first assignment of error.

         {¶3} Next White contends that the trial court's declaration that he could serve up to 108 months in prison if he violated the terms of his community control was erroneous. The trial court did not originally advise White of any prison sentence should he violate his community control. When White subsequently violated his community control, the trial court continued that sanction, but this time advised him that a subsequent violation could result in a prison term of up to 108 months. We agree that the trial court erred by failing to notify White at the sentencing on his community-control violation of the specific prison term that may be imposed for an additional violation of the conditions of the sanction. Because White has not yet violated the terms of his community control after being resentenced, the trial court may correct the error by resentencing him with the proper notification. We sustain White's second assignment of error and remand the cause for resentencing.

         I. FACTS

         {¶4} The Hocking County Grand Jury returned an indictment charging Robert White with three counts of felony intimidation, three counts of misdemeanor aggravated menacing, and three counts of misdemeanor telecommunications harassment based upon separate incidents occurring on three different days spanning from April 2016 to August 2016. The alleged victim was Hocking County Juvenile Court employee Jamie Green. White subsequently pleaded guilty to the charges, and the trial court merged the misdemeanors into the three associated felonies, but did not merge any of the felonies for sentencing. The trial court imposed five years of community control, but did not advise him that any violation of his community control could result in the imposition of a prison sentence. White appealed from his convictions and sentence in Case No. 16CA23.

         {¶5} Shortly after his sentencing the state filed a motion to revoke his community control, alleging that White entered the courthouse with a baseball bat and thereby violated the civil protection order in favor of the juvenile court employee he had threatened. The trial court determined that White had violated his community control. But because it had failed at his original sentencing to advise him of the potential prison sentence should he violate his community control, the court recognized it could not sentence him to prison. Instead, the trial court continued White's community control, but this time advised him that if he violated it, he could be sentenced to up to 108 months in prison:

THE COURT: All right. As the court understands its role in this hearing today, the Court, in order to clear up any possible problems with this entry from October 6th, the Court needs to inform the Defendant at this point that his maximum exposure as to prison time would be 108 months. That would be three F3s times three for a total of 108 months. And that, I understand is the only possible defect as to the October 6th sentencing.
* * *
Okay. The thing is, is that my understanding is that your argument is that any defect with the October 6th hearing is that Mr. White was not informed that his maximum exposure prison time was 108 or if you're correct, 36 months.
MR. MEADE: Somewhat, Your Honor. I think the issue is that Mr. White was not notified of-pursuant to statute and I'll quote it here-of the-I'll find it exactly here-of what the sentence he would face for a violation of the community control. It's not that the-
THE COURT: I think the Court's only required to provide him with an idea of what the maximum possible * * * [t]erm would be.
MR. ARCHER: * * * [A]s Mr. Meade had indicated that the Court in order to give the defendant notice and it says shall indicate the specific prison term that may be imposed as a sanction for the violation.
THE COURT: May be imposed?
MR. ARCHER: May be. Well yeah, may be imposed, right.
THE COURT: That would indicate to me that you inform the defendant of the maximum exposure and then at the time where the sentence gets converted from a community control sanction to an actual prison sentence, hopefully we don't reach that point, but assuming you do, if the court-at that point the court would sentence the defendant either to the max or some other sentence less than the max.
* * *
Yes, to me means, you know, the court could at this time articulate the maximum potential sentence so then if we-hopefully we won't get to that point. But if we do, the Court could give the defendant ...

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