Court of Appeals of Ohio, First District, Hamilton
Appeals From: Hamilton County Court of Common Pleas, Trial
Nos. B-1402117, B-1402485
T. Deters, Prosecuting Attorney, and Scott Heenan, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Timothy McKenna, for Defendant-Appellant.
CUNNINGHAM, PRESIDING JUDGE.
Defendant-appellant Dante Olverson appeals from the trial
court's judgments imposing consecutive prison terms after
terminating the community control initially imposed as a
sanction for two offenses and continued after a violation of
conditions of that sanction. Olverson challenges his
sentences in three assignments of error, arguing that the
trial court erred by imposing prison terms and ordering
We hold the trial court erred by imposing prison terms for
the community-control violation because the trial court did
not notify Olverson of the specific prison term it would
impose as to each offense for a subsequent violation. We
vacate Olverson's sentences on this basis and remand the
cases for resentencing with incarceration not an option.
Background Facts and Procedure
On October 28, 2014, at a hearing involving the cases
numbered B-1402117 and B-1402485, Olverson pled guilty to a
felony of the fifth degree and a felony of the third degree.
In accordance with the plea agreements, Olverson was
subjected to a prison sentence of six to 12 months for the
fifth-degree felony and nine to 36 months for the
third-degree felony. In both cases, the trial court sentenced
Olverson to a single term of nine months of community control
with conditions. The sentencing entries included language
indicating Olverson was notified at the hearing that he would
be sentenced to 46 months of incarceration for a violation of
On March 2, 2016, again at a hearing involving both cases,
Olverson pled guilty to community-control violations. The
trial court imposed a single term of six months of community
control for the violations, and told Olverson that "[i]f
you violate these terms and conditions, * * * I will give you
24 months in the Department of Corrections." Both
sentencing entries reflect, however, that the trial court
told Olverson it would "impose a prison sentence of 46
months" for a subsequent violation. These entries were
journalized on March 22, 2016.
On January 10, 2017, at a hearing involving both cases in
front of a different judge, Olverson pled guilty to
community-control violations and the trial court terminated
the community control. When determining what sentence it
could impose in each case for the violation, the trial court
looked to the notification provided to Olverson at the
previous sentencing hearing as reflected in the March 22,
2016 entries. Recognizing that a 46-month-prison term was
outside of the range of the prison terms available for either
of Olverson's offenses, the trial court imposed a
36-month term for the third-degree felony and a ten-month
term for the fifth-degree felony, to be served consecutively,
for an aggregate term of 46 months. Olverson now appeals,
challenging only his sentences.
In his first and second assignments of error, Olverson
contends that the trial court erred by sentencing him to
prison for violating a condition of his community control. He
claims the trial court's warning at the March 2, 2016
hearing that it would impose a lump sum term of
imprisonment-whether it was 46 or 24 months-did not comply
with the relevant statutes and decisional law because the
court failed to notify him of the specific prison term it
would impose with respect to each offense for another
violation. The state takes the position that Olverson was
orally notified that he would be sentenced to prison for 24
months, that the trial court erred by imposing an aggregate
prison term of 46 months, and that Olverson's sentences
must be vacated as a result. But the state argues that the
trial court on remand should be permitted to impose an
incarceration sanction for both or either offense, as long as
the prison term for all the offenses does not exceed 24
To address these issues, we review Ohio's law on felony
sentencing, including the definition of "sentence"
and "sanction, " and the specific provisions
governing the imposition and termination of community-control
sanctions. "Sentence" is defined as "the
sanction or combination of sanctions imposed by the
sentencing court on an offender who is convicted of or pleads
guilty to an offense." (Emphasis added.) R.C.
2929.01(EE). "Sanction" is defined as "any
penalty imposed upon an offender who is convicted of or
pleads guilty to an offense, as punishment for the
offense." (Emphasis added.) R.C. 2929.01(DD).
Such penalties include incarceration and community-control
sanctions. See id.
The referenced statutory language demonstrates, consistent
with Ohio decisional law, that Ohio has rejected the
sentencing-package doctrine. State v. Saxon, 109
Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 10.
Instead, the sentencing judge must "assign a particular
sentence" to each offense, "separately."
Id. at ¶ 8; see State v. Holdcroft,137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 6.
("[U]nder both the Revised Code and [the Ohio Supreme
Court's] decisions, a conviction is composed of a finding