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State v. Olverson

Court of Appeals of Ohio, First District, Hamilton

December 22, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
DANTE OLVERSON, Defendant-Appellant.

         Criminal Appeals From: Hamilton County Court of Common Pleas, Trial Nos. B-1402117, B-1402485

          Joseph T. Deters, Prosecuting Attorney, and Scott Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Timothy McKenna, for Defendant-Appellant.

          OPINION

          CUNNINGHAM, PRESIDING JUDGE.

         {¶1} 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 consecutive sentences.

         {¶2} 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.

         I. Background Facts and Procedure

         {¶3} 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 a condition.

         {¶4} 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.

         {¶5} 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.

         II. Analysis

         {¶6} 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 months.

         {¶7} 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.

         {¶8} 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, ΒΆ 6. ("[U]nder both the Revised Code and [the Ohio Supreme Court's] decisions, a conviction is composed of a finding of ...


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