Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-617195-A
ATTORNEY FOR APPELLANT Mary Catherine Corrigan
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor, Kevin E. Bringman Assistant County
BEFORE: Stewart, P.J., Laster Mays, J., and Jones, J.
JOURNAL ENTRY AND OPINION
J. STEWART, PRESIDING JUDGE
Defendant-appellant Kimberly Briscoe pleaded guilty to
aggravated vehicular assault and driving under the influence
of alcohol or drugs. The court sentenced Briscoe to community
control for each count and a jail term of 120 days. On
appeal, she argues that the court erred in sentencing as to
the aggravated vehicular assault. The state concedes the
error and we agree.
As relevant to this appeal, Briscoe initially pleaded guilty
to aggravated vehicular assault, in violation of R.C.
2903.08(A)(2)(b), as charged in the indictment. The charge
included a specification for driving under a suspended
licence at the time of the incident, which elevated the
offense to a third-degree felony. See R.C.
2903.08(C)(2). Briscoe and the state both agreed that the
offense level was correct.
Prior to sentencing, the state moved to amend the charge by
deleting the specification. Briscoe and the state
nevertheless erroneously confirmed to the court that the
offense was still a felony of the third degree. The court
accepted the amendment and sentenced Briscoe accordingly.
Removing the specification, however, actually reduced the
offense level to a fourth-degree felony. See R.C.
2903.08(C)(2). The court's journal accurately reflects
that the charge was amended but it incorrectly lists the
offense level as a third-degree felony. This error requires
reversal. See State v. Russell 8th Dist. Cuyahoga
No. 87608, 2006-Ohio-6764, ¶ 29.
In addition to this error, at sentencing the court failed to
notify Briscoe that it would impose a definite penalty should
she violate the terms of her community control. The court was
required to "notify the offender of the
'specific' term the offender faces for violating
community control." State v. Brooks, 103 Ohio
St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 19, quoting
R.C. 2929.19(B)(5). The court did not do this. Instead, it
informed Briscoe that in the event she violated community
control, the court would "have the option of placing you
in prison[, ] or I can place you in county jail for up to 180
days[, ] or I can send you to the community based
correctional facility for up to six months * * *." (Tr.
The court's journal entry further compounds the error. As
noted, the offense for which Briscoe was convicted is a
fourth-degree felony that carries a maximum 18-month prison
sentence. See R.C. 2929.14(A)(4). R.C. 2929.15(B)(3)
provides that the prison sentence for a community control
violation shall be "within the [statutory] range"
of the offense, and "not exceed the prison term
specified" at sentencing. The court's journal entry
states that a "[violation of the terms and conditions
may result in more restrictive sanctions, or a prison term of
36 month(s) as approved by law."
Finally, the court erred by imposing a mandatory three-year
term of postrelease control. As relevant here, R.C.
2967.28(C) provides that a prison sentence for a felony of
the fourth degree may include a term of postrelease control
for up to three years, subject to the discretion of the
parole board. Thus the court did not validly impose
postrelease control. State v. Grimes, 151 Ohio St.3d
19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 13 ("[T]o
validly impose postrelease control, a minimally compliant
entry must provide the [parole authority] the information it
needs to execute the postrelease-control portion of the
Judgment reversed and remanded for resentencing.
ordered that appellant recover of appellee ...