State v. South

[Cite as State v. South, 2010-Ohio-983.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 14-07-40

v.

CHARLES R. SOUTH, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court
Trial Court No. 2006 CR 168

Judgment Affirmed

Date of Decision: March 15, 2010

APPEARANCES:

Alison Boggs for Appellant

Terry L. Hord for Appellee
Case No. 14-07-40

WILLAMOWSKI, P.J.

{¶1} Defendant-Appellant, Charles R. South, brings this appeal from the

judgment of the Court of Common Pleas of Union County revoking his

community control and sentencing him to an eighty-four month prison term. For

the reasons set forth below, the judgment is affirmed.

{¶2} On November 22, 2006, the Union County Grand Jury indicted

South for seven counts of nonsupport of dependents in violation of R.C.

2919.21(B), felonies of the fifth degree. South entered a plea of not guilty as to all

counts in the indictment on December 4, 2006, and was referred to indigent

counsel services. Indigent counsel was appointed on December 8, 2006. On

February 2, 2007, South withdrew his plea of not guilty and entered a plea of

guilty as to all counts in the indictment, which the trial court accepted.

{¶3} South was sentenced on March 7, 2007, to a thirty-day jail term and

three years of community control, stating that “[i]f the defendant violates the terms

and conditions of Community Control, the same conditions may be re-imposed, a

greater continuum of sanctions may be imposed, or the Defendant will be

sentenced to a maximum total term of imprisonment of 84 months.” Mar. 7, 2007,

Entry, 2. Additionally, the trial court listed the terms of community control,

including the following:

5) The Defendant is further ordered to make immediate
arrangements with the Union County Child Support
Enforcement Agency to pay and will pay pursuant to said

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arrangements all support arrearages to date, and to pay support
as ordered in the sum of $548.50 each month, and to pay all
arrearages owed for support in the sum of $15,772.24.

***

16) Defendant shall not use, possess, or imbibe/ingest alcoholic
beverages and/or Scheduled drugs not prescribed by his
physician, nor shall Defendant enter any business establishment
the primary purpose of which is to dispense alcoholic beverages.

Id. No appeal was taken from these judgments.

{¶4} On September 4, 2007, South’s probation officer filed a notice of

violation of the conditions of community control, alleging that South registered a

.190 and .193 on a breath analysis test. The trial court held a community control

violation hearing on September 12, 2007, during which South admitted the

allegations. The trial court then proceeded to sentence South to a twelve-month

prison term on each conviction of nonsupport of dependents, to be served

consecutively, for a total prison term of eighty-four months, or seven years. South

appealed this judgment.

{¶5} On March 17, 2008, this court dismissed South’s appeal in State v.

South, 3d Dist. No. 14-07-40, 2008-Ohio-1143 (South I), finding that the original

sentencing entry issued by the trial court was not a final appealable order for the

reasons set forth in State v. Goldsberry, 3d Dist. No. 14-07-06, 2007-Ohio-5493

(Goldsberry I). On December 24, 2008, the Ohio Supreme Court reversed our

decision in South I without discussion, and remanded the matter for this Court to

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rule on the merits of the assignments of error. See State v. South, 120 Ohio St.3d

358, 2008-Ohio-6693 (South II). See, also, State v. Goldsberry, 120 Ohio St.3d

275, 2008-Ohio-6103 (Goldsberry II). On remand, South presents the following

assignments of error for our review.

First Assignment of Error

The trial court erred when it imposed maximum, consecutive
prison sentences.

Second Assignment of Error
The trial court’s decision to revoke [South’s] community
control was an abuse of discretion.

Third Assignment of Error

The trial court erred when it failed to determine whether
[South] willfully failed to violate (sic) the terms of his
community control by not conducting a hearing to determine if
he had an ability to pay his child support before revoking his
community control.

{¶6} In his first assignment of error, South contends that the trial court

erred when it imposed maximum, consecutive prison sentences. Specifically, he

argues that R.C. 2929.14(E)(4) permits a court to impose consecutive sentences

only when it finds they are needed to protect the public from future crime or to

punish the offender. South argues that no evidence was presented that he was a

threat to the public, and that his sentence was very disproportionate to his crime of

nonsupport of dependents. This court disagrees.

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{¶7} The trial court has full discretion to impose any sentence within the

statutorily authorized ranges, including maximum and consecutive sentences.

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶37, 846 N.E.2d 1. At the

time of the original sentence placing a defendant on community control, the trial

court must notify the defendant of the duration of the possible prison term that

could result if community control is violated. R.C. 2929.19(B)(5). Following a

community control violation, the trial court must comply with the sentencing

requirements when ordering a sentence for the violations. State v. Fraley, 105

Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995. Here, South was informed at

the original sentence that if he violated the terms of his community control, he

would receive up to 84 months in prison. The trial court indicated that it

considered the record, the statements of the State, South’s statement in mitigation,

the presentence report, and the statutory factors as required. The trial court then

proceeded to sentence South to 84 months in prison for the community control

violations. Since this time was within the statutory range for the underlying

offenses and South was properly notified of the consequences of violating his

community control sanctions, the trial court did not abuse its discretion in

imposing this sentence. The first assignment of error is overruled.

{¶8} In his second assignment of error, South contends that the trial

court’s decision to revoke his community control was an abuse of discretion.

Specifically, he argues that the trial court should not have revoked his community

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control based on his alcohol consumption because this was a “small” violation of

his community control, and that the transcript demonstrates the trial court also

considered that he had not paid his child support since being placed on community

control, even though a violation notice was never filed for this alleged offense.

If the conditions of a community control sanction are violated or
if the offender violates a law or leaves the state without the
permission of the court or the offender’s probation officer, the
sentencing court may impose a longer time under the same
sanction if the total time under the sanctions does not exceed the
five-year limit specified in division (A) of this section, may
impose a more restrictive sanction under section 2929.16,
2929.17, or 2929.18 of the Revised Code, or may impose a prison
term on the offender pursuant to section 2929.14 of the Revised
Code. The prison term, if any, imposed upon a violator
pursuant to this division shall be within the range of prison
terms available for the offense for which the sanction that was
violated as imposed and shall not exceed the prison term
specified in the notice provided to the offender at the sentencing
hearing pursuant to division (B)(3) of section 2929.19 of the
Revised Code.

R.C. 2929.15(B). “Once the court finds a community control violation exists, we

review the court's decision to revoke community control under an abuse of

discretion standard.” State v. Belcher, 4th Dist. No. 06CA32, 2007-Ohio-4256,

¶20. An abuse of discretion implies that the trial court’s attitude was arbitrary,

unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 450 N.E.2d 1140.

{¶9} In this case, South admitted to violating the terms of his community

control by consuming alcohol. This violation occurred within the first six months

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of South’s release from jail. Additionally, South had not made arrangements

during that time to pay his child support and arrearages although the community

control sanctions required him to do so immediately. This failure was particularly

offensive to the trial court since the underlying charges were seven counts of

failure to pay child support. South had not maintained employment as required by

the community control sanctions. Although the trial court’s decision to terminate

community control for a “minor” violation of the terms may seem harsh, it is not

an abuse of discretion. Thus, the second assignment of error is overruled.

{¶10} Finally, South argues that the trial court erred when it failed to hold

a hearing to determine his ability to pay his child support, and thus, to determine

whether he willfully failed to comply with the terms of his community control

requiring him to pay child support. Specifically, South contends that a trial court

must make a determination of whether the defendant willfully refused to pay child

support or did not make sufficient efforts to acquire resources to pay before

revoking community control in a nonsupport of dependents case. This court has

recently addressed this issue in State v. Bowsher, 3d Dist. No. 14-07-32, 2009-

Ohio-6524. In Bowsher, the defendant was convicted of twelve counts of failing

to pay child support and was placed upon community control. A few months

later, his probation officer filed a notice of violation of community control

alleging that Bowsher had failed to pay his child support and failed to complete his

community service. The trial court then imposed a six year sentence on Bowsher.

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On appeal, this court reversed the judgment and remanded the matter for a hearing

to determine Bowsher’s ability to pay.

{¶11} Unlike the case in Bowsher, no alleged violation was made based

upon South’s failure to pay his child support. Rather the violation for which South

was sentenced was his consumption of alcohol, which was prohibited by the terms

of the community control. Specifically, the trial court made the following finding.

[T]he Court finds the Defendant violated his community control
in the following particulars:

On or about September 9, 2007 [South] registered .190 and .193
on the Breath-A-Lyzer.

It is hearby ordered that the attached journal entry is
incorporated herein and the Court finds that the shortest prison
term will demean the seriousness of the offender’s conduct and
will not adequately protect the public from future crimes by the
offender or others.

Sept. 12, 2007, entry, 1. Since South’s community control sanctions were not

terminated for failure to pay child support, but rather for a different violation, the

trial court had no duty to inquire into his ability to pay. The third assignment of

error is overruled.

{¶12} Having found no error prejudicial to the appellant herein the

judgment of the trial court is affirmed.

Judgment Affirmed

SHAW, J., concurs.

/jlr

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ROGERS, J., Dissents

{¶13} I respectfully dissent from the opinion of the majority.

{¶14} In March 2007, the trial court convicted South of seven counts of

nonsupport of dependents and imposed a lump three-year term of community

control. Additionally, the journal entry of sentence reflects that South was notified

that if he “violates the terms of Community Control, the same conditions may be

re-imposed, a greater continuum of sanctions may be imposed, or the Defendant

will be sentenced to a maximum total term of imprisonment of 84 months.” (Mar.

2007 Journal Entry of Sentence, p. 2).

{¶15} In September 2007, the trial court found that South had violated the

terms of his community control by registering a .190 and .193 on a breath analysis

test. The trial court proceeded to sentence South to a twelve-month prison term on

each of his seven convictions for nonsupport of dependents, to be served

consecutively, for an aggregate seven-year prison term.

{¶16} As stated in my dissenting opinion in State v. Goldsberry, 3d Dist.

No. 14-07-05, 2009-Ohio-6026, ¶¶22-37 (Goldsberry III), and my separate

concurrence in State v. Bowsher, 3d Dist. No. 14-07-32, 2009-Ohio-6524, ¶¶8-15,

I would find that the trial court committed plain error in sentencing South to seven

prison terms for violating his community control when it initially imposed only

one term of community control at his original sentencing. Further, I would find

that plain error also occurred because the trial court did not advise South at his

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original sentencing of specific prison terms that it would impose on each count of

nonsupport if he violated the terms of his community control. I would raise these

issues sua sponte and would consider them under the plain error standard.

{¶17} In order to find plain error under Crim.R. 52(B), there must be an

error, the error must be an “obvious” defect in the trial proceedings, and the error

must have affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27,

2002-Ohio-68. Plain error is to be used “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.”

Id. Plain error exists only in the event that it can be said that “but for the error, the

outcome of the trial would clearly have been otherwise.” State v. Biros, 78 Ohio

St.3d 426, 431, 1997-Ohio-204; see, also, State v. Johnson, 3d Dist. No. 2-98-39,

1999-Ohio-825. This Court has previously determined that plain error occurs

when a trial court fails to provide proper notice to a defendant of a specific prison

term it will impose in the event of a community control violation, and then

imposes a prison term upon the defendant when he violates his community

control. State v. Moore, 3d Dist. Nos. 5-07-18, 5-07-20, 5-07-21, 2008-Ohio-

1152.

{¶18} In State v. Goldsberry, 3d Dist. No. 14-07-06, 2007-Ohio-5493

(Goldsberry I), and State v. South, 3d Dist. No. 14-07-40, 2008-Ohio-1143 (South

I), this Court considered, sua sponte, whether a trial court’s journal entry of

sentence that imposed a lump community control sentence for a multiple count

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conviction constituted a final appealable order. Consistent with the previous

decisions of this Court, as well as several other courts of appeal, we determined

there was no final appealable order in either case because the trial court’s journal

entries of sentence failed to separately dispose of each of the multiple counts for

which the defendants were convicted. See South I; Goldsberry I; State v. Moore,

3d Dist. No. 14-06-53, 2007-Ohio-4941; State v. Sanchez, 2d Dist. No. 2006-CA-

154, 2009-Ohio-813; State v. Phillis, 4th Dist. No. 06CA75, 2007-Ohio-6893;

State v. Waters, 8th Dist. No. 85691, 2005-Ohio-5137; State v. Cooper, 8th Dist.

No. 84716, 2005-Ohio-754; State v. Hicks, 8th Dist. No. 84418, 2004-Ohio-6113;

State v. Goodwin, 9th Dist. No. 23337, 2007-Ohio-2343; State v. Hoelscher, 9th

Dist. No. 05CA0085-M, 2006-Ohio-3531; State v. Garner, 11th Dist. No. 2002-T-

0025, 2003-Ohio-5222 (holding that “[n]owhere in R.C. 2929.15, which governs

community control sanctions, does it state that if a court chooses to sentence a

person to something other than a prison term the court may only impose a single

term, regardless of the number of charges”). However, the Supreme Court of Ohio

reversed our decisions, without opinions, and remanded the matters for us to rule

on the merits. See State v. South, 120 Ohio St.3d 358, 2008-Ohio-6693 (South II);

State v. Goldsberry, 120 Ohio St.3d 275, 2008-Ohio-6103 (Goldsberry II ).

{¶19} I reiterate the reasoning behind this Court’s finding in Goldsberry I

and South I that a trial court must separately dispose of each count of a conviction,

as expressed in Goldsberry III (Rogers, J., dissenting). In summary, I believe that,

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pursuant to the prior decisions of this Court, as well as other courts of appeal, the

language of the applicable statutes, and the principles of Ohio’s felony-sentencing

scheme, pronounced by the Supreme Court of Ohio, trial courts must separately

dispose of each count of which a defendant is convicted, including setting forth

specific terms of community control on each count. See Id. Additionally, I

reiterate my belief that R.C. 2929.19(B) requires a trial court to advise an offender

of a specific prison term that will be imposed on each individual count if the

offender violates the terms of his community control, given the Supreme Court of

Ohio’s emphasis on specificity as set forth in State v. Brooks, 103 Ohio St.3d 134,

2004-Ohio-4746. See Goldsberry III, 2009-Ohio-6026, at ¶¶31-34 (Rogers, J.,

dissenting).

{¶20} Here, I would find that the trial court failed to properly advise South

at his original March 2007 sentencing of specific prison terms that it would

impose on each count if he violated the terms of his community control.

Additionally, I would find this to be plain error because the trial court failed to

provide South with proper notice of specific prison terms for each count of

nonsupport, but proceeded to impose seven prison terms upon his violation of

community control. See Moore, Bowsher, supra. Further, I would find that plain

error was present because South was convicted of seven counts of nonsupport, but,

at his original sentencing, received only one term of community control. As the

trial court was required to sentence him on each count separately, but sentenced

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him to only one lump term of community control, the maximum sentence that

could be imposed upon his violation of community control was twelve months, not

seven times twelve. See State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶9

(“Under the Ohio sentencing statutes, the judge lacks the authority to consider the

offenses as a group and to impose only an omnibus sentence for the group of

offenses”). Thus, the trial court deviated from the legal rule that a trial court must

impose a sentence on each count separately, the deviation is an obvious defect,

and the imposition of seven prison terms where the defendant is originally

sentenced on only one count affects a substantial right. See, also, Goldsberry III,

2009-Ohio-6026, at ¶¶35-36 (Rogers, J., dissenting). Consequently, I would

reverse and remand the matter for resentencing on these bases, with a prison term

not an option. See Brooks, 103 Ohio St.3d 134, at ¶33; Moore, 2008-Ohio-1152, at

¶11.

/jlr

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