State v. Duncan

[Cite as State v. Duncan, 2016-Ohio-5559.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :
CASE NOS. CA2015-05-086
Plaintiff-Appellee, : CA2015-06-108

: OPINION
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:

SHANNON L. DUNCAN, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case Nos. CR2012-07-1142 and CR2006-10-1877

Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 315 South Monument Street, Hamilton, Ohio 45011, for defendant-
appellant

M. POWELL, P.J.

{¶ 1} Defendant-appellant, Shannon Duncan, appeals a decision of the Butler

County Court of Common Pleas revoking her community control and sentencing her to an

aggregate 15-year prison term.

{¶ 2} The facts of this case involve two criminal cases. During a plea hearing on

March 9, 2007, appellant pled guilty in Case No. CR2006-10-1877 (the "robbery case") to

one count of aggravated robbery (Count 2), one count of robbery (Count 3), and one count
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of complicity to aggravated robbery (Count 12). The written plea agreement provided that

"Any prison term given on Count Twelve shall run concurrent to Counts Two & Three." The

plea agreement further provided, "I understand that if I violate the terms or conditions of a

community control sanction, the Court may extend the time for which I am subject to this

sanction up to a maximum of 5 years, impose a more restrictive sanction, or imprison me

for up to the maximum stated term allowed for the offense(s) of which I am found guilty."

{¶ 3} At the outset of the plea hearing, the trial court addressed the plea agreement

as follows:

I have a plea form indicating that Ms. Duncan would be entering
a plea to Count II, charging aggravated robbery, a felony of the
first degree; Count III, charging robbery, a felony of the third
degree; and Count XII, charging complicity to aggravated
robbery, a felony of the first degree. That by virtue of this plea,
[Ms. Duncan] is subjecting herself to a possible maximum prison
term of 15 years total, which would be the maximum term on
Count II, the maximum term on Count III, with an agreement that
if a prison term was imposed on Count XII, it would have to run
concurrent with the time imposed on Counts II and III. Is that an
accurate statement?

The prosecutor replied that it was.

{¶ 4} The trial court subsequently advised appellant that it was "not inclined to

consider community control as a sanction in this case," "I know I'm going to send you to

prison, but I just don't know for how long or what the appropriate period would be," "as I

stated earlier, that could be a sentence of up to 15 years in prison," and "you understand

that upon acceptance of your guilty plea, I could send you to prison for 15 years?" Each

time, appellant replied she understood. Appellant then entered her guilty plea.

{¶ 5} In April 2007, the trial court sentenced appellant to a five-year prison term on

Count 2. No prison terms were imposed on Counts 3 and 12. Rather, the trial court

sentenced appellant to five years of community control on both Counts 3 and 12, to

commence upon her release from prison on Count 2. During the sentencing hearing, the

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trial court advised appellant that if she violated her community control, the trial court would

sentence her to consecutive prison terms of 5 years on Count 3 and 10 years on Count 12,

for an aggregate prison sentence of 15 years. The sentencing entry likewise provided,

"Violation of any of this sentence shall lead to a more restrictive sanction, a longer sanction,

or a prison term of five (5) years as to Count Three and a prison term of ten (10) years as

to Count Twelve, to be served consecutively." Appellant did not appeal her conviction or

sentence. The record shows that appellant began serving her community control on Counts

3 and 12 in the fall of 2011.

{¶ 6} In October 2012, appellant pled guilty in Case No. CR2012-07-1142 to one

count of failure to comply with the order or signal of a police officer (the "failure to comply

case"). As a result, appellant was charged with violating the terms of her community control

on Counts 3 and 12 in the robbery case. On December 10, 2012, the trial court found that

appellant had violated her community control but continued it with additional sanctions, and

separately sentenced appellant to five years of community control in the failure to comply

case.

{¶ 7} During the sentencing hearing, the trial court advised appellant that if she

violated her community control, she would be sentenced to a 5-year prison term on Count

3, a 10-year prison term on Count 12, and a 36-month prison term on the failure to comply

count, all to be served consecutively for an aggregate prison sentence of 18 years. The

judgment entry in the robbery case further provided, "Violation of any of this sentence shall

lead to a more restrictive sanction, a longer sanction, or a prison term of 5 years as to Count

Three and 10 years as to Count Twelve to run consecutive to each other and consecutive

to [the failure to comply case]." Appellant did not object during the sentencing hearing and

did not appeal the judgment entry.

{¶ 8} In 2013, and again in 2014, appellant was charged with violating the terms of

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her community control in both the robbery and failure to comply cases. Ultimately, the trial

court continued community control in both cases. As before, the judgment entries in the

robbery case provided that "Violation of any of this sentence shall lead to a more restrictive

sanction, a longer sanction, or a prison term of 5 years as to Count Three and 10 years as

to Count Twelve to run consecutive to each other and consecutive to [the failure to comply

case]."1 Appellant did not appeal the judgment entries.

{¶ 9} In 2015, following her conviction for obstructing official business and her

admission she had relapsed and used cocaine and heroin, appellant was once again

charged with violating the terms of her community control in both the robbery and failure to

comply cases. On March 31, 2015, the trial court held a hearing on the community control

violations. Following appellant's admission to violating the terms of her community control,

the trial court revoked community control in both cases. The trial court then sentenced

appellant to consecutive prison terms of 5 years on Count 3, 10 years on Count 12, and 36

months on the failure to comply count, for an aggregate 18-year prison sentence. The

sentences were reflected in the April 2, 2015 sentencing entries: in the robbery case,

appellant was sentenced to a 5-year prison term on Count 3 to "be served consecutive to

Count Twelve," and to a 10-year prison term on Count 12 "to be served consecutive to [the

failure to comply case];" in turn, appellant was sentenced in the failure to comply case to a

36-month prison term to run consecutive to the robbery case.

{¶ 10} On appeal, appellant raises three assignments of error. The first and third

assignments of error will be addressed together.

1. After each of appellant's second and third violations of her community control, the trial court held a
sentencing hearing. However, appellant has failed to file a transcript of those hearings. Accordingly, we will
presume the regularity of the trial court's proceedings and conclude that in addition to the notice set forth in
the respective judgment entries, the trial court also advised appellant during the sentencing hearings of the
specific prison term she faced for any subsequent violation of her community control. See State v. Curtis,
12th Dist. Brown No. CA2015-02-007, 2015-Ohio-3404.

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{¶ 11} Assignment of Error No. 1:

{¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, IN

VIOLATION OF THE DUE PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

10 OF THE OHIO CONSTITUTION, WHERE THE COURT DID NOT FULFILL

UNEQUIVOCAL SENTENCING PROMISES EXPRESSED AT A PLEA HEARING.

{¶ 13} Assignment of Error No. 3:

{¶ 14} THE TRIAL COURT LACKED JURISDICTION AND ERRED IN REVOKING

COMMUNITY CONTROL WHERE THE ORIGINAL JUDGMENT PLACING APPELLANT

UNDER COMMUNITY CONTROL SANCTIONS WAS VOID.

{¶ 15} Appellant argues that the consecutive five-year and ten-year prison terms she

received in 2015 following revocation of her community control on Counts 3 and 12 in the

robbery case violated the promise made at the 2007 plea hearing and in her plea agreement

that "[a]ny prison term given on Count Twelve shall run concurrent to Counts Two & Three."

Consequently, appellant argues her 2007 guilty plea and conviction are void and not barred

by the doctrine of res judicata. Appellant further argues that because her 2007 guilty plea

and conviction are void, she was not properly placed on community control in 2007 and "the

trial court was without jurisdiction to revoke said community control and to impose a prison

sentence upon revocation." The state argues that appellant's claim is barred by res judicata

because appellant should have appealed the 2007 sentencing entry placing her on

community control on Counts 3 and 12 in the robbery case. The state cites this court's

decision in State v. Painter, 12th Dist. Clermont No. CA2012-04-031, 2013-Ohio-529, in

support of its argument.

{¶ 16} R.C. 2929.19(B)(4) provides that

If the sentencing court determines at the sentencing hearing that

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a community control sanction should be imposed and the court
is not prohibited from imposing a community control sanction,
the court shall impose a community control sanction. The court
shall notify the offender that, if the conditions of the sanction are
violated, * * * the court may impose a longer time under the
same sanction, may impose a more restrictive sanction, or may
impose a prison term on the offender and shall indicate the
specific prison term that may be imposed as a sanction for the
violation, as selected by the court from the range of prison terms
for the offense pursuant to [R.C.] 2929.14[.] 2

{¶ 17} R.C. 2929.15(B)(1), which details procedures for a trial court to follow when a

defendant has violated his or her community control, reiterates the three options available

to the sentencing court mentioned in R.C. 2929.19(B)(4). In the event a defendant violates

community control and the court chooses to impose a prison term, R.C. 2929.15(B)(2)

further provides that the prison term must be within the range of prison terms set forth in

R.C. 2929.14 for the offense for which community control was imposed, and cannot exceed

the prison term specified in the notice provided to the offender at the original sentencing

hearing. State v. Davis, 12th Dist. Warren Nos. CA2015-09-081 and CA2015-09-082,

2016-Ohio-879, ¶ 17.

{¶ 18} Pursuant to the foregoing, it is possible that the specific prison term of which

notice is given pursuant to R.C. 2929.19(B)(4) may never be ordered to be served. For

instance, should the defendant be found to have violated the terms of community control,

the sentencing court may elect pursuant to R.C. 2929.15.(B)(1)(a) or (b) to sentence the

defendant to a non-prison term sanction; or, if the sentencing court elects to sentence the

defendant to a prison term, pursuant to R.C. 2929.15(B)(2), the prison term may be less

than the specific prison term of which notice was given when the defendant was originally

sentenced to community control. In this sense, the specific prison term of which notice is

2. When appellant was sentenced in the robbery case in 2007, R.C. 2929.19(B)(4) was codified as R.C.
2929.19(B)(5).

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given pursuant to R.C. 2929.19(B)(4) when a defendant is sentenced to community control

is only a potential prison term.

{¶ 19} "'[F]elony sentencing statutes, contained primarily in R.C. 2929.11 to 2929.19,

require trial courts to impose either a prison term or community control sanctions on each

count.'" State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, ¶ 23, quoting State v.

Berry, 3d Dist. Defiance No. 4-12-04, 2012-Ohio-4660, ¶ 21. Pursuant to R.C. 2929.19(B),

community control sanctions and prison terms are mutually exclusive and cannot be

imposed at the same time on the same count of conviction. Anderson at ¶ 23-31; Berry at

¶ 21. Thus, under current felony sentencing statutes, a sentencing court cannot suspend

a prison term or make community control a condition of a suspended prison term. See id.

{¶ 20} The Ohio Supreme Court has held that

pursuant to R.C. 2929.19(B)[4] and 2929.15(B), a trial court
sentencing an offender to a community control sanction must,
at the time of the sentencing, notify the offender of the specific
prison term that may be imposed for a violation of the conditions
of the sanction, as a prerequisite to imposing a prison term on
the offender for a subsequent violation.

State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 29.

{¶ 21} Hence, the purpose of the community control statute is not to sentence a

defendant to a specific prison term and then suspend or reserve that prison term. Berry,

2012-Ohio-4660 at ¶ 25. Rather, the purpose of the statute is to notify the defendant of a

specific prison term that may be imposed if the defendant violates community control.

Brooks at ¶ 23 (R.C. 2929.19[B][4] notification puts the defendant on notice of the specific

prison term he faces if he violates community control); Berry at ¶ 25. In other words, when

a defendant is sentenced to community control on a count of conviction and notified at that

time of the specific prison term he faces should he violate his community control, the

defendant is only sentenced to community control sanctions and is not sentenced to that

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prison term. Id.; Brooks at ¶ 21 (while R.C. 2929.19[B][4] requires the judge to state the

specific prison term the offender faces in the event of a community control violation, that

term is not necessarily what the offender will receive if a violation occurs).

{¶ 22} "It is well-established that any penalty imposed for violating a condition of

one's community control sanctions is a punishment for that violation and not for the original

underlying offense." State v. Richter, 12th Dist. Clermont No. CA2014-06-040, 2014-Ohio-

5396, ¶ 8; see also State v. Catron, 12th Dist. Clermont No. CA2001-03-040, 2001 WL

1567238, *1 (Dec. 10, 2001) (sanctions for violating community control are not punishment

for the original offense); Davis, 2016-Ohio-879 at ¶ 17 (a revocation of community control

punishes the failure to comply with the terms and conditions of community control).

{¶ 23} Painter, which the state relies upon for its argument that appellant's claim is

barred by res judicata, involved a prison sentence that was suspended upon condition of

compliance with the terms of community control. That is, the trial court sentenced Painter

to several years in prison but suspended execution of the sentence and placed Painter on

community control. When Painter was ordered to serve the suspended sentence after he

was found in violation of the terms of his community control, he appealed, attacking the

original conviction and sentence. We held that "a sentence is imposed when it is

pronounced." Painter, 2013-Ohio-529 at ¶ 18. Consequently, a prison sentence that was

"pronounced" but suspended when the defendant was placed on community control, must

be challenged on direct appeal of the judgment entry that initially sets forth the suspended

sentence, that is, at the time the prison sentence is "pronounced," and not when community

control is later revoked and the prison sentence is imposed at that time. Id. (While an

imposed sentence may be stayed or otherwise held in abeyance, as in the case when the

accused is placed on community control, it is nevertheless sufficiently established for

purposes of appeal).

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{¶ 24} We first find that the "suspended sentence" scenario in Painter is not

applicable here. In the case at bar, unlike in Painter, the trial court did not impose prison

sentences on Counts 3 and 12 in the robbery case, suspend the sentences, and place

appellant on community control. Rather, the trial court sentenced appellant to community

control on Counts 3 and 12 and notified appellant pursuant to R.C. 2929.19(B)(4) of the

specific prison terms to which she was subject should she violate community control. In

other words, the trial court's reference to the specific prison terms was not the imposition of

a prison sentence, but rather notification of a potential prison sentence.

{¶ 25} In light of R.C. 2929.19(B)(4) and 2929.15(B), and the decisions in Richter,

Anderson, and Brooks, we believe it necessary to clarify our decision in Painter.

{¶ 26} In sentencing Painter to a suspended prison sentence and placing him on

community control, it appears the trial court in that case treated community control in the

manner probation was formerly treated. As the Ohio Supreme Court noted in Anderson,

prior to the 1995 Senate Bill 2 ("S.B. 2"), "it was a regular practice in felony sentencing to

impose a prison sentence and then suspend the sentence and grant probation with specific

terms and conditions." Anderson, 2015-Ohio-2089 at ¶ 21. As a result, probation was

typically treated by judges as a contract for leniency: "Probation was conditioned on good

behavior. Violation of that probation was a breach of contract with the sentencing judge.

For the breach, the judge could properly impose the suspended prison sentence—even for

the most trivial violation of probation." Id. However, "[w]ith the passage of [S.B. 2] in 1995,

community control replaced probation as a possible sentence under Ohio's felony

sentencing law." Id. at ¶ 22. As stated earlier, "current felony sentencing statutes * * *

require trial courts to impose either a prison term or community control sanctions on each

count." Id. at ¶ 23. Post-S.B. 2 felony-sentencing statutes "no longer discuss 'suspension'

of sentence; rather, the alternative to a sentence of imprisonment is a sentence of

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community control sanctions." (Emphasis sic.) Id. Thus, a sentencing court can no longer

suspend a prison term or make community control a condition of a suspended prison term.

{¶ 27} Therefore, we hereby clarify that the holding in Painter applies in those

instances where there is a "suspended" prison term, but not to the notice of a potential

prison term required by R.C. 2929.19(B)(4). Specifically, the R.C. 2929.19(B)(4) notice of

the potential prison term a defendant faces if he violates his community control is not

"imposed" or "pronounced" at the initial sentencing hearing when a community control

sanction is imposed. We find that the Ohio Supreme Court's opinion in Anderson, issued

two years after Painter, and holding that the current felony sentencing statutes require trial

courts to impose either a prison term or community control sanctions on each count, and

that consequently a trial court cannot suspend a prison term or make community control a

condition of a suspended prison term, supports our decision to clarify the reach of Painter.

In doing so, we recognize that there should be few situations in which Painter will apply

prospectively if trial courts follow the supreme court's opinions in Anderson and Brooks and

the procedure required by R.C. 2929.19(B)(4) when imposing community control sanctions.

{¶ 28} In light of the foregoing, it follows that appellant's claim is not barred by res

judicata. Because the prison sentence imposed in 2015 for appellant's violation of her

community control in the robbery case was a punishment for that violation, and not a

sentence for the original underlying robbery offenses, res judicata does not apply and

appellant may appeal the trial court's 2015 judgment entry sentencing her to 15 years in

prison for violation of the terms of her community control.

{¶ 29} The fact that appellant's claim is not barred by res judicata does not mean,

however, that it is meritorious. Appellant argues that her 2007 guilty plea and conviction in

the robbery case are void because the consecutive five-year and ten-year prison terms she

received in 2015 following the revocation of her community control on Counts 3 and 12 in

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the robbery case breached the promise made at the 2007 plea hearing and in her plea

agreement that "[a]ny prison term given on Count Twelve shall run concurrent to Counts

Two & Three." In essence, appellant asserts she did not receive the benefit of her plea

agreement. Appellant cites this court's decision in State v. Bonnell, 12th Dist. Clermont No.

CA2001-12-094, 2002-Ohio-5882, in support of her argument.

{¶ 30} "When a trial court promises a certain sentence, the promise becomes an

inducement to enter a plea, and unless that sentence is given, the plea is not voluntary.

Accordingly, a trial court commits reversible error when it participates in plea negotiations

but fails to impose the promised sentence." (Citation omitted.) Bonnell at ¶ 18. "The

analysis * * * centers on whether the defendant was put on notice that the trial court might

deviate from the terms of the plea agreement and whether the defendant was given an

opportunity to withdraw his plea after receiving notice." Id. at ¶ 21.

{¶ 31} Following plea negotiations in Bonnell, the state agreed to amend a charge

from robbery to attempted robbery and the trial court agreed not to sentence the defendant

to prison. However, at the sentencing hearing, the trial court sentenced the defendant to a

maximum prison sentence. The trial court did not give the defendant any notice that it

intended to deviate from the terms of the plea agreement. This court found "reversible error

* * * because the trial court explicitly promised [the defendant] it would not sentence him to

prison, then failed to follow through on its promise at the sentencing hearing without stating

its intention and without giving [the defendant] the opportunity to withdraw his plea."

Bonnell, 2002-Ohio-5882 at ¶ 22. We find that Bonnell is not applicable here.

{¶ 32} In the case at bar, appellant was clearly advised at the plea hearing and in

the written plea agreement that upon the trial court's acceptance of her guilty plea, appellant

could be sentenced up to 15 years in prison on all three charges in the robbery case, as

follows: the maximum prison term on Count 2, the maximum prison term on Count 3, and

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any prison term imposed on Count 12 to run concurrent to Counts 2 and 3. When sentenced

a month later, however, appellant was sentenced to a prison term on Count 2 only and to

community control on Counts 3 and 12, to commence upon her release from prison on

Count 2.

{¶ 33} Because appellant was sentenced in 2007 to community control on Count 12,

she cannot claim that she did not receive the benefit of her plea agreement. Consistent

with the plea agreement, no prison sentence was imposed on Count 12 ("any prison time

given on Count Twelve shall run concurrent to Counts two and Three"). There was,

therefore, no prison term on Count 12 to be served concurrently with prison terms on Counts

2 and 3. It was not until appellant violated her community control for the fourth time and

her community control was revoked in 2015 in the robbery case that she received

consecutive five-year and ten-year prison terms for those community control violations. It

is well-established that any penalty imposed for violating community control is a punishment

for that violation and not for the original underlying offense. Richter, 2014-Ohio-5396 at ¶

8. Hence, the consecutive prison sentences appellant received in 2015 were for violating

her community control in the robbery case, and not for the original underlying robbery

offenses in Counts 3 and 12.

{¶ 34} We therefore find that appellant's 2007 guilty plea and conviction are not void,

that she was properly sentenced to community control in 2007, and that the trial court had

jurisdiction in 2015 to revoke her community control in the robbery case and impose the

aggregate 15-year prison sentence upon revocation.

{¶ 35} Appellant's first and third assignments of error are accordingly overruled.

{¶ 36} Assignment of Error No. 2:

{¶ 37} THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.

{¶ 38} Appellant argues the trial court erred in imposing consecutive sentences

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following the revocation of her community control because the court failed to make the

required statutory findings under R.C. 2929.14(C)(4) during the March 31, 2015 sentencing

hearing prior to imposing consecutive sentences. The state argues appellant's claim is

barred by res judicata because appellant should have appealed the 2007 sentencing entry

placing her on community control on Counts 3 and 12 in the robbery case. Alternatively,

the state argues that the trial court was not required to make any statutory or judicial fact-

findings at the initial sentencing hearing in 2007. In support of its argument, the state cites

this court's decision in State v. Williams, 12th Dist. Warren No. CA2012-08-080, 2013-Ohio-

3410, and the Ohio Supreme Court's decision in State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177. We find appellant's argument meritorious.

{¶ 39} As stated earlier, "any penalty imposed for violating a condition of one's

community control sanctions is a punishment for that violation and not for the original

underlying offense." Richter, 2014-Ohio-5396 at ¶ 8; Catron, 2001 WL 1567238 at *1

(sanctions for violating community control are not punishment for the original offense); State

v. Artz, 2d Dist. Champaign No. 2014-CA-34, 2015-Ohio-3789, ¶ 11 (a revocation of

community control punishes the failure to comply with the terms and conditions of

community control).

{¶ 40} In Williams, this court held that the time for a trial court to make the required

statutory findings for imposing consecutive sentences pursuant to R.C. 2929.14(C)(4) is at

the initial sentencing hearing when the court places a defendant on community control and

notifies the defendant of the potential prison term he faces if he violates community control,

and not at the community control violation sentencing hearing when the trial court revokes

community control and imposes consecutive sentences. See Williams, 2013-Ohio-3410 at

¶ 42.

{¶ 41} However, the Ohio Supreme Court has held that "[f]ollowing a community

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control violation, the trial court conducts a second sentencing hearing. At this second

hearing, the court sentences the offender anew and must comply with the relevant

sentencing statutes." (Emphasis added.) State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-

7110, ¶ 17. See also State v. Heinz, Slip Opinion No. 2016-Ohio-2814, ¶ 15 (quoting Fraley

at ¶ 17); State v. Osborne, 11th Dist. Lake No. 2004-L-068, 2005-Ohio-4895. R.C.

2929.15(B), which details procedures for a trial court to follow when a defendant has

violated community control, plainly provides that if a prison term is imposed upon the

defendant for violating community control, the prison term must comply with R.C. 2929.14.

R.C. 2929.15(B)(1)(c); Catron, 2001 WL 1567238 at *2. This statutory mandate necessarily

includes the requirement that a trial court make the R.C. 2929.14(C)(4) consecutive

sentence findings when sentencing a defendant to consecutive prison terms for community

control violations.

{¶ 42} Accordingly, in light of Fraley, Heinz, and R.C. 2929.15(B), we find that the

trial court was required to make the requisite statutory findings under R.C. 2929.14(C)(4) at

the March 31, 2015 hearing when it revoked appellant's community control and sentenced

appellant anew by imposing consecutive prison terms as a penalty for the felony community

control violations in the robbery case. See Artz, 2015-Ohio-3789; State v. Lee, 12th Dist.

Butler No. CA2014-03-076, 2015-Ohio-1760, ¶ 10. It follows then that contrary to the state's

argument, appellant's claim is not barred by res judicata. We further find we need not

address whether the trial court made or was required to make these findings at the initial

sentencing hearing in 2007.

{¶ 43} In light of the foregoing, our clarification of Painter under the previous

assignments of error, and the fact Williams relied upon Painter, we believe it necessary to

revisit our holding in Williams.

{¶ 44} Williams involved the appeal of a trial court's decision sentencing the

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defendant to community control with "potential 36-month prison terms on counts two and

three to be served * * * consecutively to a 36-month prison term on count four," should the

defendant violate his community control. The defendant appealed his sentence, arguing

the trial court was required to comply with R.C. 2929.14(C)(4) when it imposed community

control and provided notice of the potential prison term he was facing should he violate

community control. The state argued that since the defendant had received a community

control sentence, and not a consecutive sentence, the trial court was not required to comply

with R.C. 2929.14(C)(4) at that time. Rather, the trial court was merely required to comply

with R.C. 2929.19(B)(4) by informing the defendant of the specific prison term he faced if

he violated his community control, which the trial court had done.

{¶ 45} Relying on our holding in Painter that a sentence is imposed when it is

pronounced, this court held that "the time for a defendant to challenge the imposition of

reserved consecutive sentences is on direct appeal of the judgment that initially sets forth

the reserved sentence." Williams, 2013-Ohio-3410 at ¶ 40. In so ruling, this court noted

how our decision in Painter was inapposite of this court's previous decisions in State v.

Sneed, 12th Dist. Butler No. CA2004-06-153, 2005-Ohio-1078, and State v. Madaffari, 12th

Dist. Butler No. CA2004-08-193, 2005-Ohio-3625, and ultimately overruled Sneed and

Madaffari as follows:

In Sneed and Madaffari, the defendants were sentenced to
community control, with consecutive prison terms reserved.
After the defendants violated the terms of their community
control and were ordered to serve their reserved consecutive
sentences, the defendants appealed, arguing that the trial court
was required to make the requisite statutory findings to impose
consecutive sentences at the initial sentencing hearing. We
rejected the defendants' arguments, stating that "[t]he
sentencing statutes under R.C. Chapter 2929 indicate that
findings and reasons, if applicable, must be given when a prison
sentence is imposed." "Thus, it follows that a trial court is
required to make the statutory findings and supporting reasons
under R.C. 2929.14[C](4), not when it sentences a defendant to

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community control, but when it actually imposes a consecutive
prison term."

Given our holding in Painter * * * that a sentence is imposed
when it is first pronounced, we hereby overrule Sneed and
Madaffari to the extent that those cases indicate that a reserved
sentence is not imposed until after revocation of community
control. The time for a defendant to challenge the imposition of
reserved consecutive sentences is on direct appeal of the
judgment entry which initially sets forth the sentence.

(Citations omitted.) Williams at ¶ 41-42.

{¶ 46} In relying upon Painter and overruling Sneed and Madaffari, we failed to

distinguish between the suspended sentence scenario Painter presented and the R.C.

2929.19(B)(4) potential prison term notice presented by Williams, Sneed, and Madaffari.

{¶ 47} In holding that a trial court is required to make the requisite statutory findings

under R.C. 2929.14(C)(4), not when it sentences a defendant to community control, but

when it actually imposes a consecutive prison term, the Sneed opinion relied on the Ohio

Supreme Court's decisions in Brooks and Farley. In turn, in reaching the same holding, the

Madaffari opinion mainly relied on Sneed. By contrast, Williams does not address either of

the supreme court's decisions, and instead mistakenly relied on a suspended sentence

scenario and Painter. Given R.C. 2929.19(B)(4) and 2929.15(B), and the decisions in

Anderson, Brooks, and Fraley, we hereby overrule Williams. We also find that Sneed and

Madaffari were improperly overruled in Williams.

{¶ 48} We now address whether the trial court complied with R.C. 2929.14(C)(4)

when it imposed consecutive sentences following the revocation of appellant's community

control in the robbery case.

{¶ 49} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step

analysis and make certain findings before imposing consecutive sentences. State v. Smith,

12th Dist. Clermont No. CA2014-07-054, 2015-Ohio-1093, ¶ 7. Specifically, the trial court

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must find that (1) the consecutive sentence is necessary to protect the public from future

crime or to punish the offender, (2) consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public,

and (3) one of the following applies:

(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing, was
under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code, or was under post-
release control for a prior offense.

(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public
from future crime by the offender.

R.C. 2929.14(C)(4); Smith at ¶ 7.

{¶ 50} "In order to impose consecutive terms of imprisonment, a trial court is required

to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry [.]" Bonnell, 2014-Ohio-3177 at ¶ 37. While

the trial court is not required to give reasons explaining these findings, it must be clear from

the record that the trial court actually made the required statutory findings. Smith at ¶ 8. "A

consecutive sentence is contrary to law where the trial court fails to make the consecutive

sentencing findings as required by R.C. 2929.14(C)(4)." State v. Todd, 12th Dist. Clermont

No. CA2014-05-035, 2015-Ohio-649, ¶ 21.

{¶ 51} The record shows that while the trial court's April 2, 2015 sentencing entry

imposing consecutive prison terms on Counts 3 and 12 in the robbery case includes the

required statutory findings under R.C. 292.14(C)(4), the trial court failed to make the

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required statutory findings during the March 31, 2015 sentencing hearing prior to imposing

consecutive sentences. Accordingly, appellant's consecutive sentences in the robbery

case are contrary to law and must be reversed. Id. at ¶ 21.

{¶ 52} We therefore vacate appellant's consecutive sentences in the robbery case

and remand this matter to the trial court for resentencing. On remand, the trial court shall

consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4), and if

so, shall make the required statutory findings on the record at resentencing and incorporate

its findings into a sentencing entry. Bonnell, 2014-Ohio-3177 at ¶ 29, 37; Lee, 2015-Ohio-

1760 at ¶ 15.

{¶ 53} Appellant's second assignment is sustained.

{¶ 54} Judgment affirmed in part and reversed in part and cause remanded to the

trial court for the sole purpose of resentencing consistent with this opinion.

S. POWELL and RINGLAND, JJ., concur.

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