[Cite as State v. Gladwell, 2017-Ohio-1331.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
CASE NO. CA2016-07-139
Plaintiff-Appellee, :
OPINION
: 4/10/2017
- vs -
:
JOSEPH I. GLADWELL, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2012-09-1483
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 Monument, Hamilton, Ohio 45011, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Joseph I. Gladwell, appeals from the 14-month prison
sentence he received in the Butler County Court of Common Pleas for violating the
conditions of his community control. For the reasons outlined below, we affirm.
{¶ 2} On January 28, 2013, Gladwell entered into a plea agreement and pled guilty to
one count of vandalism in violation of R.C. 2909.05(B)(1)(a), a fifth-degree felony, and one
count of grand theft in violation of R.C. 2913.02(A)(1), a fourth-degree felony. The charges
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arose after Gladwell stole a Ford F250 pickup truck from the lot of Manheim Auto Auction
located in Warren County and rammed said pickup truck into a security gate during the night
of August 22, 2010 or the early morning hours of August 23, 2010.
{¶ 3} As a result of his guilty plea, on May 1, 2013, the trial court sentenced Gladwell
to nine months in prison on the vandalism charge and five years of community control on the
charge of grand theft. Gladwell was also ordered to pay $20,000 in restitution. It is
undisputed that at his original sentencing hearing the trial court explicitly advised Gladwell
that he faced 18 months in prison if he violated the conditions of his community control.
{¶ 4} On March 5, 2015, the trial court issued an entry finding Gladwell violated the
conditions of his community control. However, instead of sentencing Gladwell to prison, the
trial court continued the conditions of his community control and further required him to
complete 20 hours of community service until he found full-time employment, complete
corrective thinking classes, live in Butler County, and pay $420 per month in restitution. Just
like his original sentencing hearing, it is undisputed that the trial court explicitly advised
Gladwell that he faced 18 months in prison if he violated the conditions of his community
control.
{¶ 5} On November 18, 2015, the trial court issued another entry finding Gladwell
had again violated the conditions of his community control. However, just like it had done
previously, instead of sentencing Gladwell to prison, the trial court continued the conditions of
Gladwell's community control and further required Gladwell to complete the MonDay program
at the MonDay Community Correctional Institute in Dayton, Ohio within six months. Unlike at
his original sentencing hearing and previous community control violation hearing, the trial
court did not explicitly advise Gladwell that he faced 18 months in prison if he violated the
conditions of his community control. Rather, the trial court advised Gladwell of the following:
Now this is your last shot. You're going to go to prison next time
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you mess up and I will also want to add, zero tolerance on him.
So that when you get out, if you mess up, even the littlest bit,
you're going – that's my clue that you need to go to prison.
{¶ 6} On June 24, 2016, the trial court issued an entry finding Gladwell had once
again violated the conditions of his community control. As a result, just as the trial court
advised Gladwell that it would, the trial court revoked Gladwell's community control and
sentenced him to serve 14 months in prison. Gladwell now appeals from the trial court's
decision sentencing him to 14 months in prison, raising the following single assignment of
error for review.
{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN
IMPOSING A TERM OF IMPRISONMENT FOR HIS COMMUNITY CONTROL VIOLATION.
{¶ 8} In his single assignment of error, Gladwell argues the trial court erred by
sentencing him to a 14-month prison term for violating the conditions of his community
control since the trial court did not explicitly advise him at his most recent community control
violation hearing of the potential 18-month prison term he faced if he violated those
conditions again. We disagree.
{¶ 9} In support of his claim, Gladwell relies on the Ohio Supreme Court's decision in
State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, wherein the court held that pursuant to
R.C. 2929.19(B)(5), now codified as R.C. 2929.19(B)(4), the following:
[A] trial court sentencing an offender upon a violation of the
offender's community control sanction must, at the time of such
sentencing, notify the offender of the specific prison term that
may be imposed for an additional violation of the conditions of
the sanction as a prerequisite to imposing a prison term on the
offender for a subsequent violation.
Id. at syllabus.
{¶ 10} According to Gladwell, the Ohio Supreme Court's holding in Fraley required the
trial court in this case to consistently re-advise him of the potential 18-month prison term he
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faced at each and every community control violation hearing, regardless of the fact that he
had already been specifically advised of such a possibility at both his original sentencing
hearing and at his prior hearing regarding his community control violations.
{¶ 11} Although not addressed by this court, this exact argument has already been
rejected by both the Eighth District Court of Appeals and the Fourth District Court of Appeals.
As the Eighth District stated in State v. Hodge, 8th Dist. Cuyahoga No. 93245, 2010-Ohio-78,
¶ 8-9:
While we agree that the language in Fraley might support that
conclusion, in context, it does not. Fraley is based upon a wholly
different set of facts than our case at bar. Hodge's original
sentence was not legally deficient; Fraley's was.
We construe the holding of the Supreme Court in Fraley narrowly
to mean that a trial court that fails to notify a defendant of the
specific penalty he will face upon violation of community control
sanctions at the initial sentencing, may "cure" that failure at a
subsequent violation hearing by then advising the defendant of
the definite term of imprisonment that may be imposed upon any
subsequent finding of violation. We find nothing in the statute or
Fraley that requires a legally adequate notification in the first
instance be given over and over again.
See also State v. Oulhint, 8th Dist. Cuyahoga No. 99296, 2013-Ohio-3250, ¶ 20 ("because
the trial court advised Oulhint at the original sentencing hearing of the specific prison term he
faced if he violated the conditions of his community control, it was under no duty to continue
to readvise him of the possible sentence at subsequent hearings").
{¶ 12} Similarly, as the Fourth District Court of Appeals stated in State v. Batty, 4th
Dist. Ross No. 13CA3398, 2014-Ohio-2826, ¶ 33:
Appellant was properly notified at the original sentencing hearing
in February 2010 that if she violated the terms of her community
control sanction, she risked imposition of a twelve (12) month
prison term on each charge. That notification was legally
sufficient and the trial court was not required to notify her over
and over again.
{¶ 13} We agree with the rationale employed by both the Eighth and Fourth District
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Courts of Appeals in Hodge and Batty, and similarly conclude that where the trial court
properly notified the defendant at the original sentencing hearing, or any subsequent
community control violation hearing, of the specific potential prison term that could be
imposed if a violation of community control sanctions was established at a subsequent
community control violation hearing, that notification is legally sufficient and the trial court is
not required to re-advise the defendant over and over again at each and every hearing that
may occur thereafter. Therefore, because we find no error with the trial court's decision
sentencing Gladwell to 14 months in prison for violating the condition of his community
control, Gladwell's single assignment of error is without merit and overruled.
{¶ 14} Judgment affirmed.
HENDRICKSON, P.J., and RINGLAND, J., concur.
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