State v. Yauger

[Cite as State v. Yauger, 2023-Ohio-815.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 111734
v. :

JOSEPH MICHAEL YAUGER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 16, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-20-654499-A and CR-21-659406-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Alicia Harrison, Assistant Prosecuting
Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and
Michael V. Wilhelm, Assistant Public Defender, for
appellant.

FRANK DANIEL CELEBREZZE, III, P.J.:

Joseph Michael Yauger appeals the sentence imposed following the trial

court’s finding that he violated his community-control sanctions. Yauger contends

that the trial court erred (1) in imposing a sentence that it did not initially journalize;
(2) because the record does not clearly and convincingly support the imposition of

consecutive sentences; and (3) in imposing a prison sentence where the community-

control sanctions violation was merely a technical violation that only warranted jail

time. After a careful review of the facts and law, we affirm the judgment of the trial

court.

I. Factual and Procedural History

Yauger was indicted in two separate cases: Cuyahoga C.P. Nos. CR-21-

659406-A and CR-20-654499-A, each for a single count of grand theft in violation

of R.C. 2913.02(A)(3), a fourth-degree felony. Yauger entered a guilty plea to both

counts. In each case, Yauger entered into contracts with two families for

construction projects, collected the money, and then never performed the work.

At a joint sentencing hearing, Yauger, through counsel, admitted that

his intent was never to defraud anyone and that he was battling a gambling problem

that exacerbated his failure to perform on his contractual obligations. The trial court

sentenced Yauger to community-control sanctions for a period of five years and

ordered Yauger to pay full restitution to his victims ($22,900.83 in CR-21-659406

and $8,600 in CR-20-654499) and developed a monthly repayment plan with input

from Yauger regarding what he was able to pay. Yauger admitted that he owed

money to other victims and indeed had other cases pending in Lorain County where

he was going to owe money to additional victims. The court advised him that he was

to comply with all rules of the community-control department, submit to random

drug testing, and take a gambling assessment.
 In January 2022, the court held a community-control sanctions

violation hearing. Appellant had fallen behind on his monthly restitution payments

and never participated in the gambling assessment. The trial court imposed a 30-

day jail sentence, which was held in abeyance “until summertime.” The trial court

advised Yauger that if he paid the full restitution amount, it would consider reducing

the jail time.

In July 2022, the court held another community-control sanctions

violation hearing. Appellant remained behind on his restitution payments and still

failed to complete the gambling assessment. Further, Yauger failed to report to and

maintain contact with the community-control department. Finding that he was not

amenable to community-control sanctions, the trial court sentenced Yauger to 18

months in prison on both cases, which were to run consecutively.

Yauger timely appealed the sentence imposed, assigning three errors

for our review.

I. The trial court did not journalize an 18-month sentence in the
original sentencing entry for case CR-20-654499 and therefore cannot
now impose that sentence for a violation of community control.

II. The record does not clearly and convincingly support consecutive
sentence findings[.]

III. The trial court erred in not finding that the failure to make regular
restitution payments was a technical violation of community control
and therefore did not warrant more than 180 days in jail.
 II. Law and Analysis

A. Prior Journalization of Possible Sentence

In his first assignment of error, Yauger disputes one of his 18-month

sentences as improperly imposed.

The trial court sentenced Yauger on both cases in a joint sentencing

hearing. After the hearing, the trial court journalized a separate sentencing entry in

each case. In CR-21-659406, the sentencing entry states that “violation of the terms

and conditions may result in more restrictive sanctions, or a prison term of 18

month(s) as approved by law.” This sentence, however, is absent from the

sentencing entry in CR-20-654499.

Yauger argues that because the trial court only journalized this

possibility in one of his cases, CR-21-659406, the trial court erred in imposing the

18-month sentence with respect to CR-20-654499.

R.C. 2929.19(B)(4) mandates that when imposing 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 range from which the prison term may
be imposed as a sanction for the violation[.]

(Emphasis added.)

In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d

837, the Ohio Supreme Court evaluated the timing and format of the notification

required under a former version of R.C. 2929.19(B) that used the same language as
the current R.C. 2929.19(B)(4). The Brooks Court held that “a trial court sentencing

an offender to a community control sanction is required to deliver the statutorily

detailed notifications at the sentencing hearing.” Id. at ¶ 15. The Brooks Court

expounded upon this holding, noting that “notification given in a court’s journal

entry issued after the sentencing does not comply with R.C. 2929.19(B)[(4)].” Id. at

¶ 18.

Pursuant to Brooks, the court properly notified Yauger of his potential

prison term at the sentencing hearing as required by R.C. 2929.19(B)(4).

THE COURT: If you fail to comply with these orders of probation, you
are looking at 18 months on Case 659406, and 18 months in prison on
654499, consecutive to each other. It’s 36 months in prison.

***

Do you have any questions?

THE DEFENDANT: No, sir.

(Tr. 31-32.)

Yauger was yet again informed of the potential prison term he faced in

the event of a community-control violation at his first community-control violation

hearing, where the following exchange took place:

THE COURT: * * * If you fail to comply with probation you’re looking
at that 36 months in prison. Do you have any questions?

THE DEFENDANT: No, sir.

(Tr. 43.)
 Next, we will examine whether the trial court’s failure to journalize this

notification in CR-20-654499 was error.

Yauger asks us to read R.C. 2929.19(B)(4) in conjunction with well-

settled law that a court speaks through its journal entries. State v. Steinke, 8th Dist.

Cuyahoga No. 81785, 2003-Ohio-3527, ¶ 45, citing Gaskins v. Shiplevy, 76 Ohio

St.3d 380, 382, 667 N.E.2d 1194 (1996). However, pursuant to Crim.R. 36, a court

retains jurisdiction to correct clerical mistakes at any time to conform to the

transcript of the proceedings. (Emphasis added.) Id. at ¶ 47.

Yauger directs us to this court’s decision in State v. Sheffield, 8th Dist.

Cuyahoga No. 95434, 2011-Ohio-2395. In Sheffield, the trial court orally advised

the defendant of his possible sentence in the event of a community-control violation

in the following manner: “You have four F3’s. Five years on each F3. Eighteen

months on 15 F4’s. You have two F5’s, 12 months for each of those. I’ll run them

consecutive.” Id. at ¶ 19. Nonetheless, when the court journalized the sentence, it

instructed that a community-control sanctions violation could result in “a prison

term of 5 years as approved by law. (5 years on each F-3, 18 months each F-4 and 12

months each F-5, counts to run concurrent to each other.)” Id. at ¶ 22. After the

defendant was already sentenced to eight years for his community-control violation,

the trial court in Sheffield issued a nunc pro tunc entry correcting the total possible

sentence to 44 years. This court reversed, finding that the trial court erred when it

modified a misleading sentencing entry after the defendant was sentenced to eight

years because this frustrated the purpose of R.C. 2929.19(B)(4), which was intended
to provide notice to the offender before the sentence was imposed. Id. at ¶ 24. In

reversing, the Sheffield Court noted that “the trial court could not avoid the clear

and unambiguous five-year limit by issuing a nunc pro tunc sentencing journal entry

changing ‘five years’ to ‘44 years, 6 months[.]’” Id. at ¶ 24.

We find the instant matter factually distinguishable because there are

no concerns that Yauger was notified of his sentence after the sentence was imposed,

as was the concern in Sheffield. Yauger was properly informed, pursuant to Brooks,

about the specific maximum prison time that the trial court could impose. We find

this matter particularly distinguishable because Yauger was informed about the

maximum sentence of 36 months that he could face at both the initial sentencing

hearing, and then yet again at the first community-control violation hearing. Yauger

himself does not dispute that the trial court directly and unambiguously addressed

the maximum amount of prison time that Yauger would face in the event of a

community-control violation at the sentencing hearing, where it was required and

before the actual sentence was imposed: “Here, the trial court made Mr. Yauger

aware that it would impose two 18-month sentences to run consecutive each other.

The court informed him clearly at his sentencing hearing * * *[.]” Yauger also does

not suggest that he was unaware of the potential term he faced or that the

notification improperly occurred after the sentence was imposed, but merely asserts

that the notice he was given at the hearing was absent from one of the sentencing

entries. Because Yauger was properly notified before the sentence was imposed, and
then notified again at a subsequent hearing, we find that the statutory purpose of

R.C. 2929.19(B)(4), to put the defendant on notice, was properly fulfilled.

We also find the cases cited by the dissent distinguishable. The dissent

cites State v. Lenhart, 8th Dist. Cuyahoga No. 108938, 2020-Ohio-2727, ¶ 14; State

v. Brown, 8th Dist. Cuyahoga Nos. 105211 and 106278, 2018-Ohio-88, ¶ 9; and State

v. Goforth, 8th Dist. Cuyahoga No. 90653, 2008-Ohio-5596, ¶ 20, for the

proposition that notification must also be contained in the sentencing entry. Our

review of these cases indicates that in all three, the trial court’s oral notification at

the sentencing hearing was insufficient under the Brooks standard. In Lenhert, the

defendant was notified that he “can be sentenced to prison.” Id. at ¶ 17. In Brown,

the defendant was not notified that prison could be imposed in the event of a

violation at all. Id. at ¶ 11. In Goforth, the defendant was notified that he could be

sent to prison, but a specific term was not specified. Id. at ¶ 3.

While each of these cases state that the notification must also be in the

sentencing entry, that must be read in the context of each case; in each of these cases,

the court failed to properly notify the defendant pursuant to Brooks. In the instant

matter, we have established that Yauger was properly notified at the sentencing

hearing. Pursuant to Crim.R. 36, the trial court maintains jurisdiction to correct a

journal entry to align with the exact sentiments at the sentencing hearing at any

time. In Lenhert, Brown, and Goforth, Crim.R. 36 was unavailable to each of the

trial courts because the proper oral notification was never made. In Yauger’s case,

the trial court was empowered to issue a nunc pro tunc entry corresponding to the
oral notification that Yauger received twice. The trial court in the instant matter did

not, but failure to do so is not error because there is no requirement, pursuant to

Brooks, that notification also occur at the journalization stage.

Based on the foregoing, the trial court did not err in notifying Yauger

of his potential prison time at the sentencing hearing and, therefore, did not err in

imposing the prison time for the community-control sanctions violation.

Yauger’s first assignment of error is overruled.

B. Consecutive Sentences

In his second assignment of error, Yauger argues that the trial court

erred in imposing the sentence for the community-control violations consecutively.

R.C. 2929.14(C)(4) permits courts to impose consecutive sentences if

the court finds that consecutive sentences are (1) necessary to protect the public

from future crime or to punish the offender; (2) not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the

public; and (3) one or more of the following findings are satisfied:

(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.

State v. Bartlett, 8th Dist. Cuyahoga No. 100769, 2014-Ohio-4379, ¶ 3; R.C.

2929.14(C)(4).

In imposing consecutive sentences, the court detailed:

I find that it is necessary to protect the public and punish you. You stole
$22,900 from one family, $8,600 from another family, an incredible
amount of money, incredible amount of loss to those victims.

And it’s not just disproportion — the sentence is not disproportionate
to what you did and because the harm is so great or unusual a single
term for these F4s is not adequate to reflect the seriousness of your
conduct and your criminal history where you have had specifically[,]
prior convictions in retail theft in Pennsylvania, domestic violence in
Niles and after [being] put on probation here[,] F3 theft in Lorain
County.

And so you just — you can’t comply with probation. You — the only
reason the State gave you an opportunity for probation was to pay the
restitution. That was the deal. You reneged. So I’m incarcerating you
in prison.

(Tr. 54-55.)

Yauger appears to dispute the proportionality findings that the trial

court made. He argues that the trial court was aware that he could not make

restitution due to the collapse of his business; that he is owed money by a former

employer; and that his wife has cancer which impedes her ability to properly care

for their family, but yet still sentenced him to 36 months following a community-

control violation.

We understand and empathize with Yauger’s arguments, but the court

made the requisite findings pursuant to R.C. 2929.14(C)(4). Plainly, the court
considered protection of the public, punishment to the defendant, and

proportionality, and found, pursuant to R.C. 2929.14(C)(4)(a) and (c), that Yauger

picked up other charges while under community-control sanctions in this case and

that Yauger’s criminal record indicates that previous punishments have not deterred

his criminal conduct. All of these findings are supported by the record before us,

particularly the proportionality finding that Yauger disputes, since Yauger deprived

two families of substantial amounts of money. It is also persuasive that the court

worked to set a payment plan that Yauger himself consented to and acknowledged

that he could likely keep up with based on his other cases and the other victims to

whom he owed money, but Yauger failed to maintain the plan.

As a result of the foregoing, we overrule Yauger’s second assignment

of error.

C. Nature of Community-Control Violation

In his final assignment of error, Yauger argues that his failure to pay

restitution should be considered a technical violation of his community-control

sanctions.

Yauger argues that pursuant to R.C. 2929.15(B)(1)(c)(ii), he could not

be imprisoned for more than 180 days on a fourth-degree felony if the community-

control violation is technical in nature.

The Ohio Supreme Court has stated that whether a community-

control violation amounts to a “technical violation” as it is used in R.C.

2929.15(B)(1)(c)(ii), requires the trial court to engage in a practical assessment to
determine whether the violation was technical or nontechnical. State v. Nelson, 162

Ohio St.3d 338, 2020-Ohio-3690, 165 N.E.3d 1110, ¶ 26. A violation is “technical”

when “the condition violated is akin to ‘an administrative requirement facilitating

community control supervision.’” Id., quoting State v. Davis, 12th Dist. Warren No.

CA2017-11-156, 2018-Ohio-2672, ¶ 18. A violation is “nontechnical” if, under the

totality of the circumstances, “the violation concerns a condition of community

control that was ‘specifically tailored to address’ matters related to defendant’s

misconduct or if it can be deemed a ‘substantive rehabilitative requirement which

addressed a significant factor contributing to’ the defendant’s misconduct.” Id.,

citing Davis at ¶ 17, 18. No single factor determines whether a violation is technical

or nontechnical, which allows the trial court to consider “the nature of the

community-control condition at issue and the manner in which it was violated, as

well as any other relevant circumstances in the case.” Id.

Based on the specific facts of this case, we find that Yauger’s failure to

pay restitution was a nontechnical violation of his community control. Plainly, the

trial court demonstrated extreme concern for the families that were deprived of such

substantial amounts of money and specifically tailored the restitution payments to

address its concerns related to the families who suffered from Yauger’s conduct. We

also note that requiring restitution was rehabilitative; it is clear that the trial court

desired that Yauger actually remedy his criminal conduct — not merely to accept the

charges and complete a prison sentence without any meaningful attempts to pay

back the victims.
 As a result of the foregoing, we overrule Yauger’s final assignment of

error.

III. Conclusion

We overrule all of Yauger’s assignments of error. The trial court did

not err in imposing a prison sentence as a result of Yauger’s failure to comply with

community-control sanctions.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., CONCURS;
MICHAEL JOHN RYAN, J., CONCURS IN PART AND DISSENTS IN PART
(WITH SEPARATE OPINION)

MICHAEL JOHN RYAN, J., CONCURRING AND DISSENTING:

Respectfully, I dissent as to the majority’s resolution of the first and

second assignments of error. I concur as to its resolution of the third assignment of

error.
 In regard to the first assignment of error, it is true that, at the original

sentencing hearing, the trial court informed Yauger that a violation of the conditions

of his community-control sanctions would result in the imposition of a prison term

of 18 months on each count, to be served consecutively. This court has held that the

notification must also be contained in the court’s sentencing entry. See, e.g., State

v. Lenhart, 8th Dist. Cuyahoga No. 108938, 2020-Ohio-2727, ¶ 14; State v. Brown,

8th Dist. Cuyahoga Nos. 105211 and 106278, 2018-Ohio-88, ¶ 9; and State v.

Goforth, 8th Dist. Cuyahoga No. 90653, 2008-Ohio-5596, ¶ 20.

The sentencing entry for Case No. CR-21-659406 states that a

violation of the terms of community control “may result in more restrictive

sanctions, or a prison term of 18 months as approved by law.” However, the

sentencing entry for Case No. CR-20-654499 is silent on the consequences for a

violation of the community-control sanctions.

Yauger cites State v. Sheffield, 8th Dist. Cuyahoga No. 95434, 2011-

Ohio-2395, in support of his contention that the trial court improperly sentenced

him for the violation in Case No. CR-20-654499. In Sheffield, the trial court advised

the defendant at sentencing as to the consequences of violating his community-

control sanctions as follows: “You have four F3’s. Five years on each F3. Eighteen

months on 15 F4’s. You have two F5’s, 12 months for each of those. I’ll run them

consecutive.” Id. at ¶ 3, 19. However, the court’s sentencing entry stated that a

“[v]iolation of the terms and conditions may result in more restrictive sanctions, or
a prison term of 5 years as approved by law. (5 years each F-3, 18 months each F-4

and 12 months each F-5, counts to run concurrent to each other).” Id. at ¶ 5.

The defendant violated the terms of his community-control sanctions

and after a hearing the trial court sentenced him to an eight-year prison term.

Approximately one month after sentencing the defendant, the trial court issued a

nunc pro tunc entry relative to the original judgment of conviction stating that a

“violation of the terms and conditions may result in more restrictive sanctions, or a

prison term of 44 years, 6 months as approved by law. (Counts to run consecutive

to each other).” Id. at ¶ 8.

On appeal, one of the defendant’s challenges was that the trial court’s

eight-year sentence was invalid because the original judgment of conviction stated

that he was subject to a five-year prison term for a violation of his community-

control sanctions and the trial court impermissibly issued a nunc pro tunc entry after

it had already revoked his probation and imposed the eight-year sentence. This

court agreed.

This court, relying on State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-

4746, 814 N.E.2d 837, noted that the purpose of the notification is to make a

defendant aware of the specific prison term he or she will face before a violation of

his or her community-control sanctions. Sheffield, 8th Dist. Cuyahoga No. 95434,

2011-Ohio-2395, at ¶ 23, citing Brooks at ¶ 33. Because a trial court speaks through

its journal entries, this court found that the court gave the defendant notice that he
would be subject to a five-year prison sentence for a violation of his community-

control sanctions. Sheffield at id.

This court further found that the trial court’s nunc pro tunc entry,

issued after it had already revoked the defendant’s community-control sanctions

and sentenced him to an eight-year prison sentence, was improper. Id. at ¶ 24.

This kind of “after-the-fact” notification “totally frustrate[s]” the
purpose of R.C. 2929.19(B)([4]), which as noted, is to provide notice to
the offender before a violation of the specific prison term he [or she]
could face for a violation. Id. Here, Sheffield had notice that if he
violated community control, he could receive five years in prison.
Accordingly, we hold that the trial court’s attempt to exceed the five-
year maximum prison term by altering its journal entry after it had
sentenced Sheffield to eight years in prison contradicts Brooks and
violates principles of due process.

Id.; see also State v. Puttick, 5th Dist. Morrow No. 12CA0012, 2013-Ohio-3295

(following Sheffield).

To remedy the error, this court remanded the case to the trial court

“for resentencing with instructions that the maximum prison term that may be

imposed is five years.” Sheffield at ¶ 25.

The majority finds Sheffield distinguishable from the instant case

stating, “there are no concerns that Yauger was notified of his sentence after the

sentence was imposed, as was the concern in Sheffield.” The majority relies on the

advisements the trial court gave to Yauger at his original sentencing hearing and

first violation hearing as to what the consequences of violating community control

could be. But the defendant in Sheffield also received an advisement as to the

consequences of a violation of community control at his sentencing hearing. Thus,
the only distinction I find between Sheffield and this case is that the sentencing

judgment entry in Sheffield advised the defendant of a prison term different from

what the trial court advised him at his original sentencing hearing, as compared to

here, where the sentencing judgment failed to advise Yauger at all of the

consequences for violating his community-control sanctions. Both defendants were

notified at their sentencing hearings of what sentence the trial court intended to

impose for a violation of their community-control sanctions.

To the extent that the majority’s position is based on the ground that

the trial court in Sheffield never informed the defendant of the specific prison term

he would be facing for a violation of his community-control sanctions, I do not

believe that is a distinguishing factor. This court specifically found that

[a]lthough it would have been better if the judge had added up the
number of years for Sheffield, it is apparent that he told him the definite
sentence he would receive for each count in the event of a violation, i.e.,
the judge told him he would receive the maximum prison term for each
offense if he violated community control. We find the trial court’s
advisement to constitute a “specific” term as required by
R.C. 2929.19(B)([4]).

Id., 8th Dist. Cuyahoga No. 95434, 2011-Ohio-2395, at ¶ 19.

Thus, in my opinion, Sheffield is not distinguishable from this case as

it relates to the trial courts’ advisements; Yauger and the defendant in Sheffield were

on equal ground in that regard. Simply, in both cases, the defendants were informed

at their original sentencing hearing of a specific prison term that would be imposed

if they violated the terms of their community-control sanctions. In Sheffield, the

trial court’s sentencing entry gave the defendant a term other than the one stated at
the sentencing hearing, and in this case, the sentencing hearing was silent on the

consequences of a violation.

This court has long-held that notification of the consequences of a

violation of community-control sanctions should be made at the sentencing hearing

and put in the sentencing judgment entry. The court has not treated the notification

in the sentencing entry as superfluous; I would decline to do so now. As this court

has explained,

“[b]ased on the continuous goal of ‘truth in sentencing,’ a trial court
must first notify a defendant at a sentencing hearing of the specific
prison term that it will impose if he violates community control.
Notification must also be contained in the accompanying sentencing
journal entry.” State v. McWilliams, Summit App. No. 22359, 2005-
Ohio-2148. Accordingly, the trial court erred in imposing a term of
imprisonment for the community control violation because the trial
court failed to advise appellant in the judgment entry of the preceding
sentencing hearing that she would be subject to a specific prison time
if she violated community control sanctions.

(Emphasis added.) Goforth, 8th Dist. Cuyahoga No. 90653, 2008-Ohio-5596, at

¶ 20.

Accordingly, I dissent as to the majority’s resolution of the first

assignment of error. I would find the second assignment of error regarding the

consecutive sentence moot. See App.R. 12(A)(1)(c). I concur with the majority’s

resolution of the third assignment of error.