State v. Welz

[Cite as State v. Welz, 2021-Ohio-2553.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY

STATE OF OHIO, CASE NO. 2020-T-0073

Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas

BRANDON M. WELZ,
Trial Court No. 2015 CR 00937
Defendant-Appellant.

OPINION

Decided: July 26, 2021
Judgment: Reversed and remanded.

Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 Hight Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 44481
(For Defendant-Appellant).

MARY JANE TRAPP, P.J.

{¶1} Appellant, Brandon M. Welz (“Mr. Welz”), appeals from the Trumbull County

Court of Common Pleas’ judgment, which sentenced him to two years in prison after he

pleaded guilty to violating his community control for the second time.

{¶2} Mr. Welz raises two assignments of error on appeal. He first contends the

trial court erred at his initial sentencing on breaking and entering charges when it imposed

community control because it never notified him of the possible sanctions for violating

community control pursuant to R.C. 2929.19(B)(4). He secondly contends that the trial
court erred at his second violations hearing when it imposed consecutive sentences

without making findings pursuant to R.C. 2929.14 and incorporating those findings in its

judgment entry. The state concedes this error, arguing Mr. Welz’s sentence should be

reversed and remanded for a new sentencing hearing.

{¶3} After a careful review of the record and pertinent law, we find Mr. Welz’s

assignments of error have merit, in part. First, a review of the violation hearings reveals

Mr. Welz was informed of a possible two-year maximum prison term if he violated his

community control sanction prior to his second violation. At his first violation hearing and

in the sentencing entry, the trial court advised him that he faced a maximum sentence of

two years should he violate his community control again.

{¶4} Second, we agree with the parties that the trial court failed to make findings

pursuant to R.C. 2929.14(C)(4) and incorporate them in the sentencing judgment entry

when it revoked Mr. Welz’s community control and imposed consecutive sentences.

Thus, we find Mr. Welz’s second assignment of error to have merit. We reverse the

judgment of the Trumbull County Court of Common Pleas and remand for the trial court

to resentence Mr. Welz and, if consecutive sentences are found necessary, to make the

requisite findings.

Substantive and Procedural History

{¶5} In 2015, Mr. Welz was indicted by a grand jury on four counts of breaking

and entering, fifth-degree felonies, in violation of R.C. 2911.13(A). Mr. Welz broke into

four different establishments in Trumbull County: the Hole in the Wall in Mecca Township,

the clubhouse at the Duck Creek Golf Course in Newton Falls, Quiggley’s Bar in Warren

Township, and the clubhouse at Tamer Win Golf Course in Bazetta Township.

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 Plea Agreement

{¶6} Mr. Welz entered into a plea agreement with the state in which he agreed

to plead guilty to all four counts and the parties agreed to jointly recommend a 10-month

prison sentence on each count, to be served concurrently to each other but consecutively

to a prison sentence imposed in an unrelated case in Lake County.

{¶7} The signed, written plea agreement informed Mr. Welz that he was eligible

for probation/community control. He acknowledged that if he violated community control,

the court may extend the time up to a maximum of five years, impose more restrictive

sanctions, and/or impose a prison sentence up to the maximum term allowed for the

offenses. At the change of plea hearing, the court reviewed the written plea agreement

and advised Mr. Welz that he would be subject to optional post-release control and of the

potential penalties for violating post-release control. The trial court did not advise Mr.

Welz of the possible penalties for violations of community control sanctions.

Sentencing

{¶8} Because Mr. Welz waived the presentence investigation, the trial court

proceeded to sentencing after the plea colloquy. The court considered the joint

recommendation of the parties and, finding it reasonable, agreed to accept it in part. The

court imposed restitution to the victims; 10-month prison sentences on both counts 1 and

2, concurrent to each other, but consecutive to the prison sentence he was currently

serving in a Lake County case; and a five-year term of community control sanctions on

counts 3 and 4. The court did not advise Mr. Welz either at the sentencing hearing or in

the sentencing entry of the potential penalties for violating community control sanctions.

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 Community Control Violations

{¶9} In 2018, Mr. Welz was brought before the court for a community control

violation. The trial court delayed the hearing per the probation officer’s request for a

continuance due to Mr. Welz’s pending case in Trumbull County for receiving stolen

property. At the next hearing date, the trial court again continued the hearing after the

probation officer informed the court that Mr. Welz was being assessed for NEOCAP in

Trumbull County. After Mr. Welz pleaded guilty to the violation and upon the probation

officer’s recommendation, the trial court sentenced Mr. Welz to enter and successfully

complete the NEOCAP program. At the hearing and in the sentencing entry, the trial

court advised Mr. Welz that any further violations of community control could result in a

prison sentence of 12 months on each count.

{¶10} Nearly a year later, in 2019, Mr. Welz was again before the court for a

probation violation. The court ordered Mr. Welz to be held without bond until his pending

cases were completed. He initially pleaded not guilty. At the hearing, he changed his

plea to guilty, and the court sentenced him to serve two consecutive one-year terms for

his community control violations on counts 3 and 4. The trial court was silent as to the

consecutive sentencing findings required by R.C. 2929.14(C)(4), both at the sentencing

hearing and in its sentencing entry.

{¶11} Mr. Welz raises two assignments of error:

{¶12} “[1.] The trial court erred [by] imposing prison sentences for violations of

community control sanctions when it had not previously advised appellant of the specific

prison terms that may be imposed pursuant to Revised Code 2929.19(B)(4).

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 {¶13} “[2.] The trial court erred [by] imposing consecutive sentences when it failed

to make findings required under Revised Code 2929.14.”

Sentencing Standard of Review

{¶14} We apply the standard of review for felony sentences, which is governed by

R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 16. Pursuant to R.C. 2953.08(G)(2):

{¶15} “The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

{¶16} “The appellate court may increase, reduce, or otherwise modify a sentence

that is appealed under this section or may vacate the sentence and remand the matter to

the sentencing court for resentencing. The appellate court’s standard of review is not

whether the sentencing court abused its discretion. The appellate court may take any

action authorized by this division if it clearly and convincingly finds either of the following:

{¶17} “(a) That the record does not support the sentencing court’s findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

{¶18} “(b) That the sentence is otherwise contrary to law.”

{¶19} “‘Clear and convincing evidence is that measure or degree of proof which is

more than a mere “preponderance of the evidence,” but not to the extent of such certainty

as is required “beyond a reasonable doubt” in criminal cases, and which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

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established.’” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus.

Community Control Notifications

{¶20} In his first assignment of error, Mr. Welz contends the trial court erred in

imposing prison sentences for his community control violations because the court failed

to advise him of the specific prison terms that may be imposed pursuant to R.C.

2929.19(B)(4) at his initial sentencing hearing on the breaking and entering charges.

{¶21} Pursuant to R.C. 2929.19(B)(4), “[i]f the sentencing court determines at the

sentencing hearing that a community control sanction should be imposed * * *, [t]he court

shall notify the offender that, if the conditions of the sanction are violated, if the offender

commits a violation of any law, or if the offender leaves this state without the permission

of the court or the offender’s probation officer, 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 section 2929.14 of the Revised Code and as described in section

2929.15 of the Revised Code.”

{¶22} R.C. 2929.15(B) details procedures for a trial court to follow when an

offender has violated conditions of community control, reiterating the three options

available to the sentencing court mentioned in R.C. 2929.19(B)(4), and further provides

that if a prison term is imposed upon an offender for violating a community control

sanction, the prison term specified shall be within the range of prison terms available for

the offense for which the sanction was imposed and shall not exceed the prison term

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specified in the notice provided to the offender at the sentencing hearing pursuant to

division (B)(4) of section 2929.19 of the Revised Code. State v. Fraley, 105 Ohio St.3d

13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 10.

{¶23} The Supreme Court of Ohio has held that “[p]ursuant 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, 814 N.E.2d 837, paragraph two of the syllabus.

{¶24} Following Brooks, the Supreme Court of Ohio held that “a trial court can

cure its failure to notify an offender at his initial sentencing hearing of the potential, specific

prison term if it provides that notice at a revocation hearing that occurs before the

revocation hearing at which the trial court imposes the prison term.” State v. Howard,

162 Ohio St.3d 314, 2020-Ohio-3195, 165 N.E.3d 1088, ¶ 15, citing Fraley, supra

(although offender was not notified at initial sentencing of the prison term that could be

imposed if he violated community control, sufficient notification of the prison term was

provided at a prior revocation hearing).

{¶25} The present situation is akin to that in Fraley. At the sentencing hearing on

the first community control violation and in the judgment entry memorializing the

sentence, the trial court advised Mr. Welz that any further violations of community control

could result in a possible maximum, consecutive sentence of 12 months for counts 3 and

4. Thus, the trial court fulfilled the prerequisite of notifying Mr. Welz of the specific prison

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term that may be imposed for an additional violation prior to the subsequent violation and

imposition of a prison term. Fraley at ¶ 18-19.

{¶26} Mr. Welz’s first assignment of error is without merit.

Consecutive Sentences

{¶27} In Mr. Welz’s second assignment of error, he argues that the trial court erred

by imposing consecutive sentences when it failed to make the necessary findings

pursuant to R.C. 2929.14.

{¶28} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses

may be ordered to be served consecutively if the court finds it is necessary to protect the

public from future crime or to punish the offender; that consecutive sentences are not

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

offender poses to the public; and if the court also finds any of the factors in R.C.

2929.14(C)(4)(a)-(c) are present. Those factors include the following:

{¶29} “(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.

{¶30} “(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.

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 {¶31} “(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

{¶32} 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. State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

{¶33} A review of the record in this case reveals the trial court did not make any

consecutive sentence findings pursuant to R.C. 2929.14(C)(4) at the sentencing hearing

and in the sentencing entry. The state concedes that the trial court never undertook the

analysis or made findings as required by R.C. 2929.14 that consecutive sentences are

necessary. Under these circumstances, Mr. Welz’s sentence was not properly imposed.

{¶34} In Howard, supra, the Supreme Court of Ohio, confronting the same issue,

vacated the appellant’s sentence because the trial court, after revoking community

control, failed to make the required R.C 2929.14(C)(4) consecutive sentence findings. Id.

at ¶ 25. Revocation of community control is more than an administrative function – the

court had discretion to choose a shorter prison term or no prison term at all. Id. R.C.

2929.14, governing imposition of prison sentences, requires consecutive sentence

findings at the time the sentences are imposed. Id.

{¶35} Finding Mr. Welz’s second assignment of error to have merit, we reverse

and remand to the trial court for resentencing, and if it reimposes consecutive sentences,

to make all the necessary statutory findings pursuant to R.C. 2929.14(C)(4).

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 {¶36} The judgment of the Trumbull County Court of Common Pleas is reversed

and remanded.

THOMAS R. WRIGHT, J.,

MATT LYNCH, J.,

concur.

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