Opinion
2021-T-0001
09-30-2021
STATE OF OHIO, Plaintiff-Appellee, v. CHARLES L. EVANS, Defendant-Appellant.
Dennis Watkins, Trumbull County Prosecutor, Ashleigh Musick and Ryan J. Sanders, Assistant Prosecutors, (For Plaintiff-Appellee). Michael A. Partlow, (For Defendant-Appellant).
Criminal Appeal from the Court of Common Pleas Trial Court No. 2016 CR 00547
Dennis Watkins, Trumbull County Prosecutor, Ashleigh Musick and Ryan J. Sanders, Assistant Prosecutors, (For Plaintiff-Appellee).
Michael A. Partlow, (For Defendant-Appellant).
OPINION
THOMAS R. WRIGHT, J.
{¶1} Charles L. Evans appeals the judgment sentencing him to six months in jail on a community control violation. We reverse and vacate.
{¶2} In 2016, Evans was indicted on one count of aggravated possession of drugs, a felony of the fifth degree, in violation of R.C. 2925.11(A) and (C)(1)(a), and two counts of OVI, misdemeanors of the first degree, in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2). Pursuant to a plea agreement, Evans entered guilty pleas to the two OVI charges, and the state agreed to nolle prosequi the aggravated possession charge. On March 2, 2017, a document captioned "sentence and terms of probation" was filed in the trial court, indicating that Evans would receive five years of community control. The March 2, 2017 document was not signed. On March 10, 2017, the trial court issued a signed entry that sentenced Evans to two years of community control.
{¶3} Thereafter, Evans was alleged to have violated the terms of community control and pleaded guilty to the violation. In a judgment entry dated November 14, 2017, the trial court recited the procedural history of the case, mistakenly stating that, on March 2, 2017, Evans was sentenced to five years of community control. The trial court ordered that Evans continue on community control with additional sanctions, but the court did not extend the length of community control.
{¶4} In 2020, Evans was arrested on new charges and thereafter pleaded guilty to violating his community control. In an entry dated December 15, 2020, the trial court recited the procedural history, mistakenly stating that Evans was sentenced to five years of community control on March 17, 2017. The trial court then ordered Evans to continue on community control with the additional sanction that Evans serve six months confinement in the Trumbull County Jail, with community control to terminate upon completion of jail time.
{¶5} In Evans' first assigned error, he argues:
{¶6} "The trial court erred, as a matter of law, by finding that appellant had violated the terms of his community control after his term of community control expired."
{¶7} As set forth above, in its entries sentencing Evans on his community control violations, the trial court mistakenly recited that it had originally sentenced Evans to five years of community control, when it had sentenced him to only two years of community control.
{¶8} R.C. 2929.25(A)(3) authorizes the trial court to sentence a misdemeanant to community control and requires the trial court to "state the duration of the community control sanctions imposed[.]"
{¶9} "[A] court is 'authorized to conduct proceedings on the alleged community-control violations even though they were conducted after the expiration of the term of community control, provided that the notice of violations was properly given and the revocation proceedings were commenced before the expiration.'" (Emphasis deleted.) State v. Rue, 164 Ohio St.3d 270, 2020-Ohio-6706, ¶ 56, quoting State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, 943 N.E.2d 1014, ¶ 13.
The period of community control may be tolled under certain circumstances not applicable here. See Rue at ¶ 24-26.
{¶10} There is no dispute that the alleged community-control violation at issue occurred in 2020, after the expiration of the two-year sentence of community control. Accordingly, Evans argues that, pursuant to Rue, the trial court had no authority to proceed on the alleged community-control violation. The state concedes the error. We agree that the trial court lacked authority to sentence Evans on a community control violation charge that was initiated after community control terminated. Accordingly, Evans' first assigned error has merit.
{¶11} In his second assigned error, Evans contends:
{¶12} "The trial court erred by failing to grant appellant credit for time served in its judgment entry as it clearly did so at the sentencing hearing."
{¶13} Our disposition of the first assigned error renders the second assigned error moot, and we decline to address it. See App.R. 12(A)(1)(c).
{¶14} The judgment of the trial court is reversed and Evans' conviction vacated.
MARY JANE TRAPP, P.J., MATT LYNCH, J., concur.