State v. Bartlett

[Cite as State v. Bartlett, 

.]



                 Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 96501


                                        STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                  vs.

                                 MARCUS J. BARTLETT
                                                DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               DISMISSED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                        Case No. CR-533887

              BEFORE:           Blackmon, A.J., Cooney, J., and S. Gallagher, J.

              RELEASED AND JOURNALIZED:                    January 12, 2012


                                                  -i-
                                          2


ATTORNEY FOR APPELLANT

Gregory T. Stralka
Crown Center, Suite 600
5005 Rockside Road
Cleveland, Ohio 44131

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

Diane Russell
Daniel T. Van
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113



PATRICIA ANN BLACKMON, A.J.:

      {¶ 1} Appellant Marcus Bartlett appeals the trial court’s imposition of a prison

term after finding that he violated his community control sanctions. Bartlett assigns the

following error for our review:

      “I. The trial court erred in the imposition of a prison sentence when it

      failed to inform the defendant of possible incarceration at the time of

      the original sentencing.”

      {¶ 2} Having reviewed the record and pertinent law, we dismiss this appeal as

moot. The apposite facts follow.
                                           3
       {¶ 3} On May 10, 2010, Bartlett pleaded guilty to one count of criminal damaging

and one count of possession of criminal tools. The trial court imposed an 11-month jail

sentence, subsequently suspended the sentence, and placed Bartlett on two years of

community control sanctions.     The community control sanctions required Bartlett to

submit to drug testing and to participate in drug counseling.

       {¶ 4} On October 14, 2010, Bartlett tested positive for drugs.     At a hearing on

November 10, 2010, Bartlett admitted that he violated the terms of his community control

sanctions. Thereafter, the trial court sentenced Bartlett to jail for 11 months. Bartlett

has served the imposed jail sentence.

                              Imposition of Imprisonment

       {¶ 5} In his sole assignment of error, Bartlett argues that the trial court erred in

imposing a term of imprisonment when the court failed at sentencing to advise him that a

term of imprisonment may be imposed if he violated community control sanctions. The

state concedes this issue.

       {¶ 6} Pursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court sentencing an

offender to a community control sanction must, at the time of 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. Harper, Cuyahoga App. No. 95718, 

, citing
                                            4
State v. Brooks, 

, 

, 

, paragraph two of

the syllabus.

       {¶ 7} In the instant case, the record is devoid of any advisement that Bartlett

could be sentenced to a specific prison term if he violated the terms of his community

control sanctions. Said advisement is also absent from the trial court’s journal entry.

When the trial court fails to comply with R.C. 2929.19(B)(5) and 2929.15 regarding

community control sanctions, the court may not impose a prison sentence at a subsequent

violation hearing. See State v. Hayes, Cuyahoga App. No. 87642, 

.

       {¶ 8} We conclude that the trial court erred in imposing a term of imprisonment

for Bartlett’s community control violation, having failed to advise Bartlett at his original

sentencing that he would be subject to prison time if he violated the community control

sanctions. However, since Bartlett has completed the imposed sentence, there is no

remedy that we can apply that would have any effect in the absence of a reversal of the

underlying conviction. State v. Verdream, 7th Dist. No. 02 CA 222, 

,

citing State v. Beamon, 11th Dist. No. 2000-L-160, 

. Given that Bartlett

is not challenging his underlying conviction, but rather questioning whether the sentence

was correct, the instant appeal is thereby rendered moot.

       Appeal dismissed.

       It is ordered that appellant recover of appellee his costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
                                         5
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR