[Cite as State v. Grega,
2016-Ohio-187.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103508
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOHN GREGA
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-558836-A
BEFORE: Keough, P.J., E.A. Gallagher, J., and McCormack, J.
RELEASED AND JOURNALIZED: January 20, 2016
[Cite as State v. Grega, 2016-Ohio-187.]
APPELLANT
John Grega
No. A664943
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Amy Venesile
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Grega,
2016-Ohio-187.]
KATHLEEN ANN KEOUGH, P.J.:
{¶1} This appeal is before the court on the accelerated docket pursuant to App.R. 11.1
and Loc. App.R. 11.1.
{¶2} Defendant-appellant, John Grega, appeals from the trial court’s judgment denying
his motion to vacate a void judgment. He contends that the trial court was without jurisdiction
to sentence him to prison after he violated his community control sanctions because the court
never advised him that he would be subject to a prison term if he violated community control
sanctions. The state concedes the error. We reverse the trial court’s judgment, and remand
with instructions to immediately vacate Grega’s sentence and order him discharged.
I. Background
{¶3} In February 2012, Grega was indicted on one count of aggravated burglary, three
counts of aggravated arson, and one count of arson. He subsequently pleaded guilty to one
count of aggravated arson, and the remaining counts were nolled.
{¶4} On May 9, 2012, the trial court sentenced Grega to five years of community
control with conditions. The judgment entry of sentencing contains no advisement that Grega
would be subject to incarceration should he violate the community control sanctions.
{¶5} On April 2, 2014, after a hearing, the trial court found Grega in violation of the
community control sanctions. The court continued community control sanctions, but modified
the conditions to inpatient treatment at the Matt Talbott Recovery Center. The journal entry of
sentencing does not contain an advisement that Grega would be subject to incarceration should
he violate the community control sanctions.
{¶6} Subsequently, the court issued a capias for Grega, and on February 26, 2015, he
was taken into custody.
{¶7} On March 26, 2015, after a hearing, the trial court found Grega in violation of
community control sanctions, terminated community control, and sentenced him to four years
incarceration.
{¶8} Grega subsequently filed a motion to vacate the judgment sentencing him to
prison, contending that it was a void judgment. The trial court denied the motion, and this
appeal followed.
II. Analysis
{¶9} Grega argues that the trial court was without jurisdiction to sentence him to prison
because it never notified him, as required by R.C. 2929.19(B)(5) and 2929.15(B), that a prison
sentence could be imposed for violation of community control sanctions. Accordingly, he
contends, the trial court’s judgment sentencing him to four years in prison was a void judgment.
{¶10} We begin by acknowledging that Grega did not file a direct appeal of the trial
court’s alleged sentencing error. Sentencing errors not raised on direct appeal are generally
barred by the doctrine of res judicata. State v. Willard, 8th Dist. Cuyahoga No. 101055,
2014-Ohio-5278, ¶ 10. Void sentences, however, are an exception to the res judicata doctrine,
and may be reviewed at any time, either on direct appeal or by collateral attack. State v.
Fischer,
128 Ohio St.3d 92,
2010-Ohio-6238,
942 N.E.2d 332, ¶ 30.
{¶11} This court has stated the following with respect to the imposition of prison
sentences for violations of community control sanctions:
In State v. Brooks, 103 Ohio St.3d 134,
2004-Ohio-4746,
814 N.E.2d
837, the Supreme Court of Ohio held:
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. Id. at paragraph two of the syllabus.
Notification of the specific prison term, however, need not occur at the original
sentencing. State v. Fraley, 105 Ohio St.3d 13, 18,
2004-Ohio-7110,
821 N.E.2d
995. Because an offender under a community control sanction is sentenced
“anew” following each violation of the sanction, a sentencing court complies with
any relevant sentencing statute by notifying the offender of a specific prison term
at subsequent sentencing hearings. Id. “Pursuant to R.C. 2929.19(B)(5) and
2929.15(B), 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 such a subsequent violation.” Id. at syllabus.
State v. Goforth, 8th Dist. Cuyahoga No. 90653,
2008-Ohio-5596, ¶ 11-13.
{¶12} In short, a trial court must notify a defendant at sentencing of the specific prison
term that it will impose if he or she violates community control. Such notification must also be
contained in the accompanying sentencing journal entry. Goforth at ¶ 20, citing State v.
McWilliams, 9th Dist. Summit No. 22359, 2005-Ohio-2148. When a trial court gives no notice
to an offender being sentenced to community control of the prison term that may be imposed if
community control sanctions are violated, a prison term may not be imposed for violation of the
conditions. Brooks,
103 Ohio St.3d at 136,
2004-Ohio-4746 at ¶ 8.
{¶13} Here, neither the sentencing journal entry of May 9, 2012, when Grega was first
sentenced to community control sanctions, nor the subsequent sentencing journal entry of April
2, 2014, when the court continued community control but modified the sanctions to inpatient
treatment at the Matt Talbott Recovery Center, contain the required statutory notification that
Grega would be subject to incarceration should he violate community control sanctions.
[Cite as State v. Grega, 2016-Ohio-187.]
{¶14} A trial court imposes a void sentence when it acts without authority by disregarding
statutory sentencing requirements. Willard, 2014-Ohio-5278 at ¶ 12, citing State v. Beasley,
14
Ohio St.3d 74, 75,
471 N.E.2d 774 (1984). Although the ordinary course when a sentence is
deemed void is to vacate the sentence and remand for a new sentencing hearing, State v. Foster,
109 Ohio St.3d 1,
2006-Ohio-856,
845 N.E.2d 470, the record reflects that the trial court
terminated Grega’s community control sanctions when it sentenced him to prison. Thus, even if
we were to remand for resentencing, the trial court could not impose any further community
control sanctions. Accordingly, we reverse the trial court’s judgment, and remand with
instructions to immediately vacate Grega’s sentence and order him discharged. See State v.
Waite, 8th Dist. Cuyahoga No. 92895,
2010-Ohio-1748, ¶ 7; State v. Goforth, 8th Dist. Cuyahoga
No. 90653,
2008-Ohio-5596, ¶ 20.
{¶15} Judgment reversed, remanded with instructions.
It is ordered that appellant recover from appellee 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR
[Cite as State v. Grega, 2016-Ohio-187.]
