[Cite as State v. Phipps,
2021-Ohio-258.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
CASE NO. 3-20-07
PLAINTIFF-APPELLEE,
v.
FRANKIE A. PHIPPS, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 18-CR-0241
Judgment Affirmed
Date of Decision: February 1, 2021
APPEARANCES:
Howard A. Elliot for Appellant
Ryan M. Hoovler for Appellee
Case No. 3-20-07
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Frankie A. Phipps (“Phipps”) appeals the
judgment of the Crawford County Court of Common Pleas, alleging (1) that his
guilty plea is invalid and (2) that the trial court erred by imposing a prison sentence
after he violated the conditions of his judicial release. For the reasons set forth
below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On August 7, 2018, Phipps was charged on one count of burglary in
violation of R.C. 2911.12(A)(2). Doc. 1. On February 7, 2019, Phipps pled guilty
to the charge against him. Doc. 11. Pursuant to a plea agreement, the parties
presented the trial court with a jointly recommended sentence that included a prison
term of four years. Doc. 11. The trial court accepted Phipps’s guilty plea and
immediately proceeded to sentencing. Doc. 12. February 7 Tr. 7-8. The trial court
imposed the sentence that had been jointly recommended by the parties. February
7 Tr. 8.
{¶3} On September 9, 2019, Phipps filed a motion for judicial release
pursuant to R.C. 2929.20. Doc. 19. On October 3, 2019, the trial court granted this
motion. Doc. 22. On March 11, 2020, Phipps’s probation officer filed a motion
that alleged Phipps had violated a condition of his judicial release. Doc. 25. At a
hearing on April 6, 2020, the trial court determined that Phipps had violated a
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condition of his judicial release and ordered him to serve the remaining balance of
his previously imposed prison term. Doc. 35.
{¶4} The appellant filed his notice of appeal on May 4, 2020. Doc. 40. On
appeal, Phipps raises the following assignments of error:
First Assignment of Error
Where a trial court accepts a plea of guilty to the offense of a case
without advising the Defendant-Appellant that the court can
proceed immediately to sentencing, the plea is invalid, and a
subsequent attack of the conviction after expiration of the initial
period of time afforded to make an appeal, is not barred by res
judicata.
Second Assignment of Error
Where the trial court, in granting judicial [release] does not
announce on the record the reserved sentence and thereafter
places the Defendant-Appellant on community control conditions,
granting a motion for judicial release, the court may not impose a
prison sentence or a subsequent community control in violation
of the terms of his release.
First Assignment of Error
{¶5} Phipps argues that his guilty plea was not knowingly, intelligently, or
voluntarily entered and should, therefore, be vacated.
Legal Standard
{¶6} “When a defendant enters a plea in a criminal case, the plea must be
made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525,
527,
660 N.E.2d 450, 451 (1996). “Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution
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and the Ohio Constitution.” Id. “To ensure that a defendant’s guilty plea is
knowingly, intelligently, and voluntarily made, the trial court must engage the
defendant in a plea colloquy pursuant to Crim.R. 11(C).” State v. Fabian, 12th Dist.
Warren No. CA2019-10-119,
2020-Ohio-3926, ¶ 8.
{¶7} “Crim.R. 11(C)(2) outlines the procedures trial courts must follow for
accepting guilty pleas.” Mullins at ¶ 7. Crim.R. 11(C)(2) reads as follows:
(2) In felony cases the court may refuse to accept a plea of guilty
or a plea of no contest, and shall not accept a plea of guilty or no
contest without first addressing the defendant personally and
doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
of the maximum penalty involved, and if applicable, that the
defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights
to jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the defendant’s
favor, and to require the state to prove the defendant’s guilt
beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.
Crim.R. 11(C)(2). “The court must make the determinations and give the warnings
that Crim.R. 11(C)(2)(a) and (b) require and must notify the defendant of the
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constitutional rights that Crim.R. 11(C)(2)(c) identifies.” State v. Bishop, 156 Ohio
St.3d 156,
2018-Ohio-5132,
124 N.E.3d 766, ¶ 11.
{¶8} “While the court must strictly comply with the requirements listed in
Crim.R. 11(C)(2)(c), the court need only substantially comply with the requirements
listed in Crim.R. 11(C)(2)(a) and (b).” Bishop at ¶ 11.
When a trial judge fails to explain the constitutional rights set
forth in Crim.R. 11(C)(2)(c), the guilty or no-contest plea is
invalid ‘under a presumption that it was entered involuntarily
and unknowingly.’ [State v.] Griggs, 103 Ohio St.3d 85, 2004-
Ohio-4415, 814 N.E.2d 51, ¶ 12; see also [State v.] Nero, 56 Ohio
St.3d at 107, 564 N.E.2d 474, citing Boykin [v. Alabama], 395 U.S.
[238,] 242-243, 89 S.Ct. 1709,
23 L.Ed.2d 274. However, if the trial
judge imperfectly explained nonconstitutional rights such as the
right to be informed of the maximum possible penalty and the
effect of the plea, a substantial-compliance rule applies. Id.
Under this standard, a slight deviation from the text of the rule is
permissible; so long as the totality of the circumstances indicates
that ‘the defendant subjectively understands the implications of
his plea and the rights he is waiving,’ the plea may be upheld.
Nero, 56 Ohio St.3d at 108,
564 N.E.2d 474.
When the trial judge does not substantially comply with Crim.R.
11 in regard to a nonconstitutional right, reviewing courts must
determine whether the trial court partially complied or failed to
comply with the rule. If the trial judge partially complied, e.g., by
mentioning mandatory postrelease control without explaining it,
the plea may be vacated only if the defendant demonstrates a
prejudicial effect. See Nero, 56 Ohio St.3d at 108,
564 N.E.2d 474,
citing State v. Stewart (1977), 51 Ohio St.2d 86, 93,
5 O.O.3d 52,
364 N.E.2d 1163, and Crim.R. 52(A); see also Sarkozy,
117 Ohio
St.3d 86,
2008-Ohio-509,
881 N.E.2d 1224, ¶ 23. The test for
prejudice is ‘whether the plea would have otherwise been made.’
Nero at 108, 564 N.E.2d 474, citing Stewart, [I]d. If the trial judge
completely failed to comply with the rule, e.g., by not informing
the defendant of a mandatory period of postrelease control, the
plea must be vacated. See Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-
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509, 881 N.E.2d, 1224, paragraph two of the syllabus. ‘A complete
failure to comply with the rule does not implicate an analysis of
prejudice.’ Id. at ¶ 22.
State v. Clark, 119 Ohio St.3d 239,
2008-Ohio-3748,
893 N.E.2d 462, ¶ 31-32.
Legal Analysis
{¶9} In this assignment of error, Phipps argues that the trial court did not
inform him that he had a “right[] to require the State to prove [his] guilt beyond a
reasonable doubt at a trial ….” Crim.R. 11(C)(2)(c). Since Phipps alleges that
the trial court failed to inform him of a constitutional right, we must examine the
record to determine whether the trial court strictly complied with the requirements
of Crim.R. 11(C)(2)(c) in this regard. Bishop, supra, at ¶ 11.
{¶10} In this case, at the change of plea hearing, the following exchange took
place between the trial court and Phipps during the Crim.R. 11 colloquy:
[Trial] Court: You’re waiving your right to Cross-Examine the
State’s witnesses, and have the State prove your guilt beyond any
reasonable doubt, do you understand that?
Phipps: Yes.
February 7 Tr. 6. Thus, before accepting Phipps’s guilty plea, the trial court clearly
informed him of his right to require the prosecution to establish his guilt beyond a
reasonable doubt. Id. In response, Phipps indicated that he understood he was
waiving this right.
Id. Since the trial court complied with Crim.R. 11(C)(2)(c) in
this regard, the Crim.R. 11 colloquy is not deficient in the manner that Phipps has
alleged in this argument.
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{¶11} Second, Phipps asserts that the trial court failed to sufficiently explain
that it could, “upon acceptance of the plea, … proceed with judgment and
sentence.” Crim.R. 11(C)(2)(b). Since this argument alleges that the trial court
failed to inform him of a nonconstitutional right, we must examine the record to
determine whether the trial court substantially complied with Crim.R. 11(C)(2)(b).
Under the substantial compliance standard, a plea may be upheld as “long as the
totality of the circumstances indicates that ‘the defendant subjectively underst[ood]
the implications of his plea and the rights he is waiving’ ….” Clark, supra, at ¶
31, quoting
Nero, supra, at 108.
{¶12} In this case, the trial court began the change of plea hearing by stating
the following to Phipps:
[Trial] Court: All right. The case comes before the Court today,
Mr. Phipps, you’re pleading guilty to the charge of burglary,
which is a Felony of the Second Degree, you could get up to eight
years in prison and a $15,000 fine. The recommendation,
however, is just to do a flat four years, no fine, and you’ll pay the
cost and you’d be subject to a mandatory—a post-release period
of three years; is that your understanding, sir?
[Trial] Court: Is there a recommended possible early release
down the road?
[State]: There is judge.
[Trial] Court: Okay. Well, that’s down the road, but it’s four
years with the possibility to get out early, do you understand that?
Mr. Phipps: Yeah.
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February 7 Tr. 3. The State points to this statement as evidence that Phipps was
aware that a sentence would be imposed after he pled guilty. Appellee’s Brief, 7.
The following exchange also occurred at the change of plea hearing:
[Trial] Court: Understand this is an agreed sentence
recommendation you, your lawyer and the State are all asking me
to follow it, do you understand that?
Mr. Phipps: Yes.
[Trial] Court: That means you could have very limited appeal
rights, do you understand that?
Mr. Phipps: Yes.
This exchange indicates that Phipps understood that he, his lawyer, and the State
were asking the trial court to impose a jointly recommended sentence as part of this
process. Id. at Tr. 6.
{¶13} Further, “an alleged ambiguity during a Crim.R. 11 oral plea colloquy
may be clarified by reference to other portions of the record, including the written
plea ….” See State v. Barker, 120 Ohio St.3d 472,
2011-Ohio-4130,
953 N.E.2d
826, ¶ 25. In this case, the change of plea form that Phipps signed contained the
following statement: “[b]y pleading, I admit the truth of the facts and circumstances
alleged. I know the judge may either sentence me today or refer my case to a
presentence report.” Doc. 11. See State v. Miller,
2017-Ohio-478,
84 N.E.3d 150
¶ 13-16 (2d Dist.); State v. Summerall, 10th Dist. Franklin No. 02AP-321, 2003-
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Case No. 3-20-07
Ohio-1652, ¶ 12; State v. McKenna, 11th Dist. Trumbull No. 2009-T-0034, 2009-
Ohio-6154, ¶ 71.
{¶14} We also note that the Defense waived any right to a presentence
investigation on the record before the trial court proceeded to sentencing. February
7 Tr. 7. See State v. Porterfield, 11th Dist. Trumbull No. 2002-T-0045, 2004-Ohio-
520, ¶ 46 (reversed on other grounds in State v. Porterfield, 106 Ohio St.3d 5, 2005-
Ohio-3095,
829 N.E.2d 690). Further, immediately after the trial court accepted
Phipps’s guilty plea, the Defense requested that the trial court impose the jointly
recommended sentence. February 7 Tr. 7.
{¶15} Having considered the facts in the record, we conclude that the trial
court did not completely fail to comply with Crim.R. 11(C)(2)(b). Further, even if
the trial court only partially complied with Crim.R. 11(C)(2)(b), Phipps has not even
alleged any resulting prejudicial effect. See State v. Hoskins, 10th Dist. Franklin
No. 97APA10-1384, 1998 WL 318842, *5 (June 6, 1998). In this case, the trial
court imposed the exact sentence that was jointly recommended by the parties.
February 7 Tr. 8. Phipps has not explained why he would not have pled guilty if he
had been orally notified that he would receive the exact sentence he recommended
to the trial court immediately instead of eventually. Since he has not carried the
burden of establishing a prejudicial effect, this argument is without merit.
{¶16} After considering the facts in the record, we conclude that, under the
totality of the circumstances, Phipps subjectively understood the rights that he was
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waiving and the implications of his guilty plea. Since Phipps has not demonstrated
that his guilty plea was not knowingly, intelligently, or voluntarily entered in either
of these two arguments, his first assignment of error is overruled.
Second Assignment of Error
{¶17} Phipps asserts that the trial court failed to reserve a sentence on the
record at the October 3, 2019 hearing on his motion for judicial release. Thus, he
argues that the trial court had no basis on which to reimpose his prison sentence
after he violated the conditions of his judicial release.
Legal Standard
{¶18} Even though “community control sanctions are imposed when judicial
release is granted, judicial release is different from and not synonymous with
community control.” State v. Cox, 3d Dist. Auglaize Nos. 2-09-31, 2-09-32, 2010-
Ohio-3799, fn. 3.
The rules dealing with a violation of an original sentence of
community control (R.C. 2929.15) should not be confused with the
sections of the Revised Code regarding early judicial release (R.C.
2929.20) even though the language of R.C. 2929.20([K]) contains
the term ‘community control’ in reference to the status of an
offender when granted early judicial release.
State v. Alexander, 3d Dist. No. 14-07-45, 2008-Ohio-1485, ¶ 7, quoting State v.
Mann, 3d Dist. No. 3-03-42,
2004-Ohio-4703, ¶ 6.
{¶19} Pursuant to R.C. 2929.15, a trial court may impose community control
sanctions as part of an offender’s original sentence. R.C. 2929.15(A). At the
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sentencing hearing, the trial court is to notify the offender of the prison term he or
she could receive for violating a condition of community control. R.C.
2929.15(B)(3). If an offender commits a community control violation, the trial court
may impose a prison term on the offender as a penalty. R.C. 2929.15(B)(1)(c).
However, any period of incarceration “shall not exceed the prison term specified in
the notice provided to the offender at the sentencing hearing.” R.C. 2929.15(B)(3).
{¶20} Thus, when an offender’s “original sentence is community control[,]
… he will not receive a term of incarceration unless he violates the terms of his
community control ….” State v. Jones, 3d Dist. Mercer Nos. 10-07-26, 10-07-
27, 2008-Ohio-2117, ¶ 12. In this situation, an offender will likely not be aware of
the prison term he or she could receive for a community control violation if the trial
court fails to notify the offender of the length of this potential prison term at the
original sentencing hearing. See R.C. 2929.15(B)(3); R.C. 2929.19(B)(2).
{¶21} Independently, pursuant to R.C. 2929.20, a trial court may grant
judicial release upon the motion of an eligible offender who is currently serving a
term of incarceration. Mann, supra, at ¶ 8. With judicial release, the offender was
already sentenced to a prison term at his or her original sentencing hearing. See
R.C. 2929.20(A), (B); R.C. 2929.19(B)(2).
If a trial court chooses to grant early judicial release to an eligible
offender, R.C. 2929.20([K]) conditionally reduces the already
imposed term of incarceration, and the trial court is required to
place the eligible offender under appropriate community control
sanctions and conditions.
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State v. Smith, 3d Dist. Union No 14-06-15, 2006-Ohio-5972, ¶ 9, quoting
Mann,
supra, at ¶ 8.
{¶22} Thus, “when a[n offender] is granted judicial release, he or she has
already served a period of incarceration, and the remainder of that prison sentence
is suspended pending either the successful completion of a period of community
control or the [offender’s] violation of a community control sanction. State v.
Alexander, 3d Dist. No. 14-07-45, 2008-Ohio-1485, ¶ 7. While out on judicial
release, if “an offender violates his community control requirements, the trial court
may reimpose the original prison sentence and require the offender to serve the
balance remaining on the original term.”
Mann, supra, at ¶ 8. See Smith at ¶ 13.
{¶23} However, the appellate districts in this state have imposed different
requirements on the process of granting judicial release based on the wording of
R.C. 2929.20(K). See State v. Dolby, 2d Dist. Champaign No. 2014-CA-11, 2015-
Ohio-2424, ¶ 19-20. R.C. 2929.20(K) reads, in its relevant part, as follows:
If the court grants a motion for judicial release under this section,
the court shall order the release of the eligible offender, shall place
the eligible offender under an appropriate community control
sanction, under appropriate conditions, and under the
supervision of the department of probation serving the court and
shall reserve the right to reimpose the sentence that it reduced if the
offender violates the sanction. If the court reimposes the reduced
sentence, it may do so either concurrently with, or consecutive to,
any new sentence imposed upon the eligible offender as a result of
the violation that is a new offense.
(Emphasis added.) R.C. 2929.20(K).
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{¶24} In applying this provision, several of our sister districts have held that
a trial court must expressly reserve the right to reimpose the balance of an eligible
offender’s term of incarceration when judicial release was granted. State v. Evans,
4th Dist. Meigs No. 00CA003, 2000 WL 33538779, *3 (Dec. 13, 2000); State v.
Darthard, 10th Dist. Franklin Nos. 01AP–1291, 01AP-1292, 01AP-1293, 2002-
Ohio-4292, ¶ 11; State v. Bazil, 11th Dist. Trumbull No.2003-T-0063, 2004-Ohio-
5010, ¶ 23. However, this Court has previously held that a trial court, by granting
judicial release, implicitly reserves the right to reimpose the balance of the original
sentence in the event that the offender violates the conditions of his or her judicial
release.1 State v. Monroe, 3d Dist. Defiance Nos. 4-01-27, 4-01-28, 2002-Ohio-
1199, *2 (Mar. 18, 2002).
{¶25} In reaching this position, we noted that the “specific language” of the
community control statute in R.C. 2929.15(B) “require[d] the trial court to give the
offender notice of the potential prison term at the sentencing hearing.” Monroe at
*2, citing State v. Martin, 136 Ohio App.3d 355,
736 N.E.2d 907 (3d Dist. 1999).
However, R.C. 2929.20(K) “does not contain the same requirement” for judicial
release. Monroe at *2. We also noted that R.C. 2929.20(K)
‘states that the trial court shall reserve the right to reimpose the
sentence before the offender can be released. The statute, unlike
1
The Fifth District has also held that a trial court implicitly reserves the right to reimpose the balance of an
eligible offender’s prison sentence by granting judicial release. State v. Durant, 5th Dist. Stark No.2005 CA
00314, 2006-Ohio-4067, ¶ 17 (holding that R.C. 2929.20(K) “reserves the right of the trial court to reimpose
the sentence that is reduced pursuant to the judicial release if the defendant violates the sanction.”). See also
State v. Abrams, 7th Dist. Mahoning No. 15 MA 0217,
2016-Ohio-5581, ¶ 16.
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other sentencing statutes, does not require that the trial court
make a finding that it has reserved the right to reimpose the
sentence nor does it require that the trial court place the
reservation on the record. By ordering the release of the offender
pursuant to R.C. 2929.20([K]), the trial court has implicitly
reserved the right to reimpose the original sentence in order for
the offender to be released. The statute does not provide for any
alternative. Without the reservation, the release of the offender
is not permitted.’
By virtue of being subject to the specific term of imprisonment
imposed at the original sentencing hearing, it cannot be said that
the eligible offender has not been informed of the specific term of
imprisonment conditionally reduced by the trial court’s granting
of early judicial release.
Mann, supra, at ¶ 12-13, quoting Monroe at *2. Based on this reasoning, we
concluded that
the preferred procedure is for the trial court to explicitly ‘reserve’
on the record or in the judgment entry its right to reimpose
sentence from which the eligible offender is receiving early
judicial release [but that] the failure of the trial court to do so does
not deprive the court of authority to later reimpose the
conditionally reduced sentence.
Mann, supra, at ¶ 12.
Legal Analysis
{¶26} Phipps asserts that the trial court erred by failing to “announce on the
record the reserved sentence” when he was granted judicial release. Appellant’s
Brief, 1. He advances three supporting arguments for this assertion. First, Phipps
points out that the community control statute, R.C. 2929.15(B), “talk[s] in terms of
the [trial] court not being able to impose a prison sentence upon a violator that
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exceeds the term[] specified in the notice provided [to] … the defendant at the
time of the sentencing hearing.” Id. at 12. However, this Court has previously held
that
R.C. 2929.15(B) … only applies to offenders who were initially
sentenced to community control sanctions and permits a trial
court to newly impose a prison term upon an offender who later
violates the community control sanctions.
(Brackets sic.) State v. Smith, 3d Dist. Union No 14-06-15, 2006-Ohio-5972, ¶ 9,
quoting Mann at ¶ 7. Since Phipps “was granted early judicial release, R.C. 2929.15
is inapplicable to resolution of this appeal and R.C. 2929.20 is controlling.”
Mann,
supra, at ¶ 9. For this reason, the arguments he advances that suggest the trial court
should have followed the requirements of R.C. 2929.15(B) are without merit.
{¶27} Second, Phipps next points to R.C. 2929.19(B)(4), which governs
sentencing hearings. This provision reads, in its relevant part, as follows:
If the sentencing court determines at the sentencing hearing that
a community control sanction should be imposed …, the court
shall impose a community control sanction. The court shall notify
the offender that, if the conditions of the sanction are violated …
* the court 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 ….
R.C. 2929.19(B)(4). Phipps argues that R.C. 2929.19(B)(4) requires a trial court to
“notify the offender of the specific prison term that may be imposed for a violation
of the conditions of the sanction.” Appellant’s Brief, 10-11, quoting State v. Brooks,
103 Ohio St.3d 134,
2004-Ohio-4746,
814 N.E.2d 837, paragraph two of the
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syllabus. He then asserts that this notification has been held to be “a prerequisite to
imposing a prison term on the offender for a subsequent violation” of the conditions
of community control. Brooks at paragraph two of the syllabus.
{¶28} However, in State v. Abrams, the Seventh District held that R.C.
2929.19(B)(4) and R.C. 2929.20(K) are applicable in different situations. Abrams,
supra, at ¶ 14, citing Brooks at paragraph two of the syllabus. After examining both
of these statutes, the Seventh District held that the notification requirements of R.C.
2929.19(B)(4) apply “[w]hen a trial court originally sentences an offender to a
community control sanction ….”
Abrams, supra, at ¶ 14. In this situation, the
trial court must “notify the offender of the specific prison term that may be imposed
for a violation of the conditions of the sanction ….”
Id., quoting Brooks at
paragraph two of the syllabus.
{¶29} Conversely, “R.C. 2929.20 contemplates that the offender has already
been fully apprised of his or her sentence, a sentence that is held in abeyance under
the auspices of the later judicial release.” Abrams at ¶ 14. The application of the
notification requirements of R.C. 2929.19(B)(4) to the context of judicial release
does not make sense because,
according to the explicit language of the judicial release statute,
the trial court is bound by the specific term of incarceration
imposed at the original sentencing hearing. This means the
offender serves the remainder of the exact term of incarceration
that has only been suspended by the grant of judicial release.
…
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[I]nform[ing] an offender of the precise remainder of the sentence
that will be imposed in case the judicial release is violated … is
not a statutory requirement because it appears unnecessary. The
trial court has no discretion or authority pursuant to R.C.
2929.20, the governing statute, other than to reimpose the
remaining balance of the original sentence.
Id. at ¶ 15. Thus, the Seventh District concluded that, when an offender is granted
judicial release under R.C. 2929.20, “the trial court need not specifically inform the
offender of its right to reimpose the balance of the original sentence.” Id. at ¶ 16.
{¶30} We find the Seventh District’s decision in Abrams to be persuasive.
In the case presently before this Court, the trial court was not imposing a community
control sanction at an original sentencing hearing. Abrams, supra, at ¶ 15. Rather,
the trial court was granting Phipps’s motion for judicial release. Phipps was subject
to community control sanctions pursuant to his judicial release. Thus, applying the
reasoning of Abrams to the case before this Court, we conclude that Phipps’s
arguments based on R.C. 2929.19(B) to be inapplicable in this situation.
Id.
{¶31} Third, Phipps argues that this Court should follow the precedent of the
Fourth District in State v. Evans and hold that a trial court must expressly reserve
the right to reimpose an offender’s sentence on the record when a motion for judicial
release is granted. Evans, supra, at *3. However, this Court has previously held
that a trial court implicitly reserves the right to reimpose an offender’s sentence in
the act of granting judicial release. Monroe at *2; Mann, supra, at ¶ 12-13. At this
time, we decline to revisit our prior precedent. Thus, following the case law of this
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district, we conclude that the trial court did not err in reimposing the balance of
Phipps’s sentence in the absence of an express reservation of this right at the judicial
release hearing. Mann, supra, at ¶ 12-13. For this reason, we find that Phipps’s
arguments to the contrary are without merit. Evans, supra, at *3.
{¶32} Moreover, we also note that the following exchange occurred at the
original sentencing hearing on February 7, 2019:
[Trial] Court: Is there a recommended possible early release
down the road?
[State]: There is judge.
[Trial] Court: Okay. Well, that’s down the road, but it’s four
years with the possibility to get out early, do you understand that?
Mr. Phipps: Yes.
[Trial] Court: All right. Obviously, Community Control is not
being what’s recommended right now, but if I did let you out
down the road, it would be for five years, do you understand that?
You need to say yes or no.
Mr. Phipps: Yes.
[Trial] Court: Okay. And if you violated that Community
Control, I could reimpose the four year sentence and you’d have to
do the rest of it, do you understand that?
Mr. Phipps: Yes.
(Emphasis added.) February 7 Tr. 4. In this exchange, the trial court indicated that
community control would not be part of his original sentence but that he could be
granted judicial release subject to community control sanctions that would last for
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five years. Id. Further, Phipps was informed that, if he was granted judicial release
and violated one of the conditions, the trial court could reimpose the balance of his
four year prison term. Id.
{¶33} In response to these statements, Phipps indicated that he understood
the trial court’s explanation. Id. Thus, in this case, Phipps had been made aware of
the fact that the balance of his four-year prison term could be reimposed if he
violated the conditions of his community control as imposed when his judicial
release was granted. February 7 Tr. 4. Having considered the arguments of the
appellant and the contents of the record, we conclude that Phipps has not
demonstrated that the trial court erred in this matter. For this reason, his second
assignment of error is overruled.
Conclusion
{¶34} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of Crawford County Court of Common Pleas is
affirmed.
Judgment Affirmed
SHAW and ZIMMERMAN, J.J., concur.
/hls
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