[Cite as State v. Evans,
2023-Ohio-2854.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220562
TRIAL NO. B-1901785
Plaintiff-Appellee, :
vs. :
O P I N I O N.
SHIRLEY EVANS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: August 16, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christopher Bazely, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Shirley Evans appeals from her conviction for child endangerment
following a guilty plea. Evans argues that the indictment was defective, rendering her
plea involuntary and her sentence void. She further argues that the trial court failed
to advise her of the potential penalties for a community-control violation. For the
following reasons, we affirm the trial court’s judgment in part, reverse the judgment
in part, and remand the cause to the trial court.
Factual Background
{¶2} Shirley Evans was indicted for felonious assault and three charges of
child endangerment for striking a five-year-old foster child and causing serious
physical harm. Evans proceeded to a jury trial, and after three witnesses had testified,
she entered into a plea agreement with the state. Evans agreed to plead guilty to count
three of the indictment charging her with child endangerment in violation of R.C.
2919.22(A), a felony of the third degree. In exchange, the other three counts were
dismissed.
{¶3} The trial court accepted the guilty plea after engaging in a lengthy
colloquy and ensuring that Evans understood the ramification of the plea and the
rights she was waiving. The court found her guilty, sentenced her to three years of
community control, and notified her that if she violated her community control, she
would be sentenced to a prison term of 36 months. The court did not notify her that
if she committed a violation of any law or left the state without permission, she would
be in violation of her community control and subject to sanctions.
{¶4} Evans now appeals, contending that count three of the indictment was
defective because it purported to charge a third-degree felony but actually charged a
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OHIO FIRST DISTRICT COURT OF APPEALS
misdemeanor of the first degree rendering her sentence voidable, her plea was not
knowingly, intelligently, or voluntarily made due to the defective indictment, the
defective indictment rendered the sentence void, and the trial court failed to advise
her of the requirements and potential penalties for violating community control as
required by R.C. 2929.19(B)(4).
Count Three of the Indictment
{¶5} The first three assignments of error are based on the premise that the
indictment was defective because it purported to charge a third-degree felony but
actually charged a misdemeanor of the first degree and will be addressed together.
Evans argues that her guilty plea was not knowingly, intelligently, or voluntarily
entered, and the sentence is voidable or void because she was charged with a first-
degree misdemeanor, but convicted of and sentenced for a third-degree felony.
{¶6} Count three of the indictment stated that Shirley Evans, being the
parent, guardian custodian, or person in loco parents of D.A., a child under 18 years
of age, recklessly created a substantial risk of harm to the child by violating a duty of
care, and the violation resulted in serious physical harm to D.A., in violation of R.C.
2919.22(A), a felony of the third degree.
{¶7} R.C. 2919.22(E)(2) sets forth the penalties for a violation of division (A),
and states in relevant part:
(2) If the offender violates division (A) or (B)(1) of this section,
endangering children is one of the following, and, in the circumstances
described in division (E)(2)(e) of this section, that division applies:
(a) Except as otherwise provided in division (E)(2)(b), (c), or (d) of this
section, a misdemeanor of the first degree;
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OHIO FIRST DISTRICT COURT OF APPEALS
…
(c) If the violation is a violation of division (A) of this section and results
in serious physical harm to the child involved, a felony of the third
degree;
{¶8} Here, the indictment charged Evans with a violation of division (A) and
specified that the violation resulted in serious physical harm. Under R.C.
2919.22(E)(2)(c), the offense is a felony of the third degree. See State v. Pepka, 125
Ohio St.3d 124,
2010-Ohio-1045,
926 N.E.2d 611, ¶ 2 (“Pursuant to the Ohio Revised
Code, the only circumstance in which child endangering in violation of R.C.
2919.22(A) is a third-degree felony is when the victim suffers serious physical harm.
R.C. 2919.22(E)(2)(c).”). Therefore, the indictment properly charged Evans with child
endangering as a felony of the third degree. See id. at ¶ 23 (explaining that
endangering children in violation of R.C. 2919.22(A) is a third-degree felony when it
results in serious physical harm to the victim).
{¶9} Because the indictment properly charged Evans with a third-degree
felony, her plea was knowingly, intelligently, and voluntarily entered and the sentence
is not voidable or void.
{¶10} Accordingly, we overrule her first, second, and third assignments of
error.
Community Control Notifications
{¶11} In her fourth assignment of error, Evans contends that she is entitled to
a new sentencing hearing because the trial court failed to advise her of all the
requirements and potential penalties for violating community control as required by
R.C. 2929.19(B)(4).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} R.C. 2929.19(B)(4) provides:
If the sentencing court determines at the sentencing hearing that a
community control sanction should be imposed and the court is not
prohibited from imposing a community control sanction, the court shall
impose a community control sanction. The 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 range from which the prison term
may be imposed as a sanction for the violation, which shall be the range
of prison terms for the offense that is specified pursuant to section
2929.14 of the Revised Code and as described in section 2929.15 of the
Revised Code.
{¶13} Here, the record reflects that the trial court informed Evans that if she
violated her community control she would be sentenced to a prison term of 36 months.
The court did not inform her that if she violated any laws or left the state without
permission that she would be subject to additional sanctions, including a prison term.
{¶14} The state questions whether this issue is ripe for appeal since a
community-control violation has not yet occurred. This court recently noted that the
Ninth and Sixth Appellate Districts determined that resentencing was the proper
remedy for the omission of the notifications required by R.C. 2929.19(B)(4) when the
appellants appealed from the initial imposition of community control. See State v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Elliot, 1st Dist. Hamilton No. C-220339, 2023-Ohio-1459, ¶ 24-25, citing State v.
Colburne, 9th Dist. Summit No. 27553,
2015-Ohio-4348, and State v. Jones, 6th Dist.
Lucas No.
L-03-1321, 2005-Ohio-5736. In Colburne, “the trial court did not notify Mr.
Colburne that violating the conditions of community control, violating another law, or
leaving the state without permission could result in additional sanctions, including the
prison terms outlined by the trial court.” Colburne at ¶ 29. In Jones, the trial court
failed to notify Jones that the prison term could be imposed if he committed a violation
of any law or left the state without permission of his probation officer. Jones at ¶ 14.
We agree that a remand to provide the notifications is the proper remedy.
{¶15} We sustain the fourth assignment of error.
Conclusion
{¶16} Therefore, we vacate the sentence and remand the cause to provide the
proper notifications consistent with this opinion. We affirm the trial court’s judgment
in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
CROUSE, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry this date.
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