[Cite as State v. Yauger,
2023-Ohio-815.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111734
v. :
JOSEPH MICHAEL YAUGER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 16, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-20-654499-A and CR-21-659406-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Alicia Harrison, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Michael V. Wilhelm, Assistant Public Defender, for
appellant.
FRANK DANIEL CELEBREZZE, III, P.J.:
Joseph Michael Yauger appeals the sentence imposed following the trial
court’s finding that he violated his community-control sanctions. Yauger contends
that the trial court erred (1) in imposing a sentence that it did not initially journalize;
(2) because the record does not clearly and convincingly support the imposition of
consecutive sentences; and (3) in imposing a prison sentence where the community-
control sanctions violation was merely a technical violation that only warranted jail
time. After a careful review of the facts and law, we affirm the judgment of the trial
court.
I. Factual and Procedural History
Yauger was indicted in two separate cases: Cuyahoga C.P. Nos. CR-21-
659406-A and CR-20-654499-A, each for a single count of grand theft in violation
of R.C. 2913.02(A)(3), a fourth-degree felony. Yauger entered a guilty plea to both
counts. In each case, Yauger entered into contracts with two families for
construction projects, collected the money, and then never performed the work.
At a joint sentencing hearing, Yauger, through counsel, admitted that
his intent was never to defraud anyone and that he was battling a gambling problem
that exacerbated his failure to perform on his contractual obligations. The trial court
sentenced Yauger to community-control sanctions for a period of five years and
ordered Yauger to pay full restitution to his victims ($22,900.83 in CR-21-659406
and $8,600 in CR-20-654499) and developed a monthly repayment plan with input
from Yauger regarding what he was able to pay. Yauger admitted that he owed
money to other victims and indeed had other cases pending in Lorain County where
he was going to owe money to additional victims. The court advised him that he was
to comply with all rules of the community-control department, submit to random
drug testing, and take a gambling assessment.
In January 2022, the court held a community-control sanctions
violation hearing. Appellant had fallen behind on his monthly restitution payments
and never participated in the gambling assessment. The trial court imposed a 30-
day jail sentence, which was held in abeyance “until summertime.” The trial court
advised Yauger that if he paid the full restitution amount, it would consider reducing
the jail time.
In July 2022, the court held another community-control sanctions
violation hearing. Appellant remained behind on his restitution payments and still
failed to complete the gambling assessment. Further, Yauger failed to report to and
maintain contact with the community-control department. Finding that he was not
amenable to community-control sanctions, the trial court sentenced Yauger to 18
months in prison on both cases, which were to run consecutively.
Yauger timely appealed the sentence imposed, assigning three errors
for our review.
I. The trial court did not journalize an 18-month sentence in the
original sentencing entry for case CR-20-654499 and therefore cannot
now impose that sentence for a violation of community control.
II. The record does not clearly and convincingly support consecutive
sentence findings[.]
III. The trial court erred in not finding that the failure to make regular
restitution payments was a technical violation of community control
and therefore did not warrant more than 180 days in jail.
II. Law and Analysis
A. Prior Journalization of Possible Sentence
In his first assignment of error, Yauger disputes one of his 18-month
sentences as improperly imposed.
The trial court sentenced Yauger on both cases in a joint sentencing
hearing. After the hearing, the trial court journalized a separate sentencing entry in
each case. In CR-21-659406, the sentencing entry states that “violation of the terms
and conditions may result in more restrictive sanctions, or a prison term of 18
month(s) as approved by law.” This sentence, however, is absent from the
sentencing entry in CR-20-654499.
Yauger argues that because the trial court only journalized this
possibility in one of his cases, CR-21-659406, the trial court erred in imposing the
18-month sentence with respect to CR-20-654499.
R.C. 2929.19(B)(4) mandates that when imposing a community-
control sanction, the court shall
notify the offender that, if the conditions of the sanction are violated
… 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[.]
(Emphasis added.)
In State v. Brooks, 103 Ohio St.3d 134,
2004-Ohio-4746,
814 N.E.2d
837, the Ohio Supreme Court evaluated the timing and format of the notification
required under a former version of R.C. 2929.19(B) that used the same language as
the current R.C. 2929.19(B)(4). The Brooks Court held that “a trial court sentencing
an offender to a community control sanction is required to deliver the statutorily
detailed notifications at the sentencing hearing.” Id. at ¶ 15. The Brooks Court
expounded upon this holding, noting that “notification given in a court’s journal
entry issued after the sentencing does not comply with R.C. 2929.19(B)[(4)].” Id. at
¶ 18.
Pursuant to Brooks, the court properly notified Yauger of his potential
prison term at the sentencing hearing as required by R.C. 2929.19(B)(4).
THE COURT: If you fail to comply with these orders of probation, you
are looking at 18 months on Case 659406, and 18 months in prison on
654499, consecutive to each other. It’s 36 months in prison.
…
Do you have any questions?
THE DEFENDANT: No, sir.
(Tr. 31-32.)
Yauger was yet again informed of the potential prison term he faced in
the event of a community-control violation at his first community-control violation
hearing, where the following exchange took place:
THE COURT: … If you fail to comply with probation you’re looking
at that 36 months in prison. Do you have any questions?
THE DEFENDANT: No, sir.
(Tr. 43.)
Next, we will examine whether the trial court’s failure to journalize this
notification in CR-20-654499 was error.
Yauger asks us to read R.C. 2929.19(B)(4) in conjunction with well-
settled law that a court speaks through its journal entries. State v. Steinke, 8th Dist.
Cuyahoga No. 81785, 2003-Ohio-3527, ¶ 45, citing Gaskins v. Shiplevy,
76 Ohio
St.3d 380, 382,
667 N.E.2d 1194 (1996). However, pursuant to Crim.R. 36, a court
retains jurisdiction to correct clerical mistakes at any time to conform to the
transcript of the proceedings. (Emphasis added.) Id. at ¶ 47.
Yauger directs us to this court’s decision in State v. Sheffield, 8th Dist.
Cuyahoga No. 95434, 2011-Ohio-2395. In Sheffield, the trial court orally advised
the defendant of his possible sentence in the event of a community-control violation
in the following manner: “You have four F3’s. Five years on each F3. Eighteen
months on 15 F4’s. You have two F5’s, 12 months for each of those. I’ll run them
consecutive.” Id. at ¶ 19. Nonetheless, when the court journalized the sentence, it
instructed that a community-control sanctions violation could result in “a prison
term of 5 years as approved by law. (5 years on each F-3, 18 months each F-4 and 12
months each F-5, counts to run concurrent to each other.)” Id. at ¶ 22. After the
defendant was already sentenced to eight years for his community-control violation,
the trial court in Sheffield issued a nunc pro tunc entry correcting the total possible
sentence to 44 years. This court reversed, finding that the trial court erred when it
modified a misleading sentencing entry after the defendant was sentenced to eight
years because this frustrated the purpose of R.C. 2929.19(B)(4), which was intended
to provide notice to the offender before the sentence was imposed. Id. at ¶ 24. In
reversing, the Sheffield Court noted that “the trial court could not avoid the clear
and unambiguous five-year limit by issuing a nunc pro tunc sentencing journal entry
changing ‘five years’ to ‘44 years, 6 months[.]’” Id. at ¶ 24.
We find the instant matter factually distinguishable because there are
no concerns that Yauger was notified of his sentence after the sentence was imposed,
as was the concern in Sheffield. Yauger was properly informed, pursuant to Brooks,
about the specific maximum prison time that the trial court could impose. We find
this matter particularly distinguishable because Yauger was informed about the
maximum sentence of 36 months that he could face at both the initial sentencing
hearing, and then yet again at the first community-control violation hearing. Yauger
himself does not dispute that the trial court directly and unambiguously addressed
the maximum amount of prison time that Yauger would face in the event of a
community-control violation at the sentencing hearing, where it was required and
before the actual sentence was imposed: “Here, the trial court made Mr. Yauger
aware that it would impose two 18-month sentences to run consecutive each other.
The court informed him clearly at his sentencing hearing …[.]” Yauger also does
not suggest that he was unaware of the potential term he faced or that the
notification improperly occurred after the sentence was imposed, but merely asserts
that the notice he was given at the hearing was absent from one of the sentencing
entries. Because Yauger was properly notified before the sentence was imposed, and
then notified again at a subsequent hearing, we find that the statutory purpose of
R.C. 2929.19(B)(4), to put the defendant on notice, was properly fulfilled.
We also find the cases cited by the dissent distinguishable. The dissent
cites State v. Lenhart, 8th Dist. Cuyahoga No. 108938, 2020-Ohio-2727, ¶ 14; State
v. Brown, 8th Dist. Cuyahoga Nos. 105211 and 106278,
2018-Ohio-88, ¶ 9; and State
v. Goforth, 8th Dist. Cuyahoga No. 90653,
2008-Ohio-5596, ¶ 20, for the
proposition that notification must also be contained in the sentencing entry. Our
review of these cases indicates that in all three, the trial court’s oral notification at
the sentencing hearing was insufficient under the Brooks standard. In Lenhert, the
defendant was notified that he “can be sentenced to prison.” Id. at ¶ 17. In Brown,
the defendant was not notified that prison could be imposed in the event of a
violation at all. Id. at ¶ 11. In Goforth, the defendant was notified that he could be
sent to prison, but a specific term was not specified. Id. at ¶ 3.
While each of these cases state that the notification must also be in the
sentencing entry, that must be read in the context of each case; in each of these cases,
the court failed to properly notify the defendant pursuant to Brooks. In the instant
matter, we have established that Yauger was properly notified at the sentencing
hearing. Pursuant to Crim.R. 36, the trial court maintains jurisdiction to correct a
journal entry to align with the exact sentiments at the sentencing hearing at any
time. In Lenhert, Brown, and Goforth, Crim.R. 36 was unavailable to each of the
trial courts because the proper oral notification was never made. In Yauger’s case,
the trial court was empowered to issue a nunc pro tunc entry corresponding to the
oral notification that Yauger received twice. The trial court in the instant matter did
not, but failure to do so is not error because there is no requirement, pursuant to
Brooks, that notification also occur at the journalization stage.
Based on the foregoing, the trial court did not err in notifying Yauger
of his potential prison time at the sentencing hearing and, therefore, did not err in
imposing the prison time for the community-control sanctions violation.
Yauger’s first assignment of error is overruled.
B. Consecutive Sentences
In his second assignment of error, Yauger argues that the trial court
erred in imposing the sentence for the community-control violations consecutively.
R.C. 2929.14(C)(4) permits courts to impose consecutive sentences if
the court finds that consecutive sentences are (1) necessary to protect the public
from future crime or to punish the offender; (2) not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the
public; and (3) one or more of the following findings are satisfied:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
State v. Bartlett, 8th Dist. Cuyahoga No. 100769, 2014-Ohio-4379, ¶ 3; R.C.
2929.14(C)(4).
In imposing consecutive sentences, the court detailed:
I find that it is necessary to protect the public and punish you. You stole
$22,900 from one family, $8,600 from another family, an incredible
amount of money, incredible amount of loss to those victims.
And it’s not just disproportion — the sentence is not disproportionate
to what you did and because the harm is so great or unusual a single
term for these F4s is not adequate to reflect the seriousness of your
conduct and your criminal history where you have had specifically[,]
prior convictions in retail theft in Pennsylvania, domestic violence in
Niles and after [being] put on probation here[,] F3 theft in Lorain
County.
And so you just — you can’t comply with probation. You — the only
reason the State gave you an opportunity for probation was to pay the
restitution. That was the deal. You reneged. So I’m incarcerating you
in prison.
(Tr. 54-55.)
Yauger appears to dispute the proportionality findings that the trial
court made. He argues that the trial court was aware that he could not make
restitution due to the collapse of his business; that he is owed money by a former
employer; and that his wife has cancer which impedes her ability to properly care
for their family, but yet still sentenced him to 36 months following a community-
control violation.
We understand and empathize with Yauger’s arguments, but the court
made the requisite findings pursuant to R.C. 2929.14(C)(4). Plainly, the court
considered protection of the public, punishment to the defendant, and
proportionality, and found, pursuant to R.C. 2929.14(C)(4)(a) and (c), that Yauger
picked up other charges while under community-control sanctions in this case and
that Yauger’s criminal record indicates that previous punishments have not deterred
his criminal conduct. All of these findings are supported by the record before us,
particularly the proportionality finding that Yauger disputes, since Yauger deprived
two families of substantial amounts of money. It is also persuasive that the court
worked to set a payment plan that Yauger himself consented to and acknowledged
that he could likely keep up with based on his other cases and the other victims to
whom he owed money, but Yauger failed to maintain the plan.
As a result of the foregoing, we overrule Yauger’s second assignment
of error.
C. Nature of Community-Control Violation
In his final assignment of error, Yauger argues that his failure to pay
restitution should be considered a technical violation of his community-control
sanctions.
Yauger argues that pursuant to R.C. 2929.15(B)(1)(c)(ii), he could not
be imprisoned for more than 180 days on a fourth-degree felony if the community-
control violation is technical in nature.
The Ohio Supreme Court has stated that whether a community-
control violation amounts to a “technical violation” as it is used in R.C.
2929.15(B)(1)(c)(ii), requires the trial court to engage in a practical assessment to
determine whether the violation was technical or nontechnical. State v. Nelson, 162
Ohio St.3d 338,
2020-Ohio-3690,
165 N.E.3d 1110, ¶ 26. A violation is “technical”
when “the condition violated is akin to ‘an administrative requirement facilitating
community control supervision.’”
Id., quoting State v. Davis, 12th Dist. Warren No.
CA2017-11-156,
2018-Ohio-2672, ¶ 18. A violation is “nontechnical” if, under the
totality of the circumstances, “the violation concerns a condition of community
control that was ‘specifically tailored to address’ matters related to defendant’s
misconduct or if it can be deemed a ‘substantive rehabilitative requirement which
addressed a significant factor contributing to’ the defendant’s misconduct.”
Id.,
citing Davis at ¶ 17, 18. No single factor determines whether a violation is technical
or nontechnical, which allows the trial court to consider “the nature of the
community-control condition at issue and the manner in which it was violated, as
well as any other relevant circumstances in the case.”
Id.
Based on the specific facts of this case, we find that Yauger’s failure to
pay restitution was a nontechnical violation of his community control. Plainly, the
trial court demonstrated extreme concern for the families that were deprived of such
substantial amounts of money and specifically tailored the restitution payments to
address its concerns related to the families who suffered from Yauger’s conduct. We
also note that requiring restitution was rehabilitative; it is clear that the trial court
desired that Yauger actually remedy his criminal conduct — not merely to accept the
charges and complete a prison sentence without any meaningful attempts to pay
back the victims.
As a result of the foregoing, we overrule Yauger’s final assignment of
error.
III. Conclusion
We overrule all of Yauger’s assignments of error. The trial court did
not err in imposing a prison sentence as a result of Yauger’s failure to comply with
community-control sanctions.
Judgment affirmed.
It is ordered that appellee recover from appellant 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.
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., CONCURS;
MICHAEL JOHN RYAN, J., CONCURS IN PART AND DISSENTS IN PART
(WITH SEPARATE OPINION)
MICHAEL JOHN RYAN, J., CONCURRING AND DISSENTING:
Respectfully, I dissent as to the majority’s resolution of the first and
second assignments of error. I concur as to its resolution of the third assignment of
error.
In regard to the first assignment of error, it is true that, at the original
sentencing hearing, the trial court informed Yauger that a violation of the conditions
of his community-control sanctions would result in the imposition of a prison term
of 18 months on each count, to be served consecutively. This court has held that the
notification must also be contained in the court’s sentencing entry. See, e.g., State
v. Lenhart, 8th Dist. Cuyahoga No. 108938, 2020-Ohio-2727, ¶ 14; State v. Brown,
8th Dist. Cuyahoga Nos. 105211 and 106278,
2018-Ohio-88, ¶ 9; and State v.
Goforth, 8th Dist. Cuyahoga No. 90653,
2008-Ohio-5596, ¶ 20.
The sentencing entry for Case No. CR-21-659406 states that a
violation of the terms of community control “may result in more restrictive
sanctions, or a prison term of 18 months as approved by law.” However, the
sentencing entry for Case No. CR-20-654499 is silent on the consequences for a
violation of the community-control sanctions.
Yauger cites State v. Sheffield, 8th Dist. Cuyahoga No. 95434, 2011-
Ohio-2395, in support of his contention that the trial court improperly sentenced
him for the violation in Case No. CR-20-654499. In Sheffield, the trial court advised
the defendant at sentencing as to the consequences of violating his community-
control sanctions as follows: “You have four F3’s. Five years on each F3. Eighteen
months on 15 F4’s. You have two F5’s, 12 months for each of those. I’ll run them
consecutive.” Id. at ¶ 3, 19. However, the court’s sentencing entry stated that a
“[v]iolation of the terms and conditions may result in more restrictive sanctions, or
a prison term of 5 years as approved by law. (5 years each F-3, 18 months each F-4
and 12 months each F-5, counts to run concurrent to each other).” Id. at ¶ 5.
The defendant violated the terms of his community-control sanctions
and after a hearing the trial court sentenced him to an eight-year prison term.
Approximately one month after sentencing the defendant, the trial court issued a
nunc pro tunc entry relative to the original judgment of conviction stating that a
“violation of the terms and conditions may result in more restrictive sanctions, or a
prison term of 44 years, 6 months as approved by law. (Counts to run consecutive
to each other).” Id. at ¶ 8.
On appeal, one of the defendant’s challenges was that the trial court’s
eight-year sentence was invalid because the original judgment of conviction stated
that he was subject to a five-year prison term for a violation of his community-
control sanctions and the trial court impermissibly issued a nunc pro tunc entry after
it had already revoked his probation and imposed the eight-year sentence. This
court agreed.
This court, relying on State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-
4746,
814 N.E.2d 837, noted that the purpose of the notification is to make a
defendant aware of the specific prison term he or she will face before a violation of
his or her community-control sanctions. Sheffield, 8th Dist. Cuyahoga No. 95434,
2011-Ohio-2395, at ¶ 23, citing Brooks at ¶ 33. Because a trial court speaks through
its journal entries, this court found that the court gave the defendant notice that he
would be subject to a five-year prison sentence for a violation of his community-
control sanctions. Sheffield at id.
This court further found that the trial court’s nunc pro tunc entry,
issued after it had already revoked the defendant’s community-control sanctions
and sentenced him to an eight-year prison sentence, was improper. Id. at ¶ 24.
This kind of “after-the-fact” notification “totally frustrate[s]” the
purpose of R.C. 2929.19(B)([4]), which as noted, is to provide notice to
the offender before a violation of the specific prison term he [or she]
could face for a violation. Id. Here, Sheffield had notice that if he
violated community control, he could receive five years in prison.
Accordingly, we hold that the trial court’s attempt to exceed the five-year maximum prison term by altering its journal entry after it had
sentenced Sheffield to eight years in prison contradicts Brooks and
violates principles of due process.
Id.; see also State v. Puttick, 5th Dist. Morrow No. 12CA0012, 2013-Ohio-3295
(following Sheffield).
To remedy the error, this court remanded the case to the trial court
“for resentencing with instructions that the maximum prison term that may be
imposed is five years.” Sheffield at ¶ 25.
The majority finds Sheffield distinguishable from the instant case
stating, “there are no concerns that Yauger was notified of his sentence after the
sentence was imposed, as was the concern in Sheffield.” The majority relies on the
advisements the trial court gave to Yauger at his original sentencing hearing and
first violation hearing as to what the consequences of violating community control
could be. But the defendant in Sheffield also received an advisement as to the
consequences of a violation of community control at his sentencing hearing. Thus,
the only distinction I find between Sheffield and this case is that the sentencing
judgment entry in Sheffield advised the defendant of a prison term different from
what the trial court advised him at his original sentencing hearing, as compared to
here, where the sentencing judgment failed to advise Yauger at all of the
consequences for violating his community-control sanctions. Both defendants were
notified at their sentencing hearings of what sentence the trial court intended to
impose for a violation of their community-control sanctions.
To the extent that the majority’s position is based on the ground that
the trial court in Sheffield never informed the defendant of the specific prison term
he would be facing for a violation of his community-control sanctions, I do not
believe that is a distinguishing factor. This court specifically found that
[a]lthough it would have been better if the judge had added up the
number of years for Sheffield, it is apparent that he told him the definite
sentence he would receive for each count in the event of a violation, i.e.,
the judge told him he would receive the maximum prison term for each
offense if he violated community control. We find the trial court’s
advisement to constitute a “specific” term as required by
R.C. 2929.19(B)([4]).
Id., 8th Dist. Cuyahoga No. 95434,
2011-Ohio-2395, at ¶ 19.
Thus, in my opinion, Sheffield is not distinguishable from this case as
it relates to the trial courts’ advisements; Yauger and the defendant in Sheffield were
on equal ground in that regard. Simply, in both cases, the defendants were informed
at their original sentencing hearing of a specific prison term that would be imposed
if they violated the terms of their community-control sanctions. In Sheffield, the
trial court’s sentencing entry gave the defendant a term other than the one stated at
the sentencing hearing, and in this case, the sentencing hearing was silent on the
consequences of a violation.
This court has long-held that notification of the consequences of a
violation of community-control sanctions should be made at the sentencing hearing
and put in the sentencing judgment entry. The court has not treated the notification
in the sentencing entry as superfluous; I would decline to do so now. As this court
has explained,
“[b]ased on the continuous goal of ‘truth in sentencing,’ a trial court
must first notify a defendant at a sentencing hearing of the specific
prison term that it will impose if he violates community control.
Notification must also be contained in the accompanying sentencing
journal entry.” State v. McWilliams, Summit App. No. 22359, 2005-
Ohio-2148. Accordingly, the trial court erred in imposing a term of
imprisonment for the community control violation because the trial
court failed to advise appellant in the judgment entry of the preceding
sentencing hearing that she would be subject to a specific prison time
if she violated community control sanctions.
(Emphasis added.) Goforth, 8th Dist. Cuyahoga No. 90653, 2008-Ohio-5596, at
¶ 20.
Accordingly, I dissent as to the majority’s resolution of the first
assignment of error. I would find the second assignment of error regarding the
consecutive sentence moot. See App.R. 12(A)(1)(c). I concur with the majority’s
resolution of the third assignment of error.
