State v. Dod

[Cite as State v. Dod, 

.]




                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO




STATE OF OHIO,                               :   APPEAL NO. C-240197
                                                 TRIAL NO. B-2203417
        Plaintiff-Appellee,                  :

                                             :
  VS.                                               O P I N I O N.
                                             :

JOHN DOD,                                    :

     Defendant-Appellant.                    :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed, Sentence Vacated, and Cause Remanded

Date of Judgment Entry on Appeal: October 4, 2024


Melissa A. Powers, Hamilton County Prosecuting Attorney, and Norbert Wessels, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

Michael J. Trapp, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Judge.

      {¶ 1} In an attempt to contact his children, defendant-appellant John Dod forcibly

entered the home of M.S., his erstwhile companion. As a result of the incident, he was

charged with several offenses and ultimately pleaded guilty to a violation of a protection

order and a reduced charge of burglary of the third degree. The court sentenced and

resentenced him several times to community control before eventually imposing a 48-month

prison sentence due to his repeated violations. He now appeals, arguing that the trial court

lacked jurisdiction to alter his final community control sentence, it failed to provide him the

requisite warnings for any noncompliance, and it failed to consider the required sentencing

guidelines and factors in imposing the 48-month prison sentence. After a review of the

evidence and record, we reverse, vacate Mr. Dod’s prison sentence, and remand this cause

for further proceedings based on his first two assignments of error. Based on the disposition

of those assignments, it renders his third assignment of error moot.

                                           I.

      {¶ 2}   In July 2022, Mr. Dod gained entry to M.S.’s home through a window and

locked her and her children in the bathroom without a way to exit. Subsequently, he was

charged with violating a protection order and aggravated burglary under R.C. 2919.27(A)(1)

and 2911.11(A)(1), respectively. Mr. Dod ultimately pleaded guilty, on March 1, 2023, to

violating the protection order, which carried a potential prison sentence of up to 12 months,

and a reduced charge of burglary of the third degree, which carried a potential prison

sentence of up to 36 months. A few weeks later, the trial court, concerned with his habitual

violations of protection orders, sentenced Mr. Dod to intensive supervision probation,

ordering him to stay away from M.S. and warning him that if he violated the sentence and

order, he could face 12 and 36 months in prison for the two charges.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



      {¶ 3} After pleading guilty, Mr. Dod was extradited to Oklahoma to resolve unrelated

charges, where he remained beyond the resolution of those matters. As a result of that, along

with an additional criminal trespass charge, in January 2024 (“January hearing”) he was

charged with a community control violation. At the January hearing, the court explained

that it was convening a community control violation hearing, and Mr. Dod pleaded guilty to

the charge. The trial court accordingly resentenced Mr. Dod to community control with an

order to stay away from M.S. and required him to successfully complete a stint at River City,

in order for him to address his anger and other behavioral issues.

      {¶ 4} Shortly thereafter, on February 5, 2024, (“February 5 hearing”) Mr. Dod again

appeared before the trial court, after attending River City for only one day, requesting that

he be resentenced elsewhere because he felt threatened by other individuals in the program.

He acknowledged that the trial court found it important for him to complete a program

addressing his behavioral issues, so he requested a second resentencing to the Talbert House

long-term program (“Talbert House”). The trial court again noted that the hearing was one

for a community control violation, and Mr. Dod pleaded no contest to that charge.

Consistent with Mr. Dod’s request, the trial court resentenced him to the Talbert House. It

warned him that it was running out of options for him, emphasizing that he needed to do

what he could to get through the program. At this point, it vaguely informed Mr. Dod that

“[i]n the event [he] violate[s] . . . 12 months and 36 months.” At no point did the trial court

inform Mr. Dod what it meant by “12 months and 36 months,” what could potentially be

considered a community control violation, or the specific sentences attached to violations.

      {¶ 5} On February 20, 2024, (“February 20 hearing”) Mr. Dod again came before the

trial court, explaining his hesitation to attend Talbert House because of the lockdown

conditions it presented. Mr. Dod wanted to be in a program that allowed him the opportunity



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                       OHIO FIRST DISTRICT COURT OF APPEALS



to see his children and obtain external employment. The trial court admitted that it had few

options left for Mr. Dod’s path for rehabilitation due to his repeated refusals to complete the

programs it had ordered him to complete, which were meant to address his unique

rehabilitative needs. The trial court suggested that he explore any eligibility for Veteran’s

Court, even though it doubted his eligibility, and informed him that it would attempt to

restructure his probation. However, the trial court provided no explicit oral statement on

the record that it considered his request for a new sentence a violation of community control.

      {¶ 6} In his final hearing on March 18, 2024, (“March 18 hearing”) the trial court

noted that Mr. Dod was ineligible for Veteran’s Court, and thus, it had no other options left

but to sentence him to his full 48-month prison sentence because he refused to participate

in Talbert House. The trial court expressed its frustration with Mr. Dod’s repeated refusals

to complete the lockdown programs. But the court never made an oral finding on the record

that Mr. Dod’s request to attend a program besides Talbert House constituted a violation of

his community control conditions. The trial court merely noted such a finding in its

judgment entry, but it never actually informed Mr. Dod of this determination. Mr. Dod now

challenges this sentence and the procedures the trial court followed in reaching its

conclusion.

                                         II.
      {¶ 7} In his first assignment of error, Mr. Dod contends that the trial court lacked

jurisdiction to modify his sentence to Talbert House because it never explicitly found that he

violated his community control. In relation to this finding, or the lack thereof, he also asserts

that the trial court failed to afford him his due process rights.

      {¶ 8} As a question of law, an appellate court reviews a trial court’s jurisdiction under

a de novo standard of review. State v. Cintron, 

 (8th Dist.); see In re

R.R., 

 (1st Dist.), quoting J.A.N. v. J.M.N., 

 (5th

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Dist.). We accordingly “review[] the judgment independently and ‘without deference to the

trial court’s determination.’” City of Cincinnati v. White, 

 (1st Dist.),

quoting State v. Linnen, 

 (10th Dist.).

          {¶ 9} When a trial court sentences a defendant to community control and journalizes

its entry, the sentence is typically considered final. See State v. Rork, 

(1st Dist.) (“[A] criminal sentence attains finality when a court enters a judgment of conviction

satisfying Crim.R. 32, setting forth (1) the fact of conviction, (2) the sentence, (3) the signature

of the judge and (4) entry on the journal by the clerk of court.”); State v. Carlisle, 2011-Ohio-

6553, ¶ 11 (“A criminal sentence is final upon issuance of a final order.”). Due to its finality,

such a sentence cannot be reconsidered or modified by the trial court itself unless there has

been a violation of the terms of that sentence (and the appropriate procedures are followed)

or if an appropriate postjudgment motion is filed.                See id. at ¶ 7; see also State v.

Beyersdoerfer, 

 (1st Dist.), citing State v. Saxon, 

 (8th

Dist.).

          {¶ 10} Here, once the trial court sentenced Mr. Dod to the Talbert House and

 journalized the sentence, the judgment was final.1 Therefore, the court lacked jurisdiction

 to modify that sentence on its own accord without first finding that Mr. Dod violated

 community control or upon an appropriate motion alleging such. But here, the trial court

 modified the Talbert House sentence without ever explicitly finding any violation. The State

 contends that when Mr. Dod voluntarily refused to enter Talbert House and admitted such



1 The State contends that it’s possible that the order wasn’t final if Mr. Dod had not been sent to Talbert

House yet, citing State v. Roberson, 

 (8th Dist.) (“In criminal cases, a judgment is not
considered final until the sentence has been ordered into execution.”). But that case relies on State v.
Carlisle, 

, ¶ 10 (8th Dist.), which the Supreme Court subsequently reviewed and essentially
rejected that reasoning because it was premised on an outdated concept of jurisdiction: “As a consequence,
the case law that appears to support Carlisle’s position suffers from a fundamental flaw: it relies on nowrepealed statutes.” State v. Carlisle, 

. The Supreme Court’s decision in Carlisle
controls our jurisdictional inquiry.

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                        OHIO FIRST DISTRICT COURT OF APPEALS


to the trial court at the February 20 hearing, it constituted a nontechnical violation, granting

the trial court jurisdiction to modify the sentence and ultimately resentence him to his full

prison term. See State v. Elliot, 

 (1st Dist.), quoting State v. Nelson,

, ¶ 26 (“[A] nontechnical violation is one that ‘concerns a condition of

community control that was “specifically tailored to address” matters related to the

defendant’s misconduct or if it can be deemed a “substantive rehabilitative requirement

which addressed a significant factor contributing to” the defendant’s misconduct.’”).

      {¶ 11} While that may be the case, the State never filed a motion alleging a community

control violation, nor did the trial court advise Mr. Dod that he had violated his community

control conditions. Unlike the January and February 5 violation hearings, the trial court

never indicated that it was convening for a community control violation at the March 2024

hearing, and importantly, Mr. Dod never entered any type of plea to the violation. This court

in Beyersdoerfer held that a trial court’s sentence to prison for a community control violation

constituted reversible error when there was “[n]o probation violation [] ever filed” and “[t]he

court made no findings and sentenced Beyersdoerfer to . . . imprisonment.” 

. Additionally, the Supreme Court of Ohio has held that “‘following a community control

violation, the trial court conducts a second sentencing hearing’ . . . ‘[and] the court sentences

the offender anew and must comply with the relevant sentencing statutes.’” State v. Jackson,

, quoting State v. Fraley, 

, ¶ 17 and State v. Heinz,

. In sentencing an offender, the trial court is required to “inform the

offender of the . . . finding of the court . . . .” R.C. 2929.19(A).

      {¶ 12} At no time during the February 5, February 20, or March 18 hearings did the

trial court explicitly inform Mr. Dod that a refusal to attend the program constituted a

violation. By never orally finding on the record at the February 20 or March 18 hearings that

Mr. Dod had violated his community control conditions, the trial court failed to make

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                       OHIO FIRST DISTRICT COURT OF APPEALS


findings before sentencing him to prison. To be sure, the trial court made comments that

his options were running out, but it never made any definitive finding on the record. And at

no point did the trial court indicate that it was convening a community control violation

hearing, as it had done with each previous violation at the January and the February 5

hearings.

      {¶ 13} While we can deduce that the trial court probably intended to convene a

community control violation hearing and to find Mr. Dod guilty of violating his community

control, that is not the governing test. These procedures must be followed to ensure that: (a)

the defendant knows what is happening; and (b) the trial court stays within the bounds of its

jurisdiction. Without that explicit, oral violation determination, the trial court lacked

jurisdiction to modify its own final sentence. Therefore, we hold that the trial court erred

when it resentenced Mr. Dod to his full 48-month prison sentence, and thus, we sustain his

first assignment of error and vacate that sentence. This determination obviates the need to

rule on Mr. Dod’s claim that his due process rights were violated.

                                            III.

      {¶ 14} Even though our disposition of the first assignment of error is dispositive, we

feel it important to address Mr. Dod’s second assignment of error because that represents an

independent ground for relief, and it could become relevant to any further proceedings.

      {¶ 15} In his second assignment of error, Mr. Dod asserts that the trial court failed to

give him the statutorily-required warnings under R.C. 2929.19(B)(4) when he was

resentenced to Talbert House. This presents an independent basis for reversing the trial

court’s judgment.

      {¶ 16} A trial court sentencing an offender must warn them that “if the conditions of

[community control] are violated, if the offender commits a violation of law, or if the offender

leaves [the] state without the permission of the court or [their] probation officer, the court

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                       OHIO FIRST DISTRICT COURT OF APPEALS


may impose . . . a prison term . . . and shall indicate the range” of such term. R.C.

2929.19(B)(4). In reviewing a trial court’s prison sentence subsequent to a community

control violation, the appellate court must verify that the sentencing court “‘strictly complied

with certain statutory-notification requirements.’” State v. Thompson, 

(1st Dist.), quoting State v. Ward, 

 (1st Dist.). The sentencing court

must provide warnings that “‘inform[s] the offender in “straightforward and affirmative

language” of both the actions that would trigger a consequence and the nature of the possible

consequences.’” State v. Harris, 

 (1st Dist.), quoting 

.

If the trial court fails to give such warnings, it “‘may not later impose a prison term as a

consequence for a community control violation.’” 

 quoting 

.

      {¶ 17} Mr. Dod argues that the trial court in his case entirely failed to give him these

warnings when it sentenced him to Talbert House at the February 5 hearing because it made

no mention of the violation-triggering events outlined in the statute, nor did it admonish him

that such violations could result in specific prison sentences. In reviewing the relevant

transcripts, we agree. The State insists that the trial court’s vague warnings that Mr. Dod

cannot just claim he does not like Talbert House and its edict to him to do what he can to get

through it, coupled with the notification in the journalized entry, was enough to satisfy the

statutory requirements. The trial court only warned Mr. Dod at the February 5 hearing that,

“[i]n the event that [he] violates . . . 12 months and 36 months,” without any explanation as

to what a violation may look like. This was insufficient to provide the appropriate notice to

Mr. Dod for two reasons.

      {¶ 18} First, the trial court never notified Mr. Dod that if he were to violate his

community control, violate the law, or leave the state without permission, he could face

specific prison sentences. Again, this information was only noted in the trial court’s

journalized entry but never explained in “straightforward and affirmative language” to Mr.

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                       OHIO FIRST DISTRICT COURT OF APPEALS


Dod himself. See 

, quoting 

. The sentencing court is required

to “‘explain the actions of the defendant that trigger a consequence.’” 

, quoting

. It failed to do that here.

      {¶ 19} Second, the trial court’s opaque reference to the possible sentences was wholly

inconsistent with the governing statutory requirements. See Thompson, 

 (1st Dist.), quoting State v. Brooks, 

, ¶ 19 (“To comply with the literal

terms of the statute, the judge should not simply notify the offender that if the community

control conditions are violated, he or she will receive . . . some [] indefinite term, such as ‘up

to 12 months.’”). Here, the trial court never explained what violations might trigger each

prison sentence or even what the specific prison sentences may be. The trial court vaguely

referred to “12 months and 36 months,” but that is not enough. The trial court never

informed Mr. Dod that he “could face a defined term of incarceration” nor “the potential

consequences of his actions.” See 

. While we appreciate that the trial court

was essentially using shorthand, it requires only a sentence or two of elaboration to explain

the consequences to the defendant, and the trial court must do so, consistent with our

precedent.

      {¶ 20} It is the duty of the trial courts to ensure that defendants understand which of

their actions may trigger a prison sentence. They are the individuals meant to be protected

by the statute requiring such clear warnings.          The trial court must do this at each

resentencing. Even if the appropriate warnings were given to Mr. Dod in any of his previous

sentencings, it did not obviate the trial court’s duty to reinform him of these warnings at the

February 5 hearing. See Harris, 

 (1st Dist.), quoting Fraley, 2004-

Ohio-7110, at ¶ 17 (“At a community-control-violation hearing, ‘the court sentences the

offender anew and must comply with the relevant sentencing statutes.’”). A complete failure

by the trial court to explain both what may constitute a violation and the specific prison

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                       OHIO FIRST DISTRICT COURT OF APPEALS


sentences attached to such violations requires this court to sustain Mr. Dod’s second

assignment of error.

                                             IV.

       {¶ 21} Mr. Dod’s third assignment of error that the trial court failed to consider the

sentencing guidelines and factors set forth in R.C. 2929.11 and 2929.12 is rendered moot due

to the disposition of his first two assignments.

                                         …

       {¶ 22} Based on the foregoing reasons, we sustain Mr. Dod’s first two assignments of

error, and therefore, his third assignment of error is moot. We reverse the trial court’s

judgment, vacate Mr. Dod’s prison sentence, and remand this cause for proceedings

consistent with this opinion and the law.

                    Judgment reversed, sentence vacated, and cause remanded.



ZAYAS, P.J., and KINSLEY, J., concur.



Please note:

       The court has recorded its entry on the date of the release of this opinion.




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