[Cite as State v. Stokel,
2024-Ohio-893.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2023-P-0065
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
NICK M. STOKEL,
Trial Court No. 2020 CR 00547
Defendant-Appellant.
OPINION
Decided: March 11, 2024
Judgment: Reversed and remanded
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Plaintiff-Appellee).
Donald K. Pond, Jr., 567 East Turkeyfoot Lake Road, Suite 107, Akron, OH 44319 (For
Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Defendant-appellant, Nick M. Stokel (“appellant”), appeals from the
judgment of the Portage County Court of Common Pleas revoking his community control
sanctions and imposing consecutive prison terms. For the following reasons, we reverse
and remand for resentencing consistent with this opinion.
{¶2} On July 23, 2020, the Portage County Grand Jury returned a four-count
indictment charging appellant with felonious assault, a second degree felony, with a
firearm specification, pursuant to R.C. 2903.11, 2929.14, 2941.141 (“Count 1”); having
weapons under disability, a third degree felony, in violation of R.C. 2923.13 (“Count 2”);
carrying concealed weapon, a fourth degree felony, in violation of R.C. 2923.12 (“Count
3”); and, improperly handling of a firearm in a motor vehicle, a fourth degree felony, in
violation of R.C. 2923.16 (“Count 4”).
{¶3} Appellant entered a plea of not guilty at arraignment on July 24, 2020, and
bond was set at $100,000 cash or surety.
{¶4} On October 21, 2020, appellant appeared with counsel, waived his rights,
and entered a plea of guilty to having weapons under disability and carrying a concealed
weapon, Counts 2 and 3 of the indictment. The remaining charges were dismissed. At
the plea hearing, the trial court informed him that he could be facing a maximum total
prison term of four and one-half years. A presentence investigation (PSI) was ordered.
On November 30, 2020, the trial court ordered that appellant be assessed for NEOCAP.
{¶5} A sentencing hearing was held on December 4, 2020. At the sentencing
hearing, the trial court stated the following:
So after reviewing the presentence investigation, the
recommendation of counsel, it is the sentence of this court, I
am going to find that you are amenable to community control
sanctions and that a prison sentence is not consistent with the
purposes and principles of sentencing at this time.
Therefore, for the felony of the third degree, it is the sentence
of this court that you serve thirty-six months in the Ohio
Department of Corrections.
For the felony of the fourth degree, it is the sentence of this
court that you serve eighteen months in the Ohio Department
of Corrections. I'm ordering that those sentences run
consecutively, not concurrently, for a total of four and a half
years.
{¶6} The trial court then suspended the prison term and placed appellant on
intensive supervision for the first year, followed by four years of general supervision.
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Appellant was ordered to complete NEOCAP, comply with any aftercare, submit to
random drug and alcohol screenings, and maintain employment.
{¶7} The sentencing entry does not reflect that the prison terms imposed would
be suspended, but instead indicates that upon a violation, the trial court would sentence
appellant to a 36-month term on Count 2, and an 18-month term on Count 3, to be served
consecutively to one another for an aggregate term of four and one-half years.
{¶8} A motion to revoke and capias request was filed after appellant failed to
report to probation upon release from the Ohio Department of Rehabilitation and
Corrections, failed to respond to phone calls and mail, and missed a scheduled
appointment on March 20, 2022. The trial court granted the motion on April 20, 2022.
{¶9} A hearing was held on July 24, 2023. At the hearing, appellant appeared
with counsel, admitted the violation, and waived a hearing. The trial court found appellant
violated the terms of his community control. The matter was set for disposition hearing on
July 28, 2023.
{¶10} On July 28, 2023, defense counsel informed the court that appellant had
new charges in Cuyahoga County and appellant was awaiting arraignment. The trial court
stated: “… Well, I’m going to terminate your probation, impose your previously
suspended sentence of three, plus one and a half years, for a total of a four-and-a-half-
year sentence.” When appellant requested that the trial court consider something else,
the trial court responded “[n]o. That was the sentence that was suspended originally and
that's the sentence that I'm imposing.” The trial court did not make the consecutive
findings at the sentencing hearing upon revoking appellant’s community control.
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{¶11} The sentencing entry provides in relevant part:
Weighing all factors, a prison term is consistent with the
purposes and principles of 2929.19 and the Defendant is no
longer amendable to community control sanctions. Due to the
Defendant’s failure to abide by the terms and conditions of
community control and/or Defendant’s significant criminal
history, a prison term is necessary.
The Court finds that the consecutive sentence is necessary to
protect the public from future crime or to punish the Defendant
and consecutive sentences are not disproportionate to the
seriousness of the Defendant’s conduct and to the danger the
Defendant poses to the public.
Also, the Defendant’s history of criminal conduct
demonstrates that consecutive sentences are necessary to
protect the public from future crime by the Defendant.
{¶12} Appellant timely appeals and raises a single assignment of error: “[t]he trial
court erred by imposing consecutive sentences upon Defendant-Appellant, Nick Stokel,
absent the findings required by law in accordance with R.C. 2929.14 and State v. Bonnell.
(T.d. 39) (T.p. July 28, 2023).” Specifically, appellant asserts that the trial court failed to
make the requisite findings when it imposed consecutive sentences. We agree.
{¶13} “R.C. 2953.08(G) governs our review of felony sentences, and provides, in
relevant part, that after an appellate court’s review of the record, it ‘may increase, reduce,
or otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand … if it clearly and convincingly finds … [t]hat the sentence is *
… contrary to law.’” State v. Lamb, 11th Dist. Portage No. 2022-P-0084, 2023-Ohio-2834,
¶ 9, citing State v. Meeks, 11th Dist. Ashtabula No. 2022-A-0060,
2023-Ohio-988, ¶ 11.
See State v. Gwynne, --- Ohio St.3d ----,
2023-Ohio-3851, --- N.E.3d ----.
{¶14} “‘[A] sentence is contrary to law when it does not fall within the statutory
range for the offense or if the trial court fails to consider the purposes and principles of
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felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C.
2929.12.’” (Citations omitted). Id.
{¶15} First, we note that “community control sanctions and prison terms are
mutually exclusive and therefore cannot be imposed at the same time on the same count
of conviction.” State v. Berry, 2012-Ohio-4660,
980 N.E.2d 1087, ¶ 21 (3d Dist.).
Therefore, a trial court cannot suspend a prison term or make community control a
condition of a suspended prison term. State v. Duncan,
2016-Ohio-5559,
61 N.E.3d 61,
¶ 19 (12th Dist.). Here, the trial court explained at the appellant’s initial sentencing hearing
on December 4, 2020, that the trial court would suspend the sentences and place
appellant on community control. This is improper. See State v. Anderson,
143 Ohio St.3d
173,
2015-Ohio-2089,
35 N.E.3d 512, ¶ 31 (“as a general rule, when a prison term and
community control are possible sentences for a particular felony offense, absent an
express exception, the court must impose either a prison term or a community-control
sanction or sanctions”).
{¶16} However, the sentencing entry does not reflect this description. Instead, the
sentencing entry reflects that upon a violation of the community control sanctions, the
court would impose a 36-month prison term on Count 2 to be served consecutively to an
18-month prison term on Count 3 for an aggregate prison term of four and one-half years.
{¶17} When imposing a sentence of community control sanctions, the sentencing
court must notify the offender of the specific prison term that may be imposed for a
violation of the conditions of the sanction at the time of the sentencing. State v. Brooks,
103 Ohio St.3d 134,
2004-Ohio-4746,
814 N.E.2d 837, ¶ 29. See Duncan, at ¶ 21. The
Ohio Supreme Court concluded in State v. Jones,
171 Ohio St.3d 496,
2022-Ohio-4485,
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218 N.E.3d 867 “that a reserved prison term may be ordered to be served consecutively
to any other sentence at a community-control-revocation hearing if notice was given when
the prison term was reserved that the term could be required to be served consecutively
to another prison term at the time of revocation.” In the instant case, the trial court
informed appellant that upon a violation, the trial court would impose consecutive
sentences. This was necessary for the court to preserve the court’s ability to impose such
a sentence upon a community control violation.
{¶18} Upon revoking appellant’s community control, the trial court imposed
consecutive prison terms for an aggregate prison term of four and one-half years.
However, the trial court failed to make the consecutive findings at the hearing.
{¶19} When imposing consecutive sentences, “‘a trial court is required to make
the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate
its findings into its sentencing entry, but it has no obligation to state reasons to support
its findings.’” (Emphasis added). State v. Passalacqua, 11th Dist. Lake Nos. 2023-L-013,
2023-L-014, 2023-Ohio-3525, ¶ 27, quoting State v. Bonnell,
140 Ohio St.3d 209, 2014-
Ohio-3177,
16 N.E.3d 659, ¶ 37.
{¶20} R.C. 2929.14(C)(4) states:
“If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
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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.
{¶21} “The trial court is not required ‘to give a talismanic incantation of the words
of the statute, provided that the necessary findings can be found in the record and are
incorporated into the sentencing entry.’ [Bonnell at ¶ 37] Otherwise, ‘the imposition of
consecutive sentences … is contrary to law.’ Id.” Passalacqua,
2023-Ohio-3525, ¶ 27.
{¶22} At the initial sentencing, when discussing the prison terms the trial court
would impose if appellant violated his community control sanctions, the trial court made
consecutive findings in accordance with R.C. 2929.14(C)(4). Those findings were not
incorporated into the initial sentencing entry or the nunc pro tunc entry on sentence.
{¶23} Regardless of the trial court’s consecutive findings at the initial sentencing
hearing, the trial court did not make the consecutive findings anew when it revoked
appellant’s community control sanctions and sentenced appellant to consecutive prison
terms.
{¶24} In State v. Howard, 162 Ohio St.3d 314,
2020-Ohio-3195,
165 N.E.3d 1088,
¶ 27, the Supreme Court of Ohio noted:
… [E]ven if the court had made the consecutive-sentences
findings at Howard's initial sentencing hearing, R.C.
2929.14(C)(4) becomes relevant when “multiple prison terms
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are imposed.” (Emphasis added.) And here, prison terms
were not imposed until the trial court revoked Howard's
community control. Accordingly, consecutive sentences were
not properly imposed and we must vacate the trial court's
consecutive-sentences order and remand the case to the trial
court for resentencing. See Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, at ¶ 37.
{¶25} While the trial court’s entry contains the consecutive findings, the trial court
did not make consecutive findings at the hearing when it revoked appellant’s community
control sanctions as required. As such, consecutive sentences were not properly
imposed. Appellant’s sole assignment of error is sustained.
{¶26} Therefore, we vacate the sentence imposed and remand for resentencing.
Should the trial court re-impose consecutive sentences, the trial court shall make all
necessary statutory findings at the sentencing hearing and in the sentencing entry. State
v. Tinker, 2023-Ohio-3216,
224 N.E.3d 579, ¶ 23 (11th Dist.).
{¶27} For the foregoing reasons, we reverse the judgment of the Portage County
Court of Common Pleas and remand this matter for resentencing.
EUGENE A. LUCCI, P.J.,
MATT LYNCH, J.,
concur.
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