State v. Heath

[Cite as State v. Heath, 2026-Ohio-685.]


                                        COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


  STATE OF OHIO                                      Case No. 25 CAA 06 0044 & 25 CAA 08 0063

   Plaintiff - Appellee                              Opinion And Judgment Entry

  -vs-                                               On Motion for Reconsideration, Appeal from
                                                     the Court of Common Pleas, Case Nos. 25 CRI
  JEFFREY HEATH                                      02 0122 & 23 CRI 03 0112

  Defendant - Appellant                              Judgment: Affirmed

                                                     Date of Judgment Entry: April 13, 2026



BEFORE: Andrew J. King; William B. Hoffman; Robert G. Montgomery, Judges

APPEARANCES: MELISSA A. SCHIFFEL, KATHERYN L. MUNGER, for Plaintiff-
Appellee; CHRISTOPHER BAZELEY, for Defendant-Appellant.


King, P.J.


         {¶ 1} Plaintiff-Appellee the State of Ohio has filed an application for

reconsideration, or in the alternative, en banc consideration of our February 27, 2026

decision in State v. Heath 2026-Ohio-685 (5th Dist.) (Montgomery dissenting), which

granted Defendant-Appellant Heath's first assignment of error and found moot his

second assignment of error. For the following reasons, we grant the State's motion for

reconsideration, deny the State's motion for en banc consideration, vacate our February

27, 2026 opinion, and affirm the judgment of the trial court.




                                           Motions to Reconsider
       {¶ 2} The test generally applied upon the filing of a motion for reconsideration in

the court of appeals is whether the motion calls to the attention of the court an obvious

error in its decision, or raises an issue for consideration that was either not considered at

all or was not fully considered by the court when it should have been Matthews v.

Matthews, 5 Ohio App.3d 140, 450 N.E.2d 278 (10th Dist.1981).

       {¶ 3} The State's motion calls to our attention an error of law. The State points to

our reliance on State v. Ward 2021-Ohio-1320 (1st Dist.) which is misplaced in light of

changes to R.C. 2929.14(B)(4) after the Ward decision was published. Specifically, the

State argues the majority in the previous case erred in concluding the trial court had failed

to adequately reserve a prison sentence in the event Heath violated the terms and

conditions of his community control. The argument is well taken. Accordingly, we grant

the motion for reconsideration, vacate our February 27, 2026 opinion, and issue this

opinion in its place.

                               Facts and Procedural History

       {¶ 4} On July 28, 2023, Heath pled no contest one count of illegal use of a minor

in sexually oriented material and one count of pandering sexually oriented material

involving a minor, felonies of the second degree. By judgment entry filed September 6,

2023 the trial court sentenced Heath to three years of community control. Heath was

advised that violation of community control could result in a prison term of up to 20 years.

       {¶ 5}   On May 28, 2025, in case number 25 CR I 02 0122, the trial court revoked

Heath's community control after he pled guilty to one count of attempted pandering

sexually-oriented matter involving a juvenile. In the 2025 case the trial court sentenced

Heath to 15 months. For the 2023 case, the trial court imposed sentences of 3 to 6 years
on each count. The trial court ordered Heath to serve all three sentences consecutively for

an aggregate total of 12 to 15 years in prison.

       {¶ 6}   Heath timely filed an appeal challenging the adequacy of the trial court's

notification that consecutive sentences could be imposed should his community control

be revoked, and the imposition of consecutive sentences when his community control was

revoked. On February 27, 2026, we rendered an opinion finding the trial court had failed

to reserve a specific sentence in the event Heath violated the terms of his community

control. Heath at ¶ 19. The matter is now before this court for reconsideration. Heath

responded to the State's motion for reconsideration and not argue against the motion, but

did argue his second assignment of error should also be examined upon reconsideration.

We therefore reconsider Heath's two assignments of error as follows:

                                              I

       {¶ 7} "HEATH'S SENTENCES IN CASE NUMBER 23 CRI 03 0112 ARE

CONTRARY TO LAW BECAUSE THE TRIAL COURT FAILED TO PROPERLY RESERVE

THE SENTENCING RANGE AT HIS ORIGINAL SENTENCING."

                                             II

       {¶ 8} "THE TRIAL COURT'S IMPOSITION OF CONSECUTIVE SENTENCES,

BOTH INTERNALLY IN CASE NUMBER 23 CRI 02 0112 AND WITH CASE NUMBER

25 CRI 02 0122, IS CONTRARY TO LAW BECAUSE THE TRIAL COURT FAILED TO

ADVISE HEATH THAT CONSECUTIVE SENTENCES COULD BE IMPOSED AT HIS

ORIGINAL SENTENCING IN CASE NUMBER 23 CRI 03 0112."

                                              I

       {¶ 9} In his first assignment of error, Heath argues the trial court failed to

properly reserve a sentencing range that could be imposed in the event he violated the
conditions of his community control. He argues his sentences are therefore contrary to

law under R.C. 2953.08(G)(2). We disagree.

                                 Felony Sentence Review

       {¶ 10} This court reviews felony sentences using the standard of review set forth in

R.C. 2953.08. State v. Marcum, 2016-Ohio-1002, ¶ 22; State v. Howell, 2015-Ohio-4049,

¶ 31 (5th Dist.). Subsection (G)(2) sets forth this court's standard of review as follows:



              (2) The court hearing an appeal under division (A), (B), or (C) of this

              section shall review the record, including the findings underlying the

              sentence or modification given by the sentencing court.

              The appellate court may increase, reduce, or otherwise modify a

              sentence that is appealed under this section or may vacate the

              sentence and remand the matter to the sentencing court for

              resentencing. The appellate court's standard for review is not

              whether the sentencing court abused its discretion. The appellate

              court may take any action authorized by this division if it clearly and

              convincingly finds either of the following:

              (a) That the record does not support the sentencing court's findings

              under division (B) or (D) of section 2929.13, division (B)(2)(e) or

              (C)(4) of section 2929.14, or division (I) of section 2929.20 of the

              Revised Code, whichever, if any, is relevant;

              (b) That the sentence is otherwise contrary to law.
       {¶ 11} "Clear and convincing evidence is that measure or degree of proof which is

more than a mere 'preponderance of the evidence,' but not to the extent of such certainty

as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in

the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three

of the syllabus.

                           Sentencing and Community Control

       {¶ 12} R.C. 2929.19(B)(4) governs the imposition of community control and sets

forth certain sentencing hearing requirements when a trial court imposes a community

control sanction. That section states:



              (4) 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} Emphasis added.

       {¶ 14} The foregoing section indicates its mandates must be met at the sentencing

hearing. Therefore, "notification generally is deficient when the trial court's statements to

an offender of a possible term of imprisonment occurs at a plea hearing and is not

repeated at a later sentencing hearing." State v. Brooks, 2004-Ohio-4746, ¶ 17.

                                  The State's Arguments

       {¶ 15} In support of its argument to affirm, the State cites several cases beginning

with State v. Grimm, 2023-Ohio-4458 (7th Dist.). In that matter the trial court advised

Grimm "Now, if you violate these sanctions, you risk prison sentences of up to 12 months

on each, possibly consecutive; meaning you could go to prison for up to two years; do you

understand?" On appeal the Seventh District affirmed this notification because a range

was given.

       {¶ 16} The State next cites State v. Adkins, 2025-Ohio-4526 (11th Dist.), however,

the quote cited by the State is from State v. Thompson, 2024-Ohio-3361 (4th Dist.), not

Adkins. Thompson involved two cases, one in which defendant Thompson entered pleas

to three counts and the second involving a plea to one count. In the first case, the trial

court sentenced Thompson to two years of community control reserving an 18-month

prison term on one count and a 12-month prison term on the other, to be served

consecutively for a maximum sentence of 30 months, in the event Thompson violated his

community control. In the second case, the trial court also sentenced Thompson to two

years of community control and reserved an 18-month prison term. During the combined
sentencing hearings in both cases, the trial court notified Thompson that in the event her

community control was revoked, she could be sent to prison for a total of 48 months.

Thompson ¶ 3. The State in this matter quotes the exchange between the Court and

Thompson, specifically:



              "You know, by placing you on community control, I've reserved the

              entire prison terms. So you know, this is your chance to prove to the

              community that you can change your ways. If you've lied to us, you're

              not ready for treatment, or you can't pull through with the treatment,

              the Court absolutely intends to send you to prison, you know, and the

              victim will get what she asked for, because right now, the entire

              amounts, you got 30 plus - 48, so you're looking at a total of 48

              months. So you can go for up to four years. You understand that?



       {¶ 17} Thompson at ¶ 3.

       {¶ 18} On appeal, the Fourth District found this language adequate as the trial

court had "inquired whether Thompson understood that if she violated her community

control, she was 'looking at a total of 48 months.' " Id. at ¶ 13.

       {¶ 19} Next the State cites State v. Pruitt, 2024-Ohio-5434 (3d Dist.). In that

matter Pruitt pled guilty to a single third-degree felony. During his sentencing the trial

court notified Pruitt that "[i]f the conditions of community control sanctions imposed 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 of thirty-six months." Id. ¶ 12. Further,

the trial court advised Pruitt that it "intend[ed] to impose a prison term of thirty-six
months if there is a community control violation." Pruitt subsequently violated his

community control and was sentenced to a 24-month prison term. Id.

       {¶ 20} On appeal, Pruitt argued the trial court failed to notify him of the range from

which a prison term could be imposed if he violated his community control. The Third

District disagreed finding:



              Even though the better practice would have been for the trial court

              to inform Pruitt of the range of the prison term that could be

              imposed if he violated the terms and conditions of his community-

              control sanctions, Pruitt's sentence is not contrary to law since the

              trial court unequivocally notified Pruitt of the maximum term that

              would be imposed. Accord Wells at ¶ 16. Indeed, to us, the trial court

              informed Pruitt of the top end of the range of possible prison terms,

              which, under the facts presented does not render his sentence

              contrary to law. See State v. Monroe, 2020-Ohio-597, ¶ 41 (2d Dist.)

              ("For all revocations, the prison term must be within the range of

              prison terms available for the offense for which community control

              had been imposed and the term may not exceed the prison term

              specified in the notice provided to the offender at the original

              sentencing hearing."). Therefore, because the trial court imposed a

              lesser term of imprisonment, Pruitt's sentence is not contrary to law.

              See State v. Monroe, 2020-Ohio-597, ¶ 41 (2d Dist.) ("For all

              revocations, the prison term must be within the range of prison terms

              available for the offense for which community control had been
               imposed and the term may not exceed the prison term specified in

               the notice provided to the offender at the original sentencing

               hearing."). Therefore, because the trial court imposed a lesser term

               of imprisonment, Pruitt's sentence is not contrary to law. See

               Goldsberry, 2009-Ohio-6026, at ¶ 15 (3d Dist.) (determining that

               "although a trial judge may not impose a prison term exceeding the

               term of which the offender was originally notified, the trial judge may

               choose to impose a lesser term of imprisonment").



       {¶ 21} Pruitt at ¶ 13.

       {¶ 22} In contrast, the State cites State v. Van Den Eynde, 2023-Ohio-1790 (3d

Dist.). In that matter Van Den Eynde pled guilty to two fifth-degree felonies and was

placed on community control. During sentencing, the trial court made only vague

references to the possibility of Van Den Eynde serving a prison term, and it was not clear

whether the references were in regard to a prison term in the event of a community control

violation. Id., ¶ 8. The trial court made no reference to the potential duration of a prison

term nor did it reference any range of a potential sentence. Id. ¶ 9. When Van Den Eynde

violated her community control, the trial court imposed eleven-month prison term for

each of Van Den Eynde's convictions and ordered her to serve the sentences

consecutively. Id. ¶ 2

       {¶ 23} On appeal, the State argued, as does the State here, that changes to R.C.

2929.14(B)(4) changed the degree of notification required under the statute. The trial

court noted:
              While changing the content of the notification from an

              announcement of a "specific prison term" to a recitation of the "range

              of prison terms for the offense," the revisions to R.C. 2929.19(B)(4)

              have not changed the fact that a trial court is still required to

              "indicate" the reserved prison term that may be imposed for a

              community control violation. R.C. 2929.19(B)(4). In other words, the

              revisions may affect the content of the notification but do not affect

              the necessity or manner of the notification. Since the foundations of

              the Brooks decision remain intact, we will continue to follow its

              directives.



       {¶ 24} Id. at ¶ 15 citing State v. Brooks, 2004-Ohio-4746. The Third District

reversed the trial court's sentence finding it had not complied with the mandates of R.C.

2929.14(B)(4). Id. ¶ 16.

                                    Heath's Sentences

       {¶ 25} Turning to matter at bar, in the 2023 case, on July 28, 2023, Heath entered

pleas of no contest to one count of illegal use of a minor in sexually oriented material and

one count of pandering sexually oriented material involving a minor, felonies of the

second degree. The trial court accepted Heath's pleas, convicted him, and ordered a

presentence investigation.

       {¶ 26} The trial court held a sentencing hearing on September 5, 2023, sentenced

Heath to a period of community control, and advised:
             If Mr. Heath were to violate the requirements of his community

             control sentence, I could extend to a full five years the period of time

             when he would be on probation here with me in the case. I could add

             other conditions and consequences to the community control terms,

             that might be more jail days, house arrest, and other consequences

             too. I could of course, still impose prison terms on the case as well.

             If I imposed any prison terms because Mr. Heath violated the

             requirements of his community control sentence, prison terms in the

             case, between these two charges could last for as long as 20 years.



      {¶ 27} Transcript of September 5, 2023 sentencing at 13.

      {¶ 28} In its September 6, 2023 sentencing judgment entry, the trial court

indicated: "It was further ORDERED that a violation of this Sentence could lead to a

longer or more restrictive Sanction or Sanctions, and a prison term of up to 20 years."

      {¶ 29} Per R.C. 2929.14(A)(2), prison terms for a felony of the second degree

committed on or after March 22, 2019, "shall be an indefinite prison term with a stated

minimum term selected by the court of two, three, four, five, six, seven, or eight years

and a maximum term that is determined pursuant to section 2929.144 of the Revised

Code. . . . " Heath's offenses were committed in 2023, thus his maximum possible

sentence pursuant to R.C. 2929.144 was 12 years on each count.

      {¶ 30} As in Pruitt, supra, the better practice would have been to advise Heath of

the of the range of prison terms he would face in the event of a community control
violation, we nonetheless find the trial court's advisements complied with the

requirements of R.C. 2929.19 (B)(4).

       {¶ 31} The first assignment of error is overruled.

                                            II

       {¶ 32} In his second assignment of error, Heath argues the trial court erred in

imposing consecutive sentences both internally in the 2023 case and consecutive to the

sentence in the 2025 case. We agree in part, and disagree in part.

       {¶ 33} The default rule in Ohio is that "a prison term, jail term, or sentence of

imprisonment shall be served concurrently with any other prison term, jail term, or

sentence of imprisonment imposed by a court of this state, another state, or the United

States." R.C. 2929.41(A). "In order to impose consecutive terms of imprisonment, 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." State v. Bonnell, 2014-Ohio-3177, ¶ 37.

       {¶ 34} In support of his argument, Heath cites State v. Jones, 2022-Ohio-4485.

Jones was on community control in Harrison County when she committed new offenses

in Jefferson County. The Harrison County Court had properly reserved a two-year

sentence in the event of a community-control violation. In the Jefferson County case,

Jones received a prison term of three years. Thereafter, upon finding Jones had violated

her community control, the Harrison County court revoked her community control,

imposed the reserved two-year sentence and ordered Jones to serve the sentence

consecutively to the Jefferson County sentence.

       {¶ 35} On appeal, Jones argued the Harrison County court could not order its

sentence served consecutively to the Jefferson County case. The Seventh District Court of
Appeals found the trial court had the authority to impose a consecutive sentence for the

community-control violation and was under no obligation at the time it imposed

community control to notify Jones that sentencing upon revocation could include a

consecutive sentence. Id. at ¶ 34. Jones appealed to the Supreme Court of Ohio. The Court

reversed the Seventh District finding:



             [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. This is not to say that such notice must be

             given. Rather, the notice must be given if the trial court wants to later

             have the option to impose a consecutive sentence if, in its discretion,

             a consecutive sentence is necessary to fulfill the purposes and

             principles of felony sentencing. See R.C. 2929.11.1.



      {¶ 36} State v. Jones, 2022-Ohio-4485, ¶ 15. The Court additionally found "when

a reserved prison term or terms are imposed in the context of an existing prison term, a

court may not require that they be served consecutively unless notice of a potential

consecutive sentence was given at the time of sentencing to community control. Absent

such prior notice, the reserved prison sentence must be imposed to run concurrently with

the existing prison term. R.C. 2929.15(B)(3) and 2929.41(A). Id. at ¶ 17.

      {¶ 37} Heath also cites State v. Crose, 2023-Ohio-880 (3d Dist.). Crose was on

community control in Crawford County when she committed new offenses in Richland
County. Richland County imposed a prison sentence. Thereafter, the Crawford County

court found Crouse had violated her community control, revoked her community control,

and sentenced her to a prison term to be served consecutively to the sentence in the

Richland County case. Because the Crawford County trial court had failed to advise Crose

she could be subject to consecutive sentences in the event of a new conviction, the Third

District Court of Appeals found her sentence was contrary to law. Id. ¶ 20.

       {¶ 38} In this matter, Heath's signed plea agreement in the 2023 case reads in

relevant part "I have been advised by the court and counsel and understand that prison

terms for multiple charges, even if consecutive sentences are not mandatory, may be

imposed consecutively by the court." Plea of No Contest, July 28, 2023, docket item 51.

There is no transcript of the change of plea hearing, and we therefore presume the

regularity of that hearing.

       {¶ 39} During sentencing in his 2023 case, the trial court advised Heath that

should he violate the terms of his community control it could impose prison terms, and

those prison terms "between these two charges could last for as long as 20 years." T. 13.

In its sentencing judgment entry, the trial court indicated "It was further ordered that a

violation of this sentence could lead to a longer or more restrictive sanction or sanctions,

and a prison term of up to 20 years." Judgment Entry on Sentence, September 6, 2023,

docket item 57.

       {¶ 40} We find this language adequately advised Heath he could be ordered to

serve consecutive sentences for the 2023 convictions.

       {¶ 41} While we agree that Heath was not advised that the reserved prison

sentence could be imposed to run consecutively to an existing prison term, as noted by

the State, there was no "existing" prison term when Heath was sentenced to prison in this
matter. We therefore find the consecutive sentences imposed in this matter are not

contrary to law.

                                       Conclusion

       {¶ 42} Based on the foregoing, we find the State has satisfied the grounds for

reconsideration under App.R. 26(A)(1). We therefore, grant appellant's application for

reconsideration. Upon reconsideration and based on changes to R.C. 2929.14(B)(4), we

find that the trial court adequately reserved prison terms and Heath was adequately

advised of the potential for consecutive prison terms.

       {¶ 43} For the reasons stated in our accompanying Opinion, the judgment of the

Delaware County Court of Common Pleas is affirmed.

       {¶ 44} Costs are waived.



By: King, P.J.

Hoffman, J. and

Montgomery, J. concur.