COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 76782 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ISSARIPHO VIRASAYACHACK : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 10, 2000 CHARACTER OF PROCEEDING : Criminal appeal from Cuyahoga : County Common Pleas Court : Case No. CR-350,663 JUDGMENT : JUDGMENT VACATED; : REMANDED FOR RE-SENTENCING. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON Cuyahoga County Prosecutor DARCY MOULIN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: HARVEY BRUNER BRET JORDAN Attorneys at Law BRUNER & JORDAN 1600 Illuminating Building 55 Public Square Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: -2- This case is before the court on appeal from a decision of the common pleas court to terminate community control sanctions pre- viously imposed on appellant and sentence him to a term of impri- sonment. Appellant argues: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY ITS FAILURE TO PROVIDE NOTICE OR STATE A TERM OF PRISON SHOULD DEFENDANT VIOLATE THE CONDITIONS OF COM- MUNITY CONTROL SANCTIONS AT THE ORIGINAL SENTENCING PURSUANT TO O.R.C. S2929.19 AND IN VIOLATION OF APPELLANT'S EQUAL RIGHTS PROTECTIONS UNDER THE UNITED STATES AND OHIO CONSTITUTIONS. II. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO ELEVEN MONTHS IN PRISON, AND ISSUING A $2000.00 FINE AS A RESULT OF A VIOLATION OF COMMUNITY CONTROL SANCTIONS. III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ELECTED TO IMPOSE A PRISON TERM ON APPELLANT PURSUANT TO S2929.15. IV. THE TRIAL COURT ERRED WHEN IT SENTENCED DEFENDANT TO ELEVEN MONTHS' IMPRISONMENT BECAUSE THE TRIAL COURT DID NOT FIND ON THE RECORD THAT THE SHORTEST PRISON TERM AVAILABLE WOULD DEMEAN THE SERIOUSNESS OF THE OFFENDER'S CONDUCT OR FAIL TO PROTECT SOCIETY FROM FUTURE MISCONDUCT OF THE OFFENDER PURSUANT TO S2929.14(B). V. THE TRIAL COURT'S SENTENCE OF APPELLANT WAS AN ABUSE OF DISCRETION. We find the trial court did not have the discretion to sentence appellant to prison for violation of his community control sanc- tions because the court never informed appellant of the potential prison term which could be imposed for such a violation. There- fore, we vacate the judgment entered on August 6, 1999 and remand for re-sentencing. -3- PROCEDURAL HISTORY On July 10, 1998, appellant was convicted of vandalism in violation of R.C. 2909.05 and was sentenced as follows: THE COURT FINDS THAT A COMMUNITY CONTROL SANCTION WILL ADEQUATELY PROTECT THE PUBLIC AND WILL NOT DEMEAN THE SERIOUSNESS OF THE OFFENSE. IT IS THEREFORE ORDERED THAT THE DEFENDANT IS SENTENCED TO 1 YEAR OF COMMUNITY CONTROL, UNDER THE SUPERVISION OF THE ADULT PROBATION DEPARTMENT. DEFENDANT TO MAINTAIN VERIFIABLE EMPLOY- MENT; RANDOM URINALYSIS; ONCE RESTITUTION IS PAID IN FULL DEFENDANT'S PROBATION WILL BE TERMINATED. VIOLATION OF THE TERMS AND CONDITIONS MAY RESULT IN MORE RESTRICTIVE SANCTIONS, A PRISON TERM EXTENSIONS (SIC), AS PROVIDED BY LAW. THE DEFENDANT IS ORDERED TO REPORT TO THE PROBATION DEPARTMENT, PAY RESTITUTION IN THE AMOUNT OF $330.OO TO CUYAHOGA COUNTY ENGINEERS OFFICE; PAY COURT COSTS AND STANDARD PROBATION FEE. A capias was issued for the appellant on December 22, 1998. At a hearing held August 3, 1999, the trial court reported that the capias was issued because appellant had failed to report to the probation department since September 8, 1998. Appellant explained that he did not report to the probation department because he was attending college in San Francisco. He stated he was willing and able to pay restitution and the probation fee. In a judgment entered August 6, 1999, the court sentenced appellant to eleven months imprisonment at Lorain Correctional Institution and a $2000 fine. Appellant moved the court to reconsider this sentence, but the court overruled appellant's motion. This court granted appel- lant's motion for a stay of execution of his sentence pending appeal. -4- LAW AND ANALYSIS Appellant first argues the trial court erred at the original sentencing hearing by failing to indicate the specific prison term that could be imposed for the violation of community control sanc- tions, as required by R.C. 2929.19(B)(5). Appellant did not timely appeal his original conviction and sentence, which was imposed more than one year before he filed his notice of appeal. Appellant also did not seek leave to file a delayed appeal. See App.R. 5. There- fore, we lack jurisdiction to address this issue. The second assignment of error asserts that the trial court erred by imposing a prison term on appellant because the court did not inform him at the original sentencing hearing of the specific prison term which could be imposed if he violated his community control sanctions. Appellant does not deny that he violated the terms of his community control sanctions. Under R.C. 2929.15(B), If the conditions of a community control sanction are violated or if the offender violates a law or leaves the state without the permission of the court or the offender's probation officer, the sentencing court may impose a longer time under the same sanction if the total time under the sanctions does not exceed the five-year limit specified in divi- sion (A) of this section, may impose a more restrictive sanction under section 2929.16, 2929.17 or 2929.18 of the Revised Code, or may impose a prison term on the offender pursuant to section 2929.14 of the Revised Code. The prison term, if any, imposed upon a violator pursuant to this division shall be within the range of prison terms available for the offense for which the sanction that was vio- lated was imposed and shall not exceed the prison term specified in the notice provided to the offender at the sentencing hearing pursuant to division (B)(3) of section 2929.19 [sic] of the Revised Code. [Emphasis added.] -5- The legislature's reference to R.C. 2929.19(B)(3) is perplex- ing. That subsection describes the notices to be provided to an offender at the time of sentencing if the sentencing court deter- mines at the sentencing hearing that a prison term is necessary or required. By definition, an offender who is sentenced to commun- ity control sanctions will not be given any of the notices the court is required to provide under R.C. 2929.19(B)(3). Ordinarily, we must presume the legislature means what it says; we cannot amend statutes to provide what we consider a more logical result. However, when the terms of the statute, as writ- ten, would never be applicable, and the simple substitution of one character would result in a term which would always be applicable, we must conclude that the statute contains an obviously typographi- cal error, and we may correct the error and give effect to the obvious intent of the statute. Brim v. Rice (1969), 20 Ohio App.2d 293. We do not lightly undertake to correct the express language of the legislature. We will only do so if the error is obvious and the correct result is also obvious. In this rare case, we find both such conditions. Therefore, we take the extraordinary step of correcting R.C. 2929.15(B) to refer to R.C. 2929.19(B)(5), rather than R.C. 2929.19(B)(3). We note that other appellate courts have reached this result sub silentio. See, e.g., State v. Miller (Dec. 30, 1999), Tuscarawas App. No. 1999 AP 02 0010; State v. Carter (Dec. 10, 1999), Greene App. No. 99-CA-67. -6- The sentencing court informed appellant that a prison term could be imposed upon him if he violated community control sanctions. However, the court did not notify appellant of any spe- cific prison term that could be imposed. Nor does the record show that appellant was ever informed of the potential prison terms applicable to this offense. Cf. State v. Miller (Dec. 30, 1999), Tuscarawas App. No. 1999 AP 02 0010, unreported. Under these circumstances, we find the court had no discretion under R.C. 2929.15(B) to sentence appellant to prison following a violation of the terms of his community control sanctions. A prison term imposed after a violation of community control sanctions shall not exceed the prison term specified in the notice provided to the offender at the sentencing hearing. If no prison term was specified at the original sentencing, it follows that no prison term may be imposed. Accordingly, we sustain the second assignment of error. This conclusion renders moot the remaining three assignments of error. We vacate the judgment entered on August 6, 1999 and remand for re- sentencing. -7- This cause is vacated and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said 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. ANN DYKE, A.J. and JAMES M. PORTER, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .