STATE OF OHIO, Plaintiff-Appellee, vs. AMANDA M. BATTY, Defendant-Appellant.
Case No. 13CA3398
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
Released: 06/18/14
2014-Ohio-2826
McFarland, J.
Timothy Young, Ohio State Public Defender, and Carrie Wood, Assistant State Public Defender, Columbus, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C. Marks, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
McFarland, J.
{1} Amanda Batty (Appellant) appeals her conviction in the Ross County Court of Common Pleas after she pled guilty to five counts of complicity to theft, violations of
FACTS
{2} In July 2009, Appellant was indicted on five counts of complicity to theft,
{3} On January 13, 2010, Appellant pled guilty to each offense contained in the indictment. The State of Ohio was again represented by Assistant Prosecuting Attorney Clagg. On February 23, 2010, Appellant
{4} In February 2011, Prosecutor Ater became a common pleas judge in Ross County and Appellant‘s case was assigned to his docket. No one objected to the assignment and Judge Ater did not recuse himself.
{5} On January 9, 2012, Appellant was brought before the court to face allegations she had violated her community control. Judge Ater set bond for Appellant at the preliminary violation hearing and established a final hearing date of February 6, 2012. At the final violation hearing, Appellant admitted to the violations. Judge Ater addressed Appellant as follows:
“Commit one more theft, one more theft while you are out, you‘re going to prison. And it‘s not just one year, I‘ve got two years hanging on you for prison. That‘s twelve months on each...I‘ll run them consecutive. One more theft, you go it?”
{7} Appellant was again brought before Judge Ater on July 25, 2013, for a second preliminary hearing alleging violations of her community control. Appellant immediately admitted to the violations and was sentenced. Judge Ater addressed Appellant as follows:
“You know, the Court has gone out of its way to help you. We‘ve sent you to CBCF. We‘ve helped you with counseling. We‘ve done everything possibly that we can. You‘re a drug addict. You‘re a danger to yourself, but more importantly, you‘re a danger to society. You‘re just a person that‘s bad. There‘s nothing about you that‘s going to help society out. What needs to happen is you need to be locked away, not to help yourself, it has nothing to do with you, but to protect people from you. Therefore, I will impose consecutive sentences in this case. I will impose on Count One the twelve months sentence. On Count Two, I will impose a twelve months sentence, both of those to be run consecutive to each other. Counts Three, Four, and Five will be a one-year sentence as well. They will all run concurrent to the previous two sentences, so you‘ve got about a year and a month hanging over your head.
{8} The Court imposed the twelve-month prison sentences on each of the five counts. He first indicated counts one and two were consecutive to each other and counts three, four and five were concurrent to the two year sentence. Judge Ater subsequently changed the sentence to running counts
{9} On August 5, 2013, Appellant filed a notice of appeal. On August 21, 2013, Judge Ater issued a corrected
{10} On August 30, 2013, appellant filed a motion for bond pending resolution of her appeal in the trial court. Judge Ater denied the motion. On September 13, 2012, Appellant filed a motion for bond in this Court which was denied. Appellant filed an amended motion for bond on September 27, 2013. On October 9, 2013, Appellant filed a notice of additional facts after discovery Judge Ater had acted as prosecutor in her case. On October 29, 2013, this court denied Appellant‘s motion for bond.
ASSIGNMENT OF ERROR I
I. JUDGE ATER WAS NOT QUALIFIED TO PRESIDE OVER THE TRIAL COURT PROCEEDINGS BECAUSE HE WAS A PROSECUTOR IN THE CASE. THEREFORE, MS. BATTY‘S SENTENCE SHOULD BE VACATED. JUD. COND.R. 2.11(A)(7)(a); FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION. (JAN. 9, 2012 PRELIMINARY HEARING; FEB.6, 2012 HEARING; JULY 31, 2013 HEARING; FEBRUARY 14, 2012 JUDGMENT ENTRY; JULY 31, 2013 JUDGMENT ENTRY; AUG. 21, 2013 CORRECTED CRIMINAL RULE 36 JUDGMENT ENTRY.)
{11} “[A] court of appeals lacks jurisdiction to review [recusal] decisions.” Citizen of Hocking County v. Ohio Power Co., 4th Dist. Hocking No. 11CA24, 2012-Ohio-4985, ¶ 18, quoting State ex rel. Hough v. Saffold, 131 Ohio St.3d 54, 2012-Ohio-28, 960 N.E.2d 451, ¶ 2. The Supreme Court of Ohio has explained that “only the Chief Justice or [the Chief Justice‘s] designee may hear disqualification matters[.]” Ohio Power, supra, quoting Beer v. Griffith, 54 Ohio St.2d 440, 441, 377 N.E.2d 775 (1978). Consequently, a “Court of Appeals [is] without authority to pass upon disqualification or to void the judgment of the trial court upon that basis. Ohio Power, supra, quoting Beer, supra, at 441-442.
B. LEGAL ANALYSIS
{12} Under Appellant‘s first assignment of error, she contends that Judge Ater was not qualified to preside over the trial court proceedings because he had been a prosecutor in the case. Appellant contends Judge Ater was required to disqualify himself. However, neither Appellant nor her counsel raised any issue or any alleged impropriety with regard to Judge Ater‘s presiding over her case. Nor was any affidavit of bias filed in the matter. “A judge is presumed to follow the law and not to be biased, and the appearance of bias or prejudice must be compelling to overcome these
{13} Appellant cites Jud.R. Cond.R.2.11(A)(7)(a) which states:
“(A) A judge shall disqualify himself or herself in any proceeding in which the judge‘s impartiality might reasonably be questioned, including but not limited to the following circumstances:
(7) The judge meets any of the following criteria:
(a) The judge served as a lawyer in the matter in controversy or was associated with a lawyer who participated substantially as a lawyer in the matter during such association....”
{14} Appellant contends the record establishes that Judge Ater actively participated in her prosecution by signing the indictment, signing the request warrant, and signing three subsequent praecipes when he was the county prosecutor. Appellant further points to three instances of impartiality at or subsequent to the July 2013 violations hearing: (1) when the Judge changed her two-year sentence to a three-year sentence without explanation; (2) when he launched a “personal attack” on her before imposing sentence; and (3) when he summarily denied her motion for bond pending resolution of the appeal. Appellant concludes that her sentence must be vacated and the case remanded for a new sentencing hearing before a new judge.
{16} In Sauer, we noted that appellant failed to raise any due process concerns or object to any comments made by the trial judge during the revocation hearing. As a result, Sauer effectively waived the right to challenge the judge‘s alleged impartiality. Sauer, supra at *2, citing State v. Henderson, 62 Ohio App.3d 848, 853, 577 N.E.2d 710 (1st Dist.1989). See, also, Dressler Coal Co. v. Div. of Reclamation, Ohio Dept. of Natural Resources, 5th Dist. Muskingum No. CA-85-35, 1986 WL 4773 (April 18, 1986). We reviewed Sauer‘s arguments under a plain error
{17} More recently, in Citizen of Hocking County v. Ohio Power Co., supra, at ¶ 19, this court explained that ”
{18} In Citizen of Hocking County v. Ohio Power Co., supra, Melanie Ogle appealed the judgment of the Hocking County Court of Common Pleas which denied her motion to vacate judgment and demand for recusal. Ogle and Ohio Power Company had engaged in various legal disputes which arose when Ohio Power sought to construct a telecommunications tower near Ogle‘s property.2 One of Ogle‘s arguments in the above-referenced appeal was that after the trial court judge, Judge Thomas Gerken, imposed sanctions against her, Attorney Charles Gerken,
{19} In the case before us, we note Appellant did not raise any objection at her pretrial hearing, during plea negotiations, nor at her sentencing. However, the real deficiency is that she did not seek recusal via the proper avenue, by filing an affidavit of prejudice with the Supreme Court of Ohio. As in the Citizen of Hocking County v. Ohio Power Co., case, we are without jurisdiction to address her argument that the trial judge erred by failing to recuse himself. As such, Appellant‘s first assignment of error is dismissed.
II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT IMPOSED A PRISON SENTENCE FOR A COMMUNITY CONTROL VIOLATION WITHOUT BEING AUTHORIZED TO DO SO BY THE FEBRUARY 2012 JUDGMENT ENTRY. THEREFORE, MS. BATTY‘S PRISON SENTENCE SHOULD BE VACATED. FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; SECTIONS 10 AND 16; ARTICLE I OF THE OHIO CONSTITUTION. (FEB. 6, 2012 TR.3; FEB.14, 2012 JUDGMENT ENTRY; JULY 31, 2013 JUDGMENT ENTRY.
A. STANDARD OF REVIEW
{21} However, a growing number of appellate districts have abandoned Kalish‘s second-step “‘abuse of discretion” standard of review. State v. Brewer, 4th Dist. Meigs No. 14CA1, 2014-Ohio-1903, ¶ 33.3
{22} Appellant has not specifically brought her appeal under the provisions of
{23} Under Ohio law, the trial court has three options for punishing offenders who violate community control sanctions. McClintock, supra, at ¶ 5. The court may: (1) lengthen the term of the community control sanction; (2) impose a more restrictive community control sanction; or (3) impose a prison term on the offender. Id.; State v. Guilkey, 4th Dist. Scioto No. 04CA2932, 2005-Ohio-3501, ¶ 5;
{24} Currently,
“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, * * * 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 specific prison term that may be imposed as a sanction for the violation, as selected by the court from the range of prison terms for the offense pursuant to section 2929.14 of the Revised Code.”
{25} In McClintock, we discussed the decision of the Supreme Court of Ohio in State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837. There, the Court addressed the statutory notice requirements under
{26} Appellant contends the trial court failed to notify her that she faced the possibility of a three-year sentence, and only notified her that she faced a twelve-month sentence. At Appellant‘s hearing on community control violations on February 6, 2012, the trial court advised: “Commit one more theft, one more theft while you are out, you‘re going to prison. And it‘s not just one year, I‘ve got two years hanging on you for prison. That‘s twelve months on each...I‘ll run them consecutive. One more theft, you got it?” Appellant argues the court‘s advisement at the February 2012 violations hearing was insufficient as truth in sentencing required exact, precise notification that fully informed her she faced the three-year prison sentence she was given in July 2013.
{28} Both parties have directed our attention to State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, wherein the Supreme Court of Ohio addressed the requirements of the sentencing court when there is a subsequent sentencing for a community control violation between the original sentencing and the eventual imposition of the prison sanction. In Fraley, the Court determined that when the offender is sentenced following a finding that he or she violated the terms and conditions of community
“We therefore hold that pursuant to
R.C. 2929.19(B)(5) and2929.15(B) , a trial court sentencing an offender upon a violation of the offender‘s community control sanction must, at the time of such sentencing, notify the offender of the specific prison terms that may be imposed for an additional violation of the conditions the sanction, as a prerequisite to imposing a prison term on the offender for such a subsequent violation.”
The holding in Fraley arguably requires an offender to be notified at each violations hearing.
{29} We find the case at bar to contain some significant procedural similarities to those in State v. Oulhint, 8th Dist. Cuyahoga No. 99296, 2013-Ohio-3250. There, Oulhint was indicted for one count of grand theft. In September 2011, he pleaded guilty. The matter was continued for presentence investigation. In October 2011, Oulhint was sentenced to 18 months of community control with conditions. The trial court advised Oulhint if he violated the terms of his community control sanctions, he was looking at the imposition of a prison term up to eighteen months.
{30} Oulhint violated his community control in January 2012. However, the trial court decided to continue it with the same conditions. Oulhint again violated the terms of community control and in November 2012, a hearing was conducted. Oulhint was sentenced to eight months in prison.
“[A]t Oulhint‘s original sentencing hearing and in the original sentencing entry, the trial court advised Oulhint that he could be sentenced to 18 months in jail if he violated the conditions of his community control. Therefore, Oulhint was well aware that he could be sentenced up to 18 months in prison if he violated the conditions of his community control.”
{32} The Eighth District Appellate Court noted that the cases on which Oulhint relied, as does Appellant here, State v. Goforth, 8th Dist. Cuyahoga No. 90653, 2008-Ohio 5596, and State v. Fraley, supra, were distinguishable. The appellate court noted in both cases the trial court failed to advise the defendant at the original sentencing hearing regarding the specific prison term the court could impose. However, in those cases, the courts held that no error occurred because the court advised the defendants at subsequent violation hearings the terms that could be imposed. The
“We construe the holding of the Supreme Court in Fraley narrowly to mean that a trial court that fails to notify a defendant of the specific penalty he will face upon violation of community control sanctions at the initial sentencing, may “cure” that failure at a subsequent violation hearing by then advising the defendant of the definite term of imprisonment that may be imposed upon any subsequent finding of violation. We find nothing in the statute or Fraley that requires a legally adequate notification in the first instance to be given over and over again.”
{33} We find the reasoning the appellate court in Oulhint to be equally persuasive and applicable here. Appellant was properly notified at the original sentencing hearing in February 2010 that if she violated the terms of her community control sanction, she risked imposition of a twelve (12) month prison term on each charge. That notification was legally sufficient and the trial court was not required to notify her over and over again.
{34} Furthermore, Appellant‘s argument that the judgment entry of sentence from the original sentencing hearing (which we have already noted was deficient) controls our determination herein, has no merit.7 The
{35} It is generally true that a trial court speaks only through its journal entries. State v. Guilkey, 4th Dist. Scioto No. 04CA9432, 2005-Ohio-3501, ¶ 10; Wilkins v. Wilkins, 116 Ohio App.3d 315, 318, 688 N.E.2d 27 (1996), citing State v. King, 70 Ohio St.3d 158, 162, 1994-Ohio-412, 637 N.E.2d 903. However, pursuant to Brooks, a trial court must inform a defendant at the sentencing hearing of the sentence to be imposed if he violates the community control sanctions. Brooks, supra, at 22. Provision of this information in the judgment entry is insufficient. Id. In Guilkey, the court noted that although it was trouble by erroneous language in the sentencing entry, it did not affect the validity of Guilkey‘s sentence. In this matter, Appellant was properly notified at the original sentencing hearing in 2010 and the omission in the 2010 sentencing entry does not affect the validity of Appellant‘s notification and sentence.
{36} Based on our analysis above, we find the trial court gave valid notice to Appellant at her original sentencing hearing that she faced a specific prison term if she violated her conditions of community control. We therefore find the trial court complied with all applicable rules and
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. and Harsha, J.: Concur in Judgment Only.
For the Court,
BY: Matthew W. McFarland
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.