State v. BellState v. Bell
Rendered on June 18, 2015
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Yeura R. Venters, Public Defender, and Timothy E. Pierce, for appellant.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Defendant-appellant, Ernesto L. Bell, appeals from a judgment of the Franklin County Court of Common Pleas, finding him guilty, pursuant to guilty plea, of one count of possession of cocaine, in violation of
The lower court abused its discretion and imposed a sentence contrary to law when it ordered Appellant to serve a term of incarceration in the Ohio Department of Rehabilitation and Correction in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 1 and 16 of the Ohio Constitution and
R.C. 2953.08(A)(4) and (G).
{¶ 2} Because defendant‘s sentence is not contrary to law and the trial court did not abuse its discretion, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 4} The parties continued the matter several times, and the case was eventually set for trial on July 28, 2014. On that date, the court stated that it had been “advised that we would have to postpone the trial for several reasons, but out of an abundance of caution due to the nature of the charges, the court ordered that Mr. Bell give us a urine screen before he left court and not leave court until he was advised.” (July 28, 2014 Tr. 2.) The court noted that the “court lab advised us today, over and above the marijuana that [defendant] apparently told [defense counsel] was going to be in [his] system, that you were positive for cocaine and Oxycodone.” (July 28, 2014 Tr. 2.) Accordingly, the state moved to have defendant‘s bond revoked. The court revoked defendant‘s bond and set a new bond of $100,000 surety and $1,000 recognizance, with the added condition that defendant submit to drug screens. The court set a bond hearing date for July 31, 2014 and scheduled trial for September 15, 2014.
{¶ 5} On July 31, 2014, defendant changed his plea and entered a plea of guilty to the charged crime. The prosecutor read the facts into the record, and defense counsel did not object to the state‘s version of the facts. The prosecutor noted that on October 9, 2012, detectives observed a narcotics transaction occur between defendant and a confidential informant. The detectives observed defendant “take a plastic bag from his buttocks area and hand the CI three small unit doses of crack cocaine.” (July 31, 2014 Tr. 3.) The officers then approached defendant, told defendant they knew he had additional crack cocaine on his person, and defendant “then retrieved a small bag of crack cocaine from his buttocks area, handed it to the detectives.” (July 31, 2014 Tr. 3.) The court engaged in a plea colloquy with defendant, and determined that defendant was knowingly, intelligently, and voluntarily pleading guilty to the charged crime.
{¶ 6} The court proceeded directly to sentencing. Defense counsel noted that there was a “short-form presentence investigation for Mr. Bell,” and noted that “[w]hile there is a bit of a record and he‘s had some run-ins with the law, this is the most serious
{¶ 7} The court then explained that, “[g]iven the history, I‘m imposing six months in the Ohio Department of Rehabilitation and Corrections; three years optional post-release control; waive costs, waive fines; six-month drivers license suspension.” (July 31, 2014 Tr. 12.) The court addressed defendant, stating that “[s]howing up for your trial date with a jury trial scheduled that we had all planned for with Oxycodone, cocaine, and marijuana on Monday was the dumbest thing you ever did perhaps, other than to break the law and get caught carrying around a bunch of cocaine.” (July 31, 2014 Tr. 12.) The court said, “I think you need some time out. That‘s the sentence.” (July 31, 2014 Tr. 12.) Defense counsel objected to the sentence, asserting that, as defendant had no prior felony record, “the law dictates in this situation that absent extraordinary circumstances, he be granted community control.” (July 31, 2014 Tr. 12.) The court responded that defendant “violated bond. That makes prison available on a felony 5. And he did it rather flagrantly.” (July 31, 2014 Tr. 12-13.)
{¶ 8} On August 4, 2014, defendant filed a motion to reconsider sentence. Defendant asserted that his lack of a felony record, the fact that he took responsibility for his actions by entering the guilty plea, and the fact that he was employed, all pointed to a presumption of community control instead of prison. However, defendant acknowledged in the motion that, pursuant to
{¶ 9} The trial court denied defendant‘s motion to reconsider sentence, noting that defendant was not amenable to community control for reasons “over and above” his dirty urine screen on his scheduled trial date. (Journal Entry Denying Motion to Reconsider, 1.) The court noted that, prior to submitting to the drug screen, defendant
{¶ 10} On September 17, 2014, defendant filed a motion for judicial release, which the court denied. In the entry denying the motion for judicial release, the court noted that, on September 9, 2014, the Ohio Department of Rehabilitation and Corrections (“ODRC“) asked the court to grant defendant the opportunity to participate in a transitional control program. The court approved of defendant‘s placement in that program. The court attached a letter from ODRC regarding the program to its entry. The letter explained that, through the transitional control program, defendant would be “placed in a licensed halfway house and then may be stepped down to electronic monitoring.” (Sept. 9, 2014 ODRC Letter.) The letter further explained that offenders in the program “are required to either obtain employment or continue their education,” and stated that “[a]ll offenders are supervised while participating in the program.” (Sept. 9, 2014 ODRC Letter.)
II. SENTENCE NOT CONTRARY TO LAW
{¶ 11} Defendant asserts that his sentence is contrary to law because it violates the conservation of resources principles in
A. Standard of Review
{¶ 13} “We are also cognizant of the two-step standard of review set forth by a plurality [opinion] of the Supreme Court of Ohio” in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, “which asks (1) whether the trial court adhered to all applicable rules and statutes in imposing the sentence, and (2) whether a sentence within the permissible statutory range constitutes an abuse of discretion.” State v. Murphy, 10th Dist. No. 12AP-952, 2013-Ohio-5599, ¶ 12. Thus, under the plurality opinion in Kalish, once an appellate court has determined the sentence is not contrary to law, it then must consider the sentencing court‘s application of
B. R.C. 2929.13
{¶ 14} Defendant pled guilty to a fifth degree felony possession of cocaine charge. For such a conviction, “division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.”
{¶ 15}
(i) The offender previously has not been convicted of or pleaded guilty to a felony offense.
(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five-day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year‘s duration that are available for persons sentenced by the court.
(iv) The offender previously has not been convicted of or pleaded guilty to a misdemeanor offense of violence that the offender committed within two years prior to the offense for which sentence is being imposed.
{¶ 16} Accordingly, the trial court was not obligated to sentence defendant to community control sanction under
{¶ 17} Additionally,
{¶ 18} Defendant asserts that, although “the court found him in violation of a condition of bond added that same day * * *, that new requirement consisted of Appellant submitting ‘to urine screening today and must not leave court without permission.’ ” (Appellant‘s Brief, 13-14.) Defendant contends that he “complied fully with this by submitting to the urine test on July 28, 2014 and returning to court.” (Appellant‘s Brief, 14.) Defendant thus contends that he never violated a condition of his bond. We disagree.
{¶ 19} In State v. Hughey, 10th Dist. No. 13AP-135, 2013-Ohio-4155, this court held that, “[b]y requiring appellant to undergo drug screenings while on bond, the trial court clearly expressed its intention that appellant refrain from using illegal substances, including heroin, during that timeframe.” Id. at ¶ 13. Thus, even though the stated condition of bond was only that defendant submit to drug screens, relying on In re Mason, 116 Ohio App.3d 451 (7th Dist.1996), we held that “refraining from the use of such substances was an inherent condition of appellant‘s bond.” Id.
{¶ 20} Regardless of whether refraining from using illegal substances was a stated condition of defendant‘s bond, it was, at the very least, an implied condition of bond. As stated in In re Mason with respect to bail revocation:
The fact that the court did not expressly state as conditions to bail that petitioner may not violate criminal provisions of the Revised Code is immaterial. These inherent conditions exist for every issuance of bail. Any conditions that a court may attach to the issuance of bail are not granted in lieu of the criminal provisions of the Revised Code, but in addition to them. These are conditions by which all citizens of the state are bound, regardless of status. * * * Where an accused is free on bail, however, and the court determines that the accused has violated conditions of bail, whether the conditions be express or implied, the accused is subject to the court‘s sanctioning authority for violation of the conditions, including revocation of bail.2
{¶ 21} Thus, refraining from using illegal substances was an inherent or implied condition of defendant‘s bond. As such, when defendant‘s drug screen revealed that he had used marijuana, cocaine, and Oxycodone while out on bond, the use of those substances constituted a violation of defendant‘s bond. Accordingly, pursuant to
C. Conservation of Resources
{¶ 22} Defendant asserts that, although a prison sentence was legally possible in this case, it was “unreasonable, disproportionate, and a strain on government resources for the lower court to have imposed a prison sentence.” (Appellant‘s Brief, 14.) Defendant asserts that his six-month prison sentence violated the conservation of resources principles in
A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the
public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
{¶ 23} The conservation of resources principle in
{¶ 24} Defendant contends that, according to a 2012 study “by the Vera Institute of Justice * * * the average annual cost of an Ohio prison inmate is $25,814.” (Appellant‘s Brief, 15.) Thus, defendant asserts that his six-month prison sentence will cost the state $12,907, and that accordingly his prison sentence constitutes an unnecessary burden on government resources. Defendant‘s argument regarding the monetary burden of incarceration is not relevant in the instant action, however, as defendant is not incarcerated in the traditional sense. As noted above, one month after sentencing defendant to prison, the trial court approved of defendant‘s placement in a transitional control program, whereby defendant will reside in a licensed halfway house.
D. Consistency and Proportionality
{¶ 26} Defendant asserts that the “gravamen of this appeal is whether Appellant‘s prison sentence for a conviction on the sole count of possession of cocaine was consistent with or proportional to the alleged facts of the crime and other cases involving cocaine possession offenses under
{¶ 27} ” ‘Consistency, however, does not necessarily mean uniformity. Instead, consistency aims at similar sentences. Accordingly, consistency accepts divergence within a range of sentences and takes into consideration a trial court‘s discretion to weigh relevant statutory factors. * * * Although offenses may be similar, distinguishing factors may justify dissimilar sentences.’ ” State v. Hayes, 10th Dist. No. 08AP-233, 2009-Ohio-1100, ¶ 8, quoting State v. Battle, 10th Dist. No. 06AP-863, 2007-Ohio-1845, ¶ 24.
{¶ 28} A sentencing court is not required to make a comparison of the current case to previous cases, but is required to appropriately apply the statutory sentencing guidelines in order to maintain consistency. State v. Holloman, 10th Dist. No. 07AP-875, 2008-Ohio-2650, ¶ 19, citing State v. Kalish, 11th Dist. No. 2006-L-093, 2007-
{¶ 29} In its sentencing entry, the trial court stated that it had “considered the purposes and principles of sentencing set forth in
{¶ 30} Defendant contends that the record belies the court‘s statement in its judgment entry, as the record from the sentencing hearing “fails to indicate that the lower court bothered to consider the consistency and proportionality milieu with respect to felony sentencing.” (Appellant‘s Brief, 20.) However, even “[w]hen the trial court does not put on the record its consideration of
{¶ 31} Additionally, based on the facts and circumstances at issue in this case, the trial court‘s sentence was not an abuse of discretion. The six-month prison sentence fell well within the applicable range of sentences for a felony of the fifth degree. The court had both the authority and the discretion to impose a prison sentence, and the court imposed the minimum prison sentence available. The record demonstrates that the court considered the short-form presentence investigation, statements from the prosecution and from the defense, and considered defendant‘s own statement. Furthermore, the trial court explained its reasoning for the prison sentence during the sentencing hearing, noting defendant‘s history, the fact that defendant violated bond by using illegal substances, and the fact that defendant told his attorney that he would test positive for marijuana only. Compare State v. Bailey, 2d Dist. No. 14-CA-2, 2014-Ohio-3749, ¶ 15 (noting that, in deciding to impose a prison sentence for a fifth degree felony possession of heroin charge, “[i]t was significant to the court that Bailey failed to comply with the ILC process, violated the conditions of her bond, and that while she was subject to community control sanctions in Highland County, she tested positive for drugs“).
{¶ 32} Defendant asserts that “[n]either the State nor the court offered evidence that Mr. Bell understood that his just-ordered drug test results would include substances other than marijuana.” (Appellant‘s Brief, 23.) During the sentencing hearing, however, the court noted that defense counsel had told the judge in chambers after the court ordered the drug screen that defendant was going to test positive for marijuana only; “[h]e didn‘t mention Oxycodone, he didn‘t mention cocaine.” (July 31, 2014 Tr. 13.) Defense counsel stated that defendant had told defense counsel that he “was going to be positive” before he took the test. (July 31, 2014 Tr. 14.) The court noted, “[y]ou said marijuana, though, as I recall.” (July 31, 2014 Tr. 14.) Defense counsel responded, “[t]hat is what I told the court.” (July 31, 2014 Tr. 14.)
{¶ 33} Defendant contends, citing State v. Gephart, 11th Dist. No. 94-G-1861 (May 5, 1995), that the trial court impermissibly increased defendant‘s sentence based on the court‘s unsubstantiated belief that defendant lied to the court. In Gephart, the court held that a sentencing court “may not increase the sanction based upon a belief
{¶ 34} In contrast, here, the court simply stated the fact, which is supported by the record, that defense counsel told the court that defendant would test positive for marijuana only. The drug test then revealed that defendant was also positive for cocaine and Oxycodone. At the sentencing hearing, the court addressed defense counsel and said, “[e]ither [defendant] lied to you or you misled me,” but the court expressly stated that it was “not punishing [defendant] for that.” (July 31, 2014 Tr. 13.) The court noted, while he was not punishing defendant for misleading the court, “doggone it, showing up and using drugs two years now after this other thing I think is pretty flagrant.” (July 31, 2014 Tr. 13.) Thus, unlike Gephart, the court herein did not increase defendant‘s sentence based on an unfounded assumption that defendant had lied to the court. The record demonstrates that defendant was not forthcoming regarding all of the illegal substances which the drug test would reveal to be present in his system. Indeed, considering that defendant was less than forthcoming with the court and considering that defendant “rather flagrantly” used illegal substances while out on bond, defendant should be grateful that the trial court did not impose more than the minimum prison sentence possible. (July 31, 2014 Tr. 13.)
{¶ 35} We further find that the trial court fully considered the possibility of a community control sanction, and determined that a prison sentence was more appropriate in this case, as the court was entitled to do. Defense counsel asked the court to place defendant on community control, noting that it seemed wrong on defendant‘s “first felony from two years ago, [that] we are going to fill up the prison system with somebody like this.” (July 31, 2014 Tr. 14.) Counsel asked the court to reconsider the six-month prison sentence, and to instead “put [defendant] through a series of tests of what he‘s going to have to do on community control.” (July 31, 2014 Tr. 15.) The court responded stating, “[t]hank you for your thoughts. I‘ve thought about all of that. I think this is the appropriate sentence.” (July 31, 2014 Tr. 15.)
{¶ 36} Reviewing the court‘s consideration of the principles and purposes of felony sentencing and the court‘s stated reasons for imposing a prison term, we find that
III. DISPOSITION
{¶ 37} Based on the foregoing, we conclude that the record supports the trial court‘s determination that a minimum prison sentence of six months was appropriate, as a community control sanction would not accomplish the purposes and principles of felony sentencing. Since we cannot clearly and convincingly find that defendant‘s sentence is contrary to law under either Kalish or Burton, and we find no abuse of discretion in the sentence imposed, we overrule defendant‘s sole assignment of error. Having overruled defendant‘s assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER, J., concurs separately.
DORRIAN, J., dissents.
LUPER SCHUSTER, J., concurring.
{¶ 38} I concur in the judgment overruling Bell‘s assignment of error and affirming the sentence entered by the court below. However, I write separately because I reach that result on narrower grounds than expressed in the lead decision.
{¶ 39} In this appeal, Bell does not argue the trial court did not have the statutory authority to sentence him to prison pursuant to
{¶ 41} We review a trial court‘s imposed sentence to determine whether clear and convincing evidence establishes that the sentence is contrary to law; the sentence is not reviewed under the abuse of discretion standard. State v. Stubbs, 10th Dist. No. 13AP-810, 2014-Ohio-3696, ¶ 15, citing State v. Mercier, 10th Dist. No. 13AP-906, 2014-Ohio-2910, ¶ 4. Applying the contrary to law standard, we look to the record to determine whether the sentencing court considered and properly applied the statutory guidelines and whether the sentence is otherwise contrary to law. Id., citing State v. Burton, 10th Dist. No. 06AP-690, 2007-Ohio-1941, ¶ 19.
{¶ 42} Here, the trial court demonstrated its compliance with
{¶ 43} Bell also argues the trial court improperly weighed and considered the sentencing factors because it erroneously believed that he violated his bond conditions based on a positive drug screen. This argument fails. The ” ‘trial court, in exercising its sentencing discretion, determines the weight afforded to any particular statutory factors, mitigating grounds, or other relevant circumstances.’ ” Stubbs, at ¶ 16, quoting State v. Todd, 10th Dist. No. 06AP-1208, 2007-Ohio-4307, ¶ 23. Mere disagreement with a court‘s balancing of the sentencing factors and mitigation evidence does not make a sentence that falls within the applicable statutory range contrary to law. Id. Furthermore, Bell does not dispute that he tested positive for marijuana, Oxycodone, and cocaine the day his trial was scheduled to begin on the underlying charge of cocaine possession. The trial court had the authority to impose the drug screen and did not err in considering the results of the drug screen as part of its sentencing analysis. See
{¶ 44} For these reasons, I concur in affirming the judgment of the trial court.
DORRIAN, J., dissenting.
{¶ 45} I agree that, pursuant to
{¶ 46} I concurred with the decision in Hughey that, “[b]y requiring [defendant] to undergo drug screenings while on bond, the trial court clearly expressed its intent that [defendant] refrain from using illegal substances, including heroin, during that timeframe.” Hughey at ¶ 13. But the facts in Hughey differ from the facts here. First, Hughey was considered pursuant to the plain-error standard because defendant did not object at the sentencing; whereas, in this case, defendant objected at sentencing and thereafter in a motion to reconsider. Second, and more significantly, in Hughey, the defendant was advised of the drug screen condition two weeks prior to when he admitted to using heroin and was found to have violated the condition. Therefore, he was on notice about what action could violate his conditions of bond. In this case, defendant had no notice. The condition of bond that defendant submit to a drug screen was imposed “on the spot” the date the trial was postponed. Defendant was advised that he could not leave the courtroom until he submitted to a drug screen. Consequently, defendant violated the condition of bond before he was even aware it was a condition of bond.
{¶ 47} In Hughey, after having determined that the drug screen condition clearly expressed an intention to refrain from drug use, we then referred to In re Mason:
“The fact that the court did not expressly state as conditions to bail that petitioner may not violate criminal provisions of the Revised Code is immaterial. These inherent conditions exist for every issuance of bail. Any conditions that a court may attach to the issuance of bail are not granted in lieu of the criminal provisions of the Revised Code, but in addition to them. These are conditions by which all citizens of the state are bound, regardless of status. * * * Where an accused is free on bail, however, and the court determines that the accused has violated conditions of bail, whether the conditions be express or implied, the accused is subject to the court‘s sanctioning authority for violation of the conditions, including revocation of bail bond.”
Id. at ¶ 13, quoting In re Mason at 454.
{¶ 48} The facts in In re Mason also differ from the facts here, as well as the facts in Hughey. In that case, the defendant filed a petition in habeas corpus in response to
In the present matter, the trial court became aware of information subsequent to the allowance of bail that reasonably warranted the action taken to revoke bail under the court‘s inherent authority to ensure the integrity of the judicial process. It is reasonable that once a judge becomes aware of charges of attempted murder and witness intimidation, one of the most reasonable ways that the persons in these actions pending before a court can be protected is by revoking bail and detaining the person attempting to thwart the proper functioning of the criminal justice system. It would almost seem that the court could be abusing its discretion if it did not revoke bail under such serious circumstances.
In re Mason at 453-54. The court concluded that the defendant “breached inherent conditions of bail so as to jeopardize the proper functioning of the judiciary in the trial process and is thus subject to sanctions of the trial court commensurate with the violation of conditions of bail.” Id. at 455. The court denied the habeas corpus petition.
{¶ 49} Although the court In re Mason found the revocation of bond to be consistent with the general purpose of preserving the integrity of the judiciary by ensuring future appearance and protecting witnesses, the court further noted that not violating criminal provisions is an inherent condition of bail. As noted above, and although the defendant had only been indicted but not yet convicted of new charges, the court stated that, “[w]here an accused is free on bail, however, and the court determines that the accused has violated conditions of bail, whether the conditions be express or implied [such as inherent condition to not violate the law], the accused is subject to the court‘s sanctioning authority for violation of the conditions, including revocation of bail.” Id. at 454. The sanction imposed for the violation in In re Mason was revocation
{¶ 50} Finally, I note that
{¶ 51} It certainly would have been appropriate for the prosecutor to consider charging appellant with a new drug offense upon appellant‘s testing positive for drugs and for the court to impose an additional sentence as a result thereof. However, I do not find it to be appropriate or consistent with the law for the court to impose prison time on the original offense on the grounds that appellant violated a condition of bond – a condition of which he had no notice.3
{¶ 52} Considering the circumstances of this case, I would find that the sentence imposed by the trial court was contrary to law. For these reasons, I respectfully dissent.
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