State v. BrockState v. Brock
For Plaintiff-Appellee
HAWKEN FLANAGAN
DANIEL BENOIT
20 South Second Street
Fourth Floor
Newark, OH 43055
For Defendant-Appellant
JAMES ANZELMO
446 Howland Drive
Gahanna, OH 43230
{¶1} Defendant-appellant, Sierra R. Brock [“Brock”] appeals the January 16, 2018 Judgment Entry of the Licking County Court of Common Pleas revoking community control sanctions and imposing a six month sentence.
Facts and Procedural History
{¶2} On August 6, 2014, the Licking County Grand Jury returned a single count Indictment charging Brock with Passing Bad Checks, a felony of the 5th degree in violation of
{¶3} On January 30, 2015, Brock reported to the Licking County Adult Court Services, where she reviewed and acknowledged the Conditions of Supervision paperwork. Specifically, Brock initialed and acknowledged the following:
General Condition no. 1: You are to abide by all Federal, State, and Local laws; and you are to personally contact your Probation Officer on the next business day if you are arrested, cited, or questioned by any law enforcement officer;
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General. Condition no. 4: You are to report to the Adult Court Services Department office as instructed by any of the Adult Court Services personnel;
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Non-Residential Condition no. 14: The Defendant shall obtain and/or retain employment;
* * *
Financial Sanction no. 1: The Defendant shall make restitution in the amount of $1,000.00 within six months;
* * *
Financial Sanction no. 5: The Defendant shall pay the court costs of this action; and
Financial Sanction no. 6: The Defendant shall pay the court appointed attorney fees.
{¶4} On October 18, 2017, a warrant was issued for Brock‘s arrest, indicating that she was not reporting as ordered and that her whereabouts were unknown.
{¶5} On December 27, 2017, Brock was located and arrested. On January 3, 2018, a Motion to Revoke Appellant‘s Community Control was filed. Pursuant to the Motion, Brock was alleged to have violated General Condition‘s nos. 1 and 4, Non-Residential Condition no. 14, and Financial Sanctions nos. 1, 5, and 6.
{¶6} With respect to General Condition no. 1, the Motion alleged that Brock failed to advise her supervising officer of traffic citations on June 22, 2017, and September 4, 2017. With respect to General Condition no. 4, the Motion alleged that Brock‘s
{¶7} At a hearing held January 4, 2018, the court found probable cause. On January 16, 2018, Brock appeared for a Second Stage Hearing on the Motion to Revoke Community Control. Appellant, with counsel, waived the hearing and admitted to violating the terms and conditions of her supervision. After receiving statements from the state and from Brock, the Court revoked Brock‘s community control and imposed the reserved sentence of six months.
Assignments of Error
{¶8} Brock raises three assignments of error.
{¶9} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REVOKED BROCK‘S COMMUNITY CONTROL AND SENTENCED HER TO JAIL, IN VIOLATION OF HER RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
{¶11} “III. THE TRIAL COURT ERRED BY ISSUING A SENTENCING ENTRY WITH AN ORDER FOR SIERRA BROCK TO PAY COURT COSTS, IN VIOLATION OF HER DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTION.”
I.
{¶12} In her First Assignment of Error, Brock contends the trial court abused its discretion by revoking her community control because the trial court failed to consider Brock‘s ability to pay restitution, court costs and attorney fees.
STANDARD OF APPELLATE REVIEW.
{¶13} “The privilege of probation rests upon the probationer’s compliance with the probation conditions and any violation of those conditions may properly be used to revoke the privilege.” State v. Ohly, 166 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d 675 (6th Dist.), ¶ 19, quoting State v. Bell, 66 Ohio App.3d 52, 57, 583 N.E.2d 414 (5th Dist. 1990). “Because a community control revocation hearing is not a criminal trial, the state does not have to establish a violation with proof beyond a reasonable doubt.” State v. Wolfson, 4th Dist. Lawrence No. 03CA25, 2004-Ohio-2750, 2004 WL 1178724, ¶ 7; see, also, State v. v. Payne, 12th Dist. Warren No. CA2001-09-081, 2002 WL 649403; State v. Hylton, 75 Ohio App.3d 778, 782, 600 N.E.2d 821 (4th Dist. 1991). Instead, the state need only present “substantial” proof that a defendant willfully violated the community control
{¶14} Once a trial court finds that a defendant violated community control conditions, it possesses discretion to revoke the defendant’s community control. In that event, appellate courts should not reverse trial court decisions unless a court abused its discretion. Wolfson, 2004-Ohio-2750, ¶ 8.
{¶15} Thus, “the appropriate review in this matter is twofold. First, we review the record to determine whether there is some competent credible evidence to support the court’s finding that [the defendant] violated the terms of probation or community control. If so, then we review the sanction under the more deferential abuse of discretion standard. Johnson at ¶ 13; In the Matter of C.M.C., 4th Dist. Washington No. 09CA15, 2009–Ohio–4223, ¶ 17.” State v. Amos, 4th Dist. Gallia No. 15CA5, 2016-Ohio-917, ¶9.
{¶16} An abuse of discretion exists where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, 2014 WL 602264, ¶ 35;
{¶17} The weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180, certiorari denied (1990), 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183. Reviewing courts should accord deference to the trial court‘s decision because the trial court has had the opportunity to observe the witnesses’ demeanor, gestures, and voice inflections which cannot be conveyed to us through the written record, Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846(1988).
ISSUE FOR APPEAL.
A. Whether there is some competent credible evidence to support the court’s finding that Brock violated the terms of community control.
{¶18} In the case at bar, Brock admitted the violations. T., Second Stage Revocation Hearing, Jan. 16, 2018 at 3. Accordingly, the trial court had competent credible evidence to support its findings that Brock violated the terms of her community control.
B. Whether the trial court abused its discretion in imposing a jail sentence of six months for Brock’s violation of community control.
{¶19} At oral argument in this matter both parties agreed that Brock has completed the jail sentence imposed upon her in the trial court’s January 16, 2018 Judgment Entry.
1. The “mootness doctrine.”
{¶21} Ohio courts have long exercised judicial restraint in cases that are not actual controversies. Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371, 372(1970). No actual controversy exists where a case has been rendered moot by an outside event. “It is not the duty of the court to answer moot questions, and when, pending proceedings in error in this court, an event occurs without the fault of either party, which renders it impossible for the court to grant any relief, it will dismiss the petition in error.” Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21(1910), syllabus; Tschantz v. Ferguson, 57 Ohio St.3d 131, 133, 566 N.E.2d 655(1991).
{¶22} In Bradley v. Ohio Dept. of Job and Family Services our brethren from the Tenth Appellate District observed,
“The doctrine of mootness is rooted in the ‘case’ or ‘controversy’ language of Section 2, Article III of the United States Constitution and in the general notion of judicial restraint.” James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App.3d 788, 791, 600 N.E.2d 736. “While Ohio has no constitutional counterpart to Section 2, Article III, the courts of Ohio have
long recognized that a court cannot entertain jurisdiction over a moot question.” Id. “It has been long and well established that it is the duty of every judicial tribunal to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect. It has become settled judicial responsibility for courts to refrain from giving opinions on abstract propositions and to avoid the imposition by judgment of premature declarations or advice upon potential controversies.” Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 257 N.E.2d 371. In other words, an issue is moot when it has no practical significance, being instead merely hypothetical or academic.
10th Dist. Franklin No. 10AP-567, 2011-Ohio-1388, ¶11; Accord, Boncek v. Stewart, 9th Dist. Summit No. 21054, 2002-Ohio-5778, ¶10. Although the mootness doctrine has exceptions, none apply in the case at bar. See, e.g., In re Appeal of Suspension of Huffer from Circleville High School, 47 Ohio St.3d 12, 546 N.E.2d 1308 (1989), paragraph one of the syllabus(noting the two exceptions to the mootness doctrine are when “the issues are capable of repetition, yet evading review” or the case “involves a matter of public or great general interest”).
{¶23} A court may take judicial notice of mootness. “In fact, ‘an event that causes a case to be moot may be proved by extrinsic evidence outside the record.’ Pewitt v. Lorain Correctional Inst. (1992), 64 Ohio St.3d 470, 472, 1992-Ohio-91, 597 N.E.2d 92, 94.” State ex rel. Nelson v. Russo, 89 Ohio St.3d 227, 228, 2000-Ohio-141, 729 N.E.2d 1181(2000). Accord, Miner v. Witt, 82 Ohio St. 237, 239.
A person convicted of a felony has a substantial stake in the judgment of conviction which survives the satisfaction of the judgment imposed upon him or her. Therefore, an appeal challenging a felony conviction is not moot even if the entire sentence has been satisfied before the matter is heard on appeal. (State v. Wilson (1975), 41 Ohio St.2d 236, 70 O.O.2d 431, 325 N.E.2d 236, and State v. Berndt (1987), 29 Ohio St.3d 3, 29 OBR 173, 504 N.E.2d 712, distinguished; State v. Williams (1992), 80 Ohio App.3d 542, 609 N.E.2d 1307, disapproved.)
State v. Golston, 71 Ohio St.3d 224, 643 N.E.2d 109(1994), syllabus.
{¶25} The defendant in Golston was subject to post-release control. Golston was meant to clarify the Ohio Supreme Court’s decision in State v. Wilson, 41 Ohio St.2d 236, 325 N.E.2d 236(1975), which held,
Where a defendant, convicted of a criminal offense, has voluntarily paid the fine or completed the sentence for that offense, an appeal is moot when no evidence is offered from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction.
41 Ohio St.2d at syllabus. See also, State v. Ambriez, 6th Dist. Lucas No. L-04-1382, 2005-Ohio-5877, ¶9.
{¶26} In this appeal, Brock only challenges her sentence and not her conviction. Brock was originally sentenced on January 29, 2015. At that time, she was advised if she
As in State v. Blivens, (Sept. 30, 1999), 11th Dist. No. 98-L-189, we distinguish the instant case from Golston since appellant was not subjected to post-release control. See also id. at 2, 643 N.E.2d 109, stating “an appeal challenging the actual felony conviction itself is not moot even if the entire sentence has been satisfied before the matter is heard on appeal.” Here, however, appellant only challenges the length of his sentence.
Accordingly, the questions presented by this appeal are moot as the relief sought can no longer be granted, and the appeal is hereby dismissed sua sponte.
6th Dist. Lucas No. L-04-1382, 2005-Ohio-5877, ¶9 -¶10.
2. Merit review.
{¶27} Assuming arguendo that the issues are not moot in Brock’s case, we would find that the trial court did not abuse its discretion in revoking Brock’s community control and imposing s six-month sentence at the Licking County Justice Center.
{¶28} At the Second Stage Revocation Hearing the trial court found,
THE COURT: A warrant was issued for your arrest because you couldn‘t be located, so I don‘t see how you could have any impression in your mind that you did any part of this correctly, nor do I want you to give anybody the impression that you did well here or -- you failed to report your citations from the police. A warrant was issued for your arrest because you couldn‘t be located. So, you didn‘t stay in contact or show up or anything. So, don‘t give me any of this stuff about doing a great job here or doing well because you didn‘t do well. You did badly.
T., Second Stage Revocation Hearing, Jan. 16, 2018 at 10.
{¶29} The right to continue on community control depends on compliance with community control conditions and “is a matter resting within the sound discretion of the court.” State v. Garrett, 5th Dist. No. 2010 CA 00210, 2011–Ohio–691 at ¶ 13; State v. Schlecht, 2nd Dist. No. 2003–CA–3, 2003–Ohio–5336, citing State v. Johnson, 2nd Dist. No. 17420, 2001 WL 561312(May 25, 2001).
{¶30} After finding that the defendant has violated community control sanctions, the sentencing court may: (1) extend the period of the same community control sanction, but not beyond the five-year maximum; (2) impose a more restrictive community control sanction for any remaining period of time up to the five-year maximum; or (3) cancel the community control sanction and impose a definite sentence of imprisonment within the range allowed for the offense under
{¶31} In the case at bar, by Brock’s own admissions, the trial court had substantial proof that she violated the community control sanctions independent of her failure to pay restitution, court costs and attorney fees. Thus, under
{¶32} Brock’s First Assignment of Error is overruled.
II.
{¶33} In her Second Assignment of Error, Brock argues that she received ineffective assistance of counsel because she admitted to violating the terms and conditions of her community control when there was a viable defense to the allegations contained in the state‘s motion to revoke.
STANDARD OF APPELLATE REVIEW.
{¶34} In order to prevail on a claim of ineffective assistance of counsel with respect to the entry of a guilty plea, a defendant must meet the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). State v. Xie, 62 Ohio St.3d 521, 524 (1992). Specifically, the defendant must first “‘show that counsel’s performance was deficient,’ “id., quoting Strickland at 687, and “[s]econd, ‘the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty.’” Id., quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985).
{¶35} “Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel‘s challenged conduct on the facts of the particular case, viewed as of the time of counsel‘s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that
{¶36} In light of “the variety of circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant,” the performance inquiry necessarily turns on “whether counsel’s assistance was reasonable considering all the circumstances.” Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064. At all points, “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064.
{¶37} The United States Supreme Court discussed the prejudice prong of the Strickland test,
With respect to prejudice, a challenger must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at 687, 104 S.Ct. 2052.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689–690, 104 S.Ct. 2052. Even under de novo review, the standard for judging counsel’s representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is “all too tempting” to “second-guess counsel’s assistance after conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney’s representation amounted to incompetence under “prevailing professional norms,” not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.
Harrington v. Richter, __U.S.__, 131 S.Ct. 770, 777-778, 178 L.Ed.2d 624(2011).
ISSUE FOR APPEAL.
Whether there is a reasonable probability the trial court would not have imposed a six-month jail sentence had Brock not stipulated to the community control violations.
{¶39} A community control revocation hearing is not a criminal trial. State v. White, 5th Dist. No. 2009–CA–00111, 2009–Ohio–6447. The state therefore need not establish a community control violation by proof beyond a reasonable doubt. White, supra at ¶ 13; State v. Ritenour, 5th Dist. No. 2006AP010002, 2006–Ohio–4744 at ¶ 36; State v. Spencer, 5th Dist. No. 2005–CA–15, 2006–Ohio–5543 at ¶ 12; State v. Henry, 5th Dist.. No. 2007–CA–0047, 2008–Ohio–2474. The Supreme Court of Ohio has recently confirmed that when reviewing the manifest weight of the evidence, an appellate court conducts the same analysis in both criminal and civil cases. Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶ 12.
{¶40} In Hill v. Lockhart, the United States Supreme Court observed,
Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. See, e.g., Evans v. Meyer, 742 F.2d 371, 375 (CA7 1984) (“It is inconceivable to us ... that [the defendant] would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received”). As we explained in Strickland v. Washington, supra, these predictions *60 of the outcome at a possible trial, where necessary, should
be made objectively, without regard for the “idiosyncrasies of the particular decision maker.” Id., 466 U.S., at 695, 104 S.Ct., at 2068.
474 U.S. 52, 59-60, 106 S.Ct. 366, 88 L.Ed.2d 203(1985).
{¶41}
{¶42} The only evidence that Brock could not comply with the conditions of her community control came from Brock. Nothing in the record provides substantiation or corroboration to her claims. As noted in our disposition of Brock’s First Assignment of Error, the trial court put little weight on Brock’s self-serving statements. Brock‘s alleged miscommunications with the Probation Department do not excuse the fact that she failed to appear for appointments and her whereabouts were unknown. Similarly, these alleged miscommunications do not excuse Brock‘s failure to provide timely notice of her traffic citations on two separate occasions. The explanations offered by Brock and her counsel were not “defenses.” Rather, they were mitigating factors, appropriately argued to the trial court before the court rendered a decision.
{¶44} Brock’s Second Assignment of Error is overruled.
III.
{¶45} In her Third Assignment of Error, Brock argues that the trial court erred by imposing court costs in the sentencing entry but not at the sentencing hearing.
{¶46} The General Assembly amended
{¶47} Accordingly, in the case at bar, any further dispute as to costs can be handled in the manner authorized under
{¶48} Brock’s Third Assignment of Error is overruled.
By Gwin, J.,
Wise, John, J., and
Wise, Earle, J., concur