State v. DavisState v. Davis
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: October 21, 2010
Christopher R. Lenahan
13001 Athens Avenue, Suite 200
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Kristin Karkutt
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:
{¶ 1} Defendant-appellant Robert Davis appeals from the trial court‘s decision to revoke community control sanctions and to order a sentence of eight years into execution.
{¶ 2} Davis presents two assignments of error. He asserts his original sentence was void because the journal entry failed to impose postrelease control. He further asserts he was denied his right to due process of law аt the “probation revocation” hearing.
{¶ 3} Although it need not do so, the state concedes Davis‘s first assignment of error. This court finds that although no error occurred at the initial
{¶ 4} Davis originally was indicted with a co-defendant on two counts; the two were сharged with burglary and theft of property in an amount over $5,000 with respect to an incident that occurred in March 2008.
{¶ 5} In June 2009, Davis entered into a plea agreement. The state dismissed the second count in exchange for Davis‘s guilty plea to Count 1, a second-degree felony. The trial court informed him he would be subject to three years of postrelease control before accepting his plea. The journal entry, however, states the trial court “advised” him of postrelease control, without specificity as to the time involved.
{¶ 6} The journal entry of sentence states that Davis was “sentenced to 5 years of community control,” with conditions, and that if he violated the conditions, his violation “may result in more restrictive sanctions, or a prison term of 8 year(s) * * *.” The journal entry was filed on July 20, 2009.
{¶ 7} The transcript of the original sentencing hearing indicates that, although the court was aware of the presumption of a prison term for Davis‘s conviction, the court was inclined to give Davis the benefit of the doubt. With this inclination, the court made no reference to postrelease control.
{¶ 9} At the outset of the hearing, the trial court noted there had “not been a waiver of the probable cause portion of th[e] proceeding,” and asked defense counsel if he wanted “to proceed with that?” Counsel answered, “Yes, your Honor.”
{¶ 10} The court then stated “there had been a positive urine specimen for cocaine on August 3rd, 2009 and again on August 13th.” On this basis, the court found probable cause and proceeded “to the merits,” i.e., asserting that after Davis “was sentenced on July 17th to drug counseling and testing, he then tested positive on two occasions.”
{¶ 11} The trial court found Davis “to be in violation,” and ordered sentence into execution. The resulting journal entry, filed on August 27, 2009, states that Davis is subject to three years of postrelease control.
{¶ 12} Davis appeals from the order of sentence with two assignments of error.
{¶ 13} Davis argues in his first assignment of error that the original sentence was void because it failed to impose postrelease control. He asserts
{¶ 14} The state сoncedes Davis‘s first assignment of error. The state indicates the trial court must conduct a new sentencing hearing, because the trial court did not impose a lawful sentence. In actuality, however, the sentence is not improper.
{¶ 15}
{¶ 16} For its part,
{¶ 17} Absent from the relevant statutes is a requirement that a court that chooses to impose community control sanctions as an initial sentence must inform the offender of postrelease control. Such a requirement applies, instead,
{¶ 18} “Nothing in * * *
R.C. 2929.19(B)(5) itself requires the court to inform a defendant who is being sentenced to community control sanctions, at the sentencing hearing, that if he violates the conditions of his sanctions, and if the court sentences him to a term of imprisonmеnt for that violation, and if he violates prison rules, the parole board may extend his prison term. Likewise, there is no requirement that the court imposing community control sanctions must inform the defendant that if he is later sentenced to a term of imprisonment for violation of the conditions of his sanctions, then post-relеase control may be imposed. These contingencies are not part of the ‘specific prison term’ that can be imposed in the event of a future violation of the conditions of post-release control.” (Emphasis in original.) State v. Harris, Cuyahoga App. No. 89971, 2008-Ohio-2175, at ¶7.
{¶ 19} Other Ohio appellate districts have reached the same conclusion. See, e.g., State v. Russell, Richland App. No. 06CA12, 2006-Ohio-4450; State v. Hensley, Lucas App. No. L-07-1253, 2008-Ohio-2486. Therefore, despite the state‘s concession, this court finds no error with respect to the trial court‘s failure to advise Davis at his initial sentencing hearing about postrelease control.
{¶ 20} However, the record reflects the trial court failed to mention
{¶ 21} The trial court‘s error in this regard neither renders the sentence void nor requires a de novo sentencing hearing. Instead,
{¶ 22} Accordingly, Davis‘s first assignment of error is sustained in part.2
{¶ 23} Davis argues in his second assignment of error that he was not afforded due process during his “probation violation” hearing. This assignment of error has merit.
{¶ 24} According to the record, the trial court did not afford Davis any meaningful opportunity to object to the proceeding, and thus committed plain error. State v. Harmon, Champaign App. No. 2007 CA 35, 2008-Ohio-6039; cf.,
{¶ 25} The court then stated “there had been a positive urine specimen for cocaine on August 3rd, 2009 and again on August 13th.” On this basis, the court found probable cause and proceeded “to the merits,” i.e., that after Davis “was sentenced on July 17th to drug counseling and testing, he then tested positive on two occasions.” Thus relying on its own statements, the trial court also found Davis “to be in violation,” and ordered sentence into execution.
{¶ 26} Gagnon v. Scarpelli (1973), 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656, required the trial court to provide Davis: 1) written nоtice of the claimed violations; 2) disclosure of evidence against him; 3) opportunity to be heard and to present witnesses and documentary evidence; 4) the right to confront and cross-examine adverse witnesses; 5) a “neutral and detached”
{¶ 27} Since the record reflects the trial court did not afford Davis due process of law at the community control revocation hearing, Davis‘s second assignment of error is sustained.
{¶ 28} The trial court‘s order is reversed. This case is remanded for further proceedings consistent with this opinion; the trial court is reminded that, prior to deciding whether the imposition of a prison sentence is warranted, Davis must be accorded a community control violation hearing that comports with Gagnon and Miller.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitutе the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE
ANN DYKE, J., CONCURS
CHRISTINE T. McMONAGLE, J.,
CONCURS AND DISSENTS
(SEE ATTACHED CONCURRING AND DISSENTING OPINION)
CHRISTINE T. McMONAGLE, J., CONCURRING AND DISSENTING:
{¶ 29} I concur with the majority‘s resolution of appellant‘s first assignment of error, but dissent with respect to the second. I would find that not only was there no denial of due process, but that Davis waivеd any alleged due process violations by failing to object in the trial court.
{¶ 30} At the probation violation hearing, the court appointed counsel for Davis. The judge told counsel that “[t]here has not been a waiver of the probable cause portion of the proceeding,” and then asked counsel, “Did you want to proceed with that?” Counsel answered, “Yes, your Honor.”
{¶ 31} The judge then stated, “The probable cause portion indicates there had been a positive urine specimen for cocаine on August 3rd, 2009, and again on August 13th. The Court finds there is probable cause for the statute of the particular case, and, therefore, will move to the merits which indicate that after being sentenced to — on July 17th to drug counseling and testing, he then tested positive on two oсcasions.” The judge then asked counsel, “Is that information correct?” Counsel responded, “Yes, your
{¶ 32} The majority finds due process violations because the trial court allegedly called the case for a violation hearing without providing any notice of its intent, did not afford Davis a meaningful opportunity to object to the proceeding, and pressured defense counsel to acquiesce to a waiver of the probable cause portion of the proceeding. The record supports none of these conclusions.
{¶ 33} I find nothing in the record to support the majority‘s conclusion that the trial court called the case for a probation violation hearing without providing notice of its intent. Davis was present for the hearing; the majority simply speculates that he did not know it was a probation violation hearing.
{¶ 34} Likewise, there is nothing in the record to support the majority‘s assertions that defense counsel acquiesced to a waiver of the probable cause portion of the hearing under pressure from the judge and did not have an opportunity to object. The judge asked counsel if he wished to proceed and he said yes; counsel could have requested a continuance, but did not. There is nothing in the record that even remotely suggests the judge pressured counsel to continue or that a request for a continuance would not have been
{¶ 35} Further, even if there were error, I find that Davis waived any alleged due process errors by failing to object in the trial court. “The failure to timely object to a due process violation during a probation revocation proceeding waives any error.” State v. Simpkins, 8th Dist. No. 87131, 2006-Ohio-3496, ¶12, citing State v. Henderson (1989), 62 Ohio App.3d 848, 853, 577 N.E.2d 710.
{¶ 36} Accordingly, I would overrule Davis‘s assignment of error regarding alleged due process violations, but remand for resentencing in accord with