State v. DemangoneState v. Demangone
Bazeley Law, and Christopher Bazeley, for appellant.
HENDRICKSON, P.J.
{¶ 1} Appellant, Derik Y. Demangone, appeals the decision of the Clermont County Court of Common Pleas revoking his community control and sentencing him to 18 months in prison. For the reasons that follow, we affirm.
{¶ 2} In November 2019, appellant was indicted on one count of trespass in a hаbitation and one count of endangering children following an incident involving his 17-day-
{¶ 3} Following plea negotiations, appellant pled guilty to trespass in a habitation in violation of
{¶ 4} In June 2021, the trial court terminated appellant‘s intensive supervision and placed him under the basic supervision of the Adult Probation Department for the remainder of his community control sanction. Though now under basic supervision rather than
{¶ 5} On October 20, 2022, appellant‘s probation officer filed an Affidavit of Community Control Violation alleging that appellant had violated the terms of his probation in three ways: (1) by testing positive for alcohol on a drug screen on September 27, 2022 and admitting hе had a jello shot two days prior to the screening; (2) by failing to report to probation appointments scheduled for October 17 and 18, 2022, and (3) by failing to follow his probation officer‘s verbal or written instructions in that he used alcohol and did not report as ordered. On October 25, 2022, appellant admitted to the violations and offered an explanation for each. He stated that he had a jello shot for his birthday on Septembеr 25, 2022 and that he missed his probation appointments because he had a vasectomy and was in a car crash. The trial court noted that the probation department had followed up on appellant‘s report of a car accident by contacting the Bethel Tate Fire Department, who appellant claimed had been dispatched to the accident. The fire department advised that the only rеport they had about appellant involved him being observed burning mattresses in a junkyard on October 18, 2022. The trial court accepted appellant‘s admissions and found him guilty of violating his community control.
{¶ 6} On November 10, 2022, the trial court revoked appellant‘s community control and sentenced him to prison. In doing so, the trial court noted that despite appellant‘s lengthy criminal history, one that spanned from 2002 to 2019 and involved convictions for unlawful sexual conduct with a minor, possession of controlled substances, domestic violence, assault, felonious assault, criminal damaging, complicity to burglary, criminal trespass, menacing, breaking and entering, theft, OVI, disorderly conduct, and resisting arrest, the court had given him a chance by putting him on community control. The court stated:
[W]hen the Court put you on probation, it took a huge risk. Your
record is page after page after page after page after page after page after page of offenses. And so I tried to see the good about how you were coming along. And you did come along for a while. Lately you‘ve been late, you‘re not showing up, you‘re missing appointments. Now, you‘re turning to alcohol. Which is what happens with you. You start to slip. And the last time you slipped – * * * * * *
[y]ou barricaded yourself in the garage. You ran out of the garage with the child and ran into a cornfield. The child‘s mother was able to get the child back while you were in the cornfield. You had two – you had large knives. You were yelling you took methamphetamine and needed help.
The court found that appellant‘s community control violations were a “demonstrated refusal to participate in all of the community control sanctions imposed and its conditions and it demonstrate[d] that he‘s abandon[ed] the objects of the community control sanctions.” The court imposed an 18-month prison term and informed appellant that he was subject to up to two years of optional postrelease control by the adult parole authority following his release from prison.
{¶ 7} Appellant appealed his sentence, raising two assignments of error for review. For ease of discussion, we begin with appellant‘s second assignment of error.
{¶ 8} Assignment of Error No. 2:
{¶ 9} THE TRIAL COURT ERRED WHEN IT FOUND THAT DEMANGONE‘S COMMUNITY CONTROL VIOLATION WAS A NON-TECHNICAL VIOLATION UNDER
{¶ 10} In his second assignment of error, appellant argues the trial court erred in imposing an 18-month prison term following its revocation of his community control. Appellant maintains that “testing positive for alcohol once after almost two-and-a-half years on community control and failing to report to his probation officer over a period of two days” constitute mere “technical violations” that carried a maximum prison term of 180 days
{¶ 11} “As with all felony sentences, we review the trial court‘s sentencing decision for a community control violation under the standard set forth by
{¶ 12}
a violation of the conditions of a community control sanction imposed for a felony of the fifth degree, or for a felony of the fourth degree that is not an offense of violence and is not a sexually oriented offense, and to which neither of the following applies:
(1) The violation consists of a new criminal offense that is a felony or that is a misdemeanor other than a minor misdemeanor, and the violation is committed while under the
community control sanction. (2) The violation consists of or includes the offender‘s articulated or demonstrated refusal to participate in the community control sanction imposed on the offender or any of its conditions, and the refusal demonstrates to the court that the offender has abandoned the objects of the community control sanction or condition.
{¶ 13} Prior to the enactment of
{¶ 14} Though the statutory definition of “technical violation” set forth in
{¶ 15} Turning to the circumstances of the present case, we find that appellant‘s use of alcohol followed by his subsequent failure to report to the probation department for multiple appointments constitutes a nontechnical violation of his community control sanctions. Appellant‘s underlying conviction for trespass in a habitation involved the use of alcohol аnd illegal drugs. At the time the court sentenced appellant to community control, it imposed specific community-control conditions meant to address appellant‘s alcohol use, which had been a significant contributing factor to his erratic and illegal conduct. Appellant admitted to violating the terms of his community control by consuming alcohol and then later failing to report to his probation appointments. Sрecifically, appellant admitted to consuming a jello shot on September 25, 2022 and then testing positive for alcohol on a September 27, 2022 screening. He also admitted he missed consecutive appointments with his probation officer on October 17 and 18, 2022. The trial court looked at appellant‘s conduct, his expansive criminal history which involved many instances where appellant‘s failure to maintain sobriety contributed to his unlawful conduct, and noted that appellant was “slipping” and getting “sloppy.” As the court explained,
Lately you‘ve been late, you‘re not showing up, you‘re missing appointments. Now, you‘re turning to alcohol. Which is what happens with you. You start to slip. And the last time you
slipped – * * * * * *
[y]ou barricaded yourself in the garage. You ran out of the garage with the child and ran into a cornfield. The child‘s mother was able to get the child back while you were in the cornfield. You had two – you had large knives. You were yelling you took methamphetamine and needed help.
{¶ 16} Appellant offered a variety of excuses to try to mitigate his violations, stating that he or his wife had attempted to communicate with his probation officer on the days he missed appointments, that he had been involved in a car accident on the day of one of the appointments, that he hаd been recovering from a surgery, that his home had been damaged in a tornado, and that he had been processing and dealing with the death of a daughter. The court considered all of these factors and specifically addressed appellant‘s claim that he failed to report to his probation officer because of a car accident. Contrary to appellant‘s assertions about the Bethel Fire Department being dispatched to a car accident in which he was involved, the fire department‘s only involvement with appellant concerned a report that appellant had been burning mattresses in a junkyard on October 18, 2022.
{¶ 17} The court was entitled to discredit appellant‘s excuses for violating his community control and find that appellant‘s actions demonstrated his refusal to participate in a community-cоntrol condition that had been specifically tailored to address matters relating to his alcohol usage, which contributed to his trespass in a habitation offense. The trial court tailored appellant‘s community control sanctions to preclude appellant‘s alcohol usage as a rehabilitative requirement to address a significant factor that contributed to his trespass offense. Appellant‘s use of аlcohol while on community control was not akin to an administrative requirement to facilitate his community control supervision. Appellant was specifically ordered not to use alcohol as a condition of his community control and he freely admitted to violating that condition, and other terms, of his community control sanctions.
{¶ 18} As appellant‘s violation of his community control was not a technical violation, the 180-day prison term limitation set forth in
{¶ 19} Assignment of Error No. 1:
{¶ 20} THE TRIAL COURT FAILED TO PROPERLY ADVISE DEMANGONE OF ALL OF THE POSSIBLE PENALTIES FOR A VIOLATION OF PRC.
{¶ 21} In his first assignment of error, appellant contends the trial court erred in imposing postrelease control because the court failed to “orally advise [him] of the possibility that a violation could result in other penalties inсluding more restrictive sanctions, a longer period of supervision, or that he could be sent back to prison even if he completed all of his sentenced prison time as required by
{¶ 22} “A trial court must properly impose postrelease control at the sentencing hearing and in the sentencing entry.” State v. Williams, 12th Dist. Butler No. CA2018-03-055, 2018-Ohio-3990, ¶ 17, quoting State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 18-19. To properly impose postrelease control, the trial court must inform the defendant at the sentencing hearing that upon the defendant‘s release from prison, he or she will be subject to postrelease control if convicted of a felony for which postrelease control is mandatory pursuant to
{¶ 23} The required postrelease control notifications are derived from section
[I]f the sentencing court determines at the sentencing hearing
that a prison term is necessary or required, the court shall do all of the following: * * *
(e) Notify the offender that the offender may be suрervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the third, fourth, or fifth degree that is not subject to division (B)(2)(d) of this section. * * *
(f) Notify the offender that, if a period of supervision is imposed following the offender‘s release from prison, as described in division (B)(2)(d) or (e) of this section, and if the offender violates that supervision or a condition of post-release control imposed under division (B) of section 2967.131 of the Revised Code, the parole board may impose a prison term, as part of the sentence, of up to one-half of the definite prison term originally imposed upon the offender as the offender‘s stated prison term or up to one-half of the minimum prison term originally imposed upon the offender as part of the offender‘s stated non-life felony indefinite prisоn term. * * *
{¶ 24} Appellant was convicted of trespass in a habitation, a felony of the fourth degree. As a result, he was subject to a discretionary term of up to two years of postrelease control.
THE COURT: You understand you‘ll be subject to up to two years of optionаl postrelease control; you understand that?
* * *
[Appellant]: Yes, Your Honor.
THE COURT: You understand if placed on postrelease control, the adult parole authority can return you back to prison for up to nine months if you violate any of their conditions, not to exceed a maximum of 50 percent of your original prison sentence; you understand that?
[Appellant]: Yes, sir.
THE COURT: You understand if you‘re convicted of a new felony while out on postrelease control that, in аddition to being punished for the new felony, that judge could add an additional consecutive term of one year or what remains on your postrelease control term, whichever is greater, as a maximum; you understand that? [Appellant]: Yes, sir.
These notifications were then incorporated into appellant‘s sentencing entry.
{¶ 25} Based on the record before us, we find that postrelease control was properly imposed. Contrary to аppellant‘s arguments, the trial court was not required to orally advise him of the “possibility that a violation could result in other penalties including more restrictive sanctions, a longer period of supervision, or that he could be sent back to prison even if he completed all of his sentenced prison time as required by
{¶ 26} Accordingly, as the trial court complied with the postrelease control notification requirements at the sentencing hearing and incorporated the required information into appellant‘s sentencing entry, we find that the trial court properly imposed on appellant a discretionary term of postrelease control for a period of up to two years. Appellant‘s first assignment of error is overruled.
{¶ 27} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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