State v. DuckettState v. Duckett
Plaintiff-Appellee,
v.
JOSEPH W. DUCKETT,
Defendant-Appellant.
DECISION AND JUDGMENT ENTRY
RELEASED: 09/03/2021
APPEARANCES:
R. Jessica Manungo, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S. Willis, Assistant Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.
Wilkin, J.
{¶1} Appellant, Joseph W. Duckett, appeals the Scioto County Court of Common Pleas judgment entry revoking his community-control sanction. The trial court imposed the agreed prison term of 24 months. Duckett appeals challenging the recommended joint sentence and the special project fees included as court costs in his case.
{¶2} In the first assignment of error, Duckett maintains his counsel was ineffective for agreeing to the unauthorized sentence because his community-control violations were technical in nature. According to Duckett, since the violations were technical in nature, the maximum prison term that could be imposed for the violations was 180 days. We disagree and find that Duckett’s three violations were nontechnical and the 180-day cap does not apply.
{¶3} In the second assignment of error, Duckett disputes 14 special project fees that were charged and included in the itemized bill statement generated by the Scioto County Clerk of Courts. Each fee was for $5. Duckett claims the clerk could only assess a one-time special project fee of $25 based on Scioto County Court of Common Pleas Local Rule 13. We sustain Duckett’s assignment of error but on the basis that the clerk of courts could not assess any special project fee pursuant to the unambiguous language in
FACTS AND PROCEDURAL BACKGROUND
{¶4} In April 2016, Duckett pleaded guilty to two counts of aggravated trafficking in drugs and one count of trafficking in heroin. The trial court imposed a five-year community-control sanction and included conditions tailored to address Duckett’s substance abuse issues. Among those conditions was the requirement to enroll and successfully complete the Star Program, complete a drug/alcohol assessment by the Adult Probation Department, and not consume any alcohol and non-prescribed drugs. Duckett at that time was advised that a
{¶5} Less than three years into his community-control sentence, Duckett tested positive for methamphetamine. Duckett admitted to the violation in April 2019. The trial court continued Duckett’s community-control sanction but added further conditions, including but not limited to: successfully completing the Scioto County Court of Common Pleas Treatment Program with the Adult Probation Department, completing another drug/alcohol assessment, and abiding by all the rules and regulations of the probation department.
{¶6} In January and February 2020, Duckett was again accused of violating his community-control conditions by failing to report to the probation department from December 9, 2019 to February 16, 2021, failing to call the I-Samson drug testing center, and for failing to report to the department for I-Samson drug testing. At the revocation hearing, Duckett admitted to all three violations. Duckett informed the trial court that he understood it was to proceed directly to sentencing.
{¶7} The trial court then carried on by first clarifying that: “I understand the parties will be jointly recommending disposition in this matter of 24 months, with credit for the time that he’s served both in jail and at Star[.]” Duckett, his counsel and the state verified the trial court’s understanding of the recommended sentence. Secondly, the trial court advised Duckett that if it adopted the jointly recommended sentence, he waives the right to appeal it. Duckett indicated that he understood.
{¶9} The trial court revoked Duckett’s community-control sanction and imposed the jointly recommended sentence. Specifically, the trial court as to Count One, sentenced Duckett “to a 12 month term in the custody Ohio Department of Rehabilitation and Corrections, as to Count 2, to a 12 month term, and as to Count 3, a 12 month term.” Counts One and Two were ordered to be served consecutively while Count Three concurrently. Duckett was granted jail-time credit of 199 days as stipulated by the parties.
ASSIGNMENTS OF ERROR
I. JOSEPH DUCKETT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL JOINTLY RECOMMENDED A SENTENCE THAT WAS NOT AUTHORIZED BY LAW.
II. THE TRIAL COURT PLAINLY ERRED BY ASSESSING UNAUTHORIZED COURT COSTS IN THE FORM OF SPECIAL PROJECT FEES.
ASSIGNMENT OF ERROR I
{¶10} Under this assignment of error, Duckett is appealing his jointly recommended sentence, which he acknowledges is not reviewable on appeal if it is authorized by law. Thus, Duckett agrees that the threshold issue is whether his community-control violations were technical and thus capped pursuant to
{¶11} Duckett avers his violations were technical in nature because his failure to report and call-in were conditions aimed to facilitate his supervision by the probation department. Duckett completed all the treatment programs and conditions specifically tailored to address his substance abuse issues, and the remaining conditions were routine and administrative. In addition, his failure to report was not for an unreasonable amount of time. Therefore, Duckett maintains that his counsel’s performance to jointly recommend the 24-month prison sentence was not a strategic judgment. To the contrary, it demonstrates counsel’s lack of familiarity with the law that resulted in a prison term not authorized by law.
{¶12} The state in response asserts that Duckett’s sentence is authorized by law and Duckett’s counsel’s recommendation of the joint sentence did not fall below an objective standard of reasonable representation; thus, the sentence is not reviewable by this court. In line with its argument that the sentence is authorized by law, the state claims Duckett’s violations are nontechnical. Duckett abandoned the objectives of his community-control sentence by failing to report to the probation department as required by their rules, failing to call the drug testing system, and failing to report for drug testing. All these conditions were tailored to address matters related to Duckett’s drug offenses and “substantive rehabilitative requirements.”
{¶13}
{¶14} To demonstrate ineffective assistance of counsel, Duckett “must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel’s errors, the proceeding’s result would have been different.” State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1988), paragraph two of the syllabus. Failure to demonstrate either prong of this test “is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14, citing Strickland.
{¶15} Duckett “has the burden of proof because in Ohio, a properly licensed attorney is presumed competent.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62, citing State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905, ¶ 62, citing Vaughn v. Maxwell, 2 Ohio St.2d 299, 209 N.E.2d 164 (1965). “In order to overcome this presumption, the
{¶16} “A sentence is ‘authorized by law’ and is not appealable within the meaning of
{¶17} The term technical is not statutorily defined but the Supreme Court recently provided guidance in two decisions: State v. Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, 165 N.E.3d 1110, and State v. Castner, 163 Ohio St.3d
Nelson at ¶ 26.
{¶18} A trial court on a case-by-case basis should consider “the nature of the community-control condition at issue and the manner in which it was violated, as well as any other relevant circumstances in the case.” Id. Applying Nelson, the Supreme Court held Castner’s violations were nontechnical in nature because the conditions to complete the Alvis House and Re-Entry Court programs “were specifically tailored to address Castner’s drug use and were aimed at reducing his likelihood of recidivism.” Castner at ¶ 16.
{¶19} Similarly here, Duckett violated three community-control conditions that were tailored specifically to address his substance abuse issues. Duckett was convicted of three drug-related offenses. He previously violated his community-control sanction in March 2019, by testing positive for
{¶20} Maintaining sobriety from drug and alcohol use has been one of the corner stone conditions in Duckett’s community-control sanction. Thus, the three conditions that Duckett violated not only were tailored to address his substance abuse issues, but were also “a substantive rehabilitative requirement which addressed a significant factor contributing” to Duckett’s misconduct. See Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, 165 N.E.3d 1110, ¶ 26, citing State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672, ¶ 17. We find that Duckett’s violations were nontechnical and his prison sentence of 24 months was authorized by law.
{¶21} Our holding is consistent with the three cases from the Second, Fifth and Twelfth District Courts of Appeals cited by Duckett in his notice of supplemental authority. All three appellate district courts affirmed the violation(s) as being nontechnical after applying the Supreme Court’s decisions in Nelson and Castner. In State v. Eastman, the Second District held that “the trial court reasonably concluded that Eastman’s failure to report to the probation department and failure to complete a drug and alcohol assessment constituted
{¶22} In State v. Miller, the Fifth District held that Miller’s failure to report to probation, maintain sobriety, obey the law and pay monthly restitution were nontechnical violations. State v. Miller, 5th Dist. Fairfield No. 2020 CA 00024, 2021-Ohio-286, ¶ 20. Miller “during a thirteen-month period of time, * * * failed to report to her probation officer for a period of over twelve months.” Id. at ¶ 22. The Fifth District noted that:
The purpose of reporting to probation was to supervise appellant to monitor her sobriety, ensure she would repay her victim, and guard against future financial crimes. No substantive rehabilitative requirements can be met when the probationer fails to report for an extended period of time.
Id. Finally, in State v. Smith, the Twelfth District held:
Appellant’s pattern of conduct demonstrates a voluntary refusal to comply with the conditions of community control and thus a failure to comply with the community control sanctions as a whole. As a result, appellant’s Basic Sanction No. 6 violation for failing to report to his probation officer for close to two months was not a “technical violation” under
R.C. 2929.15(B)(1)(c)(i) .
State v. Smith, 12th Dist. Clermont No. CA2020-08-044, 2021-Ohio-630, ¶ 24.
{¶23} As the three cases demonstrate, neglecting to report to the supervising probation officer coupled with a lack of validating sobriety can establish a defendant’s failure to adhere to the substantive rehabilitative requirements. More recently, the Eighth District held that the requirement for Reese to “contact his probation officer once each week was more than an administrative requirement; it was a substantive rehabilitative requirement.” State v. Reese, 8th Dist. Cuyahoga No. 109911, 2021-Ohio-1407, ¶ 15. It thus
{¶24} Duckett did not report to his probation officer for over two months and failed to report for drug testing. During that time, his probation officer was unable to verify Duckett’s sobriety, a key factor in his substantive rehabilitative requirement. Therefore, Duckett’s violations are nontechnical.
{¶25} Accordingly, the trial court was not capped by the 180-day prison term limitation in
{¶26} Duckett’s counsel, however, was able to negotiate a prison term of 24 months, which the trial court accepted. Duckett thus cannot demonstrate his counsel was ineffective for jointly recommending a sentence that is authorized by law and half of what he faced. Wherefore, Duckett’s jointly recommended sentence that is authorized by law and imposed by the trial court is not
ASSIGNMENT OF ERROR II
{¶27} Duckett maintains that the trial court committed plain error by randomly charging him numerous times a fee of $5 for a special project fund when Local Rule 13 specifies that the fee is a one-time assessment of $25 for each criminal cause. Duckett argues that his three convictions are one cause of action, but alternatively, even if considered as three criminal causes, the fee would be three assessments of $25, not the random multiple $5 fees.1
{¶28} The state disagrees with Duckett’s interpretation of the definition of criminal cause and his claim that the special project fee is limited to one assessment of $25. According to the state, each count in the indictment is a separate criminal cause and further, that each probation violation is a separate action. Thus, Duckett should be assessed five separate fees totaling $125 and he cannot demonstrate prejudice since the charges in his case are a total of $70. The state, however, has no legal argument for the 14 separate $5 special project fees other than conjecture that “it appears these $5 fees were assessed upon the filing of Entries by the court.”
{¶29} “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Crim.R. 52(B). In order to establish plain error, Duckett “must show that (1) there was an error or deviation from a legal rule, (2) the error was plain and obvious, and (3) the error affected the outcome of the trial.” State v. Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, 88 N.E.3d 935, ¶ 26, citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). A “substantial right” is a “right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.”
{¶30} Pursuant to
Costs, in the sense the word is generally used in this state, may be defined as being the statutory fees to which officers,
City of Middleburg Heights v. Quinones, 120 Ohio St.3d 534, 2008-Ohio-6811, 900 N.E.2d 1005, paragraph one of the syllabus.
{¶31} The clerk of the common pleas court pursuant to
{¶32} The comprehensive list in
{¶33} Duckett’s itemized bill statement includes 14 separate $5 charges of “special projects” fees beginning in February 24, 2016, when he was appointed counsel on the initial indictment, and ending on November 3, 2020. These fees are not associated with any of the mandatory charges listed in
CONCLUSION
{¶34} We affirm Duckett’s 24-month prison sentence, but having sustained his second assignment of error, we remand the matter for further proceedings consistent with this opinion.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas 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 60 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 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-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 60 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.
Smith, P.J. & Abele, J: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
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.