State v. EspinozaState v. Espinoza
Chima R. Ekeh for Appellant
Jana E. Emerick for Appellee
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Jose F. Espinoza, Jr. (“Espinoza“), appeals the September 30, 2021 judgment entry of the Allen County Court of Common Pleas revoking his community control and imposing a reserved-prison term. For the reasons that follow, we affirm in part and reverse in part.
{¶2} On June 13, 2019, the Allen County Grand Jury indicted Espinoza on Count One of breaking and entering in violation of
{¶3} On July 2, 2019, Espinoza withdrew his pleas of not guilty and entered a guilty plea, under a negotiated-plea agreement, to Count One of the indictment. Specifically, in exchange for Espinoza‘s change of plea, the State agreed to dismiss Count Two. The trial court accepted Espinoza‘s guilty plea, found him guilty, dismissed Count Two, and ordered a presentence investigation (“PSI“).
{¶4} On August 22, 2019, the trial court sentenced Espinoza to three years of community control with a reserved 12-month prison term. Importantly, Espinoza did not directly appeal his conviction or sentence.
{¶5} As relevant to this case, on May 26, 2020, the trial court stayed Espinoza‘s community-control sentence pending his release from prison in another
{¶6} On August 30, 2021, the State filed a motion to revoke Espinoza‘s community control. Following a probable-causing hearing on the State‘s motion on September 7, 2021, the case proceeded to a final-revocation hearing on September 30, 2021 during which the trial court concluded that Espinoza violated the terms and conditions of his community-control sanctions after Espinoza admitted to the violations alleged in the State‘s motion. (Doc. No. 44); (Sept. 30, 2021 Tr. at 2-4). That same day, the trial court revoked Espinoza‘s community control and imposed the reserved 12-month prison term. However, the trial court ordered that Espinoza serve the 12-month term in Allen County Jail under the Targeted Community Alternatives to Prison (“TCAP“) program.
{¶7} On October 19, 2021, Espinoza filed a notice of appeal and raises two assignments of error.
The Trial Court Erred When it Failed to Sentence Appellant to An Institution Under the Control of Ohio Department of Rehabilitation and Correction (ODRC) Pursuant to 2929.34(B)(3)(d) (Probation Violation Hearing Tr. Pg. 18, Tab 22-23).
{¶8} In his first assignment of error, Espinoza argues that the trial court imposed his sentence in contravention of
Standard of Review
{¶9} Under
{¶10} Under
{¶11} However, ”
{¶12} In this case, the trial court sentenced Espinoza to 12-months in prison, and ordered that he serve the prison sentence in the Allen County Jail under the TCAP program. However, Espinoza contends that he is not a TCAP-eligible offender. Compare id. at ¶ 14 (assessing whether the defendant constituted a TCAP-eligible offender). Specifically, Espinoza argues that, because the PSI reflects that he was convicted of burglary in 2005 and domestic violence in 2013 and 2015, the trial court erred by ordering that he serve his 12-month prison sentence in a non-ODRC facility. The State and this court agree.
{¶13} Indeed, the PSI reveals that Espinoza‘s 2005 burglary conviction could constitute an offense of violence depending on which subsection of the statute he was convicted that was in effect at the time of his conviction. See
{¶14} Consequently, Espinoza‘s prior offense-of-violence convictions render him ineligible for the mandated imprisonment at a non-ODRC facility under
{¶15} Therefore, Espinoza‘s first assignment of error is sustained.
Assignment of Error No. II
The Trial Court Violated Appellant‘s Right to Due Process And Right to Be Free From Double Jeopardy When it Amended/Modified His Sentence Without a Formal Finding that Appellant Violated Any Existing Term or Condition of His Community Control. (Probation Violation Hearing Tr. Pg. 2, Tab 9-17).
{¶16} In his second assignment of error, Espinoza argues that the trial court abused its discretion by concluding that he violated the terms and conditions of his community-control sanctions. Specifically, Espinoza contends that the trial court abused its discretion by concluding that there was substantial evidence that he
Standard of Review
{¶17} The decision of a trial court finding a community-control violation will not be disturbed absent an abuse of discretion. State v. McKeithen, 3d Dist. Marion No. 9-08-29, 2009-Ohio-84, ¶ 7. An abuse of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
Analysis
{¶18} “This Court has held that although a revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding. McKeithen at ¶ 22. “Therefore, the minimum due process requirements afforded a defendant in a [community-control] revocation proceeding differ from those in a criminal trial.” Id. The minimum due-process requirements for revocation hearings are: (a) Written notice of the claimed violations; (b) disclosure of evidence against him or her; (c) the opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse
{¶19} Since a community-control-revocation hearing is not a criminal proceeding, “the State is not required to prove a violation of the terms of community control beyond a reasonable doubt.” Id. at ¶ 6. “The State must, instead, show ‘substantial’ evidence that the offender violated the terms of his community control sanctions.” Id. This court has stated that “‘[substantial evidence is akin to a preponderance-of-the-evidence burden of proof.‘” State v. Boykins, 3d Dist. Marion No. 9-14-28, 2015-Ohio-1341, ¶ 21, quoting State v. Burdette, 5th Dist. Morrow No. 10-CA-9, 2011-Ohio-4425, ¶ 26, citing State v. Ohly, 166 Ohio App.3d 808, 2006-Ohio-2353, ¶ 18 (6th Dist.). “‘Substantial evidence is considered to consist of more than a mere scintilla of evidence, but somewhat less than a preponderance.‘” Id., quoting Burdette at ¶ 26. See also State v. Hope, 6th Dist. No. WD-18-080, 2019-Ohio-3023, ¶ 14.
{¶20} Here, Espinoza argues that the trial court abused its discretion by concluding that he violated the terms and conditions of his community-control sanctions because a sanction of which it was alleged that he violated was unlawfully imposed. Specifically, Espinoza contends that the trial court imposed the additional community-control sanction on February 19, 2021 in contravention of
{¶21}
After finding that a 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
R.C. 2929.14(A) .
State v. Evans, 5th Dist. Licking No. 2020CA00078, 2021-Ohio-590, ¶ 11, citing State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 22 and
{¶22} However, because Espinoza failed to raise the argument he now raises, he waived all but plain error on appeal. Accord Hawk at ¶ 13, citing State v. Long, 53 Ohio St.2d 91 (1978) at paragraph one of the syllabus, and Crim.R. 52(B). “In
{¶23} Assuming without deciding that the trial court‘s imposition of the additional community-control sanction constitutes a more restrictive post-sentence sanction, the trial court‘s imposition of the additional sanction on February 21, 2021 does not amount to plain error. That is, Espinoza cannot demonstrate that the outcome of his community-control revocation hearing would have been different.
{¶24} Even though the State filed a motion to revoke Espinoza‘s community control on August 30, 2021, Espinoza‘s unsuccessful termination from the Allen County Mental Health Treatment Court is not the only basis on which the State‘s motion is based. The State also alleged that Espinoza violated the terms and conditions of his community-control sanctions requiring him to “not possess, use, purchase or have under [his] control any drug paraphernalia, narcotic drug, synthetic substances, alcohol or control substance” and to “report as directed and make [himself] available for supervision.” (Doc. No. 36). In particular, the State alleged
{¶25} At the final-revocation hearing, Espinoza admitted to the violations alleged in the State‘s motion. Consequently, there was substantial evidence presented at the final-revocation hearing from which the trial court could conclude that Espinoza violated the terms and conditions of his community-control sanctions. Therefore, the trial court did not abuse its discretion by concluding that Espinoza violated the terms and conditions of his community-control sanctions. Accordingly, Espinoza cannot demonstrate that the outcome of his community-control-revocation hearing would have been different.
{¶26} Thus, Espinoza‘s second assignment of error is overruled.
{¶27} Having found no error prejudicial to the appellant herein in the particulars assigned and argued in the second assignment of error, we affirm the judgment of the trial court. Having found error prejudicial to the appellant herein in the particulars assigned and argued in the first assignment of error, we reverse the
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
MILLER and SHAW, J.J., concur.
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