STATE OF OHIO v. ANDRE A. HARDWICK
Appellate Case No. 26283
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
May 8, 2015
[Cite as State v. Hardwick, 2015-Ohio-1748.]
Trial Court Case No. 2013-CR-1064 (Criminal Appeal from Common Pleas Court)
Rendered on the 8th day of May, 2015.
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
VICTOR A. HODGE, Atty. Reg. No. 007298, Office of the Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant
WELBAUM, J.
Facts and Course of Proceedings
{¶ 2} On March 31, 2014, Hardwick was indicted on two counts of nonsupport of dependents in violation of
{¶ 3} The ILC eligibility report indicates that in December 2005, Hardwick was initially ordered to pay $25 a month in child support for each of his children. In January 2009, he was held in contempt for failing to make the payments as ordered. The jail sentence for his contempt was suspended as long as he made payments toward his
{¶ 4} The ILC eligibility report also indicates that Hardwick has acknowledged his obligation to pay child support for both children. He claimed that his child support obligation was based on full time employment with Domino‘s Pizza, which he lost due to car troubles. Hardwick also advised that his occasional marijuana use caused problems with finding new employment. The ILC eligibility report further indicates that Hardwick has no physical or mental disabilities that prevent him from working. At the time of the report, Hardwick was involved in an unpaid internship where he was being trained as a maintenance man.
{¶ 5} On June 13, 2014, a brief hearing was held concerning Hardwick‘s ILC eligibility. While the ILC eligibility report generally indicated that Hardwick was eligible for ILC, the trial court found that Hardwick was ineligible because placing him on ILC would demean the seriousness of his nonsupport offenses and would not prevent him from committing future violations. The court based its decision on the fact that Hardwick had previously been held in contempt twice and served a jail sentence for his failure to pay child support.
{¶ 6} On June 17, 2014, Hardwick pled no contest to one count of nonsupport pursuant to a plea agreement. As part of the agreement, the State dismissed the second nonsupport charge and Hardwick agreed that he owed a total of $2,401 in restitution.
{¶ 7} Hardwick now appeals from his conviction and sentence, raising three assignments of error for our review.
First Assignment of Error
{¶ 8} Hardwick‘s First Assignment of Error is as follows:
STATE V. TAYLOR DOES NOT RENDER APPELLANT INELIGIBLE FOR I.L.C.
{¶ 9} Under his First Assignment of Error, Hardwick generally contends that we should revisit our decision in State v. Taylor, 2014-Ohio-2821, 15 N.E.3d 900 (2d Dist.). In Taylor, we discussed the problems with the current statutory scheme governing ILC eligibility and resolved them in part by reworking the language in
{¶ 10} “[I]n order for an offender to be statutorily eligible for ILC, the trial court must find that all ten of the criteria set forth in
{¶ 11} In Taylor, we were presented with the question of whether Taylor had been sentenced to community control under division (B)(2) or (B)(1) of
(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an offender is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense, the court shall sentence the offender to a community control sanction of at least one year‘s duration if all of the following apply:
(i) The offender previously has not been convicted of or pleaded guilty to a felony offense.
(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of rehabilitation and correction pursuant to division (B)(1)(c) of this section, the department, within the forty-five-day period specified in that division, provided the court with the names of, contact information for, and program details of one or more community control sanctions of at least one year‘s duration that are available for persons sentenced by the court.
(iv) The offender previously has not been convicted of or pleaded guilty to a
misdemeanor offense of violence that the offender committed within two years prior to the offense for which sentence is being imposed. (b) The court has discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a qualifying assault offense if any of the following apply:
[List of factors omitted.]
(2) If division (B)(1) of this section does not apply, * * * in determining whether to impose a prison term as a sanction for a felony of the fourth or fifth degree, the sentencing court shall comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code and with section 2929.12 of the Revised Code.
{¶ 12} After analyzing
First, as written, the ILC statute excludes from eligibility those offenders seemingly best suited for ILC—i.e., defendants who committed the least egregious offenses and, therefore, would receive mandatory community control under
R.C. 2929.13(B)(1)(a) . Because they would be sentenced to mandatory community control under division (B)(1)(a), they would not be sentenced to community control under division (B)(2), as required for ILC eligibility. Therefore, the current scheme curiously strips ILC eligibility from a group for whom it seems most beneficial.
The second problem with the current scheme is that, as written, it provides a trial court with no guidance how to exercise its discretion on an offender under R.C. 2929.13(B)(1)(b) . Because Taylor‘s offense involved possession of a firearm, he fit underR.C. 2929.13(B)(1)(b)(i) . This means the trial court retained discretion to sentence him to prison or community control. But nothing inR.C. 2929.13(B)(1)(b) guides a trial court‘s exercise of that discretion. Such guidance is found inR.C. 2929.13(B)(2) , which directs a trial court considering prison or community control for a fourth of fifth-degree felony to consider the purposes and principles of sentencing as well as the statutory seriousness and recidivism factors.On its face, however,
R.C. 2929.13(B)(2) applies only ifR.C. 2929.13(B)(1) does not. HereR.C. 2929.13(B)(1)(b)(i) applied to Taylor because of his firearm possession. Thus, a literal reading ofR.C. 2929.13(B)(2) would leave the trial court in a dilemma. It would have discretion to impose community control or a prison term on Taylor because (B)(1)(b)(i) applied, but would have no guidance in the exercise of that discretion because (B)(2) only applies if (B)(1) does not.
Taylor, 2014-Ohio-2821, 15 N.E.3d 900 at ¶ 9-11.
{¶ 13} Having discussed the aforementioned issues with the ILC scheme, we concluded that “there is an obvious error of omission in
Instead of saying “[i]f division (B)(1) of this section does not apply,” a court considering community control or a prison term must consider the
purposes and principles of sentencing and the statutory seriousness and recidivism factors, we believe R.C. 2929.13(B)(2) necessarily was intended to begin, “If division (B)(1)(a) of this section does not apply, * * *[.]” Referring specifically to division (B)(1)(a), rather than to division (B)(1) as a whole, avoids some absurd results while making the statute coherent and internally consistent.We reach this conclusion for at least two reasons. First, excluding division (B)(1)(a) from division (B)(2) makes perfect sense given the nature of the two provisions. Division (B)(1)(a) mandates community control for the least egregious F4 and F5 offenders. That being so, it would be impossible for a trial court to exercise “discretion” under division (B)(2), by considering the purposes and principles of sentencing and the seriousness and recidivism factors, to determine whether defendants falling under division (B)(1)(a) should receive community control. For those defendants, community control is automatic. A trial court has no discretion. Second, reading division (B)(2) as excluding only defendants subject to mandatory community control under division (B)(1)(a) resolves the dilemma a trial court faces with regard to a defendant like Taylor, who falls under
R.C. 2929.13(B)(1)(b) by virtue of his firearm possession and, therefore, could be sentenced to community control or prison. If division (B)(2) applies where division (B)(1)(a) does not, then the trial court here could exercise its discretion under division (B)(2) to sentence Taylor to community control. This is so because, as explained above, Taylor did not fit withinR.C. 2929.13(B)(1)(a) .In short, the only reasonable interpretation of
R.C. 2929.13(B)(2) is that the legislature intended (B)(2) to apply wheneverR.C. 2929.13(B)(1)(a) [mandatory community control] did not. * * *
(Footnote omitted.) Taylor, 2014-Ohio-2821, 15 N.E.3d 900 at ¶ 12-14.
{¶ 14} We noted in Taylor that our analysis did “not resolve the problem that, on its face, the ILC statute,
{¶ 15} Hardwick contends the present case raises the problem that Taylor did not resolve since he meets all the requirements for mandatory community control under
{¶ 16} Hardwick claims that if his suggested reading of
The offender‘s drug usage, alcohol usage, mental illness, or intellectual disability, or the fact that the offender was a victim of a violation of section 2905.32 of the Revised Code, whichever is applicable, was a factor leading to the criminal offense with which the offender is charged, intervention in lieu of conviction would not demean the seriousness of the offense, and intervention would substantially reduce the likelihood of any future criminal activity.
{¶ 17} In this case, the trial court indicated on the record that Hardwick was not eligible for ILC given that ILC would demean the seriousness of Hardwick‘s offenses and would not reduce the likelihood of future violations. In making this determination, the court considered the fact that Hardwick was previously sentenced for failing to comply with his child support obligation and specifically stated that Hardwick “has been given numerous opportunities to comply with his child support order, has been found in contempt a number of times and has continued to fail to pay that support.” Trans. (June 13, 2014), p. 2. As discussed more fully under Hardwick‘s Second Assignment of Error, we do not find error in the trial court‘s eligibility determination. Therefore, since Hardwick is ineligible for ILC for reasons other than failing to satisfy
{¶ 18} Hardwick‘s First Assignment of Error is overruled.
{¶ 19} Hardwick‘s Second Assignment of Error is as follows:
THE TRIAL COURT ERRED BY FINDING APPELLANT INELIGIBLE FOR I.L.C.
{¶ 20} Under his Second Assignment of Error, Hardwick claims the trial court erred in finding him ineligible for ILC because, in doing so, the court imposed stricter eligibility criteria than required by
{¶ 21} In support of his argument, Hardwick cites State v. Fullenkamp, 2d Dist. Darke No. 2001 CA 1543, 2001 WL 1295372 (Oct. 26, 2001). In Fullenkamp, we concluded that the trial court had “impermissibly engrafted a more stringent predicate condition for eligibility,” and that “the trial court acted arbitrarily and contrary to the legislative intent expressed in
{¶ 22} The present case is distinguishable from Fullenkamp. Unlike Fullenkamp, the trial court in this case did not deny ILC on grounds that appellant lacked a serious alcohol problem. Rather, the trial court determined that Hardwick was ineligible for ILC under
{¶ 23} ” ‘Eligibility determinations are matters of law subject to de novo review.’ ” State v. Smith, 2d Dist. Montgomery No. 24812, 2012-Ohio-3395, ¶ 7, quoting State v. Baker, 2d Dist. Montgomery No. 24510, 2012-Ohio-729, ¶ 8. Specifically, whether the trial court has improperly expanded or interpreted the statutory eligibility determinations is reviewed de novo. In contrast, the trial court must exercise its discretion based on the facts of each case when determining whether ILC would not demean the seriousness of the offense or substantially reduce the likelihood of any future criminal activity, as those determinations are more fact sensitive and subjective than the other qualifying factors. For example, in State v. Bruner, 2d Dist. Montgomery No. 26241, 2015-Ohio-893, we recently reversed a trial court‘s decision finding a defendant statutorily ineligible for ILC under a de novo standard of review for expanding the statutory exclusions. The trial court had determined that the accused was ineligible under the two criteria at issue here because he would be subject to sex offender reporting requirements, rather than focusing on the particular facts of that case. Id. at ¶ 15-17.
{¶ 25} We note that the nonsupport offense at issue in this case is by comparison less serious than those we have previously reviewed in similar ILC-eligibility cases. See State v. Brown, 2d Dist. Montgomery No. 24813, 2012-Ohio-3177, ¶ 8 (finding no error in trial court‘s determination that ILC would demean the seriousness of nonsupport offense due to appellant owing $18,756 in child support); State v. Smith, 2d Dist. Montgomery No. 24812, 2012-Ohio-3395, ¶ 10 (finding no error in trial court‘s determination that ILC would demean the seriousness of appellant‘s nonsupport offense due to appellant owing $11,768.25 in child support). Nevertheless, given that Hardwick had been given multiple opportunities to comply with his child support order and had not responded favorably to prior sanctions imposed, we do not find that the trial court erred in finding Hardwick ineligible for ILC.
{¶ 26} Hardwick‘s Second Assignment of Error is overruled.
{¶ 27} Hardwick‘s Third Assignment of Error is as follows:
THE TRIAL COURT ERRED BY ORDERING APPELLANT TO PAY $130 FOR ATTORNEY FEES.
{¶ 28} Under his Third Assignment of Error, Hardwick contends that it was error for the trial court to order him to pay $130 in court-appointed attorney fees as a condition of community control. Specifically, he claims that
{¶ 29}
{¶ 30} Nevertheless, pursuant to
{¶ 31} The Supreme Court held in Jones that a trial court may impose conditions upon a defendant‘s probation that relate to the interests of doing justice, rehabilitating the offender, and insuring his good behavior. Jones at 52, citing former
{¶ 32} In following Jones, it has been held that “[a] convicted defendant‘s repayment of attorney fees for court-appointed counsel fits within this three-part test” and that a “trial court can impose and enforce repayment of attorney fees as a valid special condition of probation.” State v. McLean, 87 Ohio App.3d 392, 396-397, 622 N.E.2d 402 (1st Dist.1993). Accord State v. Barnes, 9th Dist. Lorain No. 06CA009034, 2007-Ohio-2460, ¶ 8; State v. Drew, 8th Dist. Cuyahoga No. 83563, 2004-Ohio-3609, ¶ 9; State v. Trembly, 137 Ohio App.3d 134, 144, 738 N.E.2d 93 (8th Dist.2000).
{¶ 33} Given that Hardwick was ordered to pay court-appointed attorney fees as a
{¶ 34} Hardwick‘s Third Assignment of Error is overruled.
Conclusion
{¶ 35} Having overruled all three assignments of error raised by Hardwick, the judgment of the trial court is affirmed.
FROELICH, P.J., concurs.
DONOVAN, J., dissenting:
{¶ 36} I disagree.
{¶ 37} In my view, the trial court erred in denying an ideal candidate, Hardwick, ILC. In my view, the trial court created non-statutorily eligible criteria, which we have cautioned against in Fullenkamp. There is a distinction between an offender who is statutorily ineligible and one who is not a good candidate. In the first scenario, our standard of review is de novo. In the latter, our standard of review is abuse of discretion. The majority uses an abuse of discretion standard which is contrary to our most recent jurisprudence in State v. Bruner, 2d Dist. Montgomery No. 26241, 2015-Ohio-893. This
{¶ 38} As this Court noted in Bruner:
“In order for an offender to be statutorily eligible for ILC, the trial court must find that all ten of the criteria set forth in
R.C. 2951.041(B) are met.” State v. Branch, 2d Dist. Montgomery No. 25261, 2013-Ohio-2350, ¶ 15. One of those prerequisites is that “[t]he offender‘s drug usage, alcohol usage, mental illness, or intellectual disability, whichever is applicable, was a factor leading to the criminal offense with which the offender is charged, intervention in lieu of conviction would not demean the seriousness of the offense, and intervention would substantially reduce the likelihood of any future criminal activity.” (Emphasis added.)R.C. 2951.041(B)(6) .” ‘Eligibility determinations are matters of law subject to de novo review.’ ” Branch at ¶ 15, quoting State v. Baker, 2d Dist. Montgomery No. 24510, 2012-Ohio-729, ¶ 8. Therefore, we conduct a de novo review of the trial court‘s finding that ILC would demean the seriousness of Bruner‘s offense.
Id.
{¶ 39} Furthermore, the trial court‘s rationale is not supported by the record, i.e., there are not “numerous” contempt findings.1 At best, there appears to be an initial
{¶ 40} The ILC report generated by the Adult Probation Dept. recommends ILC, noting Hardwick is 34, has no history of juvenile delinquency, no misdemeanor criminal offenses, and no felony record. His marijuana use has posed an impediment to stable employment and he desires drug treatment. Hardwick has no record of prior drug treatment which has proven unsuccessful. Furthermore, Hardwick had paid some $1,000.00 toward the indictment amount due of approximately $2,401.00, made his Crisis Care appointments and fully cooperated. This fact distinguishes Hardwick‘s case from Brown, wherein we held a large amount of restitution owed, $18,756.00, would justify the court‘s conclusion that ILC would demean the seriousness of the offense. We also noted Brown had an inability to pay. Unlike Brown, Hardwick demonstrated an ability to pay
{¶ 41} Given the fact that
{¶ 42} Furthermore, I would not construe Taylor to reach an absurd result such
{¶ 43} Finally, I would follow our jurisprudence set forth in Louden and State v. Miller, 2d Dist. Clark No. 08-CA-0090, 2010-Ohio-4760, and find the trial court erred in assessing the cost of appointed counsel. As we said in Miller at ¶ 59, quoting State v. Hill, 2d Dist. Clark No. 04-CA-0047, 2005-Ohio-3877, ¶ 4, ” ’
Copies mailed to:
Mathias H. Heck, Jr.
Michele D. Phipps
Victor A. Hodge
Hon. Mary Katherine Huffman