State v. HaworthState v. Haworth
OPINION
Criminal Appeals from the Portage County Court of Common Pleas, Case Nos. 2016 CR 00824, 2016 CR 00827, 2017 CR 00646, and 2017 CR 00649 C.
Judgment: Affirmed in part, reversed in part, and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).
Thomas Rein, 820 West Superior Avenue, Suite 800, Cleveland, Ohio 44113 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Dennis W. Haworth (“Mr. Haworth“), appeals from two Portage County Court of Common Pleas’ judgment entries. The first judgment entry, from trial court case. no. 2017 CR 0649C, revoked Mr. Haworth‘s sentence of community control and imposed an 18-month term of imprisonment. At the outset, we note that Mr. Haworth did not attach that judgment entry to his notice of appeal nor raise an assignment of error related to it.
{¶2} The second judgment entry is from three separate criminal cases that were consolidated in the trial court below, nos. 2016 CR 0824, 2016 CR 0827, and 2017 CR 0646. The trial court revoked Mr. Haworth‘s community control and imposed five consecutive one-year terms of imprisonment for various offenses, generally possession of drugs and theft.
{¶3} Mr. Haworth raises three assignments of error on appeal. In his first assignment of error, Mr. Haworth argues he did not enter his guilty plea knowingly, intelligently, and voluntarily in trial court case no. 2017 CR 646, where he pleaded guilty to one count of possession of methamphetamine, a fifth degree felony. He argues that the trial court failed to strictly comply with
{¶4} In his second and third assignments of error, Mr. Haworth challenges the trial court‘s imposition of his five consecutive one-year terms of imprisonment following the revocation of his community control in the three consolidated cases. He contends that the trial court did not specify how he violated his community control per
{¶5} At the outset, we cannot consider Mr. Haworth‘s first assignment of error since he is attempting to appeal the voluntariness of his plea to an underlying offense to which he previously pleaded guilty in 2017. We are without jurisdiction to consider this on an appeal from his 2019 revocation of community control.
{¶6} Secondly, we disagree with Mr. Haworth‘s contention that the trial court did not specify his violation of community control. Mr. Haworth admitted during the hearing
{¶7} Thirdly, we find Mr. Haworth‘s last assignment of error to have merit in that the trial court failed to make all of the necessary findings pursuant to
{¶8} Accordingly, the judgment of the Portage County Court of Common Pleas is affirmed in part, reversed in part, and remanded.
Substantive and Procedural History
{¶9} In January 2017, Mr. Haworth pleaded guilty to offenses in two separate cases. In case no. 2016 CR 0824, Mr. Haworth pleaded guilty to four counts of receiving stolen property, felonies of the fifth degree, in violation of
{¶10} In October 2017, in case no. 2017 CR 0646, Mr. Haworth pleaded guilty to one count of aggravated possession of drugs, a fifth-degree felony, in violation of
{¶11} In January 2019, at his second revocation of community control hearing on all three cases, after finding Mr. Haworth violated the terms of his community control by possessing and using methamphetamine, the trial court imposed five consecutive one-year terms of imprisonment for each count in case nos. 2016 CR 0824, 2016 CR 0827, and 2017 CR 0646, to be served concurrently to the 18-month sentence in case no. 2017 CR 0649C.
{¶12} Mr. Haworth raises three assignments of error on appeal:
{¶13} “[1.] Appellant did not enter his guilty plea knowingly, intelligently, or voluntarily because the trial court failed to act in strict compliance by not properly informing him of his constitutional rights as required by Crim.R. 11(C).
{¶14} “[2.] The trial court erred by not following the mandates of R.C. 2929.15 when it sentenced Appellant to five years in prison.
{¶15} “[3.] The trial court erred by ordering Appellant to serve a consecutive sentence without making the appropriate findings required by R.C. 2929.14 and HB 86.”
Jurisdiction
{¶16} In his first assignment of error, Mr. Haworth claims the trial court failed to comply with
{¶17} Mr. Haworth‘s assignment of error pertains to the trial court‘s judgment in 2017, in which it accepted his guilty plea to one count of possession of methamphetamine, a felony of the fifth degree, in violation of
{¶18} In this appeal, Mr. Haworth only challenges the revocation of community control and subsequent sentencing. Thus, we cannot consider his challenge to the voluntariness of his plea, which should have been raised via direct appeal.
{¶19} As the Second District aptly stated in State v. Grimes, 2d Dist. Montgomery No. 20746, 2005-Ohio-4510, “[i]f there was a problem with the voluntariness of [Mr. Haworth‘s] plea, [he] should have raised it in response to the earlier judgment. * * * We cannot – for want of appellate jurisdiction – consider the untimely argument raised under this assignment.” Id. at ¶ 11, citing State v. Wood, 3d Dist. Defiance No. 4-01-14, 2001-Ohio-2339; App.R. 4(A). Similarly, in State v. Peltier, 2d Dist. Champaign No. 2018-CA-21, 2019-Ohio-569, the Second District found the appellant could not collaterally attack his unappealed conviction for aggravated possession of drugs through an appeal of the trial court‘s revocation of community control. Id. at ¶ 17. Likewise in State v. Ryan, 2d Dist. Greene No. 2008-CA-99, 2010-Ohio-216, the court determined it was without jurisdiction to consider any other issues, including the validity of the appellant‘s guilty plea, since the appellant was appealing only the revocation of his community control. Id. at ¶ 4.
{¶20} Mr. Haworth‘s first assignment of error is overruled.
Community Control Violations
{¶21} In Mr. Haworth‘s second assignment of error, he contends the trial court erred in finding he violated his community control sanctions. More specifically, he argues the trial court was silent as to its findings regarding any violations, and that if he did violate his community control sanctions, it was merely technical in nature.
{¶22} We review a trial court‘s finding of a community control violation under an abuse of discretion standard, and a “trial court‘s decision to revoke community control even for a ‘minor’ violation, is not an abuse of discretion.” (Citations omitted.) State v. Bika, 11th District Portage Nos. 2018-P-0096 & 2018-P-0097, 2019-Ohio-3841, ¶ 28. An abuse of discretion is a term of art, “connoting judgment exercised by a court, which does not comport with reason or the record.” Id., citing State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶ 30, citing State v. Ferranto, 112 Ohio St. 667, 676-78 (1925). Stated differently, an abuse of discretion is the trial court‘s “‘failure to exercise sound, reasonable, and legal decision-making.‘” Bika at ¶ 28, quoting State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black‘s Law Dictionary 11 (8th Ed.Rev.2004).
{¶23}
{¶24} Further, what constitutes a “technical violation” is not defined in
{¶25} In State ex rel. Taylor v. Ohio Adult Parole Auth., 66 Ohio St.3d 121 (1993), the Supreme Court of Ohio adopted the definition of technical violation set forth in Rogers. Courts of appeal have subsequently applied this definition to sentencing determinations under
{¶26} In the instant case, Mr. Haworth failed to appear for his second revocation hearing. The trial court issued a capias warrant and rescheduled the hearing. Mr. Haworth now argues that the trial court failed to specify his violation and that if his failure to appear for the first hearing date is considered a “violation,” it was merely technical in nature.
{¶27} We disagree. A review of the revocation hearing transcript reveals more than one violation, including Mr. Haworth‘s admission that he started using methamphetamine once again. The trial court reminded Mr. Haworth that it had warned him at the first revocation hearing he had one last chance at community control, that it had given him several chances for treatment, and that while he is an addict, he also commits “crimes against other people,” which “cannot be tolerated.”
{¶28} This court and many of our sister districts have reviewed the “technical violation” issue under
{¶29} In Cozzone, the appellant overdosed on heroin while on community control for three fourth-degree felonies and one fifth-degree felony. At the revocation hearing, the appellant admitted to violating her community control, and the trial court imposed a 54-month prison sentence. Id. at ¶ 11. We disagreed with the appellant‘s argument that overdosing on heroin was a technical violation and determined that “[a]lthough [Cozzone] was not charged or convicted for [the heroin use], overdosing on drugs is criminal in nature and cannot be considered a ‘technical’ violation of the terms and conditions of community control.” Id. at ¶ 39.
{¶30} Likewise, in Palmer, the Second District held that “[w]e agree with our sister districts that a defendant‘s felonious use of drugs while serving a [community control] sentence allows a trial court, under
{¶31} Similarly, in Johnson, the trial court found the appellant violated his community control for a fifth-degree felony sentence by testing positive for methamphetamine, to which the appellant admitted along with other violations. The court revoked the appellant‘s community control and sentenced her to a term of 12 months. Id. at ¶ 4. The Fifth District disagreed with the appellant‘s argument that because the drug use did not result in a criminal charge, it constituted a technical violation, stating that “[Johnson‘s] use of methamphetamine * * * constituted a felony offense rather than a
{¶32} In Abner, the appellant tested positive for heroin while serving a community control sentence for a fifth-degree felony. The appellant also admitted that she had used heroin on other occasions. Id. at ¶ 5. The trial court revoked her community control and imposed a 12-month prison term. Id. at ¶ 6. The Fourth District affirmed, stating that “[a]lthough Abner was not charged or convicted for felony possession of heroin, her admitted use of heroin constituted a [felony] crime rather than a mere technical violation of community control.” Id. at ¶ 15. Thus, the trial court was “not constrained by
{¶33} We find Mr. Haworth‘s argument that the trial court was silent as to his violations of community control meritless. The transcript reveals his admissions to violations of felonious drug use, which are “per se criminal in nature.” Thus, we cannot say the trial court abused its discretion in revoking Mr. Haworth‘s community control sanctions and imposing a prison term.
{¶34} Mr. Haworth‘s second assignment of error is without merit.
Sentencing
{¶35} In Mr. Haworth‘s third assignment of error, he challenges the trial court‘s sentence following the revocation of his community control sanctions.
{¶36} “The court hearing an appeal [of a felony sentence] shall review the record, including the findings underlying the sentence or modification given by the sentencing
{¶37} Because Mr. Haworth failed to object to his sentence, “our review is limited to consideration of whether the trial court committed plain error.” Id., quoting State v. Moore, 11th Dist. Trumbull No. 2015-T-0072, 2017-Ohio-7024, ¶ 45. In order to prevail under a plain error standard, an appellant must demonstrate that there was an obvious error in the proceedings and, but for the error, the outcome would have been otherwise. Bika at ¶ 19, citing State v. Waxler, 6th Dist. Lucas No. L-15-1214, 2016-Ohio-5435, ¶ 7, citing State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 62.
{¶38} We emphasize that in sentencing a defendant following a community control violation, the trial court must comply with the relevant sentencing requirements. Ferrell at ¶ 36, citing State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, ¶ 17.
Consecutive Sentences
{¶39} In his third assignment of error, Mr. Haworth contends the trial court erred in sentencing him to five consecutive one-year prison terms for violating his community control because the trial court did not make the required findings pursuant to
{¶40} “When the record demonstrates that the trial court failed to make the findings required by
{¶41} “Pursuant to
{¶42} “(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
{¶43} “(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
{¶44} “(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶45} “[T]o impose consecutive terms of imprisonment a trial court is required to make the findings mandated by
{¶46} In this case, the trial court did not make any findings during the sentencing hearing when it imposed a prison term following the revocation of Mr. Haworth‘s community control. In the sentencing judgment entry, the trial court recited two of the
{¶47} The entry omits a finding under
{¶48} Mr. Haworth‘s third assignment has merit since the record demonstrates and the state concedes that the requisite findings for consecutive sentences were not made. Thus, we reverse and remand. The trial court is instructed to resentence Mr. Haworth, and if it reimposes consecutive sentences, to make all necessary statutory findings pursuant to
{¶49} The judgment of the Portage County Court of Common Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
{¶50} Case number 2019-P-0045 is hereby dismissed.
TIMOTHY P. CANNON, P.J.,
MATT LYNCH, J.,
concur.