STATE OF OHIO, PLAINTIFF-APPELLEE, v. JOHN T. HERALD, DEFENDANT-APPELLANT.
CASE NO. 4-16-09
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY
November 14, 2016
2016-Ohio-7733
Appeal from Defiance County Common Pleas Court, Trial Court No. 14-CR-11918
Judgment Affirmed
APPEARANCES:
Clayton J. Crates for Appellant
Russell R. Herman for Appellee
{1} Defendant-appellant, John T. Herald (“Herald“), brings this appeal from the March 17, 2016, judgment of the Defiance County Common Pleas Court revoking Herald‘s community control and imposing a reserved aggregate prison term of seven-and-a-half-years for Herald‘s convictions of Burglary in violation of
Relevant Facts and Procedural History
{2} On May 9, 2014, Herald was indicted for Burglary in violation of
{3} On July 3, 2014, the State filed a motion for joinder requesting that the charges in this case be joined with a Retaliation charge in another case. That motion was granted.
{4} On July 17, 2014, a hearing was held wherein Herald agreed to plead guilty to the Burglary and Domestic Violence charges in this case, and the Retaliation charge in the separately indicted case. In exchange the State agreed to
{5} The trial court conducted a
{6} The court had the State recite a factual narrative related to the charges. In the narrative, the State indicated that Herald unlawfully entered the private residence of his ex-girlfriend, who was also the mother of his child, despite previously being told not to be there. The State indicated that Herald was
{7} After narrating the factual basis for the charges, the court asked defense counsel whether the operative facts were correct and defense counsel stated that “[t]he facts are debatable, but I‘m sure the prosecution can put together evidence that could convince a jury, a trier of fact.” (July 17, 2014, Tr. at 15). The court then asked Herald whether the facts happened as alleged and he responded, “[t]o a degree.” (Id.) However, Herald stated that he admitted to the essential elements of each of the offenses, and that it was his intention to plead guilty per the plea agreement.
{8} The court accepted Herald‘s pleas as knowingly, intelligently, and voluntarily entered and found Herald guilty.
{9} On August 28, 2014, Herald‘s sentencing hearing was held. At sentencing the trial court recited the plea arrangement, stating that the parties recommended that Herald would be placed on community control for the Burglary and Domestic Violence convictions upon being released from his one-year prison term for Retaliation in the separate case. The court indicated that the parties recommended that if Herald violated his community control he would be subject to an aggregate seven-and-a-half-year prison term.
{11} The court stated that Herald had an extensive criminal history and told Herald that “it‘s highly unlikely that you‘re going to be able to succeed on community control.” (Aug. 28, 2014, Tr. at 4). Herald stated that he believed that he could succeed on community control and that he understood the consequences if he did not comply with his terms of community control.
{12} The same date as Herald‘s sentencing hearing, a “Community Control Agreement and Order” was filed, indicating the terms and conditions of Herald‘s community control. Among the conditions were for Herald not to possess or use drugs, and that he have a midnight curfew. Specific conditions were also added that Herald should not be in any bars or taverns and that he should not possess or consume any alcohol. (Doc. No. 23).
{13} An entry memorializing Herald‘s sentence was filed September 16, 2014.
{14} The next relevant activity in this case occurred December 14, 2015, when the State filed a motion to revoke Herald‘s community control, contending
{15} On December 14, 2015, the trial court held a hearing on the motion to revoke Herald‘s community control. Herald waived his right to counsel2 and indicated that he was “obviously * * * guilty” and that he fully admitted to the violations. (Dec. 14, 2015, Tr. at 3). The State provided a narrative of the incident, indicating that not only was Herald at a bar, consuming alcohol, and out past his curfew, but that he also was involved in a fight at the bar.3
{16} The court then accepted Herald‘s admissions to his community control violations and asked the State for its recommendation as to disposition. At that time the State recommended that the disposition be delayed to see if Herald could comply with the conditions of supervision, and that any “recommendation would be dependent upon that. We would likely be recommending that he not be revoked, possibly some additional specials if he commits no new violations. But it would depend upon what his situation was at that time.” (Dec. 14, 2015, Tr. at 11).
{18} The case was called for a dispositional hearing on February 10, 2016. At the hearing, the State indicated there were additional issues that had arisen since the last hearing, such as Herald testing positive for marijuana and a complaint being investigated that Herald committed sexual imposition against a female inmate. The State indicated it had not filed new allegations of community control violations yet based on the new issues. At that time, the State requested that the court revoke Herald‘s community control and impose the reserved prison term.
{19} Herald addressed the court, admitting to smoking the marijuana, but he denied the sexual imposition allegation, stating that he had told the prosecutor and a detective that he would take a polygraph test “any day of the week. I will pay for it. I‘ll do it right now.” (Feb. 10, 2016, Tr. at 6). The court agreed to continue the dispositional hearing to allow Herald to undertake the polygraph examination that he requested, indicating that the State should prepare a stipulation that the results of the test would be admissible and the court could consider it.
{21} Despite the results of the polygraph examination that the court narrated, Herald still denied that the sexual imposition occurred and requested leniency from the court, asking that his community control be continued even though he had multiple other violations that he had readily admitted to. The State recommended that Herald‘s community control be revoked.
{22} The court recited Herald‘s lengthy criminal history, including the crimes Herald was currently on community control for. The court then revoked Herald‘s community control, and imposed the reserved prison terms, six years for the burglary and eighteen months for the Domestic Violence, to be served consecutive to each other, for an aggregate seven-and-a-half-year prison term. When Herald asked the court “why” the court would impose such a prison term, the court stated “[b]ecause you won‘t follow your rules of community control.” (Mar.
{23} A final judgment entry revoking Herald‘s community control and imposing the aggregate seven-and-a-half-year prison term was filed March 17, 2016. It is from this judgment that Herald appeals, asserting the following assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY IMPOSING CONSECUTIVE SENTENCES WITHOUT MAKING APPROPRIATE FINDINGS PURSUANT TO
ASSIGNMENT OF ERROR 2
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO CONSIDER APPLICABLE SENTENCING STATUTES.
ASSIGNMENT OF ERROR 3
THE TRIAL COURT‘S DECISION TO REVOKE APPELLANT‘S COMMUNITY CONTROL CONSTITUTED AN ABUSE OF DISCRETION.
ASSIGNMENT OF ERROR 4
THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOWING THE PROSECUTOR TO CHANGE THE BARGAINED FOR RECOMMENDATION.
APPELLANT‘S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE STATE FAILED TO COMPLY WITH THE DUE PROCESS REQUIREMENTS OF COMMUNITY CONTROL REVOCATION PROCEEDINGS.
ASSIGNMENT OF ERROR 6
APPELLANT‘S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE TRIAL COURT FAILED TO MAKE WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW.
{24} We elect to address some of the assignments of error together, and out of the order in which they were raised.
Third Assignment of Error
{25} In Herald‘s third assignment of error, he argues that the trial court abused its discretion by revoking his community control. Specifically, Herald argues that it was error for the trial court to place any reliance on the polygraph examination when determining Herald‘s disposition for his community control violations, and that the overall circumstances did not support revoking his community control.
{26} At the outset, we note that community control-revocation and dispositional hearings are not subject to the rules of evidence.
{27} Nevertheless, in order to find that an offender violated the terms of his community control at a community control-revocation hearing, the State must show “substantial evidence.” State v. Boykins, 3d Dist. Marion No. 9-14-28, 2015-Ohio-1341, ¶ 20, citing State v. McKeithen, 3d Dist. Marion No. 9-08-29, 2009-Ohio-84, ¶ 6, citing State v. Ryan, 3d Dist. Auglaize No. 14-06-55, 2007-Ohio-4743, ¶ 7. “Substantial evidence is akin to a preponderance-of-the-evidence burden of proof.” State v. Burdette, 5th Dist. Morrow No. 10-CA-9, 2011-Ohio-4425, *4, citing Ohly, 2006-Ohio-2353, ¶ 18. However, “[s]ubstantial evidence is considered to consist of more than a mere scintilla of evidence, but somewhat less than a preponderance.” (Emphasis added.) Burdette, citing State v. Gomez, 11th Dist. Lake No. 93-L-080, 1994 WL 102230, *4 (Feb. 18, 1994), citing Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966) and Marker v. Finch, 322 F.Supp. 905, 910, fn. 7 (D.Del.1971).
{28} The decision of a trial court finding a violation of community control will not be disturbed absent an abuse of discretion. State v. Berry, 3d Dist. Defiance No. 4-12-04, 2012-Ohio-4660, ¶ 33, citing Ryan, 2007-Ohio-4743 ¶ 7. A trial court abuses its discretion when it makes a decision
{29} In this case there were a number of general and specific provisions contained in Herald‘s community control. Herald‘s general provisions required, inter alia, that Herald obey all laws and that he abide by a midnight curfew unless his scheduled work hours ended after the stated curfew. Herald was also required not to possess any illegal drugs. In the specific conditions of Herald‘s community control, Herald was explicitly required not to enter any bars or taverns and not to consume or possess any alcoholic beverages.
{30} Herald readily admitted to multiple violations of his community control sanctions in this case. Herald admitted that he had been at a bar, that he had been drinking alcohol, and that he had been out past his curfew. All of these reasons support the trial court‘s decision finding Herald in violation of his community control.
{31} However, on appeal, Herald argues that the trial court improperly “based” its decision to revoke Herald‘s community control on the polygraph examination that Herald requested at his dispositional hearing and subsequently—apparently—failed. When Herald was before the court for his disposition, the State
{32} The trial court delayed the dispositional hearing to allow Herald to undertake the polygraph examination that he requested, in what appears to be one last opportunity for Herald to establish some mitigating factors for his disposition for his violations. Herald‘s polygraph examination results apparently indicated that his responses were indicative of deception. The trial court ultimately revoked Herald‘s community control at the final disposition hearing.
{33} Herald now argues that the trial court improperly revoked his community control based on his polygraph examination results. Contrary to Herald‘s claim, when Herald asked why the trial court revoked his community control at the dispositional hearing, the trial court stated, “[b]ecause you won‘t follow your rules of community control.” (Mar. 14, 2016, Tr. at 13). The trial court also cited Herald‘s lengthy criminal history before revoking his community control. The trial court did not specifically cite the polygraph examination as the reason Herald‘s community control was being revoked, rather it generally stated that Herald had not complied with community control.
{35} Further, the rules of evidence are not even applicable at community control-revocation hearings and the standard of proof is substantially lower.5 In addition, polygraph examinations have been found to be an acceptable tool of community control where the testing is related to a criminal defendant‘s treatment and supervision, even where polygraph examinations were specifically required to be undertaken. See State v. May, 8th Dist. Cuyahoga No. 97354, 2012-Ohio-2766, ¶ 37 (overruled on a separate issue in State v Anderson, 8th Dist. Cuyahoga No. 102427, 2016-Ohio-7044); but see In re D.S., 111 Ohio St.3d 361, 2006-Ohio-0992, ¶ 5 (wherein it was determined that requiring a juvenile to take a polygraph examination must be supported by the evidence as a juvenile is not a criminal). Thus for all of these reasons we do not find Souel controlling here.
{36} Herald also cites an older decision out of the Ninth District Court of Appeals, State v. Rooney, 9th Dist. Summit No. 12052, 1985 WL 11040, wherein the Ninth District affirmed a trial court‘s suppression of evidence that a defendant involuntarily took a polygraph examination as a condition of his probation and defendant‘s deception in that polygraph examination was going to be used as the sole basis to find the defendant in violation of his probation. Rooney is readily distinguishable from the case sub judice, because here Herald was already found in violation of his community control at the time any polygraph results were considered, and the polygraph was only considered here as giving Herald an opportunity to mitigate the circumstances before the trial court. The apparent results of the polygraph examination in this case were not being used as any basis to find Herald in violation of his community control, let alone the sole basis, as it was in Rooney. Moreover, Herald also undertook the examination voluntarily in this case. Thus we do not find these circumstances the same as Rooney.
{37} Finally, we would note that before Herald originally pled guilty to the Burglary and Domestic Violence charges, the trial court admonished Herald that,
{38} In this specific instance we can find no error with the trial court‘s revocation of Herald‘s community control. Even disregarding everything related to the polygraph examination, the trial court still had multiple reasons for revoking Herald‘s community control, and it was specifically stated that Herald‘s community control was revoked for his general failure to comply. Therefore, Herald‘s third assignment of error is overruled.
Fourth Assignment of Error
{39} In Herald‘s fourth assignment of error, he argues that the trial court erred by allowing the prosecutor to “change” his “bargained-for” recommendation at the dispositional hearing. Specifically, Herald argues that when he admitted his community control violations, the State indicated that it would “likely” be recommending that the trial court not revoke Herald‘s community control at the dispositional hearing. Herald likens the State‘s comment to that of a “plea agreement,” claiming that the State breached said “plea agreement” when it
{40} Herald‘s arguments in this assignment of error are wholly disputed by the record and are entirely without merit. After Herald admitted to multiple community control violations, the trial court asked the State what it would recommend for disposition. The prosecutor made the following statement.
[Prosecutor]: Your Honor what I indicated is the State would ask that the matter be continued for disposition. I‘d like to look at the history a little bit further and review further with Mr. Elwood. But also give the Defendant an opportunity to begin some counseling, Mr. Elwood had recommended or directed him to begin participating in. So I indicated to him that I would be requesting a continuance of the disposition to see if he can comply with all the conditions of his supervision, and then our recommendation would be dependent upon that. We would likely be recommending that he not be revoked, possibly some additional specials if he commits no new violations. But it would depend upon what his situation was at that time.
(Emphasis added.) (Dec. 14, 2015, Tr. at 11).
{41} Notably, nowhere in the preceding statement does the prosecutor make any type of binding promise to recommend that Herald remain on community control at the dispositional hearing. However, even if the prosecutor had made such a promise, the trial court was absolutely not bound by any such recommendation.
{42} Nevertheless, even though the trial court did not have to continue Herald‘s dispositional hearing as the State recommended, it did, continuing the case for approximately two months, allowing Herald an opportunity to demonstrate that
{43} The trial court, using its discretion, revoked Herald‘s community control. There was never any agreement between Herald and the State, and even if there was, Herald seems to clearly have violated the agreement by continuously not abiding by the terms of his community control. Therefore, Herald‘s argument that the State somehow altered a “bargained-for” recommendation is entirely inaccurate and without merit. Accordingly, his fourth assignment of error is overruled.
Fifth Assignment of Error
{44} In Herald‘s fifth assignment of error, he argues that his due process rights were violated by the State failing to comply with the requirements of community control revocation proceedings. Specifically, he argues that no community control violations were filed against Herald for his marijuana use or his alleged sexual imposition of a female inmate and that these potential violations were used against him.
Sixth Assignment of Error
{46} In Herald‘s sixth assignment of error, he argues that the trial court erred by failing to make written findings of fact and conclusions of law in revoking Herald‘s community control.
{47} To support his argument, Herald cites State v. Delaney, 11 Ohio St.3d 231 (1984), wherein the Supreme Court of Ohio stated that it did “not condone the use of oral ‘explanations’ in lieu of written statements detailing the basis for a trial court‘s determination in revocation proceedings[.]” Delaney at 235. However, the
{48} The preceding segment makes clear that the legal authority actually relied upon by Herald does not even adequately support his position. The Supreme Court of Ohio indicated only that it was more favorable if a trial court produced written findings of fact and conclusions of law when finding a violation, but it was not necessary so long as a defendant is adequately informed of the reasons his probation—now community control—is being revoked.
{49} Here, written violations were filed, a hearing was held, and Herald admitted to the violations. A factual basis of the violations was even presented and Herald gave his version of events. Herald was clearly apprised of why he was being found in violation of his community control in this case and the trial court made that clear. Therefore, Herald‘s sixth assignment of error is not well-taken, and is overruled.
First and Second Assignments of Error
{50} In Herald‘s second assignment of error, he argues that the trial court erred by failing to consider applicable sentencing statutes. In his first assignment of error, he argues that the trial court erred by failing to make appropriate consecutive sentences findings pursuant to
{52} In this case the sentence was recommended by both the State and Herald, and was bargained-for in the plea agreement. Herald‘s counsel made this clear at the sentencing hearing. At the sentencing hearing, Herald‘s counsel stated that, “The disposition that the Court recited is the bargain for [sic] and the agreed disposition. The inclusion of SEARCH was actually the request of the Defendant who felt that he needed some structure getting his life straighten out [sic], and so we would certainly recommend that the Court accept the prosecutor‘s disposition
{53} As the sentence in this case was jointly recommended by the parties and imposed by the trial court, we need only review if the sentence is authorized by law.6 The six-year prison sentence for Burglary and the eighteen-month prison term for Domestic Violence both fall within the statutory range. In the event of a community control violation, Herald was aware that he was facing an aggregate seven-and-a-half-year prison term as indicated in the “Community Control Agreement and Order,” which was signed by the parties and the judge. Since the term was authorized by law, any claims that the trial court did not consider specific sentencing statutes are without merit, and Herald‘s first and second assignments of error are overruled. See State v. Sergent, Ohio Sup.Ct. Slip Opinion No. 2016-
{54} Having found no error prejudicial to Herald in the particulars assigned, his assignments of error are overruled and the judgment of the Defiance County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr