State v. IngramState v. Ingram
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant Desean Ingram appeals his conviction and sentence from the Cuyahoga County Court of Common Pleas. Finding no error in the proceedings below, we affirm.
{¶ 2} The following facts give rise to this appeal. Ingram was indicted for possession of drugs in violation of
{¶ 3} Ingram filed a motion for intervention in lieu of conviction pursuant to
{¶ 4} Six months later, a capias was issued at the request of the probation department alleging that Ingram failed to report as required. On June 10, 2004, Ingram was given notice of a hearing on the violation of the terms of his treatment program and he was assigned counsel.
{¶ 5} On June 29, 2004, the court held the hearing where his probation officer informed the court that Ingram had stopped reporting. Ingram acknowledged that he had stopped reporting and explained that he had “a lot of stuff going on.” He also admitted that he should have reported.
{¶ 6} The court found him in violation, removed the stay of conviction, and found him guilty. The court sentenced Ingram to six months in prison on each count to run concurrently.
{¶ 7} Ingram filed a motion for modification of sentence or reconsideration, which was denied by the trial court.
{¶ 8} Ingram appeals, advancing six assignments of error. Under each assignment, Ingram relies on case law, statutes, and rules that govern the procedures for revocation of probation or community control sanctions.1 He argues that the intervention in lieu of conviction procedure is a form of probation or community control sanction and therefore must follow the same rules.
{¶ 9} A brief review of
{¶ 10} If the court finds under division (B) of this section that the offender is eligible for intervention in lieu of conviction and grants the offender‘s request, the court shall accept the offender‘s plea of guilty, stay all criminal proceedings, and order the offender to comply with all terms and conditions imposed by the court pursuant to division (D).
{¶ 11} Division (D) of this section states:
“(D) If the court grants an offender‘s request for intervention in lieu of conviction, the court shall place the offender under the general control and supervision of the county probation department, the adult parole authority, or another appropriate local probation or court services agency, if one exists, as if the offender was subject to a community control sanction imposed under section
2929.15 ,2929.18 , or2929.25 of the Revised Code. The court shall establish an intervention plan for the offender. The terms and conditions of the intervention plan shall require the offender, for at least one year from the date on which the court grants the order of intervention in lieu of conviction, to abstain from the use of illegal drugs and alcohol and to submit to regular random testing for drug and alcohol use and may include any other treatment terms and conditions, or terms and conditions similar to community control sanctions, that are ordered by the court.”
(Emphasis added.)
{¶ 12} A “community control sanction” is any sanction that is not a prison term and is described in
{¶ 13} A review of Sections
{¶ 14} With this finding in mind, we review Ingram‘s six assignments of error.
{¶ 15} “I. Defendant was denied due process of law and his right to counsel of choice.”
{¶ 16} Under this assignment of error, Ingram argues that the court-appointed attorney was not his counsel of choice and that his council of choice appeared two minutes late and missed the hearing. Further, he argues that the court failed to inform Ingram that he had the right to be represented “by his own counsel.” Ingram cites Crim.R. 32.3 and Gideon v. Wainwright (1963), 372 U.S. 335 for this proposition.
{¶ 17} Crim.R. 32.3 governs the revocation of probation, now known as community control sanction. Crim.R. 32.3(B) specifically states that “[t]he defendant shall have the right to be represented by retained counsel and shall be so advised.” However, as explained above,
{¶ 18} In State v. White (1995), 100 Ohio App.3d 62, this court ruled that the trial court acted within its discretion when it assigned counsel for the defendant at a probation violation hearing pursuant to Crim.R. 32.2(B). The defendant complained on appeal that he was denied his right to effective assistance of counsel because the court assigned counsel when he had a retained attorney. Id. at 66. This court reasoned that there was no evidence in the record to demonstrate that at the time the hearing was scheduled to start the trial court knew of the existence or identity of defendant‘s retained counsel. Id. Furthermore, defendant never identified his retained attorney but only made a few references to his “regular lawyer.” Id. This was not sufficient to put the trial court on notice that he had a retained attorney. Id.
{¶ 19} In this case, Ingram was found to be indigent and assigned an attorney 19 days before the actual hearing. At no time did he or his attorney notify the court that he had retained counsel. Further, he never made reference to his retained counsel during the violation hearing, nor did he object to going forward with the assigned counsel.
{¶ 20} In Gideon v. Wainwright, supra, the United States Supreme Court held that the
{¶ 21} Ingram was not denied counsel; rather, he was provided counsel because he was indigent. Therefore, we find that the trial court did not abuse its discretion when it assigned counsel to Ingram.
{¶ 22} Ingram‘s first assignment of error is overruled.
{¶ 23} “II. Defendant was denied due process of law when he was not granted a preliminary community control sanction hearing.”
{¶ 24} Ingram argues that the trial court violated his constitutional rights when it failed to have a preliminary probation violation hearing, citing Gagnon v. Scarpelli (1973), 411 U.S. 778 and State v. Williams (1988), 43 Ohio App.3d 184.
{¶ 25} Division (F) governs when an offender fails to comply with his intervention program.
{¶ 26} “If the court grants an offender‘s request for intervention in lieu of conviction and the offender fails to comply with any term or condition imposed as part of the intervention plan for the offender, the supervising authority for the offender promptly shall advise the court of this failure, and the court shall hold a hearing to determine whether the offender failed to comply with any term or condition imposed as part of the plan. If the court determines that the offender has failed to comply with any of those terms and conditions, it shall enter a finding of guilty and shall impose an appropriate sanction under
{¶ 27} Again, Ingram was not on probation or community control sanctions. Even so, in State v. Delaney (1984), 11 Ohio St.3d 231, 233, the Supreme Court of Ohio held that failing to object to a lack of a preliminary hearing waived any right to that hearing.
{¶ 28} Ingram did not request a preliminary hearing, nor did he object when he did not have one. Furthermore, a capias was issued in this case at the request of the probation department because of Ingram‘s failure to report. Warrants are presumably issued upon probable cause. Therefore, Ingram‘s due process rights were not violated and he waived any right to a preliminary hearing when he failed to object.
{¶ 29} Ingram‘s second assignment of error is overruled.
{¶ 30} “III. Defendant was denied due process of law when the court conducted an unfair community control sanction violation hearing by having defendant prove his innocence.”
{¶ 31} Under this assignment of error, Ingram argues that his rights were violated when the court asked him to respond to the probation officer‘s allegation that he failed to report monthly, as required. Ingram argues that he should have been advised of his right not to testify against himself.
{¶ 32} At the hearing, Ingram admitted that he had not reported but explained that he had “a lot of stuff going on” in his life. The trial court found him in violation of his program; the court lifted the stay and found him guilty of all three counts.
{¶ 33} The
{¶ 34} Ingram‘s third assignment of error is overruled.
{¶ 35} “IV. Defendant was denied due process of law when he was sentenced to prison where the court failed to specify any prison sentence at the time of sentencing.”
{¶ 36} Here, Ingram argues that because the trial court failed to inform him of the specific time period he could be sentenced to if he violated the terms of his treatment program he could not be sentenced to prison. Ingram cites
{¶ 37}
{¶ 38}
{¶ 39} Ingram‘s fourth assignment of error is overruled.
{¶ 40} “V. Defendant was denied due process of law when the court imposed a prison sentence without any determination as to the propriety of imposing a prison sentence.”
{¶ 41} Ingram argues that the imposition of sentence was contrary to law because he pled guilty to two fifth-degree felonies and one fourth-degree felony, requiring findings under
{¶ 42}
{¶ 43} Here, Ingram was sentenced to the minimum term of six months in prison for each count to run concurrently because he violated his intervention program. No findings are required because the trial court did not exceed the minimum nor did it impose consecutive sentences.
{¶ 44} Ingram‘s fifth assignment of error is overruled.
{¶ 45} “VI. Defendant was denied due process of law when the court revoked defendant‘s community control sanction on a basis different from what had been told to defendant at the time of his plea.”
{¶ 46} Under this assignment of error, Ingram argues that the court stated that his probation would be revoked only if he continued to use drugs. Since there was no evidence that he used drugs, he argues that the court cannot find him in violation of his treatment program.
{¶ 47} A review of the transcript does not support Ingram‘s argument. Although the trial court stressed that if Ingram continued to use drugs he would go to prison, the trial court did not state that drug use was the only way to violate the terms of his program.
{¶ 48} Ingram cites no applicable case law in support of his position that every conceivable violation must be spelled out by the court before he can be found in violation of the intervention program. It is clear from the record that Ingram was ordered to be supervised by the probation department, which supervision entails monthly reporting, and therefore, failure to report would be in violation of his intervention program.
{¶ 49} Ingram‘s sixth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Calabrese, Jr., J., and Kilbane, J., concur.