State v. MatthewsState v. Matthews
Rendered on the 21st day of August, 2015.
MATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No. 0085249, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
DAVID M. MORRISON, Atty. Reg. No. 0087487, Morrison Law Office, LLC, Post Office Box 750383, Dayton, Ohio 45475 Attorney for Defendant-Appellant
FAIN, J.
{¶ 1} Defendant-appellant Leonard Matthews appeals from that part of the
{¶ 2} We conclude that the trial court did fail to make a finding that gave its reasons for its recommendation or disapproval of Matthews‘s placement in a program of shock incarceration or an intensive program prison, as required by
I. Course of Proceedings
{¶ 3} In 2009, Matthews was indicted on nine felony charges and two misdemeanors. In 2010, Matthews agreed to plead guilty to one count of Kidnapping, a felony of the first degree, and all other charges were dismissed. Initially, the trial court adopted a plea agreement to sentence Matthews to community control sanctions, but he was allowed to vacate his plea when it was discovered that he was ineligible for community control based on a prior Burglary conviction. Matthews then agreed to plead guilty to one count of Abduction, a felony of the third degree, and the court sentenced him to five years of community control sanctions. Subsequently, Matthews admitted to two violations of his community control sanctions by absconding and by failing to report to his probation officer. In 2011, after the first violation, the trial court continued the community control sanctions, but added a requirement to successfully complete a program at MonDay, a community based correctional facility. In 2014, after the second violation, the trial court revoked his community control sanctions, and sentenced Matthews to serve
{¶ 4} At the sentencing hearing, the trial court made the following statemеnt:
After reviewing Mr. Matthews’ criminal history, the PSI and the facts and circumstances of the offense and any victim impact statement and for the reasons the court imposed the prison sentence, the Court expressly disapproves of his placement in a program of shock incаrceration and intensive program prison finding those programs are inconsistent with the purposes, the principles of sentencing and the seriousness and recidivism factors of the Code.
Transcript at pg. 32.
{¶ 5} The judgment entry, Dkt. 182, states as follows:
After reviewing Defendant‘s criminal history, the pre-sentence investigation, the facts and circumstances of the offense and any victim impact statement, the Court DISAPPROVES Defendant‘s placement in a program of shock incarceration under
Section 5120.031 of the Revised Code or in the intensive program prison underSection 5120.032 of the Revised Code , for the following reasons: REASONS STATED ON THE RECORD.
II. The Trial Court Erred by Failing to Make Findings Setting Forth its Reasons for Disapproving Shock Incarceration and Intensive Program Prison
{¶ 6} Matthews‘s sole assignment of error is as follows:
THE TRIAL COURT ERRED BY DISAPPROVING SHOCK PROBATION AND INTENSIVE PROGRAM PRISON WITHOUT
PROVIDING A SUFFICIENT FACTUAL BASIS FOR THE DISAPPROVAL
{¶ 7} Matthews contends that the trial court erred in failing to give sufficient, particularized reasons for disapproving placement in a program of shock incarceration or intensive program prison. The State urges us to reverse our established precedent and follow decisions from the Fifth, Elеventh and Twelfth District Courts of Appeals, which have allegedly held that specific findings are not required if reasons for the disapproval of shock incarceration or intensive program prison can be found from the record as a whole. Based upon the express languаge of the statute, we will continue to follow our own precedent, which has consistently applied the provision of the statute requiring findings that set forth the trial court‘s reasons for disapproval.
{¶ 8} The sentencing statute,
The sentencing court, pursuant to division (I)(1) of
section 2929.14 of the Revised Code , may recommend placement of the offender in a program of shock incаrceration undersection 5120.031 of the Revised Code or an intensive program prison undersection 5120.032 of the Revised Code , disapprove placement of the offender in a program or prison of that nature, or make no recommendation. If the court recommends or disapproves placement, it shall make a finding that gives its reasons for its recommendation or disаpproval. (Emphasis added).
{¶ 9} In State v. Howard, 190 Ohio App. 3d 734, 2010-Ohio-5283, 944 N.E. 2d 258 (2d Dist.), we acknowledged that the statute does not require the trial court to address the issue of shock incarceration or an intensive program prison during the sentencing hearing, but if the trial court makes a recommendation, the court is required to
{¶ 10} In State v Blessing, 2d Dist. Clark No. 2011 CA 56, 2013-Ohio-392, we remanded the cause for resentencing when the trial court simply stated, “in the interest of justice and truth in sentencing, it is hereby Ordered that the defendant serve her entire statеd prison term in the Ohio State Penitentiary. The Ohio Department of Corrections shall not place this defendant in an IPP (Intensive Prison Program), transitional control, a half-way house, or any other program or institution unless this Court upon reconsideration, expressly and in writing authorizes the same.” Id. at ¶ 45. We concluded that:
”
R.C. 2929.19(D) rеquires more than that reasons can be found in the record to support the trial court‘s disapproval of the programs; the statute requires that the trial court, if it shall make a recommendation, must ‘make a finding that gives its reasons for its recommendation ordisapproval.’ This statutory requirement, imposed on the trial court, is not satisfied by an appellate court finding in the record reasons that the trial court could have given, or might have given, for disapproval.” State v. Allender, 2d Dist. Montgomery No. 24864, 2012-Ohio-2963, ¶ 22. “The statute requires that the trial court provide its reasons for disapproving shock incarceration or the intensive program prison, not merely that the record supports reasons for disapproval that the trial court might have had, but did not express.” Id. at ¶ 26.
{¶ 11} In State v. Berry, 2d Dist. Greene No. 2013-CA-34, 2014-Ohio-132, we reversed a judgment disapproving intensive program prison when the trial court did not discuss it at the sentencing hearing, and the sеntencing entry simply stated, “IPP is
{¶ 12} In State v. Swayne, 4th Dist. Adams Nos. 12CA952, 12 CA953, 12CA 954, 2013-Ohio-3747, the Fourth District followed our precedent, when the trial court failed to make any oral or written findings to identify reasons for its disapprоval of an intensive program prison, even though the sentencing transcript showed factual support based on
{¶ 13} In Allender, supra, we reviewed and rejected as distinguishable or inapplicable the allegedly conflicting decisions of the Fifth, Eleventh and Twelfth District Court of Appeals. State v. Jackson, 5th Dist. Knox Nos. 05 CA 46, 05 CA 47, 2006-Ohio-3994; State v. Tucker, 12th Dist. Butler No. CA2011-04-067, 2012-Ohio-50; State v. Lowery, 11th Dist. Trumbull No. 2007-T-0039, 2007-Ohio-6734. See Allender at ¶ 23-25. The only other case cited by the State as conflicting with our precedent is State v. Daniels, 12th Dist. Fayette No. CA2014-05-010, 2015-Ohio-1346. The court in Daniels followed the reasoning in Tucker, which did not find any error when the court recited numerous facts on the record for its sentencing decision. As we stated in Allender, the facts are distinguishable when the trial court refers to various general principles that it considered, and to various sources of information that it reviewed, but does not make any specific factual findings to explain its disapproval of shock incarceration or the intensive program prison. “[T]he statute requires that the trial сourt give its reasons for disapproval, not merely that reasons for disapproval exist.” Allender at ¶ 23
{¶ 14} In the case before us, there is no dispute that Matthews was eligible for shock incarceration or intensive program prison, and the trial court failed to make findings identifying its reasons for disapproving placement in a program of shock incarceration or intensive program prison. The trial court‘s summary conclusion that the disapproval is
III. Conclusion
{¶ 15} Matthews‘s sole assignment of error having been sustained, that part of the judgment entry disapproving Matthews for shock incarceration or intensive program prison is Reversed, the judgment of the trial court is Affirmed in all other respects, and this cause is Remanded for resentencing in accordance with this opinion.
FROELICH, P.J., concurs.
WELBAUM, J., dissenting:
{¶ 16} I respectfully dissent from the majority‘s opinion holding that the trial court did not make a finding giving its reasons for disapproving of Matthews‘s placement in a program of shock incarceration or intensive program prison as required by
{¶ 17} During the sentencing hearing in this case, the trial court indicated that it disapproved of shock incarceratiоn and intensive program prison as a result of reviewing Matthews‘s criminal history, the presentence investigation report, and the facts and
{¶ 18} The majority‘s reliance on State v. Allender, 2d Dist. Montgomery No. 24864, 2012-Ohio-2963 is misplаced, as that case is distinguishable in that the trial court did not state that it disapproved of the programs for the reasons the Court imposed the prison sentence. The present case is also distinguishable from our decisions in State v. Berry, 2d Dist. Greene No. 2013-CA-34, 2014-Ohio-132; State v. Blessing, 2d Dist. Clark No. 2011 CA 56, 2013-Ohio-392; and State v. Howard, 190 Ohio App.3d 734, 2010-Ohio-5283, 944 N.E.2d 258 (2d Dist.). In those cases, the trial court did not mentiоn shock incarceration or intensive program prison at the sentencing hearing nor did the trial court give any reason at all for disapproving of the programs at the sentencing hearing or in the sentencing entry.
{¶ 19} In reaching its decision in this case, the majority relies on the principle that
{¶ 20} It should also be noted that the majority failed to consider the fact that Matthews did not object to the trial court‘s disapproval of shock incarceration and intensive program prison, thus forfeiting all but plain error. Plain еrror is an error or defect at trial, not brought to the attention of the court that affects a substantial right of the defendant.
{¶ 21} Accordingly, for the reasons stated above, I respectfully dissent from the majority‘s decision to reverse the trial court‘s disapproval of shock incarceration and
Copies mailed to:
Mathias H. Heck
Dylan Smearcheck
David M. Morrison
Hon. Steven K. Dankof