STATE OF OHIO v. JUAN R. MERY
Case No. 2010-CA-00218
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
April 18, 2011
2011-Ohio-1883
Hon. W. Scott Gwin, P.J.; Hon. William B. Hoffman, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2009-CR-1780; JUDGMENT: Affirmed
For Plaintiff-Appellee
JOHN FERRERO
STARK COUNTY PROSECUTOR
110 Central Plaza South
Canton, OH 44702
For Defendant-Appellant
WAYNE E. GRAHAM, JR.
Suite 300 Renaissance Centre
4580 Stephen Circle N.W.
Canton, OH 44718
Gwin, P.J.
{¶1} Defendant-appellant Juan R. Mery appeals the revocation of his community control and imposition of a six-year prison sentence following an evidentiary hearing in the Stark County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant was indicted by the Stark County Grand Jury for one count of robbery, one count of trafficking in controlled substances and one count of improperly handling a firearm in a motor vehicle.
{¶3} The facts related to the charges are documented in the Bill of Particulars, filed with the Court on December 29, 2009, as stated below:
{¶4} “On or about October 28, 2009, in the City of Canal Fulton, Stark County, Ohio:
{¶5} “The Appellant aided and abetted each other in committing this offense. Defendant Kauffman drove defendants Secor and appellant to Canal Fulton City Park. Defendant Secor had arranged a drug sale to a confidential police informant. The defendants, however, brought counterfeit drugs. The defendants also planned to steal money from the informant and brought a .380 auto caliber Hi-POINT semi-automatic pistol with them. The firearm was accessible to all three defendants.”
{¶6} On January 15, 2010, the state dismissed the charge of improperly handing a firearm in a motor vehicle and appellant pled guilty to robbery and trafficking
{¶7} On February 19, 2010, appellant was sentenced to four years community control. The conditions of appellant‘s community control included that he enter and successfully complete the program at the Stark Regional Community Correction Center (SRCCC). The court reserved a six-year sentence in the event appellant failed to comply with the terms and conditions of his community control.
{¶8} Appellant entered SRCCC on February 23, 2010. He was provided with the rules of the facility and completed an orientation program. Appellant signed a form indicating his receipt and understanding of the rules.
{¶9} From February 23 through the end of April, appellant complied with all the rules and performed well at SRCCC. Thereafter, his behavior deteriorated. He accumulated nine rule violations including being late for cocaine anonymous classes, dress code violation, failure to attend education class, inappropriate behavior, failure to attend job club, tampering with SRCCC property, unkempt living area, lying to staff and inappropriate physical contacts. After appellant kicked open a bathroom stall door while another resident was occupying the stall, he was placed in segregation.
{¶10} Upon his release from segregation, Diane Wilson, the operations director at SRCCC attempted to convince appellant to alter his negative behavior, reminding him that he had gone for more than a month without any rules infractions. Appellant agreed that he was capable of complying with the rules and the program. Nonetheless, his negative behavior continued. Appellant was therefore terminated from the program.
{¶12} After hearing all the evidence, the court found appellant had violated his community control, revoked appellant‘s community control, and imposed the previously suspended six-year sentence.
{¶13} Appellant has timely appealed raising two assignments of error,
{¶14} “I. REVOCATION OF THE APPELLANT‘S PROBATION AND IMPOSITION OF SENTENCE WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶15} “II. APPELLANT‘S FIVE YEAR SENTENCE FOR INTIMIDATION IS GROSSLY DISPROPORTIONATE TO THE CRIME AND THEREFORE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.”
{¶16} Appellant first contends that the state did not produce sufficient evidence to warrant the revocation of his community control, and that his revocation is against the manifest weight of the evidence.
{¶17} The right to continue on community control depends on compliance with community control conditions and “is a matter resting within the sound discretion of the court.” State v. Garrett, Stark App. No. 2010 CA 00210, 2011-Ohio-691 at ¶13; State v. Schlecht, 2nd Dist. No. 2003-CA-3, 2003-Ohio-5336, citing State v. Johnson (May 25, 2001), 2nd Dist. No. 17420.
{¶18} A community control revocation hearing is not a criminal trial. State v. White, Stark App. No. 2009-CA-00111, 2009-Ohio-6447. The state therefore need not establish a community control violation by proof beyond a reasonable doubt. White, supra at ¶13; State v. Ritenour, Tuscarawas App. No. 2006AP010002, 2006-Ohio-4744 at ¶ 36; State v. Spencer, Perry App. No. 2005-CA-15, 2006-Ohio-5543 at ¶ 12; State v. Henry, Richland App. No. 2007-CA-0047, 2008-Ohio-2474. As this Court noted in Ritenour, “Rather, the prosecution must present substantial proof that a defendant violated the terms of his or her probation ... Accordingly, in order to determine whether a defendant‘s probation revocation is supported by the evidence, a reviewing court should apply the ‘some competent, credible evidence’ standard set forth in C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578 ... This highly deferential standard is akin to a preponderance of evidence burden of proof ...” State v. Ritenour, supra at ¶ 36. (Citations omitted). See also, State v. Gullet, Muskingum App. No. CT2006-0010, 2006-Ohio-6564, ¶ 22-23.
{¶20} The weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180, certiorari denied (1990), 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183. Reviewing courts should accord deference to the trial court‘s decision because the trial court has had the opportunity to observe the witnesses’ demeanor, gestures, and voice inflections which cannot be conveyed to us through the written record, Miller v. Miller (1988), 37 Ohio St.3d 71, 523 N.E.2d 846.
{¶21} In the instant case, as set forth above, the trial court heard testimony from appellant‘s probation officer and the operations director at SRCCC that appellant violated the terms of his community sanctions. He accumulated nine rules violations.
{¶22} As an appellate court, we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence, upon which the fact finder could base its judgment. Cross Truck v. Jeffries (February 10, 1982), Stark App. No. CA-5758. Accordingly, a judgment supported by competent, credible evidence going to all the essential elements of the
{¶23} Based on such testimony, we find that the trial court did not abuse its discretion in finding that appellant violated the terms and conditions of his community control and revoking same.
{¶24} Appellant argues, in essence, that his mental health problems constitute a mitigating factor. See, State v. Wolfe, Stark App. No. 2008-CA-00064, 2009-Ohio-830. In State v. Bleasdale (1990), 69 Ohio App.3d 68, the defendant was given a suspended sentence, was placed on probation on the condition that he be accepted by, and successfully complete a specific drug program. The defendant was ultimately terminated from the program after he was diagnosed as suffering from several mental disorders and the staff determined that it was not equipped to deal with the mental problems that the defendant exhibited. After a probable cause hearing, the trial court revoked the defendant‘s probation and reinstated his sentence of confinement. On appeal, the Eleventh District Court of Appeals determined that the trial court had abused its discretion in revoking the defendant‘s probation because the defendant had not willfully or intentionally violated the conditions of his probation. Rather, the court stated, the defendant had been cooperating with the program but was terminated “due to the program‘s inability to properly minister his case.” Id. at 72.
{¶25} In the case at bar, the facts supporting the revocation of appellant‘s community control sanctions are clearly distinguishable from those in Bleasdale. In this case, the court revoked appellant‘s community control solely based on his voluntary conduct, not based on conditions over which appellant had no control.
{¶27} Appellant‘s first assignment of error is overruled.
II.
{¶28} In his Second Assignment of Error, appellant contends that his sentence constitutes cruel and unusual punishment because it is disproportionate to his crimes and disproportionate to the sentences imposed on his co-defendants. We disagree.
{¶29} Appellant‘s arguments refer to matters not contained in the trial court record. “‘We cannot * * * add matter to the record before us that was not part of the court of appeals’ proceedings and then decide the appeal on the basis of the new matter.’ North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶ 7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶ 16.” Squire v. Geer, 117 Ohio St.3d 506, 508, 885 N.E.2d 213, 216, 2008-Ohio-1432 at ¶11. Accordingly, appellant‘s new material may not be considered.
{¶30} In a plurality opinion, the Supreme Court of Ohio established a two-step procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. The first step is to “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine
{¶31} As a plurality opinion, Kalish is of limited precedential value. See Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (characterizing prior case as “of questionable precedential value inasmuch as it was a plurality opinion which failed to receive the requisite support of four justices of this court in order to constitute controlling law“). See, also, State v. Franklin (2009), 182 Ohio App.3d 410, 912 N.E.2d 1197, 2009-Ohio-2664 at ¶ 8. “Whether Kalish actually clarifies the issue is open to debate. The opinion carries no syllabus and only three justices concurred in the decision. A fourth concurred in judgment only and three justices dissented.” State v. Ross, 4th Dist. No. 08CA872, 2009-Ohio-877, at FN 2; State v. Welch, Washington App. No. 08CA29, 2009-Ohio-2655 at ¶ 6; State v. Ringler (Nov. 4, 2009), Ashland App. No. 09-COA-008. Nevertheless, until the Supreme Court of Ohio provides further guidance on the issue, we will continue to apply Kalish to appeals involving felony sentencing State v. Welch, supra; State v. Reed, Cuyahoga App. No. 91767, 2009-Ohio-2264 at FN2; State v. Ringler, supra.
{¶32} The Supreme Court held, in Kalish, that the trial court‘s sentencing decision was not contrary to law. “The trial court expressly stated that it considered the purposes and principles of
{¶33} The relevant sentencing law is now controlled by the Ohio Supreme Court‘s decision in State v. Foster, i.e. ” * * * trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” 109 Ohio St.3d 1, 30, 2006-Ohio-856 at ¶ 100, 845 N.E.2d 470, 498.
{¶34} Accordingly, if appellant violates his community control sanctions, the trial court must conduct a second sentencing hearing following the community-control violation and at that time comply with the decision in Foster. Thus, at the time of the second sentencing hearing, appellant could be sentenced to a term of incarceration either less than, but not more then, the six year term that the court advised at the original sentencing hearing. The trial court has full discretion to impose a prison sentence within the statutory range and is no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences. State v. Hines, Ashland App. No. 2005-COA-046, 2006-Ohio-4053 at ¶ 9; State v. Wolfe, supra.
{¶35} In the case at bar, at the original sentencing hearing in this case the trial court notified appellant that the prison term to be imposed upon revocation of his community control sanction would be six years. [See, Judgment Entry, Sentence (Community Sanction), filed March 1, 2010 at 5]. When the trial court subsequently
{¶36} The
{¶37}
{¶38} “The
{¶40} In State v. Hairston the Court reiterated, “‘[a]s a general rule, a sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual punishment.‘” State v. Hairston 118 Ohio St.3d 289, 293, 888 N.E.2d 1073, 1077, 2008-Ohio-2338 at ¶ 21. [Quoting McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 69, 203 N.E.2d 334]. See also, State v. Morin, Fairfield App. No. 2008-CA-10, 2008-Ohio-6707 at ¶71-72.
{¶41} In State v. Hill (1994), 70 Ohio St.3d 25, 635 N.E.2d 1248, the defendant was convicted of complicity to trafficking in marijuana, and sentenced to one year in prison and further ordered to forfeit his apartment complex. His co-defendant received probation instead of a prison sentence. Id. at 29, 635 N.E.2d at 1252. On appeal, he argued that the trial court abused its discretion by giving him a harsher sentence than was given his co-defendant. Id. The Ohio Supreme Court observed: “[t]here is no question that on its face the sentence received by appellant, when compared to Newbauer‘s punishment, is disproportionate. Given the fact that Newbauer received probation, appellant‘s one-year prison sentence does appear to be harsh. However, as a general rule, an appellate court will not review a trial court‘s exercise of discretion in sentencing when the sentence is authorized by statute and is within the statutory limits.
{¶42} Appellant cites no precedent, or any other authority, for reversal of an otherwise valid sentence on the basis that more culpable co-defendants were not punished more severely. There is no requirement that co-defendants receive equal sentences. State v. Lloyd, 11th Dist. No. 2002-L-069, 2003-Ohio-6417 at ¶ 21; United States v. Frye (6th Cir. 1987), 831 F.2d 664, 667. Each defendant is different and nothing prohibits a trial court from imposing two different sentences upon individuals convicted of similar crimes. State v. Aguirre, 4th Dist. No. 03CA5, 2003-Ohio-4909 at ¶ 50. “(W)hen there is a multiple codefendant situation and those co-defendants are essentially charged with the same crimes, what may seem to be a disparity in certain situations may not be a disparate sentence. This may occur when the records submitted in such cases provide a different table of review which may appropriately result in a varied sentence in a given case when evaluated according to the pertinent statutory criteria.’ State v. Rupert, 11th Dist. No. 2003-L-154, 2005-Ohio-1098] at ¶ 13. * * *.” State v. Martin, 11th Dist. No. 2006-T-0111, 2007-Ohio-6722, at ¶ 40.
{¶43} In this case, there is nothing in the record to show that the difference in appellant‘s sentence from those of similar offenders was the result of anything other
{¶44} There is no evidence in the record that the judge acted unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence on impermissible factors, failing to consider pertinent factors, or giving an unreasonable amount of weight to any pertinent factor. We find nothing in the record of appellant‘s case to suggest that his sentence was based on an arbitrary distinction that would violate the Due Process Clause of the
{¶45} It appears to this Court that the trial court‘s statements at the sentencing and the revocation hearings were guided by the overriding purposes of felony sentencing to protect the public from future crime by the offender and others and to punish the offender.
{¶46} Based on the transcript of the sentencing hearing, the revocation hearing and the subsequent judgment entries, this Court cannot find that the trial court acted unreasonably, arbitrarily, or unconscionably, or that the trial court violated appellant‘s rights to due process under the
{¶47} Appellant‘s second assignment of error is overruled.
By Gwin, P.J.,
Hoffman, J., and
Delaney, J., concur
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
WSG:clw 0404
STATE OF OHIO v. JUAN R. MERY
CASE NO. 2010-CA-00218
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to appellant.
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY