STATE OF OHIO v. SHAWN MOYER
Case No. 18 CA 0065
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 29, 2019
2019-Ohio-1187
Hon. William B. Hoffman, P. J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 16 CR 0430. JUDGMENT: Affirmed.
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 29, 2019
APPEARANCES:
For Plaintiff-Appellee
NATHANIEL H. HURST ASSISTANT PROSECUTOR 20 South Second Street, 4th Floor Nеwark, Ohio 43055
For Defendant-Appellant
KEVIN J. GALL 33 West Main Street Suite 109 Newark, Ohio 43055
{¶1} Defendant-Appellant Shawn Moyer appeals his sentence on one count of Aggravated Trafficking in Drugs entered in the Licking County Common Pleas Court following a revocation of his community control.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶3} On July 21, 2016, Defendant-Appellant Shawn Moyer was indicted on one count of Aggravated Trafficking of Drugs (Methamphetamine), in violation of
{¶4} On September 13, 2017, Defendant-Appellant entered a plea of guilty to an amended count of Aggravated Trafficking in Drugs, a felony of the third degree.
{¶5} On December 5, 2017, Defendant-Appellant was sеntenced to a four (4) year term of community control, with a reserve sentence of thirty-six (36) months.
{¶6} On March 15, 2018, the Licking County Grand Jury returned a two-count Indictment against Defendant-Appellant in the Licking Cоunty Common Pleas Court case number 18-CR-00141. Count One was Aggravated Burglary, and Count Two was Felonious Assault.
{¶7} On August 2, 2018, Defendant-Appellant entered a plea of guilty to Count Two of the indictment, Felonious Assault. The trial court sentenced Defendant-Appellant to a four (4) year prison term.
{¶8} On March 14, 2018, a motion to revoke community control was filed in case number 16-CR-00430. The violations of community cоntrol included the charges in case
{¶9} On May 9, 2018, the Defendant Appellant admitted to the sеcond violation, consuming alcohol.
{¶10} On August 2, 2018, the trial court determined that Defendant was in violation of his community control and imposed his reserved thirty-six (36) month sentence.
{¶11} Appellant now aрpeals, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶12} “I. THE TRIAL COURT ERRED TO THE DEFENDANT-APPELLANT‘S PREJUDICE WHEN IT REVOKED HIS COMMUNITY CONTROL SANCTION AND IMPOSED A PRISON TERM WITHOUT FIRST MAKING EITHER OF THE REQUISITE FINDINGS AS REQUIRED BY
I.
{¶13} In Appellant‘s sole assignment of error, Appellant argues that the trial court erred in imposing a sentence that was contrary to law. We disagree.
{¶14} More specifically, Appellant asserts the trial court erred “when it revoked his community control sanction and imposed a prison term without first making either of the requisite findings аs required by
{¶15} In accordance with
{¶16} We review felony sentences using the standard of review set forth in
{¶17} Accordingly, pursuant to Marcum this Court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that: (1) the record doеs not support the trial court‘s findings under relevant statutes, or (2) the sentence is otherwise contrary to law.
{¶18} Clear and convincing evidence is that evidence “which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477 120 N.E.2d 118.
{¶19} The Marcum court further noted
We note that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standardthat is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and cоnvincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
{¶20} Id.
{¶21}
{¶22}
{¶23} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the court discussed the effect of the State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 decision on felony sentencing. The court stated that in Foster the Court severed the judicial-fact-finding portions of
{¶24} “Thus, a record after Foster may be silent as to the judicial findings that appellate courts were originally meant to reviеw under
{¶25} Thus, post-Foster, “there is no mandate for judicial fact-finding in the general guidance statutes. The court is merely to ‘consider’ the statutory factors.” Foster at 42. State v. Rutter, 5th Dist. No. 2006-CA-0025, 2006-Ohio-4061; State v. Delong, 4th Dist. No. 05CA815, 2006-Ohio-2753 at ¶ 7-8. Therefore, post-Foster, trial courts are still required to consider the general guidance factors in their sentencing decisions.
{¶26} There is no requirement in
{¶27} Although a revocation proceeding must comport with the requiremеnts of due process, it is not a criminal proceeding. State v. Ryan, 3rd Dist. Union No. 14-06-55, 2007-Ohio-4743, citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Therefore, the minimum due process requirements afforded a defendant in a probation revocation proceeding diffеr from those in a criminal trial. A community control or probation revocation is not a criminal trial; therefore, appellee is not required to establish a violation of the terms of community control “beyond a reasonable doubt.” Ryan, supra, 2007-Ohio-4743, ¶ 7, citing State v. Hylton, 75 Ohio App.3d 778, 600 N.E.2d 821 (4th Dist. 1991). Instead, the state must show “substantial” proof Appellant violated the terms of his community control sanctions. Id. Substantial evidence is akin tо a preponderance-of-the-evidence burden of proof. State v. Ohly, 166 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d 675, at ¶ 18, citing State v. Hayes, 6th Dist. No. WD-00-075, unreported, 2001 WL 909291 (Aug. 10, 2001). “Substantial evidence is considered to consist of more than a mere scintilla of evidence, but somewhat less than a preponderance.” Id., citations omitted.
{¶28} While Appellant herein is only challenging his sentence, not his conviction, we do find the state demonstrated substantial proof that Aрpellant violated the terms of his community control.
{¶30} At the disposition hearing on August 2, 2018, the trial court made the following findings, determining that imprisonment was consistent with the purposes and principles of sentencing:
I find that any presumption in favor of a concurrent term is оvercome in this case because that offense, an F2 at least, right, was committed while he was on supervision for this offense and that concurrent terms would demean the seriousness of this offense necessary to protect the public and punish the offender and, frankly, his criminal history shows that consecutive terms are necessary to protect the public.
{¶31} (T. at 7).
{¶32} In its Judgment Entry, filed on August 2, 2018, thе trial court further stated:
[T]he Court considered the record, the statements of the parties, any victim impact statement and Pre-sentence Investigation Report prepared, as well as, the purposes and principles of sentencing set forth in
R.C. 2929.11 , and the seriousness and recidivism factors set forth inR.C. 2929.12 .
{¶33} Based on the foregoing, we find the trial court considered the purposes and principles of sentencing [
{¶34} Upon a thorough review, we find the reсord clearly and convincing supports the sentence imposed by the trial court. We find the trial court properly considered the purposes and principles of sentencing sеt forth in
{¶35} Appellant‘s sole assignment of error is overruled.
{¶36} For the foregoing reasons, the judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/d 0322