STATE OF OHIO v. DESHAWN REEDER
Appellate Case Nos. 2019-CA-39 & 2019-CA-40
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
October 30, 2020
2020-Ohio-5107
Trial Court Case Nos. 2018-CR-764 & 2019-CR-122; (Criminal Appeal from Common Pleas Court)
Rendered on the 30th day of October, 2020.
JOHN M. LINTZ, Atty. Rеg. No. 0097715, Clark County Prosecutor‘s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
CHARLES W. SLICER III, Atty. Reg. No. 0059927, 426 Patterson Road, Dayton, Ohio 45419
Attorney for Defendant-Appellant
OPINION
FROELICH, J.
{¶ 2} Reeder appeals from his convictions, challenging the trial court‘s imposition of prison sentences, pursuant to
I. Factual and Procedural History
{¶ 3} According to the presentence investigation report (PSI), on August 14, 2018, Springfield Police Officer Massie stopped a Jeep Cherokee that Reeder was driving due to the absence of a front license plate. Massie learned that Reeder did not have a driver‘s license. After Reeder consented to a search of his vehicle and his person, Officer Massie removed a large quantity of cash and 15 grams of marijuana from Reeder‘s front pants pockets. Officer Massie noticed a white powdery substance rolled inside the currency, and Reeder admitted to snorting cocaine using a rolled up dollar bill. Inside
{¶ 4} At the jail, Reeder initially denied that he had any contraband on his person. However, when a deputy began searching Reeder‘s pockets, Reeder indicated that he may be in possession of additional drugs. The deputy had already pulled out Reeder‘s left front pocket, and several pills dropped to the flоor. The pills were imprinted with “RP7.5 325” and were suspected to be Oxycodone. Reeder was additionally charged with trafficking in drugs and illegal conveyance of drugs. The record suggests that Reeder was released from jail the same day.
{¶ 5} In November 2018, a grand jury indicted Reeder in Case No. 2018-CR-764 for illegal conveyance of drugs of abuse onto the grounds of a specified governmental facility, in violation of
{¶ 6} The PSI further stated that, on December 28, 2018, Officers Melvin and Freeman were dispatched to a residence to check on the welfare of Mariah Hereford. The caller had indicated that Hereford was at the residence and “a male was putting his hands on her.” At the residence, the officers located Hereford, crying and looking visibly scared. She told the officers that Reeder was upset about items he observed on her
{¶ 7} The officers saw Reeder at the residence and, upon entering the basement, they observed Reeder hiding in the crawlspace. The officers ordered Reeder to come out and show his hands. Reeder was holding a white sock, which officers later found contained a plastic baggie with a white rock-like substance inside some rolled-up brown paper towels. At the plea hearing, the prosecutor indicated that the sock contained 2.51 grams of heroin. The police also found $286 on Reeder‘s person.
{¶ 8} Reeder was arrested and initially charged with abduction, domestic violence, tampering with evidence, possession of drugs, and trafficking in drugs. At the jail, a deputy discovered a piece of napkin in the crotch area of Reeder‘s sweatpants; the napkin contained a small yellow pill believed to contain Acetaminophen and Oxycodone.
{¶ 9} The same day (December 28, 2018), a police officer arrested Reeder on the November indictment. On January 4, 2019, Reeder pled not guilty in Case No. 2018-CR-764, and the court set a bond of $15,000. The arraignment entry included four conditions for the bond:
- Comply with all criminal provisions of the
Ohio Revised Code ; - Appear timely before the Court for all hearings, pre-trials, trial, and any other matters set by the Court;
- Engage in no contact, directly or indirectly, with the alleged victim or victims in this case; and
- Submit to random drug screenings.
Reeder was released on bond the same day.
{¶ 10} On February 26, 2019, Reeder was indicted in Case No. 2019-CR-122 for
{¶ 11} Reeder appeared for arraignment in Case No. 2019-CR-122 on March 1. Reeder requested, and the court granted him an own recognizance (OR) bond with conditions. The conditions, as set forth in the trial court‘s arraignment entry, were identical to those for the $15,000 bond in Case No. 2018-CR-764.
{¶ 12} On April 25, 2019, after a Crim.R. 11 colloquy, Reeder pled guilty to Count 2 of Case No. 2018-CR-764 (aggravated possession of drugs) and Count 1 of Case No. 2019-CR-122 (possession of heroin). In exchange for the pleas, the State agreed to dismiss the remaining charges in both cases. The parties further agreed that Reeder would forfeit the $6,674 in the 2018 case as proceeds of aggravated possession of drugs and the $286 in the 2019 case as an instrumentality that was used in the commission of a felony. The parties agreed to a presentence investigation. The trial court told Reeder at the plea hearing that, as an additional condition of his bond, he needed to cooperate fully with the probatiоn department during the presentence investigation.
{¶ 13} At the bottom of the plea form, the trial court found Reeder guilty, scheduled sentencing for May 16, and indicated that bond was continued “w/ C,” which apparently means “with conditions.” The trial court did not file a separate entry modifying the conditions of bond to include the requirement that Reeder cooperate fully with the
{¶ 14} According to the PSI, Reeder completed a PSI questionnaire but failed to appear for his PSI interview. The PSI states:
The defеndant was a no call no show for his PSI interview on May 07, 2019 @ 2pm. Phone the defendant on May 08, 2019 and his phone was not taking calls. Phone his father‘s number and unable to leave a voicemail on that number. The defendant‘s relative called later in the day on May 08, 2018 [sic] asking to reschedule an appointment for the defendant. This officer told her that I needed to speak with the defendant and couldn‘t schedule an appointment through a 3rd party. The defendant then showed up on the May 08, 2019 at 2:30p.m. This officer was busy and rescheduled the defendant‘s PSI interview for May 13th at 11am. The defendant then failed to show for that appointment. This PSI was completed using his questionnaire.
{¶ 15} The court held a sentencing hearing on both cases on May 16, 2019. The trial court imposed 12 months in prison for aggravated possession of drugs and 18 months in prison for possession of heroin, to be served concurrently. In imposing prison terms, the court found that it had the discretion to impose prison sentences upon Reeder, pursuant to
{¶ 16} The trial court also told Reeder, “You will receive credit for time spent in the Clark County Jail towards your sentence,” but the court did not specify the amount of jail time credit Reeder would receive. The judgment entry for Case No. 2019-CR-122 stated that Reeder would receive jail time credit for December 29, 2018 to January 4, 2019 and May 16, 2019 until conveyance to the penitentiary. The judgment entry for Case No. 2018-CR-764 did not mention jail time credit.
{¶ 17} Reeder appeals from his convictions. His original counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon our independent review, we identified two non-frivolous issues related to Reeder‘s sentence. Reeder now raises two assignments, challenging the trial court‘s imposition of prison terms under
II. Imposition of Prison Sentences
{¶ 18} In his first assignment of error, Reeder claims that his prison sentences were clearly and convincingly unsupported by the record and contrary to law. Specifically, Reeder claims that the trial court was required to impose cоmmunity control, because it failed to memorialize the orally-stated bond requirement that was the basis for the imposition of a prison sentence, i.e., that he fully cooperate with the probation department during the presentence investigation. Reeder asserts that none of the
{¶ 19} In reviewing felony sentences, appellate courts must apply the standard of review set forth in
{¶ 20}
{¶ 21} The trial court‘s arraignment entries set bonds ($15,000 in Case No. 2018-CR-764 and an OR bond in Case No. 2019-CR-122), both of which included the condition that Reeder “[a]ppear timely before the Court for all hearings, pre-trials, trial, and any other matters set by the Court.” At Reeder‘s plea hearing, the trial court orally informed
{¶ 22} Reeder argues on appeal that the trial court‘s orally-stated additional bond condition had no effect, because it was not memorialized in writing. The State responds that Reeder violated “both the original terms of his bond as set forth at the time of his arraignments and the additional condition prescribed by the court at the plea hearing.”
{¶ 23} It is well established that “a court speaks only through its journal entries, not through its oral pronouncements.” State v. Smith, 2d Dist. Montgomery No. 26217, 2015-Ohio-700, ¶ 10. See also, e.g., State v. Henderson, Ohio Slip Opinion No. 2020-Ohio-4784, ___ N.E.3d ___, ¶ 39, citing State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 15; Kaine v. Marion Prison Warden, 88 Ohio St.3d 454, 455, 727 N.E.2d 907 (2000). We agree with Reeder that, in the absence of a written entry, the condition that he “cooрerate fully with the probation department during the presentence investigation” did not become a separately-enumerated condition of his bond. Consequently, the trial court was not permitted under
{¶ 25} Because the presentence investigation interviews did not fall within the original bond conditions and there was no written bond condition that Reeder cooperate fully with the probation department during the presentence investigation, the trial court erred in concluding that Reeder had violated a term of the conditions of bond as set by the court. Accordingly, the trial court was not pеrmitted under
{¶ 26} Reeder‘s first assignment of error is sustained.
III. Jail Time Credit
{¶ 27} In his second assignment of error, Reeder claims that the trial court erred by failing to “determine and award jail time for Case No. 2018-CR-764, contrary to the Equal Protection Clause,
{¶ 28}
The department of rehabilitation and correction shall reduce the prison term of a prisoner * * * by the total number of days that the prisoner was confined
for any reason arising out of the offense fоr which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial, confinement for examination to determine the prisoner‘s competence to stand trial or sanity, [and] confinement while awaiting transportation to the place where the prisoner is to serve the prisoner‘s prison term * * *.
{¶ 29} “Although the [department of rehabilitation and correction] has a mandatory duty pursuant to
{¶ 30} Here, the trial court provided jail time credit for Case No. 2019-CR-122, but awarded no jail time credit for Case Nо. 2018-CR-764. The State concedes that, because Reeder received concurrent sentences, the trial court should have given jail time credit for both cases. The State suggests that “the best way to remedy the matter is to remand it back to the trial court for resentencing on this specific issue.”
{¶ 31} At this juncture, we must conclude that the trial court‘s failure to provide jail
{¶ 32} Reeder‘s second assignment of error is overruled as moot.
III. Conclusion
{¶ 33} Because the trial court did not have the discretion to impose prison terms under
{¶ 34} Reeder‘s community control sanctions will be deemed completed and terminated immediately. In addition, because Reeder should not have been sentenced to prison, his post-release control will be vacated.
DONOVAN, J., concurs.
WELBAUM, J., dissents:
{¶ 35} I very respectfully dissent. I believe that we cannot clearly and convincingly find that the record does not support the sentencing court‘s finding under
{¶ 36} With this in mind, I disagree with the majority‘s conclusion that “the trial court did not file a separate entry modifying the conditions of bond to include the requirement that Reeder cooperate fully with the probation department during the presentence investigation.” Although the “Judgment Entry of Guilty” was located on the last page of Reeder‘s plea form, it was nevertheless a separately signed entry by which the trial court journalized not only Reeder‘s guilty plea, but the trial court‘s decision to continue Reeder‘s bond with conditions. When considering the trial court‘s advisement about the additional condition of bond at the plea hearing, I believe the language “[b]ond is cont. w/c” in the “Judgment Entry of Guilty” necessarily encompassed the additional condition requiring Reeder to cooperate with the probation department during his presentence investigation.
{¶ 37} This court has indicated that a defendant must receive “prior notice” of the conditions of his bond in order for a prison term to be authorized for violating those conditions under
[A]t no time during the plea hearing was Springer ever informed by the trial court that as a condition оf her OR bond, she would be subject to random drug screenings. Unless otherwise expressed by the trial court, the only condition of an own-recognizance bond is that the defendant appear on the date specified by the court. See State v. Crawford, 2d Dist. Montgomery No. 26073, 2014-Ohio-4599. As done by the trial court in [State v. Hughey, 10th Dist. Franklin No. 13AP-135, 2013-Ohio-4155], the court here should have informed Springer at her plea hearing that she would be subject to random screenings as a special condition of her own-recognizance bond. The plain language of
R.C. 2929.13(B)(1)(b)(iii) expressly states that the trial court can avoid the presumption of community control and “impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence” only if “[t]he offender violated a term of the conditions of bond as set by the court.”Here, it is undisputed that at no time did the trial court expressly state that as a special condition of Springer‘s own-recognizance bond, she would be subject to random drug screenings. All that was required of Springer was that she appear for her sentencing hearing, whiсh she did. Thus, the trial court violated Springer‘s constitutional right to due process
when he, without any prior notice, ordered her to submit to a drug screen at the sentencing hearing. We note that this opinion should in no way be understood to condone or turn a blind eye to the use of illegal drugs. Rather, we simply find that a trial court is required to provide notice to a defendant if it intends to order him or her to submit to a drug screen as a condition of an own-recognizance bond. Therefore, we find that because Springer did not violate “a term of the conditions of bond as set by the court,” the trial court plainly erred when it imposed a prison sentence upon appellant. R.C. 2929.13(B)(1)(b)(iii) .
(Emphasis added.) Springer at ¶ 19-20.
{¶ 38} Unlike Springer, in the present case, the trial court provided the required notice at the plea hearing when it advised Reeder of the additional bond condition that he cooperate with the probation department during the PSI. As noted by the majority, Reeder failed to cooperate with the probation department by not appearing twicе for scheduled PSI interviews. Reeder therefore violated a condition of his bond. Accordingly, the trial court‘s finding in that regard was not unsupported by the record.
{¶ 39} The facts of the present case are nearly identical to that in State v. Ward, 2d Dist. Clark No. 2017-CA-81, 2018-Ohio-2572. In Ward, the trial court imposed conditions of bond at the arraignment hearing and subsequently imposed an additional condition of bond at the plea hearing that required Ward to “cooperate fully with the probation department during the PSI.” Id. at ¶ 2-3. Although it was not indicated in Ward whether the trial court journalizеd the additional bond condition, we affirmed the trial court‘s decision to impose a prison sentence for Ward‘s fourth-degree felony under
In this case, the trial court found that the factor in
R.C. 2929.13(B)(1)(b)(iii) applied to Ward because he violated not just one, but two conditions of his bond. As previously discussed, the first violation resulted from Ward possessing and using drugs while on bond. The second violation resulted from Ward failing to cooperate with the probation department during his PSI interview. Due to the second bond violation for failing to cooperate with the рrobation department, Ward would have been eligible for a prison term underR.C. 2929.13(B)(1)(b)(iii) regardless of the incriminating statements he made about his drug use and possession.
Id. at ¶ 13.
{¶ 40} Moreover, I believe it is apparent from the record that Reeder also violated the terms of one of the original bond conditions that the trial court imposed during the arraignment proceedings. Specifically, the trial court ordered Reeder to: “Appear timely before the Court for all hearings, pre-trials, trial, and аny other matters set by the Court.” Arraignment Entry p. 1. I believe Reeder‘s failure to attend his scheduled PSI interviews violated this condition.
{¶ 41} The majority claims this bond condition was not violated because the scheduled PSI interviews were not set “before the Court” or set “by the Court.” However, it is generally accepted that a bond condition may be reasonably implied. State v. Clem, 2d Dist. Clark No. 2019-CA-61, 2020-Ohio-690, ¶ 11. In Clem, we noted that: “The Tenth District Court of Appeals found that the inclusion of language regarding random drug screenings, alone, was sufficient to notify the аccused that ‘refraining from the use of such
{¶ 42} In my opinion, the bond condition requiring Reeder to “[a]ppear timely before the Court for all hearings, pre-trials, trial, and any other matters set by the Court” necessarily implies that Reeder must attend all court-ordered appearances. Therefore, because the trial court ordered a PSI to be completed, I believe Reeder‘s attendance at the PSI interview qualified as a matter set by the trial court. Accordingly, Reeder‘s failure to attend the PSI interview necessarily violated the condition that he timely appear for “any other matters set by the Court.”
{¶ 43} For all the foregoing reasons, I believe this court cannot clearly and convincingly find that there was nothing in the record to support the trial court‘s finding that Reeder violated a condition of his bond. Therefore, I would find that the trial court had discretion under
Copies sent to:
John M. Lintz
Charles W. Slicer, III
Clark County Probation Office
Hon. Douglas M. Rastatter