STATE OF OHIO v. IZAIAH J. SOLOMON
CASE NO. 2017-P-0078
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
May 13, 2019
[Cite as State v. Solomon, 2019-Ohio-1841.]
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2014 CR 00650.
JUDGMENT: Affirmed in part, reversed in part and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Richard E. Hackerd, 231 South Chestnut Street, Ravenna, OH 44266 (For Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{1} Appellant, Izaiah Solomon, appeals the revocation of his community control supervision and imposition of an eight-year prison sentence. We affirm in part, reverse in part, and remand.
{2} In December 2014, Solomon pleaded guilty to aggravated robbery in violation of
{3} His community control supervision was eventually revoked in August of 2017.
{4} Solomon appeals and raises two assignments of error, which we address collectively:
{5} “[1.] Appellant was denied due process when his probation was revoked for minor violations which do not rise to a level which rationally justifies incarceration.
{6} “[2.] Appellant was denied due process when he was held liable for violations for which he was never given a charging instrument claiming the alleged violations.”
{7} Both of his assignments claim alleged due process violations.
{8} Solomon‘s first assignment argues a denial of due process because he claims his probation violations are minor and do not rise to a level justifying incarceration. His second assignment claims a violation of due process because the trial court allegedly held him responsible for probation violations for which he was not charged. In response, the state acknowledges that the trial court misstated the number of revocation motions filed against Solomon but asserts that was not the basis for the court‘s decision to revoke community control.
{9} “Community-control-revocation proceedings require a minimal threshold of due process. A community-control-revocation hearing, like a parole-revocation hearing, is not a stage of the criminal prosecution but is ‘an informal hearing structured to assure
{10} However, because Solomon did not raise these alleged violations to the trial court, he waives all but plain error. State v. Sallaz, 11th Dist. Trumbull No. 2003-T-0009, 2004-Ohio-3508, ¶ 40-41, citing State v. Gilreath (July 7, 2000), 2d Dist. Greene No. 2000-CA-1, 2000 Ohio App. LEXIS 3030, at 7; State v. Roberts, 2d Dist. Champaign No. 2016-CA-8, 2017-Ohio-481, 84 N.E.3d 339, ¶ 19.
{11}
{12} The state first moved to modify or revoke Solomon‘s supervision in March of 2016, alleging that he had used marijuana, failed to complete his drug and alcohol evaluation, and incurred additional charges, including obstructing official business, disobeying a police officer, reckless operation of a vehicle, driving without a license,
{13} Thereafter, at a December 5, 2016 hearing, the state asks the court to impose the eight-year sentence without filing a motion to revoke. It explains that the probation department can no longer work with Solomon because of his violations. The court informed the parties that there were no pending motions to revoke but instead that Solomon had been in jail for 26 days following his failure to appear at another hearing. The court then advises Solomon will remain on community control supervision but warns that the next time he violates, it will impose the prison term. Solomon was present with counsel.
{14} On June 13, 2017, Solomon was before the court, and although the state had not filed a motion to revoke his probation, it nevertheless advised the court about several violations since the December 2017 hearing, including Solomon‘s failure to attend substance abuse treatment and being late to a probation appointment. Solomon blamed a lack of transportation for his failures. The court concluded by admonishing Solomon that it did not want to send him to prison, but that he “had a big prison sentence hanging over his head.”
{15} The state filed its second motion to revoke or modify Solomon‘s supervision the next day alleging that he failed to report to his probation officer on one occasion, and
{16} The court held a status conference on August 9, 2017 at which Solomon was present with counsel. The court‘s decision thereafter finds that “he has violated the terms of his community control,” and that he will remain in jail pending the next hearing on August 21, 2017. There is no transcript of this hearing nor is it clear whether the matter was recorded. Notwithstanding, Solomon is not challenging the finding that he violated.
{17} At the August 21, 2017 hearing, the court advises that “he admitted back on August 9th,” and that they were there for disposition. As stated, the court then incorrectly finds that the state filed five motions to revoke, when in actuality it only filed two. The confusion arose because the first motion hearing was reset several times. The court also finds that community control is no longer sufficient because Solomon has continued to fail to abide by the rules governing his supervision despite being given ample opportunity to comply. Thus, it imposes the underlying eight-year sentence.
{18} Although Solomon concedes that he violated the conditions of his community control in July of 2017 by arriving 90 minutes late to probation and failing to appear for another required appointment, he nevertheless argues that the minor nature of his violations coupled with the court‘s misstatement regarding the number of motions to revoke filed, individually or collectively, do not warrant the revocation of his community control and imposition of the eight-year prison sentence, and thus constitute a denial of due process. We disagree.
{20} Thereafter, in July of 2017, the state filed its second motion to revoke and Solomon again admitted to the violations. Consequently, the court revoked his supervision and imposed the eight-year prison sentence. Thus, regardless of the court‘s misstatement at the August hearing about the number of motions to revoke that were filed, it is evident that its decision to revoke was based on Solomon‘s repeated violations of the terms of his supervision.
{21} Moreover, while Solomon argues that his violations were not “major” violations of the terms of his supervision, “[a] trial court‘s decision to revoke community control, even for a ‘minor’ violation, is not an abuse of discretion.” State v. Herald, 3rd Dist. Defiance No. 4-16-09, 2016-Ohio-7733, ¶ 28, appeal not allowed, 149 Ohio St.3d 1408, 2017-Ohio-2822, 74 N.E.3d 465; State v. South, 3rd Dist. Union No. 14-07-40, 2010-Ohio-983, ¶ 9.
{22} Accordingly, Solomon fails to establish plain error, and both of his assignments of error lack merit. The trial court‘s decision revoking Solomon‘s community control supervision is affirmed.
{23} Notwithstanding, we sua sponte find plain error in its decision to sentence him to eight years in prison for his violation based on the trial court‘s repeated statements
{24} As stated, in December of 2014, the trial court sentenced Solomon to four years community control supervision and advised him that he would serve an eight-year prison term for a violation.
{25} At a status conference on December 5, 2016, the trial court states in part, “I don‘t have any choice in the years that you are sent to prison, its eight years. That‘s what [the prior judge] gave you.”
{26} Thereafter, at the August 21, 2017 revocation hearing, which also serves as a second sentencing hearing, the trial court states in part:
{27} “This was a serious, serious offense that you got eight years for. * * *
{28} “* * *
{29} “And I can‘t go back and change the sentence that [the prior judge] gave you, but I know that probation is done, and I am done.
{30} “I am terminating your supervision. I am going to impose the originally suspended sentence that [the prior judge] gave you. * * *
{31} “* * *
{32} “I am sentencing you to the sentence that [the prior judge] suspended.
{33} “* * *
{34} “[Defense counsel:] Would the Court consider county jail time at all, then you have a lot more flexibility.
{35} “THE COURT: Eight years?”
{37} Although “a trial court sentencing an offender to a community control sanction must, at the time of the sentencing, notify the offender of the specific prison term that may be imposed for a violation of the conditions of the sanction,” upon finding a violation, the court sentences the defendant anew with discretion to impose a lesser term than that notified of at the initial sentencing. Id. at ¶ 29.
{38} “
{39} Unlike a probation revocation, which merely suspended the original term imposed, when one is sentenced to community control supervision, the defendant is
{40} Because it is evident that the trial court misstated its sentencing options, we find plain error and reverse and remand for resentencing. On remand, the court must conduct a sentencing hearing compliant with the relevant sentencing statutes and impose a term not to exceed eight years. State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965, ¶ 15.
{41} Based on the foregoing, the trial court‘s decision is affirmed in part, reversed in part, and remanded.
CYNTHIA WESTCOTT RICE, J.,
TIMOTHY P. CANNON, J.,
concur.