STATE OF OHIO v. CINDY J. STARR
CASE NOS. CA2018-09-065 CA2018-09-066
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
5/28/2019
[Cite as State v. Starr, 2019-Ohio-2081.]
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South Riverside Drive, Batavia, Ohio 45103 for appellee
W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103 for appellant
M. POWELL, J.
{¶ 1} Appellant, Cindy Starr, appeals the sentence imposed by the Clermont County Court of Common Pleas following the revocation of her community control.
{¶ 2} In June 2015, appellant pled guilty to two fifth-degree felony counts of heroin possession in two separate cases, Case No. 2014 CR 0590 (“Case No. 590“) and Case No. 2015 CR 0065 (“Case No. 65“). The charges stemmed from appellant using heroin one
{¶ 3} Between November 2015 and January 2018, appellant‘s probation officer filed four affidavits alleging that appellant had violated the conditions of her community control by, inter alia, failing to successfully complete ordered substance abuse treatment and follow her probation officer‘s instructions. Each time, appellant was found in violation of her community control, continued on community control, and ordered to complete a specific substance abuse treatment program. Upon sentencing appellant for her fourth community control violation in January 2018, the trial court required her to complete a six-month complete lockdown treatment at the MonDay Community Correctional Institution. The sentencing entry reflecting that sentence was journalized on February 6, 2018, in Case No. 65. However, a similar sentencing entry was not journalized at that time in Case No. 590.
{¶ 4} On August 3, 2018, appellant‘s probation officer filed an affidavit in both cases, alleging that appellant had violated two conditions of her community control, namely, she was unsuccessfully discharged from the MonDay treatment program “for continued rule violations throughout her time in the program,” and she failed to follow her probation officer‘s instructions “as evidenced by the other violatio[n] within this affidavit.” On August 6, 2018, appellant appeared before the trial court and admitted violating both community control conditions. This was appellant‘s fifth community control violation in both cases. The trial court accepted the violation admission and continued the matter for sentencing on August
{¶ 5} At the August 8, 2018 sentencing hearing, the trial court found that appellant was unsuccessfully discharged from the MonDay treatment program for violating the rules of the program 30 times. The trial court further found that appellant was given numerous opportunities to successfully complete a substance abuse treatment program over the years but failed each time. The trial court terminated appellant‘s community control and sentenced her to 12 months in prison in both cases, to be served consecutively. In sentencing appellant, the trial court specifically found that the 90-day prison term limitation provision set forth in
{¶ 6} Approximately two hours after the conclusion of the August 8, 2018 sentencing hearing for appellant‘s fifth community control violation, the entry requiring appellant to successfully complete the MonDay treatment program arising from her fourth community control violation in Case No. 590 was journalized in that case. The sentencing entries terminating appellant‘s community control in both cases and sentencing her to an aggregate 24-month prison term were journalized on August 22, 2018.
{¶ 7} Appellant appeals her prison sentence, raising two assignments of error.
{¶ 8} We review a felony community control violation penalty, as we review all felony sentences, pursuant to
{¶ 9} Assignment of Error No. 1:
{¶ 10} THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO PRISON IN CASE NO. 2014-CR-0590 AS NO SENTENCING ENTRY WAS JOURNALIZED REQUIRING HER TO COMPLETE THE MONDAY PROGRAM.
{¶ 11} Appellant argues the trial court erred in sentencing her to prison in Case No. 590 following the revocation of her community control for failing to successfully complete the MonDay treatment program because the entry imposing the community control condition was not journalized until after the trial court terminated her community control in that case.
{¶ 12} It is well-established that a court speaks only through its journal entries and not by oral pronouncement or through decisions. State v. Smith, 12th Dist. Butler No. CA2009-02-038, 2010-Ohio-1721, ¶ 59; State v. Coyle, 12th Dist. Clermont No. CA97-02-014, 1997 Ohio App. LEXIS 4582, *6 (Oct. 13, 1997) (a court speaks only through its journal entries, and a pronouncement of sentence does not become the official action of the court unless and until it is entered upon the court‘s journal). Furthermore, “in order for a sanction to commence, it must first be imposed by the sentencing court. A sanction is imposed by the sentencing entry, not by what is said on the record during the sentencing hearing.” State v. Halsey, 12th Dist. Butler No. CA2016-01-001, 2016-Ohio-7990, ¶ 26.
{¶ 13} The state concedes that the trial court‘s order that appellant complete the MonDay treatment program in Case No. 590 was not effective until the sentencing entry ordering her to do so was journalized on August 8, 2018. Consequently, the state admits that “[a]ppellant could not have violated that community control condition for her failure to complete the MonDay program until after August 8, 2018. As such, when the probation
{¶ 14} However, appellant was also found to be in violation of her community control for failing to comply with her probation officer‘s instructions as ordered in the July 8, 2015 sentencing entry in Case No. 590.1 Indeed, during the August 2018 violation hearing, appellant specifically admitted to violating “Condition No. 5 of the community control entries filed 7/8/2015 in that [she] failed to follow her probation officer‘s verbal or written instructions as evidenced by the other violations contained within this affidavit.”
{¶ 15} Appellant asserts that her failure to comply with her probation officer‘s instructions related to her failure to complete the MonDay treatment program and was thus “merely duplicative of the MonDay violation.” In other words, appellant asserts there is no distinction between the trial court‘s order that she complete the MonDay treatment program and her probation officer‘s instructions that she do so. However, the two conditions are distinct and not duplicative. Appellant, in being unsuccessfully discharged from the MonDay
{¶ 16} In light of the foregoing, we find that the trial court did not err in finding appellant in violation of the terms of her community control and in sentencing her to prison in Case No. 590 following the revocation of her community control in that case.
{¶ 17} Appellant‘s first assignment of error is overruled.
{¶ 18} Assignment of Error No. 2:
{¶ 19} THE TRIAL COURT ERRED IN FINDING THAT AN INVOLUNTARY DISCHARGE FROM A DRUG TREATMENT PROGRAM IS NOT A TECHNICAL VIOLATION UNDER
{¶ 20} Appellant argues the trial court erred in sentencing her to 12 months in prison in Case No. 65 because her “involuntary” discharge from the MonDay treatment program was a technical violation under
{¶ 21}
{¶ 22} We recently held that a defendant‘s voluntary discharge from a community based correctional facility, and thus his failure to complete a substance abuse treatment there, were not a technical violation under
{¶ 23} Other appellate districts have followed Davis and likewise view the nature of a violated community control condition, for purposes of
In the case sub judice, the only difference between *** Mannah and the case at bar is that appellant was discharged from the CBCF; she did not voluntarily sign herself out. Nevertheless, the end result is the same – appellant failed to complete the STAR program, which constitutes a violation of community
control. Therefore, *** we conclude that the requirement for appellant to complete a CBCF is a special condition of community control and, thus, a non-technical violation.
Blake at ¶ 11.
{¶ 24} After failing to complete several substance abuse treatment programs, appellant was ordered by the trial court to successfully complete the MonDay treatment program. This community control condition was specifically tailored to appellant to address and treat her substance abuse issues. The condition was a substantive rehabilitative requirement which addressed a significant factor contributing to appellant‘s criminal conduct. Appellant was unsuccessfully discharged from the program and she admitted to the violation at the August 6, 2018 violation hearing. Appellant‘s “involuntary” discharge from the MonDay treatment program and thus her failure to complete treatment there was not a technical violation under
{¶ 25} In light of the foregoing, we find that the trial court did not err in finding that appellant‘s unsuccessful discharge from the MonDay treatment program was not a technical violation, and thus, that the 90-day prison term limitation of
{¶ 26} Appellant‘s second assignment of error is overruled.
{¶ 27} Judgment affirmed.
HENDRICKSON, P.J., concurs.
RINGLAND, J., concurs in part and dissents in part.
RINGLAND, J., concurring in part and dissenting in part.
{¶ 29} As an initial matter, I concur with this court‘s precedent as stated in State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672. In Davis, the defendant voluntarily signed himself out of a community based correctional facility (“CBCF“) for which he had been sentenced as part of his community control. Id. at ¶ 5. This court found the defendant‘s violation was nontechnical in nature because completing the CBCF treatment program was a special condition and substantive rehabilitative requirement addressing a significant factor contributing to his criminal conduct. Id. at ¶ 18.
{¶ 30} This court‘s decision in Davis was followed by the Fifth District in State v. Mannah, 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, where again the defendant voluntarily signed herself out of her required CBCF treatment program. Id. at ¶ 15. The Fifth District also appropriately noted that, although the defendant‘s actions in voluntarily leaving the treatment program were not criminal, the violation was nontechnical in nature and therefore the limitation in
{¶ 31} The results in Davis and Mannah are well-supported by law and further legislative intent. A similar case that bears reference is State v. Neville, 8th Dist. Cuyahoga No. 106885, 2019-Ohio-151. In Neville, the defendant was sentenced to community control with special conditions. Id. at ¶ 6. As in Davis and Mannah, although the defendant did not commit a new criminal offense, she failed to report to her probation officer from the time of her sentencing until she was arrested on a warrant over three months later. Id. at ¶ 44. In other words, the defendant failed to report at all and therefore failed to meet any of the
{¶ 32} The common thread in this line of cases is the defendant‘s voluntary refusal to comply with the conditions of community control. However, the issue in the present case is different than the situations presented in Davis, Mannah, and Neville. In this case, appellant did not voluntarily sign herself out of the MonDay program.
{¶ 33} The majority cites State v. Blake, 4th Dist. Hocking No. 18CA6, 2018-Ohio-5413 to support the position that a defendant‘s involuntary discharge from a substance abuse treatment program is not a technical violation under
{¶ 34} In Blake, the Fourth District considered the Davis and Mannah cases and noted that the only difference between the cases is that Blake was discharged from the CBCF; she did not voluntarily sign herself out. Id. at ¶ 11. Nevertheless, the court found there to be no technical violation because the “end result is the same,” i.e., the failure to complete the program, which constituted a violation of community control. Id.
{¶ 35} The focus on the “end result” does not further the legislative intent behind the adoption of
{¶ 36} As a result, I would remand this matter to the trial court for consideration of the underlying facts leading to appellant‘s involuntary dismissal. Remand is appropriate in this matter because of concern that a defendant might desire an involuntary termination, thus defeating a central purpose of community control. In resolving those questions, the trial court is in the best position to weigh the credibility of the defendant, hear the nature of the violations, and determine whether there is a technical or nontechnical violation of the conditions of community control. See Davis, 2018-Ohio-2672 at ¶ 5 (“trial court considered appellant‘s explanation [for why he voluntarily left the program] but ultimately did not believe it“). Therefore, with regard and respect for my colleagues in the majority, I dissent as to resolution of appellant‘s second assignment of error.