STATE OF OHIO v. LACARIO TAYLOR
Case No. 17CA29
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
December 11, 2017
[Cite as State v. Taylor, 2017-Ohio-8996.]
Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2016CR0240R; JUDGMENT: Affirmed
For Plaintiff-Appellee
GARY BISHOP
Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
For Defendant-Appellant
JEFFREY P. UHRICH
P.O. Box 1977
Westerville, OH 43086
{¶1} Appellant, Lacario Taylor [“Taylor“] appeals from the trial court‘s sentencing following a finding by the trial court thаt he violated the terms of his community control.
Facts and Procedural History
{¶2} On October 5, 2016, Taylor was convicted of two counts of having weapons under disability and sentenced to community control. Taylor signed documents indicating that he understood the rules and conditions of community control.
{¶3} On February 7, 2017, a Notice of Hearing/Probation Violation was filed with the court. On March 1, 2017, the trial court conducted a hearing pertaining to the alleged community control violations. Officer Daniel Myеrs, a probation officer with Richland County Adult Services, testified on behalf of the State of Ohio. Myers testified that Taylor violated his community control when he missed office visits, was not staying at his listed residence, and violated curfew. On the wеek of January 16, 2017, Taylor left his residence and went to Columbus without the permission of his probation officer. Taylor‘s probation officer found text message conversations on Taylor‘s phone related to drugs and firearms as well as a picture of what his probation officer believed to be drugs.
{¶4} The trial court found Taylor to have violated the terms and conditions of his community control. The trial court then imposed a maximum sentence of 36 months in prison.
Assignment of Error
{¶5} Taylor raises one assignment of error,
{¶6} “I. WHETHER THE TRIAL COURT ERRED IN IMPOSING A MAXIMUM PRISON SENTENCE OF THIRTY-SIX MONTHS FOR A FELONY OF THE THIRD DEGREE.”
{¶7} In accordance with
{¶8} We review felony sentences using the standard of review set forth in
{¶9} 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 does not support the trial court‘s findings under relevant statutes, or (2) the sentence is otherwise contrary to law.
{¶10} 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.
{¶11}
R.C. 2929.13(D).
{¶12}
R.C. 2929.14 (B)(2)(e).
{¶13}
R.C. 2929.14 (C)(4) Consecutive Sentences.
{¶14}
{¶15}
R.C. 2929.11 and R.C. 2929.12 and Maximum Sentences.
{¶16} A trial court‘s imposition of a maximum prison term for a felony conviction is not contrary to law as long as the sentence is within the statutоry range for the offense, and the court considers both the purposes and principles of felony sentencing set forth in
{¶17} 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 сonsistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
146 Ohio St.3d at ¶ 23, 2016-Ohio-1002, 59 N.E.3d 123.
{¶18}
{¶19}
{¶20} 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
{¶21} “Thus, a record after Foster may be silent as to the judicial findings that appellate courts were originally meant to review under
{¶22} 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 dеcisions.
{¶23} There is no requirement in
{¶24} In the case at bar, the trial court found after hearing the testimony and reviewing the record,
THE COURT: The most concerning thing and you did do okay. You had some ups аnd downs. Background for Mr. Taylor was that he did have
back in 2014, he had a probation violation in his other case. We extended his probation with Luke Mayer. He was to report with Dave Myers to CAC, but got dropped off there, got argumentative and belligerent. And then he refused to participate in that program.
Refused to cooperate and it came back and then I gave him a six-month sentence on that charge. It could have been a 12-month sentenсe, but I gave him six months.
So he did do a stint there. Then he ended up getting this case, which occurred after he got out in that case. This is in 2016. This was having a firearm in a vehicle that was stopped for speeding along with some marijuana.
And what he had talked about initially was either like flat term sentence or community control and hang the max over his head and if he messed up we are talking about a 12 month for a plea or community control. I didn‘t make any promises. He did plеad.
I did give him the opportunity. State agreed they wouldn‘t pursue any new charges against him if he did plead to the weapons under disability. He was told to behave between the change of plea and sentencing.
I did give him the opрortunity at three years of community control, but let him know that if he violated it would be more than the 12 months that was originally discussed with him.
And then we just had a sanction back on December 8th, 2016, where he did use THC. We did sanction him $100 in an attempt to work with him. Then wе had these issues.
As everybody has reiterated, the most serious part of this is the talk about the guns, the talk about the drugs, the picture of the drugs and then the talk about somebody being killed in Bowling Green and if you provide the weapon to somеone who commits a murder, you are just as guilty of murder as the person who, in Ohio law, just as guilty of the murder as the person who pulled the trigger.
I take it very seriously. I will be imposing 36 months in prison. There is three years of discretionary post-release control. If he violates post-release control, he can get an additional 50 percent of his sentence. If he commits a new felony, the greater of one year or the time remaining on post-release control supervision changed into prison. That will be the sentence of the Court.
T. Mar. 1, 2017 at 67-69.
{¶25} Although a revocation proceeding must comport with the requirements 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, thе minimum due process requirements afforded a defendant in a probation revocation proceeding differ 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
{¶26} We find the state demonstrated substantial proof that Taylor violated the terms of his community control. In the case at bar, the trial judge who conducted the original sentencing hearing heard the evidence that Taylor had violated the terms of his community control sanctions. That judge considered the testimony, including Taylor‘s statement, in determining the most appropriate manner to address the violation.
{¶27} Acсordingly, the trial court considered the purposes and principles of sentencing [
{¶28} Uрon a thorough review, we find the record clearly and convincing supports the sentence imposed by the trial court. We find the trial court properly considered the purposes and principles of sentencing set fоrth in
{¶29} Taylor‘s sole assignment of error is overruled. The judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, P.J.
Wise, John, J., and
Baldwin, J., concur