State v. TriceState v. Trice
Dated: December 11, 2019
CALLAHAN, Presiding Judge.
{¶1} Appellant, Myles Trice, appeals a judgment finding that he violated the terms of community control and imposing a prison term for his previous offenses. This Court affirms.
I.
{¶2} In 2017, Mr. Trice pleaded no contest to carrying concealed weapons and possession of marijuana. The trial court sentenced him to two years of community control. Approximately one year later, Mr. Trice pleaded guilty to violating the terms of his community control and, in a second criminal case, pleaded guilty to aggravated possession of drugs. On April 17, 2018, the trial court extended his community control for two years from the date of its order. The trial court reiterated several terms of community control that had previously been imposed and required Mr. Trice to “[e]nter and successfully complete the Oriana Halfway House program.” The trial court also informed him that “violation of any sentence imposed may lead to
{¶3} Two months later, Mr. Trice pleaded guilty to a second community control violation after he was terminated from the Halfway House program for exhibiting aggression toward staff members. On July 5, 2018, the trial court continued his period of community control, reiterated the conditions previously imposed, and required Mr. Trice to “[e]nter into * * * and successfully complete the Community Based Correctional Facility Program operated by the Oriana House and follow through with all aftercare counseling and treatment as recommended.” Approximately three months later, Mr. Trice was charged with a third community control violation after he was terminated from the Oriana House Community Based Correctional Facility Program (“CBCF“). Following a hearing, the trial court found Mr. Trice guilty of violating the terms of his community control. The trial court sentenced Mr. Trice to a prison term of 180 days in the first case and 90 days in the second case and ordered Mr. Trice to serve the terms consecutively.
{¶4} Mr. Trice appealed. His six assignments of error are rearranged for purposes of discussion.
II.
MOOTNESS
{¶5} As an initial matter, the State has argued that because Mr. Trice has served his prison terms, this appeal is moot. Mr. Trice responded to the State‘s position during oral argument. Because Mr. Trice was convicted of felonies, however, his appeal is not moot even though his sentence has been served. See State v. Golston, 71 Ohio St.3d 224 (1994), syllabus.
ASSIGNMENT OF ERROR NO. 6
THE COURT FAILED TO ADVISE MR. TRICE OF HIS SANCTIONS AND RISK IN THE JEOPARDY OF HIS CCV VIOLATION BY FAILING TO TELL HIM AT ARRAIGNMENT WHAT HIS EXPOSURE WAS UPON A FINDING OF VIOLATION.
{¶6} In his sixth assignment of error, Mr. Trice appears to argue that the requirements of
{¶7}
{¶8} Mr. Trice did not raise the trial court‘s alleged failure to comply with
{¶9} Mr. Trice‘s sixth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN FINDING MR. TRICE VIOLATED THE TERMS OF HIS COMMUNITY CONTROL IN THAT THE STATE FAILED TO CARRY ITS BURDEN OF PROOF TO PROVIDE SUFFICIENT PERSUASION FOR VIOLATION.
{¶10} In his third assignment of error, Mr. Trice argues that the trial court‘s conclusion that he violated the terms of his community control is not supported by sufficient evidence. This Court disagrees.
{¶11} Because Mr. Trice has argued that the trial court‘s decision was not supported by sufficient evidence, this Court must determine whether the State has met its burden of production by presenting sufficient evidence to demonstrate a violation of community control. See State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring). In reviewing the evidence, we do not evaluate credibility, and we make all reasonable inferences in favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). This Court has not determined whether the appropriate burden of proof at a community control revocation hearing is a preponderance of the evidence or substantial evidence, but we have affirmed a trial court‘s determination regardless when, as in this case, the evidence presented met either standard. State v. Clark, 9th Dist. Summit No. 26673, 2013-Ohio-2984, ¶ 5.
{¶12} “‘The privilege of probation [or community control] rests upon the probationer‘s compliance with the probation conditions and any violation of those conditions may properly be used to revoke the privilege.‘” (Alteration in original.) State v. Russell, 11th Dist. Lake No. 2008-L-142, 2009-Ohio-3147, ¶ 7, quoting State v. Bell, 66 Ohio App.3d 52, 57 (5th Dist.1990).
{¶13} Mr. Trice‘s probation officer testified that Mr. Trice had been assigned to her supervision in April 2017 and that he remained under her supervision throughout his period of community control. She explained that each probationer is made aware of the conditions of their community control during intake and during their initial meeting with her, and she testified that Mr. Trice was terminated from the Oriana House CBCF without successfully completing the program for a behavioral problem that she characterized as “aggression toward staff.” Mr. Trice, who also testified, acknowledged that successful completion of the CBCF program was a condition of his community control and that he did not do so.
{¶14} Viewing this evidence in the light most favorable to the State, the trial court could reasonably determine—by either measure of proof—that Mr. Trice violated the terms of his
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT‘S FINDING THAT [MR. TRICE] VIOLATED COMMUNITY CONTROL WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶15} Mr. Trice‘s fourth assignment of error argues that the trial court‘s conclusion that he violated community control was against the manifest weight of the evidence.
{¶16} When considering whether a judgment is against the manifest weight of the evidence, this Court must:
review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily against the trial court‘s judgment. Id., citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). Compare Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001).
{¶17} Mr. Trice maintains that the evidence does not support the conclusion that he violated the rules of the CBCF, so it cannot support the conclusion that he violated the terms of community control. The fact that Mr. Trice disputes the validity of the reasons for his termination from CBCF, however, does not change the fact that he did not complete the program. See State v. Miller, 5th Dist. Richland No. 10CA50, 2011-Ohio-269, ¶ 20.
{¶18} Mr. Trice also suggests that the evidence at the hearing weighed heavily in favor of the conclusion that he was terminated from CBCF for reasons beyond his control. This Court disagrees. The parties agree that the situation that precipitated Mr. Trice‘s termination from CBCF occurred during a one-hour visit by his mother and toddler-age children. According to Mr. Trice‘s mother, Oriana House employees would not allow her to bring a double stroller or outside beverages into the visitation room. She acknowledged that she became belligerent during a confrontation with the visitation staff that followed, but she denied that Mr. Trice exhibited any signs of aggression.
{¶19} Mr. Trice‘s probation officer testified that Mr. Trice was terminated from CBCF for aggressive behavior toward the staff during this visitation. The Oriana House employee who supervised visitation testified that she was called to the visitation room on the day in question to resolve a problem. She explained that when she arrived in the visitation room, she saw that Mr. Trice‘s visitor was physically restraining him from the employee in the room and she heard Mr. Trice threaten to act out at the facility. Mr. Trice agreed that this witness responded to the visitation room, but denied that he was physically aggressive and that he threatened to act out in any way. He acknowledged that he was upset, but claimed that he expressed himself at all times in a normal speaking voice.
{¶20} This Court cannot agree that this evidence weighs heavily in favor of the conclusion that Mr. Trice was terminated from CBCF for reasons beyond his control. Both he and his mother acknowledged that tensions were high during the visitation and that his mother became noticeably angry with the employee supervising visitation. They denied that Mr. Trice became aggressive, but the testimony of the Oriana House supervisor who responded to the confrontation contradicted their testimony. Mr. Trice‘s probation officer was not present, but her
{¶21} This is not the exceptional case in which the evidence weighed heavily against the trial court‘s conclusion. Mr. Trice‘s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 5
THE TESTIMONY OF THE PROBATION OFFICER WAS INSUFFICIENT FOR THE TRIAL COURT TO FIND TRICE GUILTY OF A COMMUNITY CONTROL VIOLATION AS THE TESTIMONY WAS HEARSAY.
{¶22} In his fifth assignment of error, Mr. Trice maintains that his probation officer‘s testimony about information contained in reports from Oriana House cannot provide support for the State‘s case because, as hearsay, it is unreliable. With the exception of rules regarding privilege, however, the Rules of Evidence do not apply in community control revocation hearings.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT‘S SENTENCE WAS CONTRARY TO LAW AS STATED IN R.C. 2929.15(B)(1)(C)(I) AS THE FAILURE OF MYLES TRICE TO REPORT TO HIS PROBATION OFFICER WAS A “NON-REPORTING VIOLATION,” AND, THEREFORE, A “TECHNICAL VIOLATION” BECAUSE IT WAS NOT A NEW FELONY OFFENSE AND THE COURT FOUND IT TO BE A TECHNICAL VIOLATION.
{¶23} In his first assignment of error, Mr. Trice appears to argue that the trial court violated
{¶24} Because the error that Mr. Trice complains of is not discernable from the trial court‘s journal entries, his first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE COURT ERRED IN ORDERING CONSECUTIVE SENTENCES AS IT DID NOT HAVE AUTHORITY TO DO SO, NOR DID IT ARTICULATE ANY REASONS FOR A CONSECUTIVE SENTENCE[.]
{¶25} Mr. Trice‘s second assignment of error argues that the trial court erred by imposing consecutive prison terms without making the findings required by
{¶26} As noted above, however, Mr. Trice has served his complete prison term, and as the Ohio Supreme Court has observed, “[n]either this court‘s jurisprudence nor Ohio‘s criminal-sentencing statutes allow a trial court to resentence a defendant for an offense when the defendant has already completed the prison sanction for that offense.” State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 19. Consequently, this Court sustains Mr. Trice‘s second assignment of error, but cannot reverse the trial court‘s judgment with respect to his sentence and remand for resentencing.
III.
{¶27} Mr. Trice‘s second assignment of error is sustained. His first, third, fourth, fifth, and sixth assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
SCHAFER, J. CONCURS.
HENSAL, J. CONCURRING IN JUDGMENT ONLY.
{¶28} I agree with the majority‘s disposition of this case, but write separately to clarify why I believe Mr. Trice has not established error on appeal with respect to his challenges to the sufficiency and manifest weight of the evidence.
{¶29} In its journal entries ordering Mr. Trice to complete the CBCF program, the trial court stated that:
[I]f the Defendant fails to follow the rules and regulations of the [CBCF] Program as interpreted by the [CBCF] or probation staff, said Defendant shall be taken into custody by the Summit County Sheriff‘s Office and/or Akron Police Department and transported to the Summit County Jail and held without bail until further order of this Court.
{¶30} (Emphasis added.) On appeal, Mr. Trice challenges the validity of the CBCF‘s decision to terminate him from the program for allegedly exhibiting aggressive behavior. He, however, has pointed this Court to no authority indicating that a trial court
APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.