State v. UrbanState v. Urban
For Plaintiff-Appellee
JOEL C. WALKER
145 N. Union Street
Third Floor
Delaware, OH 43015
For Defendant-Appellant
KATHERINE R. ROSS-KINZIE
250 East Broad Street
Suite 1400
Columbus, OH 43215
{¶ 1} Defendant-Appellant Robert M. Urban, III, appeals the May 9, 2018 judgments of conviction and sentence of the Court of Common Pleas, Delaware County, Ohio which revoked his community control sanctions. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} This matter involves guilty pleas made by Urban on May 17, 2016 in three cases.
{¶ 3} In the first, case number 14CR-I-10-0463, Urban pled guilty to two counts of identity fraud, felonies of the fourth degree, and three counts of forgery, felonies of the fifth degree.
{¶ 4} In the second case, case number 14CR-I-10-0464, Urban pled guilty to misuse of credit cards, a felony of the fifth degree.
{¶ 5} In the third case, case number 16CR-I-05-0227, Urban pled guilty to two counts of identity fraud, one count being a felony of the fourth degree and the second being a felony of the fifth degree.
{¶ 6} The trial court sentenced Urban to an aggregate total of 78 months incarceration, but suspended that sentence and placed Urban on community control for three years. Among other conditions, Urban was to refrain from further criminal conduct, and was prohibited from owning any weapons or leaving the state without written permission of Adult Court Services. Additionally, Urban was to make restitution in the amount of $5,284.
{¶ 8} On May 7, 2018, a hearing was held on the matter. The state withdrew the allegation regarding the rifle, and Urban admitted to the remaining allegations. The state requested that the trial court impose Urban‘s previously suspended sentences and counsel for Urban urged the court to impose less than the entire suspended sentence. The trial court found Urban was not amenable to community control, terminated his community control, and imposed the previously suspended aggregate sentence of 78 months.
{¶ 9} Urban now brings this appeal raising two assignments of error:
I
{¶ 10} “ROBERT URBAN WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO RAISE THE SENTENCING CAPS IN
II
{¶ 11} “THE TRIAL COURT‘S PRISON SENTENCES FOR TECHNICAL AND MISDEMEANOR VIOLATIONS OF COMMUNITY CONTROL SANCTIONS ARE
{¶ 12} We address Urban‘s assignments of error together. Urban argues his sentences must be vacated because they are contrary to law as they exceed what is permitted by
{¶ 13} We review felony sentences using the standard of review set forth in
{¶ 14} 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, 477, 120 N.E.2d 118 (1954), paragraph three of the syllabus. “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.
{¶ 15} To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate: (1) deficient performance by counsel, i.e., that counsel‘s performance fell below an objective standard of reasonable representation, and (2) that counsel‘s errors
{¶ 16} Effective September 29, 2017, H.B. 49 amended
(B)(1) If the conditions of a community control sanction are violated or if the offender violates a law or leaves the state without the permission of the court or the offender‘s probation officer, the sentencing court may impose upon the violator one or more of the following penalties:
* * *
(c) A prison term on the offender pursuant to
section 2929.14 of the Revised Code and division (B)(3) of this section, provided that a prison term imposed under this division is subject to the following limitations, as applicable:(i) If the prison term is imposed for any technical violation of the conditions of a community control sanction imposed for a felony of the fifth degree or for any violation of law committed while under a
community control sanction imposed for such a felony that consists of a new criminal offense and that is not a felony, the prison term shall not exceed ninety days. (ii) If the prison term is imposed for any technical violation of the conditions of a community control sanction imposed for a felony of the fourth degree that is not an offense of violence and is not a sexually oriented offense or for any violation of law committed while under a community control sanction imposed for such a felony that consists of a new criminal offense and that is not a felony, the prison term shall not exceed one hundred eighty days.
{¶ 17} Emphasis added.
{¶ 18} Here, Urban‘s community control violations took place after the amendment of
Petitioner also invokes the sixty-day rule mentioned in a January 21, 1992 contempt order in the Inmates’ Councilmatic Voice case. Inmates’ Councilmatic Voice v. Wilkinson (Jan. 21, 1992), N.D.Ohio No. C72-1052, unreported. The order does require certain parole
revocation hearings to be held within sixty days after the date on which the parolee is arrested or held by means of a detainer. However, it plainly states that “[t]he sixty-day rule is applicable to all Ohio parolees charged by Defendants with a technical violation of a term or condition of their parole.” (Emphasis added.) Id. at 2. In Inmates’ Councilmatic Voice, supra, 541 F.2d at 635, fn. 2, the Sixth Circuit Court of Appeals defined “technical violations” as “those violations of the terms and conditions of the parole agreement which are not criminal in nature[,] such as failure to report to the parole officer, association with known criminals, leaving employment, leaving the State, etc.”
{¶ 19} In State ex rel. Taylor v. Ohio Adult Parole Auth., 66 Ohio St.3d 121, 124, 609 N.E.2d 546 (1993), the Supreme Court of Ohio adopted the definition of technical violation set forth in Inmates Councilmatic Voice v. Rodgers. Courts of appeal, including this court, have subsequently applied this definition to sentencing determinations under
{¶ 20} In the instant matter, however, the record is devoid of any indication that the nature of Urban‘s violations were considered, or that the statute as amended was considered by counsel for Urban, the state, or the trial court. We therefore vacate Urban‘s
{¶ 21} The sentencing judgements of the Delaware County Court of Common Pleas are vacated and remanded for resentencing consistent with this opinion.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
EEW/rw