State v. Stanley , 2016 Ohio 1540 ( 2016 )

[Cite as State v. Stanley, 2016-Ohio-1540.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103152
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
NATHANIEL L. STANLEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-13-571958-A and CR-13-572416-A
BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: April 14, 2016
FOR APPELLANT
Nathaniel L. Stanley, pro se
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: John Farley Hirschauer
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Appellant, Nathaniel L. Stanley, brings this delayed appeal challenging the
prison sentence he received in two separate cases. He argues that his one-year term of
community control ended and the court did not properly extend that period. Therefore,
the court could not have sentenced him to prison after he violated terms of his community
control. After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
{¶2} On August 2, 2013, appellant entered guilty pleas to charges in two cases. In
Cuyahoga C.P. No. CR-13-572416-A, appellant pled guilty to one count of fourth-degree
felony drug possession, a violation of R.C. 2925.11(A), and one count of fifth-degree
felony drug possession, a violation of R.C. 2925.11(A)(2). These charges carried
forfeiture specifications for cash and a cell phone. Two other charges were dismissed as
part of the plea agreement. In Cuyahoga C.P. No. CR-13-571958-A, appellant pled
guilty to one count of fifth-degree felony drug trafficking, a violation of R.C. 2925.11(A).
This charge had been reduced from a third-degree felony and two other counts were
dismissed as part of the plea agreement. The charge to which appellant pled guilty also
included forfeiture specifications for cash and a cell phone.
{¶3} A sentencing hearing was conducted on October 16, 2013. The court
imposed a one-year period of community control that included six months in a
community-based correctional facility. The court also imposed costs. Appellant was
informed that if he violated community control he would be subject to a total of three and
one-half years in prison. The court gave appellant a stern warning about the
consequences of violating community control because the court was taking a chance on
appellant to get him help with his claimed drug addiction.
{¶4} On June 4, 2014, entries on the docket of appellant’s two criminal cases
indicated that he could complete court community work service (“CCWS”) in lieu of
court costs and supervision fees as requested by the probation department.
{¶5} Docket entries filed September 24, 2014 in appellant’s two lower court cases
reflect that appellant’s term of community control was extended to April 16, 2014.
These docket entries state, “[p]er request from probation officer Hoiseth; Defendant’s
supervision is extended to 4/16/2015 to complete community work service and IOP.”
The docket does not reflect a hearing regarding this order and the transcripts included in
the record do not evidence a hearing.
{¶6} On January 13, 2015, the court held a community control violation hearing.
Appellant appeared and was represented by counsel. According to evidence adduced at
the hearing, appellant had violated the terms of his community control when he failed to
attend mandatory after care drug treatment sessions and twice tested positive for drug use.
The court imposed a prison sentence totaling two and one-half years as a result of the
violations. The court imposed an additional 30-day jail term after appellant cursed
during the hearing.
{¶7} Appellant filed this delayed appeal with leave of this court arguing the
following error:
I. [The] trial court’s [September 24, 2014] journal entry is void/void ab
initio on its face since the sua sponte order extending
supervision/community control was ineffective leaving [the] trial court
without jurisdiction to impose any prison term for any violation after the
one year community control supervision had expired.
II. Law and Analysis
{¶8} Appellant claims the court’s journal entry extending the period of his
community control was ineffective because appellant was not provided with notice and a
hearing.
{¶9} R.C. 2951.07 gives a court the authority to extend community control
sanctions so long as the total period of community control does not exceed five years.
When the court extends a period of community control, it must have a rational basis for so
doing. State v. Washington, 8th Dist. Cuyahoga Nos. 101157 and 101170,
2015-Ohio-305, ¶ 29, citing State v. Rose, 8th Dist. Cuyahoga No. 70984, 1997 Ohio
App. LEXIS 1072 (Mar. 20, 1997). Further, “‘the due process procedures required in
probation revocation hearings need not be employed in court actions which extend the
time one must remain on probation.’” Rose at *7, quoting State v. Jones, 60 Ohio
App.2d 178, 396 N.E.2d 244 (1st Dist.1978), syllabus. See also Forgues v. United
States, 636 F.2d 1125 (6th Cir.1980). In this line of cases, courts hold that a defendant
could waive an opportunity for a hearing by executing a waiver without written notice of
the violation or violations.
{¶10} In the normal course, a hearing waiver is executed relieving the court of any
obligation to hold a hearing to extend the duration of community control. That was the
procedure employed in several cases to avoid the argument appellant raises herein. See,
e.g., Rose at *7. In the present case, there is no evidence of a hearing waiver.
{¶11} Even without a signed waiver, appellant may waive his due process rights by
acquiescence. State v. Swails, 8th Dist. Cuyahoga No. 100480, 2014-Ohio-3711. In
Swails, this court was faced with the same situation presented in the present case. The
trial court twice extended Swails’s term of community control without written notice or a
hearing. Id. at ¶ 3. After each extension, Swails continued to report to his probation
officer, and continued to make partial payments toward restitution and court costs. This
court held,
Swails’s argument that he lacked notice of the two extensions is
unpersuasive because Swails continued to report to his probation officer for
the duration of both extensions, and he continued to make partial payments,
which spanned a period of two years. Swails could not have continued to
report without first having notification of the extensions. This knowledge
afforded Swails the opportunity to appeal the extensions at the time they
were imposed if he felt they were improper. The record is clear that Swails
did not appeal from either extension. “By * * * submitting himself to the
jurisdiction of the court over his person by accepting the extension of
community control and complying with its terms for more than a year
before the motion to revoke was filed, appellant has waived any error in the
court’s failure to give him notice and a hearing at the time of the * * *
extension of community control.” State v. Carpenter, 5th Dist. Stark No.
2008 CA 00238, 2009-Ohio-4759, ¶ 16. Therefore, by acquiescing to the
terms of both extensions, we find that Swails has waived any alleged error
regarding their imposition.
Id. at ¶ 8.
{¶12} The present case represents the same situation. Appellant’s term of
community control was extended by one year in order to give appellant time to pay his
court costs. Appellant continued to report even though his original term had expired.
He did not appeal the extension or otherwise object.
{¶13} Similarly, this court found the extension of probation without notice or a
hearing was justified where a probationer failed to pay court costs. State v. Criss, 55
Ohio App. 3d 238, 563 N.E.2d 727 (8th Dist.1988). There, this court held, “[a] review of
the docket clearly reflects that appellant has not paid any part of the $866.85 costs as
charged. Thus, we hold that the trial court acted within its discretion when it extended
appellant’s probation period without a hearing for the nonpayment of court costs.” Id. at
238.
{¶14} The Fifth District has reached the same conclusion when addressing a
similar case. Carpenter, 5th Dist. Stark No. 2008 CA 00238, 2009-Ohio-4759. The
Carpenter court held that the appellant had waived any claimed error in the extension of
his community control without notice or a hearing:
Appellant’s claim that the court erred in extending his community control
without notice and a hearing is either a claim that the court lacked personal
jurisdiction over him at the time it extended community control, or violated
his procedural due process rights in the extension of community control. By
failing to appeal the order extending community control, failing to move to
dismiss the motion to revoke his probation for want of jurisdiction and
submitting himself to the jurisdiction of the court over his person by
accepting the extension of community control and complying with its terms
for more than a year before the motion to revoke was filed, appellant has
waived any error in the court’s failure to give him notice and a hearing at
the time of the February 10, 2006, extension of community control.
Id. at ¶ 16.
{¶15} Here, appellant failed to timely object or appeal the extension of his
community control. As a result, the trial court’s order extending his probation was not
void ab initio as appellant claims.
III. Conclusion
{¶16} Appellant continued to comply with his community control requirements
even after the initial term expired. Appellant did not appeal from this extension or
otherwise object. Appellant had notice of the extension and the reason for the extension
was for the failure to pay court costs or complete CCWS. This violation is of a
ministerial nature and the resultant extension did not deprive appellant of his due process
rights where he waived objection.
{¶17} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed. The court
finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
_______________________________________________
FRANK D. CELEBREZZE, JR., JUDGE
EILEEN T. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR