State v. Berry , 2012 Ohio 4660 ( 2012 )


Menu:
  • [Cite as State v. Berry, 
    2012-Ohio-4660
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    DEFIANCE COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                               CASE NO. 4-12-04
    v.
    SIDNEY A. BERRY,                                          OPINION
    DEFENDANT-APPELLANT.
    Appeal from Defiance County Common Pleas Court
    Trial Court No. 09 CR010610
    Judgment Affirmed
    Date of Decision: October 9, 2012
    APPEARANCES:
    Terice A. Warncke for Appellant
    Morris J. Murray and Russell R. Herman for Appellee
    Case No. 4-12-04
    SHAW, P.J.
    {¶1} Defendant-appellant Sidney A. Berry (“Berry”) appeals the December
    19, 2011, judgment of the Defiance County Common Pleas Court finding Berry in
    violation of Berry’s community control and sentencing Berry to five years in
    prison. For the reasons that follow, we affirm the judgment of the trial court.
    {¶2} On September 4, 2009, Berry was indicted for two counts of
    Intimidation of a Victim or Witness in a Criminal Case, in violation of R.C.
    2921.04(B), both felonies of the third degree, and two counts of Aggravated
    Menacing, in violation of R.C. 2903.21(A), both misdemeanors of the first degree.
    {¶3} After originally pleading not guilty, Berry later agreed to plead no
    contest to one count of Intimidation of a Victim or Witness in a Criminal Case, in
    exchange the State agreed to dismiss the remaining charges in this case and the
    charges in another pending criminal case against Berry.1 The State further agreed
    to recommend that Berry be sentenced to community control.
    {¶4} On April 19, 2010, the court held a change of plea hearing and went
    through a thorough Criminal Rule 11 colloquy with Berry. (Doc. 55). Ultimately
    the court accepted Berry’s plea and found him guilty. (Doc. 20). The court then
    requested a pre-sentencing investigation and set the matter for sentencing. (Id.)
    1
    The other “pending” criminal case against Berry is only mentioned in passing in the record. There are no
    specific documents pertaining to it contained within the record before us.
    -2-
    Case No. 4-12-04
    {¶5} On May 20, 2010, Berry filed a motion to withdraw his plea. (Doc.
    21). On June 16, 2010, the court held a hearing on Berry’s motion to withdraw his
    plea. Finding that Berry had essentially only changed his mind, the court denied
    Berry’s motion. (Doc. 24).
    {¶6} Subsequently on that same day, the court proceeded to sentence Berry.
    The court sentenced Berry to two years of community control in an entry that
    contained the following language:
    Based upon all of the foregoing considerations and in
    consideration of all statutory sentencing factors, it is now
    therefore ORDERED, ADJUDGED and DECREED that for the
    offense of Intimidation of a Victim or Witness in a Criminal
    Case, a Felony of the Third Degree, in violation of Ohio Revised
    Code Section 2921.04(B), as charged in the [sic] Count One of
    the Indictment, the Court reserves a five (5) year basic prison
    term at the Ohio Department of Rehabilitation and Corrections
    at Orient, Ohio, in the event of a violation of Community
    Control; however, the Defendant is hereby Sentenced to
    Community Control Sanctions for a period of two (2) years
    under the Standard Terms and Conditions of Community
    Control as established by Rule of Court together with the
    following Special Condition * * *[.]
    (Doc. 24).
    {¶7} On November 17, 2010, the State filed a motion to revoke Berry’s
    community control claiming that Berry violated his curfew, Berry had not made
    any payments toward his financial obligations, and that Berry attempted to have
    contact with a person he was prohibited from contacting. (Doc. 25). On January
    11, 2011, the State filed a supplemental motion to revoke Berry’s community
    -3-
    Case No. 4-12-04
    control as Berry’s whereabouts were unknown. (Doc. 23). On April 11, 2011, the
    State filed a third motion to revoke Berry’s community control, adding to the other
    allegations that Berry had violated his community control by associating with a
    convicted felon, that Berry had been found possessing marijuana, and that Berry
    had been found outside of the state of Ohio without his supervising officer’s
    permission. (Doc. 24-2).2
    {¶8} On April 20, 2011, the court held a hearing to determine whether there
    was probable cause to find Berry had violated community control. After hearing
    testimony from Officer Thomas Sanford who had supervised Berry since June 16,
    2010, the court determined there was probable cause. (Doc. 28).
    {¶9} On May 19, 2011, the court held a hearing to determine whether Berry
    had, in fact, violated his community control. After hearing testimony that Berry,
    inter alia, left the county without permission, possessed marijuana, and had not
    paid on his fees the court determined Berry had violated his community control.
    (Doc. 59 at 7-13). However, although the court found that Berry violated his
    community control, the court chose not to send Berry to prison. The court chose
    instead to keep Berry on community control and require as an additional condition
    that Berry successfully complete a program called SEARCH.3 (Doc. 29).
    2
    This document in the record was mistakenly numbered Doc. 24, creating two document “24s”.
    3
    SEARCH “focuses on rehabilitating male convicted felons who suffer from substance abuse issues with
    various programming and teaching of positive life choices and skills, etc.” (Appt. Br. at 1).
    -4-
    Case No. 4-12-04
    {¶10} On June 17, 2011, Berry entered the SEARCH program. On October
    7, 2011, Berry was terminated unsuccessfully from the SEARCH program.
    {¶11} On October 18, 2011, the State filed a motion to revoke Berry’s
    community control, arguing that Berry did not complete the SEARCH program as
    required by the new condition of his community control.
    {¶12} On October 19, 2011, the court held a hearing to determine whether
    there was probable cause to terminate Berry’s community control. After hearing
    testimony that Berry was terminated from the SEARCH program, the court found
    that there was probable cause.
    {¶13} On December 15, 2011, the court held a hearing to determine
    whether Berry had violated his community control. At the hearing, the State
    called Officer Sanford, and Officer Sanford identified a termination summary that
    he received showing that Berry had not successfully completed the SEARCH
    program as required. (State’s Ex. 1).
    {¶14} The State next called Patrick Davis, a case manager from Northwest
    Community Corrections Center. (Doc. 61 at 12). Berry was part of Davis’
    caseload during the time Berry was in the SEARCH program.            (Id.)   Davis
    testified that Berry had behavioral problems while in the SEARCH program and
    had been sanctioned 17 times for his behavior. (Id. at 29). Davis testified that
    shortly before Berry was terminated from the program, Berry refused to participate
    -5-
    Case No. 4-12-04
    in anything, and refused to sign a behavioral contract that would hold Berry
    accountable for his behavior. (Id. at 19-20). One of the exhibits the State entered
    into evidence contained a summary illustrating that for essentially an entire day
    Berry stayed in his bed, would not speak to or acknowledge the staff, would not
    eat, would not take his medication, would not sign the behavioral contract, and
    would not relinquish his radio. (State’s Ex. 1). At that point Berry was not only
    failing to comply with instructions, he was also completely failing to participate in
    SEARCH. Davis stated that SEARCH gave Berry second and third chances
    before removing Berry from the program. (Id. at 40). Ultimately, Davis testified
    that Berry was terminated unsuccessfully from the program.
    {¶15} In his defense, Berry called several other people that had been in the
    SEARCH program with him. Berry’s witnesses testified that Berry was trying to
    get better. Berry then testified himself, arguing that he was being treated unfairly
    and that his infractions in the SEARCH program were minor and non-violent.
    {¶16} After hearing all of the testimony, the court determined that Berry
    had violated his community control. The court then revoked Berry’s community
    control and imposed the five year prison sentence. This was memorialized in a
    judgment entry filed December 19, 2011. (Doc. 39).
    {¶17} It is from this judgment that Berry appeals, asserting the following
    assignments of error for our review.
    -6-
    Case No. 4-12-04
    ASSIGNMENT OF ERROR 1
    THE COURT VIOLATED OHIO FELONY SENTENCING
    STATUTES BY INITIALLY SENTENCING SIDNEY BERRY
    TO BOTH PRISON AND COMMUNITY CONTROL.
    ASSIGNMENT OF ERROR 2
    THE COURT ABUSED ITS DISCRETION IN REVOKING
    MR. BERRY’S COMMUNITY CONTROL.
    First Assignment of Error
    {¶18} In Berry’s first assignment of error, Berry argues that the trial court
    erred by improperly sentencing Berry to both prison and community control.
    Specifically, Berry argues that the trial court imposed a “reserved” prison term
    and community control at sentencing and Berry argues that such a sentence is
    improper pursuant to our recent decision in State v. Hartman, 3d Dist. No. 15-10-
    11, 
    2012-Ohio-874
    .
    {¶19} An appellate court must conduct a meaningful review of the trial
    court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-
    Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No.2003-P-0007, 2004-Ohio-
    1181. A meaningful review means “that an appellate court hearing an appeal of a
    felony sentence may modify or vacate the sentence and remand the matter to the
    trial court for re-sentencing if the court clearly and convincingly finds that the
    record does not support the sentence or that the sentence is otherwise contrary to
    law.” Daughenbaugh at ¶ 8, citing Carter at ¶ 44; R.C. 2953.08(G)(2).
    -7-
    Case No. 4-12-04
    {¶20} In 1996, new sentencing statutes contained in Am. Sub.S.B. No.2
    (“S.B.2”) took effect, which inter alia, prohibit a trial court from imposing both a
    prison sentence and community control sanctions on the same offense. State v.
    Vlad, 
    153 Ohio App.3d 74
    , 78, 
    2003-Ohio-2930
     (7th Dist.); State v. Hoy, 3d Dist.
    Nos. 14-04-13, 14-04-14, 
    2005-Ohio-1093
    , ¶ 18. As we have explained:
    [p]rior to S.B. 2, it was a regular practice in felony sentencing to
    impose a prison sentence and then suspend the sentence and
    grant probation with specific terms and conditions. That option
    was removed by the felony sentencing statutes adopted as part of
    S.B. 2.
    Hoy at ¶ 18.
    {¶21} This district has determined that “there is no provision in the
    sentencing statute which permits a court to suspend a prison term or make
    community control a condition of a suspended prison term.” State v. Riley, 3d
    Dist. No. 14–98–38 (Nov. 12, 1998). Rather, current felony sentencing statutes,
    contained primarily in R.C. 2929.11 to 2929.19, require trial courts to impose
    either a prison term or community control sanctions on each count. State v.
    Williams, 3d Dist. No. 5-10-02, 
    2011-Ohio-995
    , ¶ 17 citing Hoy. Pursuant to R.C.
    2929.19(B), community control sanctions and prison terms are mutually exclusive
    and cannot be imposed at the same time on the same count of conviction. State v.
    Randolph, 12th Dist. No. CA2003-10-262, 
    2004-Ohio-3350
    , ¶ 9.               Because
    community control sanctions are directly imposed and do not follow as a
    -8-
    Case No. 4-12-04
    consequence of a suspended prison sentence, trial courts must decide which
    sentence is most appropriate and impose whichever option is deemed to be
    necessary. Vlad at ¶ 16.
    {¶22} Revised Code 2929.19(B)(4), the statutory provision governing
    sentencing of community control sanctions reads as follows:
    (4) If the sentencing court determines at the sentencing hearing
    that a community control sanction should be imposed and the
    court is not prohibited from imposing a community control
    sanction, the court shall impose a community control sanction.
    The court shall notify the offender that, if the conditions of the
    sanction are violated, if the offender commits a violation of any
    law, or if the offender leaves this state without the permission of
    the court or the offender's probation officer, the court may
    impose a longer time under the same sanction, may impose a
    more restrictive sanction, or may impose a prison term on the
    offender and shall indicate the specific prison term that may be
    imposed as a sanction for the violation, as selected by the court
    from the range of prison terms for the offense pursuant to
    section 2929.14 of the Revised Code.
    R.C. 2929.19(B)(4).
    {¶23} It is necessary to begin our analysis of the trial court’s sentencing
    entry in this case by clarifying our holding in Hartman, the case Berry relies on to
    argue that his sentence was improper, so as to prevent further confusion on this
    topic in the future. In Hartman, we found that the defendant’s sentence was
    improper as the trial court sentenced the defendant to both prison and community
    control. In the trial court’s sentencing entry in Hartman, the trial court explicitly
    sentenced the defendant to four years of incarceration on each of five counts. The
    -9-
    Case No. 4-12-04
    trial court actually used the language “the Defendant is hereby sentenced as
    follows” and then stated the prison term for each count. Hartman, 2012-Ohio-
    874, at ¶ 2. The trial court continued in its next paragraph in the sentencing entry
    to “reserve” or, essentially, suspend the prison sentences on four of the five
    counts. 
    Id.
     In the third paragraph, the trial court then sentenced the defendant to
    community control. 
    Id.
    {¶24} What compelled us to reverse in Hartman was the fact that the trial
    court had simultaneously sentenced the defendant to both prison and community
    control and attempted to reconcile this by reserving, or effectively, suspending, the
    original prison sentence. Our holding in Hartman (and the cases that came before
    it) was thus that a trial court could not explicitly sentence a defendant to prison
    and community control.
    {¶25} The purpose of the community control statute cited above is not to
    sentence a defendant to a specific prison term and then suspend or reserve that
    prison term, the purpose is to notify a defendant of a specific prison term that a
    defendant will receive if he violates community control.         The key is that a
    defendant must be notified of the prison sentence the defendant would receive if
    the defendant violated his community control, not sentenced to that prison term.
    {¶26} In the case sub judice, Berry argues that the trial court’s usage of the
    word “reserved” regarding his prison sentence is an error. Berry claims that
    -10-
    Case No. 4-12-04
    pursuant to our holding in Hartman, by the trial court using the word “reserved”
    Berry had been effectively sentenced to prison and community control making his
    sentence improper. The trial court’s entry reads:
    Based upon all of the foregoing considerations and in
    consideration of all statutory sentencing factors, it is now
    therefore ORDERED, ADJUDGED and DECREED that for the
    offense of Intimidation of a Victim or Witness in a Criminal
    Case, a Felony of the Third Degree, in violation of Ohio Revised
    Code Section 2921.04(B), as charged in the [sic] Count One of
    the Indictment, the Court reserves a five (5) year basic prison term
    at the Ohio Department of Rehabilitation and Corrections at
    Orient, Ohio, in the event of a violation of Community Control;
    however, the Defendant is hereby Sentenced to Community
    Control Sanctions for a period of two (2) years under the Standard
    Terms and Conditions of Community Control as established by
    Rule of Court together with the following Special Condition * *
    *[.]
    (Doc. 24) (Emphasis Added.).
    {¶27} As can be seen from a plain reading of the italicized portion of the
    entry cited above, the court never explicitly sentences or imposes the five year
    prison term on Berry as it did in Hartman or the cases we relied upon in Hartman.
    On the contrary, the court only sentences Berry to community control. Berry is
    not sentenced in any way to a prison term. The statement by the court in its entry
    merely notifies Berry of the potential prison term he would receive if he violated
    community control—the specific prison term is not imposed and then suspended
    as it was in Hartman, Vlad, Hoy, or Williams, supra.
    -11-
    Case No. 4-12-04
    {¶28} While there may exist some potential for confusion in the use of the
    term “reserved,” we note that several appellate districts have found or implied that
    the use of the word “reserve” is permissible when notifying a defendant of a prison
    term he or she would receive upon violating a community control sanction. State
    v. Barnes, 6th Dist. No. F-06-005, 
    2007-Ohio-1610
    , ¶ 8; See State v. Grodhuas,
    4th Dist. No. 00CA40, 
    2001-Ohio-2511
     (where court used the term “reserve” in
    contemplation of a prison term for a community control violation); See State v.
    Honchell, 12th Dist. No. CA2003-10-085, 
    2004-Ohio-3014
    , ¶ 10 (where the court
    reversed for not specifying a specific prison term associated with community
    control but used the term “reserved” when discussing the prison term implying
    that “reserve” was an appropriate term).
    {¶29} Our own court has found this as well in the past, and we clarify now
    that Hartman does not stand for the principle that using the term “reserved”
    creates an error in sentencing. See State v. Marvin, 3d Dist. Nos. 14-98-54, 14-98-
    59, 
    1999-Ohio-811
     (wherein implying that using the term reserved is not only
    permissible but appropriate). Moreover, in his brief, Berry points us to no case
    law that would stand for the specific proposition that using the word “reserved”
    regarding a prison sentence was inappropriate without also having the error as
    exhibited under Hartman of simultaneous sentences to prison and community
    control.
    -12-
    Case No. 4-12-04
    {¶30} Here, unlike in Hartman, Berry was not sentenced to a prison term
    and community control. He was specifically sentenced to community control and
    notified, that if he violated community control he would be facing five years in
    prison.      Therefore, we find no error in Berry’s sentence under our previous
    holding in Hartman.
    {¶31} Accordingly, Berry’s first assignment error is overruled.
    Second Assignment of Error
    {¶32} In Berry’s second assignment of error, he argues that the trial court
    abused its discretion in revoking his community control. Specifically Berry argues
    that he substantially complied and nearly completed his two-year community
    control, and that the trial court’s decision was not factually supported by the
    record.
    {¶33} The decision of a trial court finding a violation of community control
    will not be disturbed absent an abuse of discretion. State v. Ryan, 3d Dist. No. 14-
    06-55, 
    2007-Ohio-4743
     at ¶ 7. An abuse of discretion constitutes more than an
    error of law or judgment and implies that the trial court acted unreasonably,
    arbitrarily, or unconscionably. Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    , 219
    (1983). When applying the abuse of discretion standard, a reviewing court may
    not simply substitute its judgment for that of the trial court. 
    Id.
    -13-
    Case No. 4-12-04
    {¶34} Berry argues that his community control was revoked unjustly after
    Berry had substantially complied with the SEARCH program and had nearly
    completed the two years of his community control. However, despite Berry’s
    arguments about being unfairly treated and improperly dismissed from community
    control, Berry’s unsuccessful termination from SEARCH was a second
    adjudicated violation of Berry’s community control.
    {¶35} For the first set of violations the State filed multiple motions to
    revoke Berry’s community control for a variety of reasons which included Berry
    being charged with another crime, namely drug possession, Berry leaving the state
    without permission, Berry’s whereabouts being unknown, etc. For the second
    violation, the State alleged that Berry did not complete the SEARCH program as
    was required by the court following Berry’s last community control violation.
    {¶36} Before the court sent Berry to the SEARCH program, the court
    informed Berry that Berry probably would not like SEARCH because the rules
    were strict. (Doc. 59 at 38-39). Still, Berry was sent to the SEARCH program and
    told he needed to successfully complete SEARCH and Berry failed to do so.
    There is no dispute in the record that Berry was unsuccessfully terminated from
    the SEARCH program as required under the terms of his community control.
    {¶37} Berry does argue that he was improperly dismissed from the
    SEARCH program, but the record contains evidence that would support Berry’s
    -14-
    Case No. 4-12-04
    dismissal including Berry having 17 sanctions for poor behavior. (Doc. 61 at 29).
    Moreover, the record contains evidence that at one point, Berry essentially shut
    down and would not sign a behavioral contract to hold him accountable for his
    actions, would not speak to staff members, would not eat or take meals, would not
    relinquish his radio, and would not acknowledge the presence of staff members.
    (State’s Exs. 1-2). Only after Berry completely refused to participate did the staff
    terminate Berry from the program. It is hard to see how the staff had any other
    option aside from terminating Berry from the program when Berry would not
    speak to or acknowledge the staff as they attempted to give him yet another chance
    through a behavioral contract.
    {¶38} Ultimately we cannot find under these circumstances that the court in
    any way abused its discretion in terminating Berry’s community control. Berry
    had a variety of violations that resulted in not one but two findings that Berry had
    violated his community control. Accordingly, Berry’s second assignment of error
    is overruled.
    {¶39} For the foregoing reasons Berry’s assignments of error are overruled
    and the judgment of the Defiance County Common Pleas Court is affirmed.
    Judgment Affirmed
    PRESTON and WILLAMOWSKI, J.J., concur.
    /jlr
    -15-