State v. Shabaa , 2022 Ohio 2437 ( 2022 )

[Cite as State v. Shabaa, 2022-Ohio-2437.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1209
Appellee Trial Court No. CR0201903224
v.
Shakur I. Shabaa DECISION AND JUDGMENT
Appellant Decided: July 15, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Shakur Shabaa, appeals the October 6, 2021 judgment of the
Lucas County Court of Common Pleas sentencing him to 18 months in prison after
admitting to violating the terms of his community control. For the following reasons, we
affirm the trial court’s judgment.
A. Facts and Procedural Background
{¶ 2} On December 30, 2019, appellant was indicted on seven felony counts. The
charges included one count of obstructing official business in violation of R.C.
2921.31(A) and (B), a fifth-degree felony; one count of improperly handling firearms in a
motor vehicle in violation of R.C. 2923.16(B) and (I), a fourth-degree felony; one count
of trafficking in a fentanyl-related compound in violation of R.C. 2925.03(A)(2) and
(C)(9)(c), a fourth-degree felony; one count of possession of a fentanyl-related compound
in violation of R.C. 2925.11(A), (C)(11), and (C)(11)(b), a fourth-degree felony; one
count of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2) and (C)(1)(a),
a fourth-degree felony; one count of aggravated possession of drugs in violation of R.C
2925.11(A) and (C)(1)(a), a fifth-degree felony; and one count of possession of cocaine
in violation of R.C. 2925.11(A) and (C)(4)(a), a fifth-degree felony.
{¶ 3} The charges arose from an August 12, 2019 incident in which officers from
the Toledo Police Department responded to a call alleging that individuals in two
separate vehicles were threatening to shoot one another. The officers arrived and found
appellant inside one of the vehicles with his window closed. Appellant declined to roll
down his window when asked and instead drove his car from the scene. After crashing
into a traffic sign, appellant exited the vehicle and continued fleeing on foot. Appellant
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was eventually apprehended and placed under arrest. A subsequent search of appellant’s
vehicle revealed a loaded firearm, a bag of marijuana, 8.29 grams of acetaminophen and
Oxycodone, 1.62 grams of diphenhydramine and Fentanyl, .16 grams of cocaine, and
$1,036 in cash.
{¶ 4} Appellant first appeared for arraignment on January 22, 2020. At that time,
the trial court granted appellant’s request that his arraignment be rescheduled so that he
could retain counsel. The arraignment was rescheduled for February 5, 2020. Appellant
was released on his own recognizance with the condition that he submit to drug screens
while on release.
{¶ 5} On February 5, 2020, appellant appeared for his rescheduled arraignment
with counsel and entered a not guilty plea to all counts. The trial court revoked
appellant’s own recognizance bond because appellant had tested positive for marijuana,
opiates, and oxycodone while on release. The trial court imposed a new bond of
$100,000 and ordered appellant remanded to the custody of the Lucas County Sheriff’s
Department.
{¶ 6} Following negotiations with the state, appellant appeared for a change of
plea hearing on July 14, 2020. At that time, appellant agreed to enter a guilty plea to both
the improper handling of a firearm in a motor vehicle and the trafficking in a fentanyl-
related compound charges. In exchange for his plea, the state agreed to request a
dismissal of the remaining charges. The trial court accepted appellant’s plea, found him
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guilty of the stated offenses, and scheduled the matter for sentencing on August 26, 2020.
Appellant was also ordered to participate in the preparation of a presentence investigation
report.
{¶ 7} At sentencing, the trial court noted appellant’s failure to comply with the
pretrial drug screening requirements while released on his own recognizance by missing
required drug screens and, that when appellant did provide a drug screen, he tested
positive for marijuana, opiates, and Oxycodone. The trial court also noted that in
appellant’s lengthy criminal history, “several” of his convictions were for drug-related
offenses. The trial court then imposed a three-year term of community control on each
count. As conditions of his community control, the trial court ordered appellant to
complete a six-month program at a correctional treatment facility as well as the related
after-care program, to engage in mental health treatment, to seek and maintain full-time
employment, to provide verification of attaining or, if he has not already done so, to
complete a graduate equivalency diploma program, to participate in drug screening as
required by the Lucas County Adult Probation Department, and to refrain from ingesting
any drugs or alcohol. Appellant was advised that the violation of any of these conditions
could result in the imposition of an 18-month prison term on each count. The trial court
then dismissed the remaining counts at the state’s request and ordered appellant to report
to the Lucas County Adult Probation Department.
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{¶ 8} On July 1, 2021, appellant appeared for a hearing regarding alleged
violations of the conditions of his community control. The community control violation
report alleged that appellant “failed to follow [the probation department’s] drug and
alcohol policy for submitting urine screens.” Specifically, the policy required appellant
to provide a urine sample for drug screens twice a week. Appellant failed to provide 14
of his required urine samples between March 12, 2021 and June 8, 2021. The report
noted that the sporadic screens appellant did provide during that time were negative.
{¶ 9} The hearing on appellant’s violation was continued six times before finally
taking place on August 11, 2021. At the hearing, appellant admitted to the violation.
Appellant then alleged that despite admitting to the violation that he was in “substantial
compliance” with his community control conditions. He attributed the missed screenings
to issues with transportation, a lack of understanding of the policy, and a death in the
family. He then asked the trial court to delay sentencing for two months to allow him to
show his continued compliance with the conditions. The trial court granted the
continuance but made no indication that appellant’s future compliance with the
community control conditions would impact its final disposition of the admitted
violations.
{¶ 10} Between the violation hearing and his October 6, 2021 sentencing,
appellant missed an additional drug screen. At his sentencing, he informed the court that
this missed test was the result of his failure to bring a mask to the testing site as required
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in light of the ongoing COVID-19 pandemic. The trial court stated that appellant’s
conduct showed that he was not “taking community control seriously.” The trial court
then sentenced appellant to an 18-month prison term for the violation of the community
control imposed for each count on which he was convicted. The prison terms were
ordered to be served concurrently. The trial court memorialized appellant’s sentence
with a judgment entry later that day.
{¶ 11} Within minutes of the judgment entry’s journalization, appellant filed a
motion to modify his sentence. Appellant’s motion argued that the sentence was contrary
to law because his violations of the community control conditions were technical in
nature. Pursuant to R.C. 2929.15(B)(1)(c)(ii), the prison term for a technical violation of
community control imposed on a non-violent fourth-degree felony conviction is limited
to 180 days. Since appellant was sentenced to 18-month prison terms for the violation on
each conviction, he argued, the trial court imposed an illegal sentence that should be
modified. The state opposed appellant’s motion on October 28, 2021. Appellant filed
both his reply brief in support of his motion and a notice of appeal of the trial court’s
judgment on November 5, 2021. The trial court denied appellant’s motion on November
18, 2021 finding that it lacked jurisdiction to modify appellant’s sentence following his
filing of a notice of appeal.
B. Assignments of Error
{¶ 12} Appellant’s timely appeal asserts the following errors for our review:
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1. The trial court committed plain error when it imposed an eighteen
month prison sentence for failing to drop all of the urine screens requested
by the Lucas County Adult Probation Department, when none of the
screens which were provided were dirty, and when Mr. Shakur had not
committed a new offense, such that the violation was arguably technical, in
which case the imposed sentence was plain error pursuant to R.C.
2929.15(B)(1)(c)(ii).
2. The trial court abused its discretion when it denied appellant’s
motion to modify his sentence on the basis of a lack of jurisdiction
following the filing of a Notice of Appeal, when the Motion to Modify
Sentence was filed the same day as sentencing, and the Notice of Appeal
was on the last available date for filing pursuant to App.R. 4(A)(1), and
when the record doesn’t reflect the imposition of a schedule for filing of
responsive pleadings in order to preserve time for deciding the matter
within 30 days.
II. Law and Analysis
A. Appellant’s sentence was not contrary to law.
{¶ 13} In his first assignment of error, appellant argues that the trial court imposed
a sentence that was contrary to law. Specifically, appellant argues that because his
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community control violations were technical in nature, that the trial court could not
impose a prison term which exceeded 180 days as described in R.C. 2929.15(B)(1)(c)(ii).
{¶ 14} We review felony sentences under R.C. 2953.08(G)(2). State v. Goings,
6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 20. We may increase, modify, or
vacate and remand a judgment only if we clearly and convincingly find either of the
following: “(a) the record does not support the sentencing court’s findings under division
(B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division
(I) of section 2929.20 of the Revised Code, whichever, if any, is relevant” or “(b) the
sentence is otherwise contrary to law.” State v. Yeager, 6th Dist. Sandusky No. S-15-
025, 2016-Ohio-4759, ¶ 7, citing R.C. 2953.08(G)(2). Appellant bears the burden of
identifying clear and convincing evidence the sentence imposed was contrary to law.
State v. Moore, 12th Dist. Butler No. CA2007-03-060, 2008-Ohio-1477, ¶ 12, citing State
v. Costlow, 8th Dist. Cuyahoga No. 89501, 2008-Ohio-1097, ¶ 15.
{¶ 15} R.C. 2929.15(B) states:
(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:
***
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(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.
Appellant argues that his admitted violations of the conditions of his community control
were technical in nature. For that reason, he argues, the trial court’s imposition of an 18-
month prison term for violating the community control conditions was contrary to law.
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{¶ 16} Whether a community control violation is technical in nature depends on
whether the condition violated was “a specifically tailored substantive rehabilitative
requirement or merely a general administrative requirement to facilitate supervision
during the period of the sanction.” State v. Calhoun, 6th Dist. Wood No. WD-17-067,
2019-Ohio-228, ¶ 30. Violation of a substantive rehabilitative requirement is
nontechnical in nature. Id. Additionally, it is well-settled that the term “technical” is
distinct from “non-criminal” and a violation can be nontechnical even where subsequent
criminal charges are not filed. Id. Notably, we have previously held that a defendant’s
failure to abide by drug testing and drug treatment conditions of community control were
nontechnical violations despite the lack of additional criminal charges. See State v.
Tackett, 6th Dist. Erie No. E-18-040, 2019-Ohio-2253 (defendant’s failure to report to
probation, abide by all laws and ordinances, appear for and pass drug tests, and seek and
maintain employment violated substantive rehabilitative requirements and were
nontechnical in nature); State v. Hope, 6th Dist. Wood No. WD-18-080, 2019-Ohio-3023(defendant’s failure to appear for and pass drug tests violated substantive rehabilitative
requirements and were nontechnical violations).
{¶ 17} Here, appellant was convicted of improperly handling a firearm in a motor
vehicle and trafficking in a fentanyl-related compound. Following appellant’s guilty
plea, the trial court imposed three years of community control. The conditions of
appellant’s community control required him to submit a urine sample for all drug screens
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required by the Lucas County Adult Probation Department. When imposing the
sentence, the trial court noted that in addition to the current trafficking offense,
appellant’s criminal history included “several” drug-related offenses. The trial court also
stated that appellant’s bond in the current case was revoked because he tested positive for
marijuana, opiates, and oxycodone. Additionally, the presentence investigation report
reflects appellant’s admission that he regularly smokes marijuana and would illegally
obtain Percocet to treat a claimed chronic pain condition.
{¶ 18} Having reviewed the record, we find that the trial court’s requirement that
appellant participate in drug testing as a condition of his community control was a
substantive rehabilitative requirement of his community control. The trial court clearly
considered appellant’s history of drug use, prior convictions for drug-related offenses,
and his admitted drug use when it imposed the drug testing condition on his community
control term. The failure to comply with this rehabilitative condition, then, constitutes a
nontechnical violation of the conditions of his community control.
{¶ 19} Appellant offers several reasons why his violations should be considered
technical. First, he argues that the drug testing requirement was merely to enforce the
additional condition that he not ingest any drugs while on community control. It is
entirely unclear how additional conditions related to rehabilitating appellant’s drug use
would show that the testing was merely intended to facilitate his supervision while on
community control. Instead, the explicit requirement that appellant not ingest drugs
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further ties the required drug testing to the rehabilitative nature of the community control
conditions. As a result, this argument is without merit.
{¶ 20} Next, appellant argues that the trial court based his sentence on conduct
other than the admitted violation. Specifically, appellant argues that the trial court
considered his unapproved travel to Michigan, his inability to provide a prescription for
Percocet he admitted possessing, and his inability to verify his employment when it
imposed his sentence. Appellant argues that these issues “should not have been
addressed in the court’s sentencing colloquy.” The record shows that while the trial court
considered various sentencing factors, as required by R.C. 2929.12, appellant’s sentence
was imposed only for the admitted violation. The trial court’s consideration of these
additional factors in determining the appropriate sentence for those violations has no
impact on whether the admitted violation was technical or nontechnical.
{¶ 21} Finally, appellant argues that his violation was technical because the failure
to participate in the required drug screenings did not constitute a new criminal offense.
Whether the violation results in additional criminal charges is immaterial to whether
those violations are technical in nature. Calhoun, 6th Dist. Wood No. WD-17-067, 2019-
Ohio-228, at ¶ 30; Tackett, 6th Dist. Erie No. E-18-040, 2019-Ohio-2253, at ¶ 16; Hope,
6th Dist. Wood No. WD-18-080, 2019-Ohio-3023, at ¶ 17. The only issue to determine
is whether the violation was of a substantive rehabilitative requirement. Id. As a result,
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the lack of additional criminal charges resulting from the violation does not impact our
review of the trial court’s judgment.
{¶ 22} In sum, the record shows that the trial court imposed substantive
rehabilitative conditions of community control that appellant violated. As a result,
appellant’s prison term was not subject to the 180-day limit described in R.C.
2929.15(B)(1)(c)(ii). Appellant has failed to identify clear and convincing evidence that
his sentence was contrary to law. Therefore, appellant’s first assignment of error is found
not well-taken.
B. The trial court lacked jurisdiction to consider
appellant’s motion to modify his sentence.
{¶ 23} In his second assignment of error, appellant argues that the trial court
abused its discretion when it denied his motion to modify his sentence. Specifically,
appellant argues that the trial court’s failure to rule on his motion to modify his sentence
before his time to appeal lapsed, and then denying the motion based on a lack of
jurisdiction due to the pending appeal constituted error. We disagree.
{¶ 24} In State v. Myers, 6th Dist. Wood No. WD-17-063, 2018-Ohio-1871, we
found that “[o]nce a case has been appealed, the trial court loses jurisdiction except to
take action in aid of the appeal. The trial court retains jurisdiction over issues not
inconsistent with the appellate court’s jurisdiction to reverse, modify, or affirm the
judgment appealed from.” Id. at ¶ 6. As a result, once a notice of appeal has been filed,
the trial court loses jurisdiction to consider any motions which interferes with this court’s
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ability to consider the appeal. Clearly, a motion to modify a sentence is in direct conflict
with this court’s review of the trial court’s judgment. Id. at ¶ 7. This alone is sufficient
to show that the trial court did not err in denying appellant’s motion to modify his
sentence.
{¶ 25} Approximately one year after Myers, we further clarified that a trial court
loses jurisdiction to consider a motion to modify a sentence even earlier than the filing of
a notice of appeal. In State v. Short, 6th Dist. Lucas No. L-18-1063, 2019-Ohio-1180, we
found that a judgment order that includes “the fact of the conviction, the sentence, the
judge’s signature, and an indication of entry on the journal by the clerk” complies with
Crim.R. 32(C) and is a final order. Id. at ¶ 5. Once a judgment entry is final, the trial
court lacks jurisdiction to modify its own judgment. Id., citing State v. Carlisle, 131
Ohio St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671, ¶ 11. Therefore, a trial court loses
jurisdiction to modify a sentence as soon as the judgment entry becomes final, regardless
of whether a notice of appeal has been filed. Id. at ¶ 6. Here, appellant filed his motion
to modify his sentence after the final judgment entry was journalized, denying the trial
court jurisdiction to consider the motion.
{¶ 26} For these reasons, we find that the trial court correctly denied appellant’s
motion based on its lack of jurisdiction, albeit relying on a legally correct but imprecise
rationale. “[T]his court will not reverse a trial court decision ‘that achieves the right
result for the wrong reason, because such an error is not prejudicial.’” Brown v. State,
14.
2019-Ohio-4376, 147 N.E.3d 1194, ¶ 41 (6th Dist.), citing Toledo v. Schmiedebusch, 192
Ohio App.3d 402, 2011-Ohio-284, 949 N.E.2d 504, ¶ 37 (6th Dist.). Because the trial
court reached the correct conclusion that it lacked jurisdiction to consider appellant’s
motion to modify his sentence, appellant’s second assignment of error is found not well-
taken.
III. Conclusion
{¶ 27} We find appellant’s first and second assignments of error not well-taken.
We affirm the October 6, 2021 judgment of the Lucas County Court of Common Pleas.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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