State v. Dagley , 2022 Ohio 2671 ( 2022 )

[Cite as State v. Dagley, 2022-Ohio-2671.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110947
v. :
BENJAMIN DAGLEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 4, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-620960-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristen Hatcher, Assistant Prosecuting
Attorney, for appellee.
Jonathan N. Garver, for appellant.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Benjamin Dagley (“Dagley”) appeals the trial
court’s determination that Dagley violated his community control sanctions and
imposed the prison term handed down at the original sentencing. We affirm.
I. Background and Facts
Dagley was originally indicted on nine counts arising from admitted
self-help efforts after legal efforts seeking $1 million for a business dispute with the
tenant business owners of a building owned by Dagley were unfruitful. Frustrated
and believing that the building was unoccupied at the time, Dagley broke into the
victims’ premises, cut holes in containers, and knocked over 55-gallon drums
resulting in a release of noxious gases and dangerous chemicals. A security guard
required treatment for toxic gas exposure.
Dagley was indicted for:
Count 1: Deployment, release, or use of a chemical, biological, or
nuclear weapon, in violation of R.C. 2909.27(B)(4), a felony
of the first degree;
Count 2: Felonious assault (serious physical harm to [B.E.]), in
violation of R.C. 2903.11(A)(1), a felony of the second
degree;
Count 3: Felonious assault (cause or attempt to cause physical harm
to [B.E.] by means of a deadly weapon, to wit: toxic gas), in
violation of R.C. 2903.11(A)(1), a felony of the second
degree;
Count 4: Inducing panic (resulting in economic harm of $150,000 or
more), in violation of R.C. 2917.31(A)(3), a felony of the
third degree;
Count 5: Inducing panic (resulting in physical harm to any person),
in violation of R.C. 2917.31(A)(3), a felony of the fourth
degree;
Count 6: Breaking and entering, in violation of
R.C. 2911.13(B)(A)(3), a felony of the fifth degree;
Count 7: Vandalism (physical harm to property of [business owners
K.C. and/or E.C.]), in violation of R.C. 2909.05(B)(1)(a), a
felony of the fifth degree;
Count 8: Vandalism (physical harm to property of [business owners
K.C. and/or E.C.]), in violation of R.C. 2909.05(B)(1)(a), a
felony of the fifth degree; and
Count 9: Extortion (threaten to commit crime of violence, to wit:
vandalism), in violation of R.C. 2905.11(A)(2), a felony of
the third degree.
On June 25, 2018, pursuant to a plea agreement, Dagley pleaded
guilty to amended Count 2 for attempted felonious assault under R.C. 2923.02 and
2903.11(A)(1), a third-degree felony; Count 4, inducing panic under
R.C. 2917.31(A)(3), a third-degree felony; and Count 7, vandalism, a fifth-degree
felony, under R.C. 2909.05(B)(1)(a). The remaining counts were nolled.
On July 26, 2018, Dagley was sentenced to:
Sixty month(s) of community control/probation on each count, under
supervision of the Adult Probation Department with the following
conditions: defendant to abide by the rules and regulations of the
Probation Department. Court orders defendant to be supervised by:
Intensive Special Probation Supervision Unit, participate and
successfully complete an anger management program. No contact with
victim(s) as a condition of supervision, defendant is required to serve
30 days in county jail. Defendant is to report to county jail on July 27,
2018, at 8:00 a.m. Violation of the terms and conditions may result in
more restrictive sanctions or a prison term of 36 month(s) as approved
by law, 36 months at Lorain Correctional Institution [on] Count 2 (F3);
36 months at Lorain Correctional Institution Count 4 (F3); 12 months
at Lorain Correctional Institution on Count 7 (F5). Counts are to run
concurrently to each other for a total of 36 months in prison. Up to 3
years [discretionary post release control] on Counts 4 and 7. Mandatory
[postrelease control] 3 years on Count 2. Defendant advised of
postrelease control for 3 years mandatory. Defendant advised that
if/when post release control supervision is imposed following his/her
release from prison and if he/she violates that supervision or condition
of postrelease control under RC 2967.131(B), parole board may impose
a prison term as part of the sentence of up to one-half of the stated
prison term originally imposed upon the offender. Supervision fees to
be paid at a rate of $20.00 a month. Restitution ordered in the amount
of $10,000.00 to Cleveland Plating; payable through the Probation
Department. Restitution ordered in the amount of $3,113.40 to
Cleveland Police Department; payable through the Probation
Department. Restitution ordered in the amount of $2,257.46 to
Division of Cleveland Fire; payable through the Probation Department.
The defendant is ordered to pay a fine in the sum of $ 5,000.00. Fine
is on Count F2. The court hereby enters judgment against the
defendant in an amount equal to the costs of this prosecution. All
motions not specifically ruled on prior to the filing of this judgment
entry are denied as moot. Defendant ordered released.
Journal entry No. 104779942, p. 1 (July 26, 2018).
Dagley served the 30-day sentence and regularly reported to his
probation officer for three years. Dagley also met with the probation officer and
executed the acknowledgment of the conditions of probation and penalties for
violation. Dagley states he was advised at the August 24, 2021 probation meeting
that he needed to make a payment toward his restitution obligation and that a
probation violation had been requested. On August 26, 2021, the court scheduled a
violation hearing for September 15, 2021.
The probation department was advised on August 31, 2021, that
Dagley had been involved in an incident involving an MSNBC reporter and
cameraman in Mississippi. An August 31, 2021, journal entry provides “at the
request of probation officer * * *, defendant has left the state of Ohio without
permission. Capias to issue.” Journal entry No. 118482756, p. 1. (Aug. 31, 2021).
Dagley was taken into custody on September 4, 2021. The violation hearing was
continued to September 29, 2021, due to Dagley’s isolation per Covid protocols.
Dagley appeared at the September 29, 2021 probation violation
hearing represented by appointed counsel. Dagley admitted to the listed violations,
expressed remorse, and was sentenced to a concurrent sentence of 36 months on
Counts 2 and 4, and 12 months on Count 7.
Dagley appeals.
II. Assignments of Error
Dagley assigns nine errors:
I. Appellant was denied due process of law because he was not
provided with timely notice of the alleged probation violations.
II. The trial court denied Appellant due process of law at the
commencement of the probation violation hearing by
inadequately and inaccurately advising Appellant of his rights at
the probation violation hearing.
III. The trial court denied Appellant due process of law by
considering the unsworn statements of the probation officer at
Appellant’s probation violation hearing.
IV. The trial court denied Appellant due process of law by accepting
the vaguely worded admission offered by his attorney and by not
addressing Appellant personally and ascertaining what charges
Appellant was admitting to and what charges he was denying.
V. The sentence imposed by the court is contrary to law and a denial
of due process of law because it is fundamentally unfair to place
an offender on probation for five (5) years, after ordering him to
pay restitution, a fine, the cost of supervision, and court costs,
and then to punish him three (3) years later for not yet making
restitution when he had been given five (5) years to complete the
terms and conditions of his probation and when no payment
schedule had ever been established by the court or the probation
officer for the payment of restitution.
VI. The judgment and sentence imposed by the court is contrary to
law and a denial of due process of law, and equal protection of
the laws because it is unlawful to incarcerate an offender for
failing to pay restitution, the fine, or court costs where the
evidence demonstrates that Appellant was 53 years old,
unemployed, living with his brother, had no assets, and there
was no basis for concluding that he would be able to pay
restitution, the fine, or court costs in the foreseeable future and
where the court twice found him to be indigent in the same
proceeding.
VII. The imposition of a maximum 12-month prison sentence for a
“technical violation” of the community control sanction imposed
on the vandalism charge is contrary to law.
VIII. The imposition of maximum terms of imprisonment when
Appellant was found to have violated a community control
sanction three (3) years after he was placed on probation is not
supported by the record, is contrary to law, and constitutes a
denial of due process of law.
IX. Appellant was denied his right to the effective assistance of
counsel. Sixth and Fourteenth Amendments, Constitution of the
United States; Article I, Section 10, Constitution of the State of
Ohio.
III. Scope of Review
“The revocation of community control sanctions can result in a prison
sentence; thus, a probationer must be accorded due process at the revocation
hearing.” State v. English, 8th Dist. Cuyahoga No. 109645, 2021-Ohio-850, ¶ 11,
citing State v. Bailey, 8th Dist. Cuyahoga No. 103114, 2016-Ohio-494, ¶ 9, citing
Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); see also
Crim.R. 32.2(A).
The minimum due process rights to be afforded are:
(1) written notice of the claimed violations; (2) disclosure of the
evidence against them; (3) an opportunity to be heard and to present
witnesses and documentary evidence; (4) the right to confront and
cross-examine adverse witnesses; (5) a neutral and detached hearing
body; and (6) a written statement by the factfinder of the evidence
relied upon and the reason for revocation.
Id., citing Bailey at ¶ 10, citing State v. Davis, 8th Dist. Cuyahoga No. 93959, 2010-
Ohio-5126, ¶ 26.
Dagley’s failure to raise objections to the due process violations and
other asserted errors at the trial-court level waives all but plain error on appeal.
English, 8th Dist. Cuyahoga No. 109645, 2021-Ohio-850, ¶ 10; State v. Macura, 8th
Dist. Cuyahoga No. 108111, 2019-Ohio-4064, ¶ 14, State v. Butts, 8th Dist. Cuyahoga
No. 110819, 2022-Ohio-1322, ¶ 12, State v. Frazier, 8th Dist. Cuyahoga No. 104596,
2017-Ohio-470, ¶ 8.1
1 A number of cases have held that the failure to raise a due process violation at
the revocation hearing waives any error. See, e.g., State v. Greene, 8th Dist. Cuyahoga
No. 106028, 2018-Ohio-1965 (but see concurring opinion advising plain error should
apply); State v. Simpkins, 8th Dist. Cuyahoga No. 87131, 2006-Ohio-3496, State v.
Bailey, 8th Dist. Cuyahoga No. 103114, 2016-Ohio-494, State v. Mayfield, 8th Dist.
Cuyahoga Nos. 69051, 69052, 69053, 1996 Ohio App. LEXIS 2158 (May 23, 1996),
State v. Parker, 5th Dist. Stark Nos. 2010 CA 00148, 2010 CA 00149, 2011-Ohio-595. The
majority of cases apply plain error as cited above. See also State v. Hammonds, 10th Dist.
No. 06AP-1122, 2007-Ohio-4456, ¶ 7; State v. Harmon, 2d Dist. Champaign No. 2007 CA
35, 2008-Ohio-6039, ¶ 11; State v. Richard, 7th Dist. Mahoning No. 15 MA 0186, 2016-
Ohio-8562, ¶ 11; State v. McClellan, 7th Dist. Mahoning No. 10 MA 181, 2011-Ohio-4557,
¶ 13; State v. Pavlich, 6th Dist. Erie No. E-10-011, 2011-Ohio-802, ¶ 26; State v. Parker,
“Crim.R. 52(B) provides that ‘[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.’” English at ¶ 10. “Appellate courts take notice of plain error ‘with the
utmost caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice.’” Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002), citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).
IV. Discussion
We combine Dagley’s first through fourth assignments of error for
ease of analysis. Appellant argues that his due process rights were violated by the
(1) untimely receipt of the alleged probation violations notice; (2) inadequate and
inaccurate advisement of his rights at the inception of the hearing; (3) the
consideration of the unsworn statements of the probation officer; and (4) the
vaguely worded admission offered by Dagley’s attorney without addressing Dagley
personally to ascertain which charges were admitted or denied.
“This court has stated that an admission to a community-control
violation ‘dispense[s] with the need to present evidence or to give appellant the
5th Dist. Stark Nos. 2010 CA 00148 and 2010 CA 00149, 2011-Ohio-595, ¶ 27; State v.
Delaine, 7th Dist. Mahoning No. 08 MA 257, 2010-Ohio-609, ¶ 22. The plain error
approach allows justice and fairness under careful application. “We have acknowledged
the discretionary aspect of Crim.R. 52(B) by admonishing courts to notice plain error with
the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d
1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the
syllabus.
opportunity to defend.’” English at ¶ 12, quoting Frazier, 8th Dist. Cuyahoga No.
104596, 2017-Ohio-470, at ¶ 11. “The purpose of the written notice requirement is
to inform the probationer of the claimed violation of probation.” State v. Stowers,
8th Dist. Cuyahoga Nos. 48572, 48575, 48576, 48577, 48578, 48584, 48590, 48872,
and 48873, 1985 Ohio App. LEXIS 5610 (Jan. 31, 1985).
“Although written notice of claimed violations is preferred, this court
has held that oral notice of alleged violations may be sufficient.” State v. Patton,
2016-Ohio-4867, 68 N.E.3d 273, ¶ 9 (8th Dist.). This is true “when the oral
statements ‘explain the basis of the revocation proceeding,’ ‘provide adequate notice
to the probationer,’ and ‘provide a record for appellate review of the revocation
hearing.’” Id. at ¶ 9, quoting State v. Washington, 8th Dist. Cuyahoga Nos. 101157
and 101170, 2015-Ohio-305, ¶ 22, citing State v. Lenard, 8th Dist. Cuyahoga
No. 93373, 2010-Ohio-81, ¶ 10-11, citing Lakewood v. Sullivan, 8th Dist. Cuyahoga
No. 79382, 2002-Ohio-2134, ¶ 26.
The probation officer read the violation information into the record.
Counsel explained on the record that he spoke “at length” with Dagley the week prior
to the hearing, that Dagley understood the violations, admitted the violations, and
desired to complete the probation conditions. (P.V.H., Tr. 68.)2
2 References to the probation violation hearing transcript are indicated by “P.V.H.,
Tr.” References to the original trial transcript are indicated by “Tr.”
Dagley also argues that the trial court’s explanation of rights was
insufficient under Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, and offers
that Dagley’s admission was not made knowingly, intelligently or voluntarily. “As a
general matter, an unknowing waiver of a defendant’s right in a revocation hearing
to present evidence and confront his accusers is invalid.” Patton at ¶ 11, citing
State v. Armstrong, 56 Ohio App.3d 105, 107, 564 N.E.2d 1070 (8th Dist.1988).
However, “Ohio courts have made it clear that ‘[a] community control
revocation hearing is not a criminal trial.’” Id., quoting State v. Parsons, 4th Dist.
Athens No. 09CA4, 2009-Ohio-7068, ¶ 11. “Accordingly, ‘[a] defendant faced with
revocation of probation or parole is not afforded the full panoply of rights given to a
defendant in a criminal prosecution’ and ‘the requirements of Crim.R. 11(C)(2) do
not apply to a community-control-violation hearing.’” Id., quoting id. Dagley does
not explain what he did not understand and how he was prejudiced as required
under this plain error analysis.
Our discussion here also resolves Dagley’s claim regarding his
“vaguely worded admission” and the failure to address Dagley personally to
determine which charges he was admitting and denying. Dagley waived the
probable cause hearing, admitted to the charges, and counsel stated he discussed
the charges with Dagley and that Dagley understood them. The trial court inquired
several times whether Dagley had any questions or anything to say and he did not.
The trial court also identified which of the violations were supported by the
evidence.
Dagley also claims that due process was denied by consideration of
the unsworn statements of the probation officer at the hearing which renders the
sentence contrary to law. First, “the rules of evidence do not apply to probation
revocation proceedings.” State v. Simpkins, 8th Dist. Cuyahoga No. 87131, 2006-
Ohio-3496, ¶ 13, fn. 3. “Moreover, admission to a community control violation
waives the right to cross-examine or call witnesses.” Frazier, 8th Dist. Cuyahoga
No. 104596, 2017-Ohio-470, at ¶ 12.
The first through fourth assignments of error are overruled.
A. Due Process, Equal Protection, and Contrary To Law
Dagley’s fifth assigned error claims a violation of due process and that
the sentence was contrary to law because it was fundamentally unfair to order
Dagley to pay restitution, a fine, and supervision costs and punish him for failing to
make any restitution payments for three and one-half years of a five-year probation
term without a payment schedule and due to his economic situation and the fact that
Dagley had previously been declared indigent. The sixth assigned error adds that
Dagley’s incarceration violates his right to due process and equal protection and is
contrary to law. We combine the errors for discussion.
It is true that
[t]o imprison someone solely because he is unable to pay a fine also
violates the Equal Protection Clause of the Fourteenth Amendment,
because people without the means to pay fines would receive more
severe punishment than those who are capable of paying. See, e.g.,
Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971);
Walker v. Stokes, 54 Ohio App.2d 119, 123, 375 N.E.2d 1258 (8th Dist.
1977).
State v. Harris, 8th Dist. Cuyahoga Nos. 96460-96461 and 96660-96661, 2012-
Ohio-802, ¶ 17.
The trial court ordered restitution to the victims, the Cleveland fire
and police departments, and a fine and costs. Pivotal here, Dagley was not
imprisoned solely for the failure to pay. In addition, the state presented evidence
that since the conviction, Dagley made no payments whatsoever toward restitution,
Dagley presented no evidence that he was unable to work and provided no
justification for nonpayment. However, Dagley was able to secure a $30,000 truck
that the state argued was paid off though Dagley said it was leased. Also, without
probation authorization, Dagley was able to relocate to Columbus and to travel to
Gulfport, Mississippi, where he was involved in an incident that was recorded and
published on national media that resulted in his return to Cuyahoga County for the
instant matter.
The trial court commented that Dagley had previously been employed
and has a master of science degree. Dagley said he had not been working but desired
to move to Dayton to rehabilitate houses and perform lawn services with a relative
and pay off the debt “as quickly as possible.” (P.V.H., Tr. 81.) The trial court
responded,
for whatever reason, you did not work, even though you have health
and skill.
So that, to me, indicates a lack of effort to resolve this matter, which
you brought upon totally to yourself, caused panic in the community,
caused a person to be injured, and caused damage to a business.
So considering everything together here — and I note that you have
reported to Mr. * * *, but you have not done anything substantive other
than possibly getting your anger management [counseling]. You have
not done anything to resolve the harm you caused.
(P.V.H., Tr. 82.)
This court’s review of the record reflects that the trial court gave due
consideration to Dagley’s arguments and determined that his arguments are not
supported. The fifth and sixth assignments of error are overruled.
B. R.C. 2929.15(B)(1)(c)(i)
Dagley states next under the seventh assigned error that the
imposition of a maximum 12-month prison sentence for a technical violation of a
community control sanction for vandalism, a fifth-degree felony, violates
R.C. 2929.15(B)(1)(c)(i). He argues that the sentence must be reversed because it
exceeds the 90-day statutory limit.
R.C. 2929.15(B)(1)(c)(i) provides:
(B)(1) If the conditions of a community control sanction imposed for a
felony 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 on 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 and rules, 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, the prison term shall not exceed
ninety days, provided that if the remaining period of
community control at the time of the violation or the remaining
period of the reserved prison sentence at that time is less than
ninety days, the prison term shall not exceed the length of the
remaining period of community control or the remaining
period of the reserved prison sentence. If the court imposes a
prison term as described in this division, division (B)(2)(b) of
this section applies.
As this court recently recognized,
“that the determination whether a violation is a ‘technical violation’
under R.C. 2929.15(B)(1)(c) does not turn on whether the conduct at
issue is criminal” at all. [State v. Nelson, 162 Ohio St.3d 338, 2020-
Ohio-3690, 165 N.E.3d 111,] ¶ 26. Rather, “a violation is ‘nontechnical’
if, considering the totality of the circumstances, the violation concerns
a condition of community control that was ‘specifically tailored to
address’ matters related to the defendant’s misconduct or if it can be
deemed a ‘substantive rehabilitative requirement which addressed a
significant factor contributing to’ the defendant’s misconduct.” Id.,quoting State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-
Ohio-2672, ¶ 17-18. “On the other hand, a violation is ‘technical’ when
the condition violated is akin to ‘an administrative requirement
facilitating community control supervision.’” Id., quoting Davis at ¶ 18.
State v. Wiley, 2020-Ohio-5428, 163 N.E.3d 660, ¶ 26 (8th Dist.).
Thus,
[t]here is no single factor that determines whether a violation is
technical or nontechnical. As indicated above, the statute allows the
trial court to engage in a practical assessment of the case before it, i.e.,
to consider the nature of the community-control condition at issue and
the manner in which it was violated, as well as any other relevant
circumstances in the case.
Id. at ¶ 26, quoting State v. Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, 165
N.E.3d 1110, ¶ 26.
According to the record of Dagley’s original sentencing in this case,
Dagley was aware that the victim business owners conducted plating operations at
the premises. He was also aware that the operations involved the use of chemicals
and explained the steps that he took to minimize dangers of toxicity during the
vandalism. Dagley denied knowledge of the victim security guard’s presence
although the guard’s car was parked outside of the facility. Dagley had also sent
threats to the victim business owners via text message.
The trial court found significant that Dagley had
a vendetta against these folks, whether it was legitimate or not, or
something you were going to prevail on eventually civilly you were
engaged in this activity that led to this particular incident. There were
continuing threats. People make a lot of threats sometimes, but in this
case, you followed up on them.
(Tr. 52.) The trial court further detailed the R.C. 2929.12 factors considered during
sentencing.
The court then sentenced Dagley to 60 months of community control,
remanded Dagley to serve 30 days in county jail, and imposed a fine due to the
security guard’s injuries. The trial court also imposed restitution as stated herein
and anger management counseling. Dagley was required to secure court approval
prior to leaving the state and was warned of the repercussions for violating
probation.
The trial court explained, “this is about as bad as it gets, for someone
with education and opportunities acting thuggish and committing a crime.” (Tr. 56.)
“[T]his involves the community, inducing panic, an individual unrelated to the
dispute” with the victim business owners. (Tr. 57.) “So I think this is a fair
compromise considering the harm to her as well as the disruption to the community.
Those firefighters and policemen could have been somewhere else. They shouldn’t
have been there because you resorted to self-help.” Id.Dagley moved to Dublin, Ohio without court approval and, significant
here, during the three years of his five-year probation term, Dagley made no
payments toward restitution that was specifically designed to compensate the
victims and safety forces for expenses incurred due to his criminal acts including
vandalism.
Considering the totality of circumstances in this case, the record
supports that the trial court tailored the community control conditions to
specifically address the matters that were related to Dagley’s misconduct. Nelson,
162 Ohio St.3d 338, 2020-Ohio-3690, 165 N.E.3d 1110, ¶ 26. Thus, the vandalism
charge violation was nontechnical and was not subject to the 90-day limitation.
The seventh assigned error is overruled.
C. Imposition of Maximum Sentence
Under the eighth assigned error, Dagley argues that imposition of the
maximum prison term is not supported by the record, is contrary to law, and denies
due process.
In reviewing felony sentences, appellate courts must apply the standard
of review set forth in R.C. 2953.08(G)(2), rather than an abuse of
discretion standard. See State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an
appellate court may increase, reduce, or modify a sentence, or it may
vacate the sentence and remand for resentencing, only if it clearly and
convincingly finds either (1) the record does not support certain
specified findings, or (2) the sentence imposed is contrary to law. An
appellate court does not review a trial court’s sentence for an abuse of
discretion. Marcum at ¶ 10.
State v. Silaghi, 8th Dist. Cuyahoga Nos. 107890, 107895, 107906, 107911, 2019-
Ohio-4058, ¶ 24.
Also, a sentence is contrary to law where
(1) the sentence falls outside the statutory range for the particular
degree of offense, or (2) the trial court failed to consider the purposes
and principles of felony sentencing set forth in R.C. 2929.11 and the
sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist. Cuyahoga
No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist.
Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.
State v. Maddox, 2017-Ohio-8061, 98 N.E.3d 1158, ¶ 31 (8th Dist.).
The crux of Dagley’s argument is that the sentencing court considered
the R.C. 2929.11 and 2929.12 factors at the time of sentencing but concluded that a
prison term was not warranted. Yet, Dagley argues, the maximum term of
imprisonment was imposed at the revocation hearing although the violations were
no more serious than the originals.
At the original sentencing hearing, the trial court advised and
journalized that violating community control sanctions would result in
[thirty-six] months at Lorain Correctional Institution on Count 2 (F3);
36 months at Lorain Correctional Institution Count 4 (F3); 12 months
at Lorain Correctional Institution on Count 7 (F5). Counts are to run
concurrently to each other for a total of 36 months in prison.
Journal entry No. 104779942, p. 1 (July 26, 2018).
At the revocation hearing, the trial court stated:
So under [R.C.] 2929.11(A), having found you to be in violation of
supervision, I am now going to fulfill the requirements of the
sentencing hearing.
Overriding purpose under [R.C.] 2929.11 is to protect the public from
future crime by the offender, and others, to punish the offender, and to
promote effective rehabilitation using the minimum sanctions that the
Court determines accomplishes those purposes without imposing an
unnecessary burden on State or Local Government resources.
The Court has considered the need for incapacitation, deterrence,
rehabilitation, and restitution.
(P.V.H., Tr. 76.)
The defense incorporated the mitigating factors offered throughout
the hearing including that Dagley planned to make restitution by rehabbing houses
with his nephew in Dayton, Ohio. In response to the trial court’s inquiry of whether
Dagley had anything to say regarding sentencing, Dagley responded, “no, sir.”
(Tr. 77.) The trial court stated, “So the Court will incorporate the prior information
before it as well as the prior presentence investigation that was prepared, and I
note — indicate your conduct is more serious under R.C. 2929.12(B).” (P.V.H.,
Tr. 77-78.)
After reciting the seriousness and recidivism factors considered, the
trial court added, that the “[p]ositive things I can say under R.C. 2929.12(B), you
had work. You’re educated. You had a Master of Science Degree. You did test
negative for drugs back then, and it does not seem like drugs are the issue.” (P.V.H.,
Tr. 80-81.)
Finally, the trial court concluded:
So considering everything together here — and I note that you have
reported to Mr. * * *, but you haven’t done anything substantive other
than possibly getting your anger management. You haven’t done
anything to resolve the harm you caused.
(P.V.H., Tr. 82.)
The trial court continued, “for some reason, you had a vendetta, and
you utilized dangerous means to satisfy it, and you are now, having failed
supervision, going to pay the costs of that poor judgment. Now, you are going to
prison.” (P.V.H., Tr. 84.)
The sentence imposed is within the statutory range and a review of
the record supports that the trial court considered the purposes and principles of
felony sentencing under R.C. 2929.11 and 2929.12.
The eighth assigned error is overruled.
D. Ineffective Assistance Of Counsel
Dagley’s ninth and final assigned error asserts ineffective assistance
of counsel. Dagley argues that defense counsel was ineffective for: (1) failure to
request a continuance due to lack of notice of the alleged probation violations; (2)
failure to clarify which violations Dagley admitted and disputed; (3) failure to object
to the unsworn statements of probation officer; (4) failure to argue that a restitution
payment scheduled had not been established; and (5) failure to file an affidavit of
indigency and defend based on Dagley’s inability to pay.
“A claim of ineffective assistance of counsel is judged using the
standard announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).” State v. Sims, 8th Dist. Cuyahoga No. 109335, 2021-
Ohio-4009, ¶ 21, citing State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989).
“‘Counsel’s performance will not be deemed ineffective unless and
until counsel’s performance is proved to have fallen below an objective standard of
reasonable representation and, in addition, prejudice arises from counsel’s
performance.’” Id., quoting Bradley, at paragraph two of the syllabus.
In light of our finding that the assigned errors lack merit and thus do
not constitute error, we do not find that counsel was ineffective.
The ninth assigned error is overruled.
V. Conclusion
We find no error, plain or otherwise. The trial court’s judgment is
affirmed.
It is ordered that appellee recover from 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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
___________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR