State v. Drake , 2022 Ohio 1405 ( 2022 )


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  • [Cite as State v. Drake, 
    2022-Ohio-1405
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    STATE OF OHIO,                                    :
    Plaintiff-Appellee,              :
    No. 110917
    v.                               :
    HOWARD L. DRAKE,                                  :
    Defendant-Appellant.             :
    JOURNAL ENTRY AND OPINION
    JUDGMENT: VACATED AND REMANDED
    RELEASED AND JOURNALIZED: April 28, 2022
    Criminal Appeal from the Cuyahoga County Court of Common Pleas
    Case No. CR-16-606259-A
    Appearances:
    Cullen Sweeney, Cuyahoga County Public Defender, and
    Erika B. Cunliffe, Assistant Public Defender, for appellee.
    Michael C. O’Malley, Cuyahoga County Prosecuting
    Attorney, and Gregory J. Ochocki, Assistant Prosecuting
    Attorney, for appellant.
    SEAN C. GALLAGHER, A.J.:
    The state of Ohio appeals from the trial court’s decision granting
    plaintiff-appellee Howard L. Drake’s (“Drake”) motion for judicial release without
    first conducting a hearing. Pursuant to Loc.App.R. 16(B), Drake concedes this error.
    After a thorough review of the record and law, this court vacates the trial court’s
    judgment granting Drake’s motion for judicial release and remands for the court to
    conduct a hearing on the motion.
    Factual and Procedural History
    On May 26, 2016, a Cuyahoga County Grand Jury indicted Drake on
    one count of felonious assault in violation of R.C. 2903.11(A)(1); one count of
    felonious assault in violation of R.C. 2903.11(A)(2); and one count of attempted
    murder in violation of R.C. 2923.02 and 2903.02(A). These charges arose from an
    incident on April 3, 2016, in which Drake intentionally struck the victim with his car
    multiple times.
    On September 15, 2016, Drake pleaded guilty to one count of
    felonious assault in violation of R.C. 2903.11(A)(1), a felony of the second degree.
    The remaining counts were dismissed. On October 19, 2016, the court sentenced
    Drake to seven years in prison and three years of mandatory postrelease control.
    On May 20, 2021, Drake filed a motion for judicial release. On June
    1, 2021, the state filed a brief in opposition to Drake’s motion. On September 16,
    2021, the trial court granted Drake’s motion without a hearing. On October 4, 2021,
    the state filed a motion for reconsideration. On October 15, 2021, the state appealed
    the trial court’s decision granting Drake’s motion, presenting a single assignment of
    error for our review:
    The trial court erred as a matter of law when it granted defendant-
    appellee’s motion for judicial release without first conducting a
    hearing.
    Drake concedes that the court was required to hold a hearing on Drake’s motion.
    Legal Analysis
    In its sole assignment of error, the state argues that the trial court was
    required by R.C. 2929.20 to hold a hearing before granting the motion for judicial
    release. We agree.
    R.C. 2929.20(D) provides, in relevant part, that:
    Upon receipt of a timely motion for judicial release filed by an eligible
    offender under division (C) of this section or upon the sentencing
    court’s own motion made within the appropriate time specified in that
    division, the court may deny the motion without a hearing or schedule
    a hearing on the motion. The court shall not grant the motion without
    holding a hearing.
    Further, once a court chooses to hold a hearing on a motion for judicial release, it
    must abide by the statutory requirements for the conduct of the hearing contained
    in R.C. 2929.20(D) and (E). Additionally, pursuant to R.C. 2929.20(J), a court shall
    not grant a judicial release to an eligible offender who is imprisoned for a felony of
    the first or second degree unless the court finds both of the following:
    (a) That a sanction other than a prison term would adequately punish
    the offender and protect the public from future criminal violations by
    the eligible offender because the applicable factors indicating a lesser
    likelihood of recidivism outweigh the applicable factors indicating a
    greater likelihood of recidivism;
    (b) That a sanction other than a prison term would not demean the
    seriousness of the offense because factors indicating that the eligible
    offender’s conduct in committing the offense was less serious than
    conduct normally constituting the offense outweigh factors indicating
    that the eligible offender’s conduct was more serious than conduct
    normally constituting the offense.
    Because Drake was convicted of a second-degree felony, the court was required to
    make these findings. Based on our review of the record, the court did not make these
    findings.
    R.C. 2929.20 clearly and unambiguously requires a court to hold a
    hearing prior to granting a motion for judicial release. It further requires a court to
    make certain findings before granting release of a defendant imprisoned for a felony
    of the first or second degree. Because the trial court did not conduct a hearing or
    make findings as required by R.C. 2929.20, its judgment granting Drake’s motion
    for judicial release is vacated. The case is remanded for the trial court to conduct a
    hearing in accordance with R.C. 2929.20.
    Judgment vacated and remanded.
    It is ordered that appellant recover from appellee 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.
    __
    SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
    FRANK DANIEL CELEBREZZE, III, J., and
    LISA B. FORBES, J., CONCUR
    

Document Info

Docket Number: 110917

Citation Numbers: 2022 Ohio 1405

Judges: S. Gallagher

Filed Date: 4/28/2022

Precedential Status: Precedential

Modified Date: 4/28/2022