State v. Stroud , 2024 Ohio 933 ( 2024 )

[Cite as State v. Stroud, 2024-Ohio-933.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-230453
C-230454
Plaintiff-Appellee, : TRIAL NOS. B-2106248
B-2301133
:
VS.
: O P I N I O N.
STEPHON STROUD, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in Part, Sentences Reversed in Part, and
Cause Remanded for Resentencing
Date of Judgment Entry on Appeal: March 15, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Stephon Stroud pled guilty to failing to verify his
current address and aggravated possession of drugs and was sentenced to a two-year
period of community control for each offense. Stroud subsequently pled guilty to
violating his community control. The trial court revoked Stroud’s community control
and imposed an aggregate sentence of three years of imprisonment.
{¶2} Stroud now appeals from the trial court’s judgments revoking his
community control and imposing sentence. In two assignments of error, he argues that
the sentences imposed by the trial court were contrary to law and that the trial court
violated his right under Crim.R. 43(A) to be present during sentencing. Following our
review of the record, we hold that the trial court erred by failing to impose the sentence
for aggravated possession of drugs in Stroud’s presence. The trial court also erred by
failing to provide Stroud notice of postrelease control at the sentencing hearing. This
cause is remanded for resentencing on the aggravated-possession-of-drugs offense
and for the trial court to provide the required postrelease-control notifications. The
judgments of the trial court are otherwise affirmed.
I. Factual and Procedural Background
{¶3} In the case numbered B-2106248, Stroud pled guilty to failing to verify
his current address, a third-degree felony in violation of R.C. 2950.06. Stroud was
sentenced to a two-year period of community control with mentally disordered
offender (“MDO”) supervision. The trial court informed Stroud at sentencing that if
he were to violate his community control, the trial court would impose a sentence of
36 months of imprisonment.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In the case numbered B-2301133, Stroud pled guilty to aggravated
possession of drugs, a fifth-degree felony in violation of R.C. 2925.11(A). For this
offense, the trial court sentenced Stroud to a two-year period of community control
with MDO supervision. Stroud was also ordered to complete drug treatment and
counseling as recommended. He was informed by the trial court that a sentence of 12
months of imprisonment would be imposed if he violated community control.
{¶5} Approximately one month after sentencing, a community-control
sanction violation was filed against Stroud in each case. It alleged that Stroud violated
rules one, four, eight, and 11 of his community control by, respectively, sending an
inappropriate text message to his probation officer, testing positive for amphetamines,
failing to report to his probation officer, and failing to engage with Greater Cincinnati
Behavioral Health. At a hearing on the alleged violations, Stroud waived probable
cause and pled guilty to violating rules four, eight, and 11. With respect to the alleged
violation of rule one pertaining to the inappropriate text message, Stroud maintained
that the message had been sent to his probation officer by an acquaintance that was
harassing him. The trial court accepted Stroud’s explanation and assured him twice
that it was taking the text message “off the table.” After accepting Stroud’s guilty plea,
the court imposed sentence, stating that “[t]he sentence is Ohio Department of
Corrections three years. CR, credit all days served. Terminate probation.”
{¶6} The sentencing entry issued by the trial court in the case numbered B-
2106248 for the offense of failing to verify his address stated that Stroud’s community
control was terminated and that he was sentenced to three years of imprisonment. It
further stated that Stroud may be subject to a period of postrelease control for up to
two years after his release from prison. In the case numbered B-2301133, for the
3
OHIO FIRST DISTRICT COURT OF APPEALS
offense of aggravated possession of drugs, the sentencing entry stated that Stroud’s
community control was terminated and that he was sentenced to one year of
imprisonment, to be served concurrently with the sentence imposed in the case
numbered B-2106248. It also stated that Stroud may be subject to a period of
postrelease control for up to two years upon his release from prison.
{¶7} Stroud now appeals from these entries revoking his community control
and imposing a term of imprisonment.
II. Sentencing
{¶8} In his first assignment of error, Stroud argues that the sentences
imposed were contrary to law.
{¶9} When reviewing the imposition of a felony sentence, this court cannot
vacate or modify the sentence unless it clearly and convincingly finds that the sentence
was contrary to law or that the trial court’s findings were not supported by the record.
State v. Sanders, 1st Dist. Hamilton No. C-230131, 2023-Ohio-4551, ¶ 9, citing State
v. Howell, 1st Dist. Hamilton No. C-200360, 2021-Ohio-2957, ¶ 13; see R.C.
2953.08(G)(2). A sentence is contrary to law when it is “in violation of statute or legal
regulations at a given time.” Howell at ¶ 13, quoting State v. Jones, 163 Ohio St.3d
242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 34, citing Black’s Law Dictionary 328 (6th
Ed.1990).
{¶10} The sentences imposed in these cases fell within the available statutory
ranges for third- and fifth-degree felony offenses. See R.C. 2929.14(A)(3) and (A)(5).
Stroud nonetheless contends that the imposed sentences were contrary to law because
the trial court punished him for another person’s misconduct. He contends that “[t]he
trial court falsely assumed Mr. Stroud refused to comply with the terms of community
4
OHIO FIRST DISTRICT COURT OF APPEALS
control, and by placing the responsibility for the violations upon Mr. Stroud and not
Mr. Grimes [who Stroud asserted sent the text message to his probation officer], the
trial court violated Mr. Stroud’s right to due process.” The record belies Stroud’s
assertion.
{¶11} First, the trial court did not “falsely assume” that Stroud failed to comply
with the terms of his community control. Stroud pled guilty to violating the terms of
his community control by testing positive for amphetamines, failing to meet with his
probation officer, and failing to engage with Greater Cincinnati Behavioral Health.
Stroud accordingly admitted to engaging in these actions, and it is disingenuous for
him to now argue that the trial court falsely assumed that he did not comply with the
terms of his community control.
{¶12} Second, the trial court accepted Stroud’s explanation that he was not
responsible for sending the inappropriate text message to his probation officer. It
twice assured Stroud that it would not hold him accountable for that action. On this
record, we cannot find that the trial court punished Stroud for another person’s
misconduct.
{¶13} Stroud additionally argues that the one-year sentence imposed for the
offense of aggravated drug possession, a fifth-degree felony, was contrary to law
because the community-control violations that he committed were technical
violations, for which a maximum sentence of 90 days’ imprisonment could be
imposed.
{¶14} R.C. 2929.15(B)(1)(c)(i) provides that where a prison term is imposed
upon an offender found guilty of violating a condition of community control, “[i]f the
prison term is imposed for any technical violation of the conditions of a community
5
OHIO FIRST DISTRICT COURT OF APPEALS
control sanction imposed for a felony of the fifth degree, the prison term shall not
exceed ninety days.” The validity of Stroud’s argument depends on whether the
community-control violations to which he pled guilty were technical or nontechnical,
as the limitations contained in R.C. 2929.15(B)(1)(c)(i) only apply to technical
violations. State v. Kernall, 2019-Ohio-3070, 132 N.E.3d 758, ¶ 12 (1st Dist.).
{¶15} R.C. 2929.15(E) defines the term “technical violation.” It provides that
a technical violation:
[M]eans a violation of the conditions of a community control sanction
imposed for a felony of the fifth degree, or for a felony of the fourth
degree that is not an offense of violence and is not a sexually oriented
offense, and to which neither of the following applies:
(1) The violation consists of a new criminal offense that is a felony or
that is a misdemeanor other than a minor misdemeanor, and the
violation is committed while under the community control sanction.
(2) The violation consists of or includes the offender’s articulated or
demonstrated refusal to participate in the community control sanction
imposed on the offender or any of its conditions, and the refusal
demonstrates to the court that the offender has abandoned the objects
of the community control sanction or condition.
R.C. 2929.15(E); see also State v. Elliott, 1st Dist. Hamilton No. C-220339, 2023-
Ohio-1459, ¶ 14. A violation will be deemed nontechnical, on the other hand, if it
“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
6
OHIO FIRST DISTRICT COURT OF APPEALS
defendant’s misconduct.” State v. Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, 165
N.E.3d 1110, ¶ 26, quoting State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-
Ohio-2672, ¶ 17-18.
{¶16} Stroud pled guilty to violating his community control by testing positive
for amphetamines, failing to report to his probation officer, and failing to engage with
Greater Cincinnati Behavioral Health. Stroud’s failure to engage in mental-health
treatment and his use of amphetamines were nontechnical violations. Stroud was
convicted of aggravated drug possession, and the requirements that he not use
controlled substances and engage in counseling were substantive rehabilitative
requirements tailored to address the trial court’s specific concerns about Stroud’s
mental health and his misconduct. See State v. Castner, 163 Ohio St.3d 19, 2020-Ohio-
4950, 167 N.E.3d 939, ¶ 16 (failure to complete a drug-treatment program was a
nontechnical violation); Kernall, 2019-Ohio-3070, 132 N.E.3d 758, at ¶ 19 (failure to
engage in substance-abuse treatment, which was a substantive rehabilitative
requirement specifically tailored to defendant’s underlying conduct, was a
nontechnical violation); State v. Whitacker, 6th Dist. Wood Nos. WD-19-038, WD-19-
039, and WD-19-040, 2020-Ohio-4249, ¶ 15 (where defendant was convicted of drug-
related offenses, a community-control condition that prohibited drug use was a
substantive rehabilitative requirement, and defendant’s failure to pass a drug test was
a nontechnical violation).
{¶17} Stroud’s failure to report to his probation officer, however, was a
technical violation. The requirement that an offender report to a probation officer
facilitates community-control supervision, and “the failure to report to probation fits
within the definition of a technical violation in R.C. 2929.15(E).” Elliott at ¶ 17.
7
OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Because the prison term was imposed upon Stroud for both technical
and nontechnical violations, the trial court was not limited to imposing the 90-day
period for technical violations set forth in R.C. 2929.15(B)(1)(c)(i). See Elliott, 1st Dist.
Hamilton No. C-220339, 2023-Ohio-1459, at ¶ 18. The one-year sentence imposed by
the trial court was accordingly not contrary to law.
{¶19} Stroud last argues that the sentences imposed were contrary to law
because the trial court failed to provide notice of postrelease control at the sentencing
hearing. The state concedes this argument and agrees that the trial court failed to
provide the required postrelease-control notifications.
{¶20} “It is settled that ‘a trial court has a statutory duty to provide notice of
postrelease control at the sentencing hearing’ and that ‘any sentence imposed without
such notification is contrary to law.’ ” State v. Gordon, 153 Ohio St.3d 601, 2018-Ohio-
1975, 109 N.E.3d 1201, ¶ 9, quoting State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-
2927, 85 N.E.3d 700, ¶ 8, quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-
6085, 817 N.E.2d 864, ¶ 23; see State v. Jackson, 1st Dist. Hamilton No. C-220458,
2023-Ohio-2208, ¶ 15 (“[I]f a trial court imposes postrelease control, the trial court is
required to provide notice at the sentencing hearing.”). While the trial court included
language in the sentencing entries stating that Stroud may be subject to a period of
postrelease control for up to two years upon his release from prison, it provided no
notice of postrelease control at the sentencing hearing. Consequently, this cause must
be remanded for the trial court to provide the proper notifications.
{¶21} The first assignment of error is accordingly sustained in part and
overruled in part.
8
OHIO FIRST DISTRICT COURT OF APPEALS
III. Crim.R. 43
{¶22} In his second assignment of error, Stroud argues that the trial court
violated his Crim.R. 43(A) right to be present during sentencing.
{¶23} Crim.R. 43(A)(1) provides that “the defendant must be physically
present at every stage of the criminal proceeding and trial, including the impaneling
of the jury, the return of the verdict, and the imposition of sentence, except as
otherwise provided by these rules.” See State v. Craig, 1st Dist. Hamilton No. C-
230112, 2023-Ohio-3777, ¶ 39 (“Pursuant to Crim.R. 43(A)(1), the defendant must be
physically present at every stage of the criminal proceeding, including the imposition
of sentence.”).
{¶24} At the sentencing hearing, the trial court only announced the sentence
imposed for the offense of failure to verify a current address. It did not impose a
sentence for the offense of aggravated possession of drugs. The state concedes that the
trial court failed to comply with Crim.R. 43(A) when sentencing Stroud for this latter
offense.
{¶25} Stroud’s second assignment of error is accordingly sustained. The
sentence imposed for the offense of aggravated possession of drugs must be reversed
and this cause remanded for a new sentencing hearing.
IV. Conclusion
{¶26} The trial court erred by failing to impose sentence for the offense of
aggravated possession of drugs in Stroud’s presence at the sentencing hearing and by
failing to provide the required postrelease-control notifications at sentencing. The
sentence imposed for aggravated possession of drugs is reversed, and this cause is
9
OHIO FIRST DISTRICT COURT OF APPEALS
remanded for a new sentencing hearing on that offense and for the trial court to
provide the required postrelease-control notifications.
Judgment accordingly.
ZAYAS, P.J., and KINSLEY, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
10