State v. Herald , 2016 Ohio 7733 ( 2016 )

[Cite as State v. Herald, 2016-Ohio-7733.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-16-09
v.
JOHN T. HERALD, OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court
Trial Court No. 14-CR-11918
Judgment Affirmed
Date of Decision: November 14, 2016
APPEARANCES:
Clayton J. Crates for Appellant
Russell R. Herman for Appellee
Case No. 4-16-09
SHAW, P.J.
{¶1} Defendant-appellant, John T. Herald (“Herald”), brings this appeal
from the March 17, 2016, judgment of the Defiance County Common Pleas Court
revoking Herald’s community control and imposing a reserved aggregate prison
term of seven-and-a-half-years for Herald’s convictions of Burglary in violation of
R.C. 2911.12(A)(1), a felony of the second degree, and Domestic Violence in
violation of R.C. 2919.25(A), a felony of the fourth degree.
Relevant Facts and Procedural History
{¶2} On May 9, 2014, Herald was indicted for Burglary in violation of R.C.
2911.12(A)(1), a felony of the second degree, Domestic Violence in violation of
R.C. 2919.25(A), a felony of the fourth degree due to Herald having a prior
Domestic Violence conviction, and Aggravated Menacing in violation of R.C.
2903.21(A), a first degree misdemeanor. Herald originally pled not guilty to the
charges.
{¶3} On July 3, 2014, the State filed a motion for joinder requesting that the
charges in this case be joined with a Retaliation charge in another case. That motion
was granted.
{¶4} On July 17, 2014, a hearing was held wherein Herald agreed to plead
guilty to the Burglary and Domestic Violence charges in this case, and the
Retaliation charge in the separately indicted case. In exchange the State agreed to
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dismiss the Aggravated Menacing charge in this case. The State also agreed to
recommend that Herald be sentenced to four years of community control on the
Burglary and Domestic Violence offenses with a reserved six-year prison term on
the Burglary and an eighteen-month prison term on the Domestic Violence, which
would be served consecutive to each other for an aggregate seven-and-a-half-year
prison term in the event that community control was revoked. In addition, the State
agreed to recommend that Herald be sentenced to one year in prison on the
Retaliation charge in Herald’s other case, with his community control on the charges
in this case to begin once he was released from prison.
{¶5} The trial court conducted a Crim.R. 11 colloquy with Herald wherein
Herald indicated that he understood the rights he was waiving, the consequences of
his plea, and the potential penalties he was facing. Herald seemed briefly confused
by the court’s indication that the court did not have to follow the parties’ sentencing
recommendation, but the court made it clear that it did not have to follow the
recommendation and Herald elected to plead guilty pursuant to the oral plea
agreement.
{¶6} The court had the State recite a factual narrative related to the charges.
In the narrative, the State indicated that Herald unlawfully entered the private
residence of his ex-girlfriend, who was also the mother of his child, despite
previously being told not to be there. The State indicated that Herald was
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intoxicated and that he shoved the victim down, and that he had a prior conviction
for Domestic Violence.1
{¶7} After narrating the factual basis for the charges, the court asked defense
counsel whether the operative facts were correct and defense counsel stated that
“[t]he facts are debatable, but I’m sure the prosecution can put together evidence
that could convince a jury, a trier of fact.” (July 17, 2014, Tr. at 15). The court then
asked Herald whether the facts happened as alleged and he responded, “[t]o a
degree.” (Id.) However, Herald stated that he admitted to the essential elements of
each of the offenses, and that it was his intention to plead guilty per the plea
agreement.
{¶8} The court accepted Herald’s pleas as knowingly, intelligently, and
voluntarily entered and found Herald guilty.
{¶9} On August 28, 2014, Herald’s sentencing hearing was held. At
sentencing the trial court recited the plea arrangement, stating that the parties
recommended that Herald would be placed on community control for the Burglary
and Domestic Violence convictions upon being released from his one-year prison
term for Retaliation in the separate case. The court indicated that the parties
recommended that if Herald violated his community control he would be subject to
an aggregate seven-and-a-half-year prison term.
1
As it relates to the Retaliation, which is not before us, the State indicated that Herald made specific threats
of violence to kill the baby of a police officer.
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{¶10} The court then asked the parties to be heard, and defense counsel
indicated that the sentence recommendation was “the agreed disposition.” (Aug.
28, 2014, Tr. at 3-4). Herald addressed the court stating that he understood what he
did was wrong and that he was willing to take responsibility for it. He urged the
court to adopt the parties’ sentencing recommendation.
{¶11} The court stated that Herald had an extensive criminal history and told
Herald that “it’s highly unlikely that you’re going to be able to succeed on
community control.” (Aug. 28, 2014, Tr. at 4). Herald stated that he believed that
he could succeed on community control and that he understood the consequences if
he did not comply with his terms of community control.
{¶12} The same date as Herald’s sentencing hearing, a “Community Control
Agreement and Order” was filed, indicating the terms and conditions of Herald’s
community control. Among the conditions were for Herald not to possess or use
drugs, and that he have a midnight curfew. Specific conditions were also added that
Herald should not be in any bars or taverns and that he should not possess or
consume any alcohol. (Doc. No. 23).
{¶13} An entry memorializing Herald’s sentence was filed September 16,
2014.
{¶14} The next relevant activity in this case occurred December 14, 2015,
when the State filed a motion to revoke Herald’s community control, contending
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that he had violated multiple terms of his community control. Specifically, the State
indicated that Herald was not home by his curfew one night and that on or about
December 4/5, 2015, Herald was at the Power Dam Bar and was consuming
alcoholic beverages.
{¶15} On December 14, 2015, the trial court held a hearing on the motion to
revoke Herald’s community control. Herald waived his right to counsel2 and
indicated that he was “obviously * * * guilty” and that he fully admitted to the
violations. (Dec. 14, 2015, Tr. at 3). The State provided a narrative of the incident,
indicating that not only was Herald at a bar, consuming alcohol, and out past his
curfew, but that he also was involved in a fight at the bar.3
{¶16} The court then accepted Herald’s admissions to his community control
violations and asked the State for its recommendation as to disposition. At that time
the State recommended that the disposition be delayed to see if Herald could comply
with the conditions of supervision, and that any “recommendation would be
dependent upon that. We would likely be recommending that he not be revoked,
possibly some additional specials if he commits no new violations. But it would
depend upon what his situation was at that time.” (Dec. 14, 2015, Tr. at 11).
2
A written waiver of counsel was filed in the record.
3
The State indicated it would likely not be pursuing charges from the fight even though the victim required
stitches because the victim was uncooperative.
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{¶17} The court then again reiterated that Herald had a lengthy criminal
history and that he made a mistake being in the bar that evening. Herald requested
leniency, indicating that he had a job and his own residence and was doing better.
Ultimately the court continued disposition for Herald’s admitted violations for
approximately two months. An entry reflecting what transpired at the hearing was
filed December 18, 2015.
{¶18} The case was called for a dispositional hearing on February 10, 2016.
At the hearing, the State indicated there were additional issues that had arisen since
the last hearing, such as Herald testing positive for marijuana and a complaint being
investigated that Herald committed sexual imposition against a female inmate. The
State indicated it had not filed new allegations of community control violations yet
based on the new issues. At that time, the State requested that the court revoke
Herald’s community control and impose the reserved prison term.
{¶19} Herald addressed the court, admitting to smoking the marijuana, but
he denied the sexual imposition allegation, stating that he had told the prosecutor
and a detective that he would take a polygraph test “any day of the week. I will pay
for it. I’ll do it right now.” (Feb. 10, 2016, Tr. at 6). The court agreed to continue
the dispositional hearing to allow Herald to undertake the polygraph examination
that he requested, indicating that the State should prepare a stipulation that the
results of the test would be admissible and the court could consider it.
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{¶20} The final dispositional hearing was held March 14, 2016. At the
hearing the court stated that Herald’s polygraph test indicated that Herald was being
deceptive. Herald denied that he failed the polygraph examination, and the court
asked whether Herald saw on the front page of the report that it said Herald did not
pass the polygraph examination. Herald responded that he saw it but it was not his
understanding. However, the record does not contain any documentation related to
the questions asked at the polygraph examination. Similarly, the record does not
contain a copy of the results or any stipulation related to their admissibility.
{¶21} Despite the results of the polygraph examination that the court
narrated, Herald still denied that the sexual imposition occurred and requested
leniency from the court, asking that his community control be continued even
though he had multiple other violations that he had readily admitted to. The State
recommended that Herald’s community control be revoked.
{¶22} The court recited Herald’s lengthy criminal history, including the
crimes Herald was currently on community control for. The court then revoked
Herald’s community control, and imposed the reserved prison terms, six years for
the burglary and eighteen months for the Domestic Violence, to be served
consecutive to each other, for an aggregate seven-and-a-half-year prison term.
When Herald asked the court “why” the court would impose such a prison term, the
court stated “[b]ecause you won’t follow your rules of community control.” (Mar.
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14, 2016, Tr. at 13). The court added that Herald earned his prison terms by
committing the offenses to which Herald pled guilty. At that time Herald attempted
to contend that he never actually “burglarize[d] anything,” despite already pleading
guilty to the Burglary. (Id. at 13).
{¶23} A final judgment entry revoking Herald’s community control and
imposing the aggregate seven-and-a-half-year prison term was filed March 17,
2016. It is from this judgment that Herald appeals, asserting the following
assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
BY IMPOSING CONSECUTIVE SENTENCES WITHOUT
MAKING APPROPRIATE FINDINGS PURSUANT TO
§2929.14.
ASSIGNMENT OF ERROR 2
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
BY FAILING TO CONSIDER APPLICABLE SENTENCING
STATUTES.
ASSIGNMENT OF ERROR 3
THE TRIAL COURT’S DECISION TO REVOKE
APPELLANT’S COMMUNITY CONTROL CONSTITUTED
AN ABUSE OF DISCRETION.
ASSIGNMENT OF ERROR 4
THE TRIAL COURT COMMITTED PLAIN ERROR BY
ALLOWING THE PROSECUTOR TO CHANGE THE
BARGAINED FOR RECOMMENDATION.
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ASSIGNMENT OF ERROR 5
APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED
WHEN THE STATE FAILED TO COMPLY WITH THE DUE
PROCESS REQUIREMENTS OF COMMUNITY CONTROL
REVOCATION PROCEEDINGS.
ASSIGNMENT OF ERROR 6
APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED
WHEN THE TRIAL COURT FAILED TO MAKE WRITTEN
FINDINGS OF FACT AND CONCLUSIONS OF LAW.
{¶24} We elect to address some of the assignments of error together, and out
of the order in which they were raised.
Third Assignment of Error
{¶25} In Herald’s third assignment of error, he argues that the trial court
abused its discretion by revoking his community control. Specifically, Herald
argues that it was error for the trial court to place any reliance on the polygraph
examination when determining Herald’s disposition for his community control
violations, and that the overall circumstances did not support revoking his
community control.
{¶26} At the outset, we note that community control-revocation and
dispositional hearings are not subject to the rules of evidence. Evid.R. 101(C)(3);
State v. Ohly, 6th Dist. Erie No. E-05-052, 2006-Ohio-2353, ¶ 21. “The rationale
for the exception is that, since a probation revocation hearing is an informal
proceeding, not a criminal trial, the trier-of-fact should be able to consider any
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reliable and relevant evidence to determine whether the probationer has violated the
conditions of his probation.” Columbus v. Bickel, 77 Ohio App. 3d 26, 601 N.E.2d
61 (10th Dist.1991).
{¶27} Nevertheless, in order to find that an offender violated the terms of his
community control at a community control-revocation hearing, the State must show
“substantial evidence.” State v. Boykins, 3d Dist. Marion No. 9-14-28, 2015-Ohio-
1341, ¶ 20, citing State v. McKeithen, 3d Dist. Marion No. 9-08-29, 2009-Ohio-84,
¶ 6, citing State v. Ryan, 3d Dist. Auglaize No. 14-06-55, 2007-Ohio-4743, ¶ 7.
“Substantial evidence is akin to a preponderance-of-the-evidence burden of proof.”
State v. Burdette, 5th Dist. Morrow No. 10–CA–9, 2011–Ohio–4425, *4, citing
State v. Ohly, 6th Dist. Erie No. E-05-052, 2006–Ohio–2353, ¶ 18. However,
“[s]ubstantial evidence is considered to consist of more than a mere scintilla of
evidence, but somewhat less than a preponderance.” (Emphasis added.) Burdette,
citing State v. Gomez, 11th Dist. Lake No. 93–L–080, 1994 WL 102230, *4 (Feb.
18, 1994), citing Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966) and Marker
v. Finch, 322 F. Supp. 905, 910, fn. 7 (D.Del.1971).
{¶28} The decision of a trial court finding a violation of community control
will not be disturbed absent an abuse of discretion. State v. Berry, 3d Dist. Defiance
No. 4-12-04, 2012-Ohio-4660, ¶ 33, citing State v. Ryan, 3d Dist. Union No. 14-06-
55, 2007-Ohio-4743 ¶ 7. A trial court abuses its discretion when it makes a decision
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that is unreasonable, unconscionable, or arbitrary. State v. Darmond, 135 Ohio
St.3d 343, 2013-Ohio-966, ¶ 34. A trial court’s decision to revoke community
control, even for a “minor” violation, is not an abuse of discretion. See State v.
South, 3d Dist. Union No. 14-07-40, 2010-Ohio-983, ¶ 9.
{¶29} In this case there were a number of general and specific provisions
contained in Herald’s community control. Herald’s general provisions required,
inter alia, that Herald obey all laws and that he abide by a midnight curfew unless
his scheduled work hours ended after the stated curfew. Herald was also required
not to possess any illegal drugs. In the specific conditions of Herald’s community
control, Herald was explicitly required not to enter any bars or taverns and not to
consume or possess any alcoholic beverages.
{¶30} Herald readily admitted to multiple violations of his community
control sanctions in this case. Herald admitted that he had been at a bar, that he had
been drinking alcohol, and that he had been out past his curfew. All of these reasons
support the trial court’s decision finding Herald in violation of his community
control.
{¶31} However, on appeal, Herald argues that the trial court improperly
“based” its decision to revoke Herald’s community control on the polygraph
examination that Herald requested at his dispositional hearing and subsequently—
apparently—failed. When Herald was before the court for his disposition, the State
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brought to the court’s attention that Herald failed a drug test and that Herald was
being investigated for a sexual imposition of a female prisoner. While Herald
admitted his marijuana use, he immediately denied the alleged sexual imposition
and stated that he would willingly take a polygraph examination to disprove it.4
{¶32} The trial court delayed the dispositional hearing to allow Herald to
undertake the polygraph examination that he requested, in what appears to be one
last opportunity for Herald to establish some mitigating factors for his disposition
for his violations. Herald’s polygraph examination results apparently indicated that
his responses were indicative of deception. The trial court ultimately revoked
Herald’s community control at the final disposition hearing.
{¶33} Herald now argues that the trial court improperly revoked his
community control based on his polygraph examination results. Contrary to
Herald’s claim, when Herald asked why the trial court revoked his community
control at the dispositional hearing, the trial court stated, “[b]ecause you won’t
follow your rules of community control.” (Mar. 14, 2016, Tr. at 13). The trial court
also cited Herald’s lengthy criminal history before revoking his community control.
The trial court did not specifically cite the polygraph examination as the reason
Herald’s community control was being revoked, rather it generally stated that
Herald had not complied with community control.
4
Neither the State nor the trial court mentioned a polygraph before Herald brought it up. Nevertheless, the
trial court instructed the State to prepare stipulations to make the polygraph admissible.
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{¶34} Nevertheless, Herald argues that any consideration of the polygraph
examination here was improper. To support his claim that the trial court improperly
relied on the polygraph examination in revoking his community control, Herald
attempts to liken this case to the Supreme Court of Ohio’s seminal decision in State
v. Souel, 53 Ohio St. 2d 123 (1978), wherein strict procedure was determined as to
when polygraph examinations can be admitted into evidence at trial. In this case
the polygraph examination is not being used against Herald at trial and he is not
being prosecuted for any alleged offenses for which he took the polygraph
examination. If he wanted to challenge the admissibility of any such statements he
made during the polygraph examination at a subsequent prosecution for that
offense, he would still be able to do so. See In re D.S., 111 Ohio St. 3d 361, 2006-
Ohio-5851, ¶ 16 (2006).
{¶35} Further, the rules of evidence are not even applicable at community
control-revocation hearings and the standard of proof is substantially lower.5 In
addition, polygraph examinations have been found to be an acceptable tool of
community control where the testing is related to a criminal defendant’s treatment
and supervision, even where polygraph examinations were specifically required to
be undertaken. See State v. May, 8th Dist. Cuyahoga No. 97354, 2012-Ohio-2766,
¶ 37 (overruled on a separate issue in State v Anderson, 8th Dist. Cuyahoga No.
5
Though we wish to emphasize that Herald was not being found in violation of his community control for
failing the polygraph examination, it was merely being considered for disposition.
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102427, 2016-Ohio-7044); but see In re D.S., 111 Ohio St. 3d 361, 2006–Ohio–
0992, ¶ 5 (wherein it was determined that requiring a juvenile to take a polygraph
examination must be supported by the evidence as a juvenile is not a criminal). Thus
for all of these reasons we do not find Souel controlling here.
{¶36} Herald also cites an older decision out of the Ninth District Court of
Appeals, State v. Rooney, 9th Dist. Summit No. 12052, 1985 WL 11040, wherein
the Ninth District affirmed a trial court’s suppression of evidence that a defendant
involuntarily took a polygraph examination as a condition of his probation and
defendant’s deception in that polygraph examination was going to be used as the
sole basis to find the defendant in violation of his probation. Rooney is readily
distinguishable from the case sub judice, because here Herald was already found in
violation of his community control at the time any polygraph results were
considered, and the polygraph was only considered here as giving Herald an
opportunity to mitigate the circumstances before the trial court. The apparent results
of the polygraph examination in this case were not being used as any basis to find
Herald in violation of his community control, let alone the sole basis, as it was in
Rooney. Moreover, Herald also undertook the examination voluntarily in this case.
Thus we do not find these circumstances the same as Rooney.
{¶37} Finally, we would note that before Herald originally pled guilty to the
Burglary and Domestic Violence charges, the trial court admonished Herald that,
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even if the court accepted the parties’ sentencing recommendation, based on his
criminal history it seemed unlikely Herald would succeed on community control.
Herald stated that he believed that he could. Herald may feel that his community
control violations were minor, but he was already getting a significant opportunity
to be on community control at all given that he pled guilty to a second degree felony.
{¶38} In this specific instance we can find no error with the trial court’s
revocation of Herald’s community control. Even disregarding everything related to
the polygraph examination, the trial court still had multiple reasons for revoking
Herald’s community control, and it was specifically stated that Herald’s community
control was revoked for his general failure to comply. Therefore, Herald’s third
assignment of error is overruled.
Fourth Assignment of Error
{¶39} In Herald’s fourth assignment of error, he argues that the trial court
erred by allowing the prosecutor to “change” his “bargained-for” recommendation
at the dispositional hearing. Specifically, Herald argues that when he admitted his
community control violations, the State indicated that it would “likely” be
recommending that the trial court not revoke Herald’s community control at the
dispositional hearing. Herald likens the State’s comment to that of a “plea
agreement,” claiming that the State breached said “plea agreement” when it
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recommended that Herald’s community control be revoked at the dispositional
hearing.
{¶40} Herald’s arguments in this assignment of error are wholly disputed by
the record and are entirely without merit. After Herald admitted to multiple
community control violations, the trial court asked the State what it would
recommend for disposition. The prosecutor made the following statement.
[Prosecutor]: Your Honor what I indicated is the State would ask
that the matter be continued for disposition. I’d like to look at the
history a little bit further and review further with Mr. Elwood.
But also give the Defendant an opportunity to begin some
counseling, Mr. Elwood had recommended or directed him to
begin participating in. So I indicated to him that I would be
requesting a continuance of the disposition to see if he can comply
with all the conditions of his supervision, and then our
recommendation would be dependent upon that. We would likely
be recommending that he not be revoked, possibly some
additional specials if he commits no new violations. But it would
depend upon what his situation was at that time.
(Emphasis added.) (Dec. 14, 2015, Tr. at 11).
{¶41} Notably, nowhere in the preceding statement does the prosecutor make
any type of binding promise to recommend that Herald remain on community
control at the dispositional hearing. However, even if the prosecutor had made such
a promise, the trial court was absolutely not bound by any such recommendation.
{¶42} Nevertheless, even though the trial court did not have to continue
Herald’s dispositional hearing as the State recommended, it did, continuing the case
for approximately two months, allowing Herald an opportunity to demonstrate that
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he could be successful on community control. In that time Herald managed to fail
a drug test, which he admitted to, and there was an investigation related to a potential
sexual imposition charge. While Herald argues that no new community control
violations were specifically filed regarding those issues, the court indicated it was
unnecessary based on Herald’s past violations. The State then gave its
recommendation that Herald’s community control be revoked.
{¶43} The trial court, using its discretion, revoked Herald’s community
control. There was never any agreement between Herald and the State, and even if
there was, Herald seems to clearly have violated the agreement by continuously not
abiding by the terms of his community control. Therefore, Herald’s argument that
the State somehow altered a “bargained-for” recommendation is entirely inaccurate
and without merit. Accordingly, his fourth assignment of error is overruled.
Fifth Assignment of Error
{¶44} In Herald’s fifth assignment of error, he argues that his due process
rights were violated by the State failing to comply with the requirements of
community control revocation proceedings. Specifically, he argues that no
community control violations were filed against Herald for his marijuana use or his
alleged sexual imposition of a female inmate and that these potential violations were
used against him.
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{¶45} Notably, any reference to Herald’s marijuana use and his potential
sexual imposition of a female inmate were only made at Herald’s dispositional
hearing. The trial court never determined whether Herald violated his community
control based on his marijuana use or the alleged sexual imposition. Rather, the trial
court merely took these issues into account when determining Herald’s disposition
for the violations of community control to which Herald had already admitted. This
Court has already determined that it is not reversible error for a trial court to consider
such allegations during a dispositional phase of a community control revocation
hearing. See State v. Rose, 3d Dist. Logan No. 8-02-14, 2002-Ohio-5136, ¶ 20;
State v. Patierno, 3d Dist. Defiance No. 4-08-08, 2009-Ohio-410, ¶ 24; State v.
Hurley, 3d Dist. Hardin Nos. 6-10-02, 6-10-03, 2010-Ohio-3668, ¶¶ 8-15. Thus
Herald’s argument is not well-taken and his fifth assignment of error is overruled.
Sixth Assignment of Error
{¶46} In Herald’s sixth assignment of error, he argues that the trial court
erred by failing to make written findings of fact and conclusions of law in revoking
Herald’s community control.
{¶47} To support his argument, Herald cites State v. Delaney, 11 Ohio St. 3d
231 (1984), wherein the Supreme Court of Ohio stated that it did “not condone the
use of oral ‘explanations’ in lieu of written statements detailing the basis for a trial
court’s determination in revocation proceedings[.]” Delaney at 235. However, the
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Court continued by stating that written findings of fact and conclusions of law were
immaterial since the appellant was adequately informed of the reasons for which his
“probation” was being revoked on the record. Id.
{¶48} The preceding segment makes clear that the legal authority actually
relied upon by Herald does not even adequately support his position. The Supreme
Court of Ohio indicated only that it was more favorable if a trial court produced
written findings of fact and conclusions of law when finding a violation, but it was
not necessary so long as a defendant is adequately informed of the reasons his
probation—now community control—is being revoked.
{¶49} Here, written violations were filed, a hearing was held, and Herald
admitted to the violations. A factual basis of the violations was even presented and
Herald gave his version of events. Herald was clearly apprised of why he was being
found in violation of his community control in this case and the trial court made that
clear. Therefore, Herald’s sixth assignment of error is not well-taken, and is
overruled.
First and Second Assignments of Error
{¶50} In Herald’s second assignment of error, he argues that the trial court
erred by failing to consider applicable sentencing statutes. In his first assignment
of error, he argues that the trial court erred by failing to make appropriate
consecutive sentences findings pursuant to R.C. 2929.14(C)(4).
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{¶51} Revised Code 2953.08(D)(1) governs the appeal of jointly
recommended sentences. It provides that “[a] sentence imposed upon a defendant
is not subject to review under this section if the sentence is authorized by law, has
been recommended jointly by the defendant and the prosecution in the case, and is
imposed by a sentencing judge.” The Supreme Court of Ohio has held that “[o]nce
a defendant stipulates that a particular sentence is justified, the sentencing judge
need not independently justify the sentence.” State v. Porterfield, 106 Ohio St. 3d
5, 2005–Ohio–3095, at paragraph three of the syllabus. “The General Assembly
intended a jointly agreed-upon sentence to be protected from review precisely
because the parties agreed that the sentence is appropriate.” Id. at ¶ 25. The
Supreme Court of Ohio has recently specifically applied this concept to the findings
required to impose consecutive sentences. State v. Sergent, Ohio Sup.Ct. Slip
Opinion No. 2016–Ohio–2696.
{¶52} In this case the sentence was recommended by both the State and
Herald, and was bargained-for in the plea agreement. Herald’s counsel made this
clear at the sentencing hearing. At the sentencing hearing, Herald’s counsel stated
that, “The disposition that the Court recited is the bargain for [sic] and the agreed
disposition. The inclusion of SEARCH was actually the request of the Defendant
who felt that he needed some structure getting his life straighten out [sic], and so we
would certainly recommend that the Court accept the prosecutor’s disposition
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recommendation.” (Aug. 28, 2014, Tr. at 3-4). The defendant himself then also
urged the court to accept the sentencing recommendation stating, “I just ask that,
you know, you respect the recommendation of the prosecutor.” (Id.) The trial court
ultimately imposed the jointly recommended sentence. In doing so, the trial court
specifically stated that in the event the prison terms needed to be imposed, they
would be imposed consecutively and that “[c]onsistent with the plea arrangement *
* * that entire seven and a half year term will be reserved.” (Id. at 6).
{¶53} As the sentence in this case was jointly recommended by the parties
and imposed by the trial court, we need only review if the sentence is authorized by
law.6 The six-year prison sentence for Burglary and the eighteen-month prison term
for Domestic Violence both fall within the statutory range. In the event of a
community control violation, Herald was aware that he was facing an aggregate
seven-and-a-half-year prison term as indicated in the “Community Control
Agreement and Order,” which was signed by the parties and the judge. Since the
term was authorized by law, any claims that the trial court did not consider specific
sentencing statutes are without merit, and Herald’s first and second assignments of
error are overruled. See State v. Sergent, Ohio Sup.Ct. Slip Opinion No. 2016–
6
This case is readily distinguishable from State v. Kegley, 3d Dist. Crawford No. 3-15-20, 2016-Ohio-2983,
¶ 2, wherein the plea agreement and sentence only stated that the defendant could be “subject to” certain
maximum consecutive prison terms, not that such terms would necessarily be imposed.
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Case No. 4-16-09
Ohio–2696; State v. White, 2d Dist. Greene No. 2015-CA-37, 2016-Ohio-4726, ¶
13; State v. Dennison, 10th Dist. Franklin No. 05AP–124, 2005–Ohio–5837, ¶ 9.
{¶54} Having found no error prejudicial to Herald in the particulars assigned,
his 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
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