State v. Scott , 2021 Ohio 1368 ( 2021 )

[Cite as State v. Scott, 2021-Ohio-1368.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-A-0016
- vs - :
DAVID A. SCOTT, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2017 CR
0628.
Judgment: Affirmed and remanded.
Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Prosecutor’s Office, 25 West Jefferson Street, Jefferson,
OH 44047 (For Plaintiff-Appellee).
Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, David A. Scott, appeals from proceedings before the
Ashtabula County Court of Common Pleas, finding that he was in violation of community
control sanctions and imposing sentence. For the following reasons, we affirm the
judgment of the lower court and remand this matter for the court to issue a new sentencing
entry nunc pro tunc as explained in the body of this opinion.
{¶2} On May 19, 2019, Scott was sentenced to two years of intensive community
control following pleas of guilty to Attempted Corrupting Another with Drugs (Count One),
a felony of the third degree in violation of R.C. 2925.02(A) and (C)(1), and Aggravated
Trafficking in Drugs (Count Two), a felony of the fourth degree in violation of R.C.
2925.03(A)(1) and (C)(1)(a). Scott was advised: “Violation of this sentence may lead to
a longer or more restrictive sanction for defendant, up to and including a prison term of
thirty-six (36) months on Count One and eighteen (18) months on Count Two, to be
served consecutive with each other, for a total of fifty-four (54) months.”
{¶3} On March 4, 2020, the Ashtabula County Adult Probation Department filed
a Complaint for Violation of Probation [Community Control] alleging the following:
The defendant [Scott] has not complied with this condition of
probation in that Count 1, on October 2, 2019, the defendant
admitted to using methamphetamine. Count 2, on October 7, 2019,
the defendant tested positive for methamphetamine, amphetamine,
and MDMA. Count 3, on December 19, 2019, the defendant
admitted to using heroin. Count 4, on January 2, 2020, the defendant
tested positive for methamphetamine, amphetamine, MDMA, and
fentanyl. Count 5, on February 24, 2020, the defendant tested
positive for heroin, morphine, methamphetamine, and amphetamine.
{¶4} On March 11, 2020, Scott appeared in court and pled guilty to the Complaint
for Violation of Community Control. The trial court ordered Scott to serve a thirty-six-
month prison term for Attempted Corrupting Another with Drugs consecutively with an
eighteen-month prison term for Aggravated Trafficking for a total of fifty-four months.
{¶5} On March 17, 2020, Scott filed a Notice of Appeal.
{¶6} On December 18, 2020, counsel for Scott filed a Motion for Leave to
Withdraw pursuant to Anders v. California.
{¶7} On December 24, 2020, this court issued a Judgment Entry explaining our
procedure in such cases:
When an attorney files a brief pursuant to Anders, it is
premised upon the realization, after reviewing the entire court record,
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that there are no meritorious issues to present on appeal. When this
occurs, pursuant to Anders, certain steps are to be followed by
counsel, appellant, and the court of appeals.
Therefore, appellant is granted (30) days from the date of this
entry to file his own submission, if he so chooses, which raises any
arguments in support of the appeal. We note that appellant is not
required to file a pro se submission.
This court will examine the record and all proceedings to
determine whether the appeal is wholly frivolous. If the court finds
the appeal to be frivolous, it may grant permission for counsel to
withdraw and dismiss the appeal or proceed to a decision on the
merits. If the court finds that there are arguable legal points on the
merits, new counsel will be appointed.
On December 29, 2020, the State filed its Response to the Motion for Leave to Withdraw.
Scott has not raised any arguments in support of the appeal. Accordingly, we will proceed
to conduct an independent review of the record, pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
{¶8} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing * * * if it clearly and
convincingly finds * * * [t]hat the sentence is * * * contrary to law.” R.C. 2953.08(G)(2)(b).
Revocation of Community Control
{¶9} The procedure for revoking community control is as follows:
(A) Hearing. The court shall not impose a prison term for violation
of the conditions of a community control sanction or revoke probation
except after a hearing at which the defendant shall be present and
apprised of the grounds on which action is proposed. The defendant
may be admitted to bail pending hearing.
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(B) Counsel. The defendant shall have the right to be represented
by retained counsel and shall be so advised. Where a defendant
convicted of a serious offense is unable to obtain counsel, counsel
shall be assigned to represent the defendant, unless the defendant
after being fully advised of his or her right to assigned counsel,
knowingly, intelligently, and voluntarily waives the right to counsel.
Where a defendant convicted of a petty offense is unable to obtain
counsel, the court may assign counsel to represent the defendant.
Crim.R. 32.3.
{¶10} “Criminal Rule 32.3(A) merely requires a trial court to (1) hold a hearing, (2)
where the defendant is present, (3) and apprised of the grounds on which action is
proposed.” (Citation omitted.) State v. Mayle, 2017-Ohio-8942, 101 N.E.3d 490, ¶ 18
(11th Dist.).
{¶11} In the present case, a preliminary hearing on the Complaint was held on
March 9, 2020, at which Scott was present and represented by counsel. Prior to the
hearing, Scott had been personally served with the Complaint. At the preliminary hearing,
evidence was taken on the record from the probation officer who filed the Complaint
regarding the violations alleged therein. Based on the evidence, the trial court scheduled
a final hearing for March 11. At the final hearing, Scott was again present with counsel.
Scott acknowledged that he had been served with the allegations of misconduct, waived
the final hearing, and admitted the violations.
{¶12} Based on the record we find no error in the proceedings to revoke
community control.
Sentencing Hearing
{¶13} The Ohio Supreme Court has affirmed that a hearing to impose a sentence
for a violation of community control is a sentencing hearing and, therefore, compliance
with the relevant sentencing statutes is required. State v. Jackson, 150 Ohio St.3d 362,
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2016-Ohio-8127, 81 N.E.3d 1237, ¶ 11 (cases cited).
{¶14} “The court shall hold a sentencing hearing” and “ask the offender whether
the offender has anything to say as to why sentence should not be imposed upon the
offender.” R.C. 2929.19(A); Crim.R. 32(A). In the present case, Scott was afforded his
right of allocution at the March 11 hearing at which he was sentenced.
{¶15} A sentencing court must comply with the following:
[I]f the sentencing court determines at the sentencing hearing that a
prison term is necessary or required, the court shall do all of the
following:
(a) Impose a stated prison term * * *;
(b) In addition to any other information, include in the sentencing
entry the name and section reference to the offense or offenses, the
sentence or sentences imposed and whether the sentence or
sentences contain mandatory prison terms, if sentences are imposed
for multiple counts whether the sentences are to be served
concurrently or consecutively, * * *;
***
(e) Notify the offender that the offender may be supervised
under section 2967.28 of the Revised Code after the offender leaves
prison if the offender is being sentenced for a felony of the third,
fourth, or fifth degree that is not subject to division (B)(2)(d) of this
section. * * *.
(f) Notify the offender that, if a period of supervision is imposed
following the offender’s release from prison, as described in division
(B)(2)(d) or (e) of this section, and if the offender violates that
supervision or a condition of post-release control imposed
under division (B) of section 2967.131 of the Revised Code, the
parole board may impose a prison term, as part of the sentence, of
up to one-half of the definite prison term originally imposed upon the
offender as the offender’s stated prison term or up to one-half of the
minimum prison term originally imposed upon the offender as part of
the offender’s stated non-life felony indefinite prison term. * * *.
(g)(i) Determine, notify the offender of, and include in the sentencing
entry the total number of days, including the sentencing date but
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excluding conveyance time, that the offender has been confined for
any reason arising out of the offense for which the offender is being
sentenced and by which the department of rehabilitation and
correction must reduce the definite prison term imposed on the
offender as the offender’s stated prison term * * *.
(Footnote omitted.) R.C. 2929.19(B)(2).
{¶16} In the present case, the sentencing court duly complied with the foregoing
provisions: It imposed two stated prison terms for offenses identified by name and code
section and ordered the terms to be served consecutively. It advised Scott that he would
be subject to three years of post-release control and what the terms and conditions of his
post-release control would be. This notice was presented to Scott in written form, signed
by him, and filed with the court. Finally, the court granted Scott jail time credit of twenty-
five days.
{¶17} “[T]he court shall advise the defendant of the defendant’s right, where
applicable, to appeal or to seek leave to appeal the sentence imposed.” Crim.R. 32(B)(2).
In the present case, the trial court advised Scott: “[Y]ou have 30 days from today’s date
to file any appeal with the Eleventh District Court of Appeals. You have a right to a free
court-appointed lawyer in the Court of Appeals, and you have a right to a free transcript
of all court proceedings that can be prepared for you at no cost to you.”
{¶18} Based on the record we find no error in the conduct of the sentencing
hearing.
The Prison Terms Imposed
{¶19} “If the conditions of a community control sanction are violated * * *, the
sentencing court may impose upon the violator * * * [a] prison term * * * not [to] exceed
the prison term specified in the notice provided to the offender at the sentencing hearing.”
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R.C. 2929.15(B)(1)(c) and (3). At the time he was sentenced for the underlying felonies,
Scott was advised that, if he violated community control, he could be sentenced to
consecutive thirty-six-month and eighteen-month prison terms for Attempted Corrupting
Another with Drugs and Aggravated Trafficking in Drugs respectively. These sentences
are within the prescribed range for third- and fourth-degree felonies. R.C.
2929.14(A)(3)(b) and (4).
{¶20} Based on the record we find no error in the prison terms imposed.
Consecutive Sentences
{¶21} The Ohio Revised Code provides, in relevant part, as follows regarding
consecutive felony sentences:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or unusual
that no single prison term for any of the offenses committed as part
of any of the courses of conduct adequately reflects the seriousness
of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
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R.C. 2929.14(C)(4).
{¶22} Under R.C. 2929.14(C)(4), a sentencing court is required to make three
distinct findings in order to require an offender to serve consecutive prison terms: (1) that
consecutive sentences are “necessary to protect the public from future crime or to punish
the offender”; (2) that consecutive sentences are “not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public”; (3) “and * *
* also” that one of the circumstances described in subdivision (a) to (c) is present. State
v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 252.
{¶23} Moreover, “a trial court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶24} In the present case, the trial court made the following findings at the
sentencing hearing:
The Court finds that consecutive sentences are necessary to protect
the public from future crimes and to punish [Scott], and that
consecutive sentences are not disproportionate to the seriousness
of [his] conduct or the danger that [he] pose[s] to the public. * * *
The Court also finds that [his] history of criminal conduct
demonstrates that consecutive sentences are necessary to protect
the public from future crimes.
The court’s sentencing Entry, however, only reiterates the first two findings and omits the
finding that Scott’s history of criminal conduct demonstrates that consecutive sentences
are necessary to protect the public from future crimes. The Entry provides: “The Court
further finds for the reasons stated on the record that consecutive terms should be
imposed because it is necessary to protect the public and punish the defendant.
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Consecutive sentences are not disproportionate to the conduct of the defendant and to
the danger he poses to the public.”
{¶25} This court has been confronted with this identical omission in a prior appeal.
State v. Burke, 11th Dist. Trumbull Nos. 2018-T-0032 and 2018-T-0035, 2019-Ohio-1951,
¶ 153. It was noted that “‘a trial court’s failure to incorporate the findings required by R.C.
2929.14(C) in the sentencing entry after making those findings at the sentencing hearing
does not render the sentence contrary to law’ and may be corrected via a nunc pro tunc
entry.” (Citation omitted.) Id. at ¶ 152. The proper procedure, therefore, is to affirm the
judgment but “remand [the] matter for the trial court to issue a nunc pro tunc sentencing
entry, incorporating the R.C. 2929.14(C)(4)(c) finding that was made at the sentencing
hearing.” Id. at ¶ 154 (cases cited).
{¶26} Based on the record we find no reversible error in the imposition of
consecutive prison terms although the case must be remanded for the trial court to issue
a new sentencing entry nunc pro tunc.
{¶27} Having thus duly conducted an independent review of the record, we
conclude that the present appeal is wholly frivolous inasmuch as it is devoid of reversible
error. The matter is remanded for the trial court to issue a new sentencing entry nunc pro
tunc for the reasons indicated above. Appellate counsel’s Motion for Leave to Withdraw
is granted.
MARY JANE TRAPP, P.J.,
THOMAS R. WRIGHT, J.,
concur.
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