State v. Smith

[Cite as State v. Smith, 2023-Ohio-327.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29326
:
v. : Trial Court Case Nos. 2021 CR 01194;
: 2021 CR 02263
RICK SMITH :
: (Criminal Appeal from Common Pleas
Appellant : Court)
:
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OPINION
Rendered on February 3, 2023
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MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee
ANDREW R. BARNES, Attorney for Appellant
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TUCKER, J.
{¶ 1} Rick Smith appeals from the trial court’s revocation of community control and
its imposition of consecutive eight-month prison sentences in two consolidated cases.
{¶ 2} Smith contends the trial court’s two judgment entries are defective because
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they failed to mention that he “entered a plea to the charges.” He similarly claims the trial
court failed to journalize his admission to violating community control and its finding on
that admission. Smith also argues that the trial court improperly elicited his admission to
violating community control with a false promise that he would be placed in a residential
treatment program. He further asserts that the trial court failed to acknowledge a
revocation of his admission at sentencing. Finally, Smith contends the trial court erred in
imposing consecutive sentences without making the required statutory findings.
{¶ 3} We see no defect in the trial court’s two judgment entries revoking community
control and sentencing Smith to prison. We also see no promise by the trial court that he
would be sent to a residential treatment program. Nor does the record reflect an attempt
by Smith to withdraw his admission at sentencing. Although the trial court did not orally
make all of the statutory findings required to impose consecutive sentences, Smith’s
completion of his prison term renders the issue moot. Accordingly, the trial court’s
judgments will be affirmed.
I. Background
{¶ 4} Smith pled guilty to a charge of aggravated drug possession in Montgomery
C.P. No. 2021-CR-1194. He later pled guilty to another charge of aggravated drug
possession in Montgomery C.P. No. 2021-CR-2263. The first case involved his
possession of methamphetamine on April 7, 2021. The second case involved his
possession methamphetamine on July 4, 2021.
{¶ 5} On September 2, 2021, the trial court sentenced Smith to community-control
sanctions in both cases. Three weeks later, it issued notices of an alleged community-
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control violation and ordered him to appear at a hearing to admit or deny violating
community control by threatening the staff at a halfway house. During that hearing, which
took place on October 20, 2021, defense counsel advised the trial court that Smith would
admit violating community control by being removed from the “Turtle Creek” residential
treatment program. Defense counsel added a caveat that Smith would enter his
admission with an understanding that he would be screened for participation in an
alternative treatment program. The following exchange then occurred:
THE COURT: All right. Mr. Smith, do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: We’re going to try to find a place. No one makes any
promises, but we’ll see what’s out there, and if none of that works, I’m
probably inclined to send you to prison. I’m telling you that up front. So but
I’m going to look at these other options. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Mr. Smith, do you admit that you violated the terms
and conditions of your community control sanctions?
THE DEFENDANT: Yes.
THE COURT: Based on your admission, the Court finds that the State has
proven by a preponderance of the evidence that you have, in fact, violated
the terms and conditions of your community control sanction.
October 20, 2021 Transcript at 3.
{¶ 6} Smith returned to court on November 10, 2021 for disposition on the
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community-control violation. At that time, the trial court noted that he had been screened
for the “MonDay” and the “S.T.A.R.” programs and had been found unsuitable for them.
Defense counsel then acknowledged that Smith was “a hard candidate to place based off
of a certain prior conviction[.]” Defense counsel urged the trial court to impose a lower-
end prison sentence if it found incarceration necessary. Smith then spoke and stated that
he was “under the impression” he had been accepted into a “Volunteers of America”
program. Smith also claimed that his probation officer had characterized his community-
control violation as being “not an issue” at the time of the violation. He also suggested
that he did not make any threats while in the Turtle Creek program. The trial court
responded that its information contradicted what Smith was saying. It then revoked
community control in both cases and imposed consecutive eight-month prison terms with
jail-time credit and discretionary post-release control.
{¶ 7} The trial court journalized Smith’s sentence in separate judgment entries filed
in both cases. Both judgment entries stated that he had appeared in court on November
10, 2021 “for having violated the conditions of HIS community control granted on
SEPTEMBER 01, 2021 after HAVING ENTERED A PLEA OF GUILTY TO the offense of
AGGRAVATED POSSESSION OF DRUGS,” a fifth-degree felony. Both judgment entries
imposed eight-month prison terms consecutive to each other with the required statutory
findings. They also awarded jail-time credit and addressed discretionary post-release
control.
II. Analysis
{¶ 8} Smith advances the following five assignments of error:
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1. JOURNAL ENTRY FOR SENTENCING FAILED TO CONTAIN PLEA
2. TRIAL COURT FAILED TO JOURNALIZE EVIDENTIARY HEARING
3. TRIAL COURT ELICITED ADMISSION WITH A PROMISE
4. TRIAL COURT FAILED TO ACKNOWLEDGE REVOCATION OF
ADMISSION
5. TRIAL COURT ABUSED ITS DISCRETION FOR SENTENCING
CONSECUTIVE SENTENCES
A. Adequacy of Judgment Entries
{¶ 9} In his first two assignments of error, Smith challenges the adequacy of the
trial court’s judgment entries revoking community control in both cases and sentencing
him to prison.
{¶ 10} In his first assignment of error, he contends the judgment entries were
defective because they failed to set forth his “guilty plea” to the community-control
violation. In his second assignment of error, Smith references the trial court’s failure to
“journalize the evidentiary hearing” where he admitted the community-control violation.
His specific argument, however, appears to be that the trial court’s journal entries failed
to set forth its “verdict” or finding on his “guilty plea” to the community-control violation.
{¶ 11} Both assignments of error are predicated on Crim.R. 32(C) and State v.
Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. Under Crim.R. 32(C), a
judgment of conviction must include “the fact of conviction and the sentence.” The rule
provides that it also must be signed by the judge and entered on the journal by the clerk.
In Baker, the Ohio Supreme Court interpreted Crim.R. 32(C) and held that a valid
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judgment of conviction must contain “(1) the guilty plea, the jury verdict, or the finding of
the court upon which the conviction is based; (2) the sentence; (3) the signature of the
judge; and (4) entry on the journal by the clerk of court.” Id. at the syllabus.
{¶ 12} The Ohio Supreme Court later modified Baker in State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142. The Lester court held that that “[a] judgment
of conviction is a final order subject to appeal under R.C. 2505.02 when it sets forth (1)
the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time
stamp indicating the entry upon the journal by the clerk.” Id. at the syllabus. According to
Lester, a valid final judgment must recite the fact of conviction but need not identify the
manner of conviction (i.e., guilty plea, no-contest plea with a finding of guilt, bench trial,
or jury trial). The Lester court reasoned that the “manner of conviction” involved a matter
of form rather than substance.
{¶ 13} In the present case, the trial court’s two November 12, 2021 judgment
entries imposing eight-month prison terms upon the revocation of Smith’s community
control satisfied Baker and Lester. Both judgment entries recited the fact of Smith’s
conviction pursuant to a guilty plea to a fifth-degree-felony drug charge. They also set
forth his eight-month prison sentence, they were signed by the judge, and they were
journalized by the clerk.
{¶ 14} Smith nevertheless maintains that the judgment entries were defective
because they omitted his “guilty plea” to a community-control violation and the trial court’s
“verdict” or finding on his guilty plea to violating community control. But an admission to
a community-control violation is not analogous to a guilty plea to a criminal charge. For
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one thing, “[c]ommunity control violation proceedings are not equivalent to criminal
prosecutions.” State v. Black, 2d Dist. Montgomery No. 24005, 2011-Ohio-1273, ¶ 12.
And unlike a guilty plea, a defendant’s violation of the terms of community control “does
not result in a conviction.” Id. at ¶ 13. The imposition of a prison sentence for a community-
control violation is simply a consequence of the original underlying conviction. Id. For
these reasons, we conclude that the trial court’s two judgment entries were not judgments
of conviction under Crim.R. 32(C) with respect to Smith’s admission to a community-
control violation. The entries were judgments of conviction under Crim.R. 32(C) with
respect to his conviction and sentence on the underlying drug charges. On that issue,
they satisfied the requirements of Crim.R. 32(C).
{¶ 15} We note too that the October 20, 2021 hearing transcript does reflect
Smith’s admission to violating community control, and the trial court’s two judgment
entries stated that he had appeared in court on November 10, 2021 for sentencing “for
having violated the conditions of HIS community control granted on SEPTEMBER 01,
2021 after HAVING ENTERED A PLEA OF GUILTY TO the offense of AGGRAVATED
POSSESSION OF DRUGS,” a fifth-degree felony.” Thus, the record does reflect the fact
of Smith’s violation of his community control.
{¶ 16} Based on the reasoning set forth above, we conclude that the trial court’s
two November 12, 2021 judgment entries imposing eight-month prison terms upon the
revocation of Smith’s community control were valid final orders. Accordingly, the first and
second assignments of error are overruled.
B. Eliciting Admission with a Promise
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{¶ 17} In his third assignment of error, Smith contends the trial court improperly
elicited his admission to violating community control by promising him “probation.” More
specifically, he claims the trial court made “a future promise of potential placement into a
program, without the intention of placing [him] in a program.”
{¶ 18} Upon review, we find Smith’s argument to be without merit. The trial court
explicitly did not promise him placement in a program. When accepting his admission to
violating community control, it stated: “No one makes any promises, but we’ll see what’s
out there, and if none of that works, I’m probably inclined to send you to prison. I’m telling
you that up front.”
{¶ 19} Thereafter, at sentencing, the trial court explained that Smith had been
screened and rejected for the “MonDay” and the “S.T.A.R.” programs and that it was “out
of options.” Defense counsel did not disagree, acknowledging that Smith was “a hard
candidate to place.” Defense counsel added that “unfortunately, some incidents have
happened at the few places that he would be a candidate to go.” While advocating for a
lower-end prison term, defense counsel also noted that Smith’s jaw previously had been
broken while he was at “the VOA,” an apparent reference to the Volunteers of America
program. Smith then spoke and stated that he was “under the impression” he had been
accepted into the Volunteers of America program, but neither he nor his attorney
presented the trial court with any actual evidence to support that belief.
{¶ 20} On the record before us, we see no error in the trial court’s determination
that no viable placement had been found for Smith despite efforts to locate one. In the
absence of such a placement, the trial court did not err in revoking community control and
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imposing a prison term, just as it had advised Smith it was likely to do when it accepted
his admission. The third assignment of error is overruled.
C. Revocation of Admission
{¶ 21} In his fourth assignment of error, Smith contends the trial court erred in
failing to acknowledge that he “revoked” his admission of a community-control violation
during the sentencing hearing.
{¶ 22} While acknowledging that he never formally withdrew his admission, Smith
claims the trial court should have treated his remarks at the sentencing hearing as an
attempted withdrawal of the admission and should have inquired into the matter.
{¶ 23} Upon review, we find Smith’s argument to be unpersuasive. As an initial
matter, we note again that a community-control revocation proceeding “is not part of a
formal criminal prosecution.” State v. Payne, 12th Dist. Warren No. 2001-09-081, 2002
WL 649403, *2 (April 22, 2002). As a result, the procedures applicable to withdrawing a
guilty plea are not applicable to a revocation proceeding. Id. at *3.
{¶ 24} In any event, we are unconvinced that Smith even attempted to withdraw
his admission. When asked whether he had anything to say, he responded that he was
“under the impression” he had been accepted into a “Volunteers of America” program. He
also confirmed that the trial court had received a letter he had written to the court.
Although neither Smith nor his attorney presented any evidence establishing his
acceptance into a Volunteers of America program, Smith’s remarks about the program
and his inquiry about his letter to the trial court strongly suggest that he intended to
proceed with sentencing on his admission to the community-control violation. Smith then
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proceeded to inform the trial court about the progress he had made personally. He also
reported that his probation officer previously had told him “that the probation violation was
not an issue.” He then asked the trial court “to side with Parole again on this allegation
that there was not a threat down in Turtle Creek.”
{¶ 25} Having reviewed Smith’s remarks in their entirety, we interpret them as
addressing his potential placement in another treatment program and, alternatively, as an
attempt to mitigate any prison sentence. The trial court did not err in failing to construe
the remarks as an oblique attempt by Smith to withdraw his admission to violating
community control. The fourth assignment of error is overruled.
D. Consecutive Sentences
{¶ 26} Smith’s final assignment of error challenges the trial court’s imposition of
consecutive eight-month prison terms in his two cases. He contends the trial court erred
in failing to make all of the statutory findings required by R.C. 2929.14(C)(4).
{¶ 27} “When an offender’s community control is revoked and multiple prison terms
are imposed for the underlying offenses, the trial court must make the findings under R.C.
2929.14(C)(4) before imposing consecutive sentences at the revocation sentencing
hearing.” State v. Artz, 2d Dist. Champaign No. 2014-CA-34, 2015-Ohio-3789, ¶ 12.
Under the statute, the trial court “may require the offender to serve the * * * terms
consecutively if [it] finds” that: (1) “consecutive service is necessary to protect the public
from future crime” or “to punish the offender” sufficiently; (2) “consecutive [service] [is] not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public”; and (3) at least one of the conditions specified in R.C.
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2929.14(C)(4)(a)-(c) applies. Those conditions are:
(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.
{¶ 28} When revoking Smith’s community control and imposing consecutive prison
terms, the trial court addressed him and made the following findings at the November 10,
2021 sentencing hearing:
Sir, I am imposing consecutive sentences because I believe they are
necessary to protect the public from future crime and to punish the offender.
I also believe that the consecutive sentences are not disproportionate to the
seriousness of your conduct and to the danger that you pose.
Also, at least two of the multiple offenses were committed as part of
one or more course[s] of conduct, and based upon your criminal history, as
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well, I’m making these findings. * * *
November 10, 2021 Transcript at 29.
{¶ 29} The foregoing findings suggest that the trial court was attempting to find the
circumstances set forth in R.C. 2929.14(C)(4)(b) and (c). But the trial court’s findings were
incomplete as they omitted significant portions of the statutory language. In its
subsequent judgment entries, we note that the trial court did make findings satisfying the
course-of-conduct circumstance found in R.C. 2929.14(C)(4)(b).
{¶ 30} Despite the trial court’s incomplete oral findings when sentencing Smith on
the community-control revocation, we note that he already has served his consecutive
prison terms. The Ohio Department of Rehabilitation and Correction’s website reflects
that with jail-time credit he was released from confinement on July 15, 2022 and placed
on post-release control under Adult Parole Authority supervision. As a result, there is no
relief we can provide regarding the length of his prison term, which has been completed.
Even if we were to find consecutive sentences inappropriate, Smith still would remain on
discretionary post-release control. Accordingly, his fifth assignment of error is overruled
as moot. See, e.g., State v. Murphy, 12th Dist. Clinton No. 2019-11-018, 2021-Ohio-1452,
¶ 6-8 (finding a consecutive-sentence challenge moot where the appellant had served his
sentence and had been placed on post-release control).
III. Conclusion
{¶ 31} Having overruled Smith’s assignments of error, we affirm the judgments of
the Montgomery County Common Pleas Court.
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WELBAUM, P.J. and EPLEY, J., concur.