State v. Benson

[Cite as State v. Benson, 2019-Ohio-4635.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
D’ANGELO BENSON,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 18 MA 0042
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 17 CR 209
BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, Assistant
Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
for Plaintiff-Appellee and
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Atty. Cynthia Henry, P.O. Box 4332, Youngstown, Ohio 44515 and Atty. Desirae D.
DiPiero, Desirae DiPiero, LLC, 8256 East Market Street, Suite 111, Warren, OH 44484,
for Defendant-Appellant.
Dated: November 4, 2019
D’Apolito, J.
{¶1} Appellant D’Angelo Benson appeals his twelve-month sentence imposed by
the Mahoning County Court of Common Pleas for one count of obstructing justice, in
violation of R.C. 2921.32(A)(C)(2), a felony of the fifth degree. Absent specific
exceptions, a prison sentence may not be imposed for a conviction of a non-violent fifth
degree felony that meets the additional requirements in R.C. 2929.13(B)(1)(a). However,
a trial court may impose a prison sentence for a non-violent fifth-degree felony if “[t]he
offender violated a term of the conditions of bond as set by the court.” R.C.
2929.13(B)(1)(b)(iii). Appellant contends that his sentence is predicated upon his failure
to comply with the conditions of his intervention in lieu of conviction (“ILC”). Because
Appellant’s first violation of his ILC, his illegal drug use, is also a bond violation, we find
that the prison sentence imposed by the trial court is not contrary to law.
FACTS AND PROCEDURAL HISTORY
{¶2} On February 17, 2017, Appellant attempted to conceal drugs in his shoe
while sitting in a patrol car during a traffic stop. On February 19, 2017, during a second
traffic stop, Appellant attempted to conceal drugs in his mouth, also while sitting in a patrol
car. The validity of the stops and the searches are not challenged in this appeal.
{¶3} Appellant was arrested on February 19, 2017. At his initial appearance on
February 21, 2017, bond was set at $5,000.00. The conditions of bond were not included
in the entry and there is no transcript of the hearing in the record. On January 27, 2017,
Appellant waived his right to a preliminary hearing and bond was continued.
{¶4} On March 23, 2017, Appellant was indicted for one count of tampering with
evidence, in violation of R.C. 2921.12(A)(1)(B), a felony of the third degree, and one count
of possession of drugs, in violation of R.C. 2925.11(A)(C), a misdemeanor of the first
degree. Appellant was arraigned on April 4, 2017.
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{¶5} On April 14, 2017, Appellant entered into a written waiver of his speedy trial
right, which contained the following conditions of bond:
Defendant is to personally be aware and appear timely and appropriately
dresses for all future Court proceedings; Defendant is not to violate any
laws; Defendant is not to own, use, or possess any drugs or firearms;
Defendant shall not act in any way to cause or attempt to cause any harm
or threat of harm to any persons or property; Defendant is not to leave the
State of Ohio without permission of this Court.
(4/14/17 Waiver, p. 1.)
{¶6} On May 31, 2017, Appellant entered a plea to the amended charge of
obstructing justice, a fifth-degree felony. The trial court imposed a two-year term of ILC,
pursuant to R.C. 2951.041, because Appellant alleged that drug use was a factor leading
to the commission of his crime.
{¶7} At the plea hearing, the trial court explained that Appellant was subject to
the supervision of the Adult Parole Authority and the authority of Treatment Accountability
for Safer Communities (“TASC”) while on ILC, and that Appellant was required “to honor
and obey all of [TASC’s] directives.” The trial court also reiterated Appellant’s bond
conditions, including the prohibition on illegal drug use. (5/31/17 Plea Hrg., p. 18-19.)
{¶8} Appellant violated the conditions of his ILC on two occasions. Less than a
month after his plea hearing, Appellant admitted to the use of crystal methamphetamine.
The trial court recognized at the violation hearing that “doing these drugs is a crime,” (Id.,
p. 16), and imposed a 90-day jail term, which was suspended after 30 days, when
Appellant was admitted into a rehabilitation program. Appellant reported to the Adult
Parole Authority immediately upon completion of the substance abuse program to
continue ILC.
{¶9} Roughly nine months after the plea hearing, Appellant was terminated from
his TASC program due to his failure to appear for scheduled meetings. At the second
revocation hearing, Appellant admitted the violation but explained that he did not have
Case No. 18 MA 0042
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transportation to the meetings. Appellant was drug tested on the day of his arrest for the
second violation and did not test positive for drugs.
{¶10} While imposing the sentence, the trial court observed:
[T]he Court considers the purposes and principles of sentencing and the
seriousness and recidivism factors and the guidance by the degree of
felony. The Court considers that I placed this man on [ILC] to help him. He
violated it. I did not find him guilty of the crime. I continued his [ILC] and
imposed other sanctions to, once again, help him through. I did the best I
could to turn the other cheek, which judges are not supposed to do. We’re
supposed to enforce our orders. I did it. I gave this guy another break and
here he is thumbing his nose at me again and he’s now guilty of the crime
that he committed.
(Id., p. 12.) In the sentencing entry, the trial court wrote that it considered the history of
both of Appellant’s ILC violations. The trial court imposed a twelve-month sentence with
jail time credit of 74 days. (Id., p. 2-3.) This timely appeal followed.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO A
PRISON TERM AFTER AN INTERVENTION IN LIEU OF CONVICTION
VIOLATION WHEN THE FACTORS NECESSARY TO OVERCOME THE
STATUTORY PRESUMPTION FOR COMMUNITY CONTROL WERE
NOT PRESENT.
{¶11} Pursuant to State v. Marcum, 146 Ohio St.3d 516, 59 N.E.3d 1231, 2016-
Ohio-1002, ¶ 1, an appellate court may vacate or modify a sentence that is clearly and
convincingly contrary to law, or is clearly and convincingly not supported by the record.
Id. Appellant contends that the trial court was required to impose a community control
sanction. The state argues that a sentence of imprisonment was lawful because the bond
violation exception applies.
Case No. 18 MA 0042
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{¶12} R.C. 2929.13(B)(1)(a) creates a presumption in favor of community control
sanctions for nonviolent felonies of the fourth or fifth degree where the defendant meets
certain additional criteria. The state does not dispute that Appellant fulfills the
requirements of R.C. 2929.13(B)(1)(a). However the trial court has discretion to impose
a prison sentence pursuant to R.C. 2929.13(B)(1)(b) “if any of the following apply”:
(i) The offender committed the offense while having a firearm on or about
the offender’s person or under the offender's control.
(ii) If the offense is a qualifying assault offense, the offender caused serious
physical harm to another person while committing the offense, and, if the
offense is not a qualifying assault offense, the offender caused physical
harm to another person while committing the offense.
(iii) The offender violated a term of the conditions of bond as set by the
court.
(iv) The court made a request of the department of rehabilitation and
correction pursuant to division (B)(1)(c) of this section, and the department,
within the forty-five-day period specified in that division, did not provide the
court with the name of, contact information for, and program details of any
community control sanction of at least one year's duration that is available
for persons sentenced by the court.
(v) The offense is a sex offense that is a fourth or fifth degree felony violation
of any provision of Chapter 2907. of the Revised Code.
(vi) In committing the offense, the offender attempted to cause or made an
actual threat of physical harm to a person with a deadly weapon.
(vii) In committing the offense, the offender attempted to cause or made an
actual threat of physical harm to a person, and the offender previously was
convicted of an offense that caused physical harm to a person.
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(viii) The offender held a public office or position of trust, and the offense
related to that office or position; the offender's position obliged the offender
to prevent the offense or to bring those committing it to justice; or the
offender's professional reputation or position facilitated the offense or was
likely to influence the future conduct of others.
(ix) The offender committed the offense for hire or as part of an organized
criminal activity.
(x) The offender at the time of the offense was serving, or the offender
previously had served, a prison term.
(xi) The offender committed the offense while under a community control
sanction, while on probation, or while released from custody on a bond or
personal recognizance.
{¶13} We have previously held that a trial court is not required to make specific
findings when imposing a prison sentence pursuant to R.C. 2929.13(B)(1)(b). In State v.
Floyd, 7th Dist. Belmont No. 15 BE 61, 2017-Ohio-4278, we affirmed a prison sentence
because the record established that the defendant had violated the conditions of his bond,
despite the trial court’s failure to make specific findings at the sentencing hearing. Id. at
¶ 7, accord State v. Paxon, 11th Dist. Trumbull No. 2019-T-0011, 2019-Ohio-3551, ¶ 18.
{¶14} Appellant contends that his sentence is contrary to law because it is
predicated upon a violation of his ILC. R.C. 2951.041, the ILC statute, allows courts to
“‘treat the cause rather than punish the crime.’” State v. Massien, 125 Ohio St.3d 204,
2010-Ohio-1864, 926 N.E.2d 1282, ¶10, quoting State v. Shoaf, 140 Ohio App.3d 75, 77,
746 N.E.2d 674 (10th Dist.2000). The Ohio Supreme Court explained ILC as follows:
ILC is a statutory creation that allows a trial court to stay a criminal
proceeding and order an offender to a period of rehabilitation if the court
has reason to believe that drug or alcohol usage was a factor leading to the
offense. R.C. 2951.041(A)(1). If, after a hearing, the trial court determines
that an offender is eligible for ILC, then it shall accept the offender’s guilty
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plea, place the offender under the general control and supervision of the
appropriate probation or other qualified agency, and establish an
intervention plan for the offender. R.C. 2951.041(C) and (D). The
intervention plan shall last at least one year, during which the offender is
ordered to abstain from alcohol and illegal drug use, to participate in
treatment and recovery-support services, and to submit to regular random
testing for drug and alcohol use. R.C. 2951.041(D). If the offender
successfully completes the intervention plan, the trial court shall dismiss
proceedings against the offender without an adjudication of guilt and may
order the sealing of records related to the offense. R.C. 2951.041(E). If the
offender fails to comply with any term or condition imposed as part of the
intervention plan, the court shall enter a finding of guilt and impose the
appropriate sanction. R.C. 2951.041(F).
Id. ¶ 9.
{¶15} Appellant’s bond specifically prohibited drug use. The record reflects that
the trial court considered Appellant’s first ILC violation, his illegal drug use, during
sentencing. Because it can be gleaned from the record that Appellant’s illegal drug use
constitutes a bond violation, we find that Appellant’s prison sentence is not contrary to
law and affirm the judgment entry of the trial court.
Donofrio, J., concurs.
Robb, J., concurs.
Case No. 18 MA 0042
[Cite as State v. Benson, 2019-Ohio-4635.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.