State v. Hatcher

[Cite as State v. Hatcher, 2018-Ohio-4348.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-88
:
v. : Trial Court Case Nos. 2015-CR-426 &
: 2017-CR-204
CHRISTOPHER HATCHER :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 26th day of October, 2018.
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ANDREW P. PICKERING, Atty. Reg. No. 0068770, 50 East Columbia Street, Suite 449,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JOE CLOUD, Atty. Reg. No. 0040301, 3973 Dayton-Xenia Road, Beavercreek, Ohio
45432
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the October 25, 2017 Notices of Appeal
of Christopher Hatcher. In Clark County Common Pleas Case No. 2015-CR-426,
Hatcher was sentenced to 12 months for violating the terms of his community control
sanctions, and in Case No. 2017-CR-204, Hatcher was sentenced to 18 months for
possession of cocaine. The 18-month sentence was ordered to be served consecutively
to the 12-month sentence.
{¶ 2} Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967), counsel for Hatcher represents that he has found no potentially meritorious
issues for review. This Court granted Hatcher an opportunity to file his own brief, pro se,
assigning any errors for our review, and he has not done so. The State also did not file
a brief in response to Hatcher’s appeal. Pursuant to Anders, we have performed our
duty to independently review the entire record, and we have found no potential
assignments of error having arguable merit.
{¶ 3} In Case No. 2015-CR-426, Hatcher was indicted on August 17, 2015, on one
count of possession of cocaine (more than five grams but less than ten grams), in violation
of R.C. 2925.11(A), a felony of the fifth degree. Hatcher’s pre-sentence investigation
report provided Hatcher’s version of events relative to the offense:
* * * “Got pulled over speeding. On Moorefield Road. The officer
searched an[d] found the coc [sic] in my shoe.”
The defendant stated that he had used marijuana earlier in the day
and that is why the vehicle smelled of marijuana. The defendant denied
using marijuana in the vehicle. The defendant stated that the drugs that
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were found on him were for his personal use. The defendant stated that
he had that amount on him because it was close to Memorial Day weekend.
The defendant admitted to this officer that he has sold drugs in the past, but
had not sold drugs since he had gotten in trouble for that earlier. The
defendant stated that he is currently trying to get on the right track and to
stay on the right track. The defendant stated that he is trying to stay out of
trouble for his kids.
{¶ 4} In exchange for his guilty plea on November 10, 2015, the State reduced the
amount of the drug involved in the offense to less than five grams and agreed to
recommend community control sanctions. On December 3, 2015, the court sentenced
Hatcher to five years of community control. A numbered list of the conditions of his
community control sanctions was attached to Hatcher’s Judgment Entry of Conviction.
The judgment entry provided: “Violation of any part of this sentence shall lead to a more
restrictive sanction, a longer sanction, or a prison term of twelve (12) months.”
{¶ 5} On January 11, 2017, the affidavit of probation officer Joshua Hunt was filed,
averring that Hatcher violated his community control sanctions as follows:
1. The defendant tested positive for Alcohol on December 08, 2016.
2. The defendant tested positive for marijuana on November 16, 2016 and
December 28, 2016.
3. The defendant failed to show for scheduled office visit at the probation
department on December 07, 2016.
4. The defendant failed to seek employment as directed.
5. The defendant has failed to make regular payments toward his court
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costs, fees and or court fine.
6. The defendant has failed to comply with recommended treatment at
McKinley Hall.
This is a violation of the Defendant’s rules and regulations of Community
Control being rules 12F, 7, 5, 2, 12C and 12B.
{¶ 6} An arraignment was held on January 26, 2017, and Hatcher denied
committing the violations. He also waived a probable cause hearing. Hatcher was
released on his personal recognizance until a hearing on the merits occurred on March
27, 2017.
{¶ 7} At the hearing, Hatcher acknowledged that he received a copy of the January
11, 2017 affidavit. Hatcher identified admissions signed by him indicating that he tested
positive for alcohol on December 8, 2016, and tested positive for marijuana on November
16, 2016. Hatcher admitted that he failed to appear for a scheduled appointment at the
probation department on December 7, 2016. Hatcher stated that, since he was placed on
community control more than a year earlier, he had submitted four or five applications for
work and was denied jobs. He stated that he did “tree work” on the side but did not
produce proof of employment. He stated that he worked at Dole from January 26, 2017
to February 8, 2017, and identified a Dole pay stub. Hatcher acknowledged that he did
not provide any documentation regarding his employment to the probation department.
Hatcher stated that he had been working at Fry’s Lumber Service for two months prior to
the hearing, but he did not provide proof of payment. When asked if he made regular
payments toward his court costs, fees and fine, he responded that he “kind of like paid in
spurts, not really like regular, just like when I had the extra money to come down and pay,
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I did.” Hatcher testified that he made payments on January 12, January 24, and March
22, 2017. Hatcher identified a certificate of completion for the Criminal Justice Program
at McKinley Hall.
{¶ 8} At the conclusion of the hearing, the court determined that Hatcher had
violated his community control sanctions, and the court set the matter for disposition.
Specifically, the court found that Hatcher violated rules No. 1, No. 2, No. 3, No. 4, and
No. 6.
{¶ 9} On April 10, 2017, in Case No. 2017-CR-204, Hatcher was indicted on one
count of trafficking in cocaine, in violation of R.C. 2925.03(A)(2), and one count of
possession of cocaine (greater or equal to ten grams but less than twenty grams), in
violation of R.C. 2925.11(A), both felonies of the third degree. On April 21, 2017,
Hatcher entered pleas of not guilty in Case No. 2017-CR-204.
{¶ 10} On August 22, 2017, in Case No. 2017-CR-204, Hatcher pled guilty to
possession of cocaine, with the amount of the drug involved amended to be more than
five grams but less than ten grams, thereby reducing the offense to a fourth degree felony.
The trafficking count was dismissed. The State put the following facts on the record:
November 5, 2016, at Clark County Ohio, the Defendant Christopher
Hatcher turned east on Columbia Street and, in doing so, did not turn into
the closest lane so the vehicle entered the center lane. The vehicle quickly
crossed one or more lanes without signaling. Officers initiated a traffic
stop. The defendant quickly ran up to the front porch of 615 West
Columbia Street. The defendant ran into the house at 615 West Columbia
and the officers followed in hot pursuit. The defendant was apprehended
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inside after a brief struggle.
During the search incident to arrest for obstructing official business,
officers located $2,096 in U.S. currency in the right front pants pocket of the
defendant. K-9 alerted to the vehicle. Officers located two bags of
cocaine and an electronic scale. Cocaine was found to contain 4.41 grams
and 5.65 grams of cocaine respectfully. During a hearing on the 15-CR-
426 case, the defendant indicated that the proceeds that were seized in the
17-CR-0204 case was from ill-gotten gains.
Hatcher agreed to forfeit the $2,096.
{¶ 11} The following exchange occurred at the plea hearing:
THE COURT: Do you understand that you are on community control,
this conviction would be a violation of your community control; and for that
violation, you could get 12 months in prison in the 15-CR- case. That could
be ordered consecutive to the maximum term listed, which would be 18
months, or a total maximum penalty of 30 months in prison.
Do you understand that?
***
DEFENDANT: Yes, sir.
{¶ 12} On September 8, 2017, Hatcher filed sentencing memorandums in both
cases, attached to which were “recent contracts that Defendant has completed working
for his tree service. His work has become renowned enough that he is gaining business
in surrounding areas as these contracts indicate.”
{¶ 13} On September 13, 2017, the trial court sentenced Hatcher to 18 months in
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Case No. 2017-CR-204, to be served consecutively with the sentence in Case No. 2015-
CR-426.
{¶ 14} As noted above, the court sentenced Hatcher to a prison term of 12 months
in the 2015 case, to be served prior to and consecutively to a term of 18 months imposed
in the 2017 case. The judgment entries of conviction in each case provide as follows:
The court has considered the record, oral statements, the purposes
and principles of sentencing under R.C. § 2929.11, the seriousness and
recidivism factors relevant to the offense and offender pursuant to R.C. §
2929.12, and the need for deterrence, incapacitation, rehabilitation and
restitution and the sentencing guidelines contained in R.C. 2929.13. The
Court is guided by the overriding purposes of felony sentencing, including
protection of the public from future crime by the offender and others and
punishment of the offender, using the minimum sanctions that the court
determines will accomplish those purposes without imposing an
unnecessary burden on state or local government resources.
The court further finds that, after considering the factors set forth in
R.C. §2929.12, a prison term is consistent with the purposes and principles
of sentencing set forth in R.C. §2929.11 and the defendant is not
amendable to an available community control sanction.
The court further finds that a combination of community control
sanctions would demean the seriousness of the defendant’s conduct and
its impact on the victim and that a prison sentence does not place an
unnecessary burden on the state governmental resources.
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The court finds that consecutive service is necessary to protect the
public from future crime or to punish the defendant and that consecutive
sentences are not disproportionate to the seriousness of the defendant’s
conduct and to the danger the defendant poses to the public, and the Court
also finds the offender committed one or more of the multiple offense while
the offender was under a sanction imposed pursuant to section 2929.16,
2929.17, or 2929.18 of the Revised Code and the defendant’s history of
criminal conduct demonstrates that consecutive sentences are necessary
to protect the public from future crime by the offender.
{¶ 15} Finally, the court advised Hatcher regarding post-release control in each
case and ordered him to pay court costs. In the 2017 case, the court ordered as follows:
The Springfield Police Department has in its possession property
belonging to the defendant, to-wit: $2,096.00. The Court finds that this
constitutes proceeds derived from or acquired through the commission of
an offense, and are therefore subject to forfeiture pursuant to Chapter 2981
of the Revised Code. The Clerk shall seize this property for distribution to
the law enforcement agencies responsible for the arrest and prosecution of
the defendant, to-wit: $1,048.00 to the Clark County Prosecutor’s Office
and $1,048.00 to the Springfield Police Department.
{¶ 16} On September 22, 2017, in the 2017 case, the court filed an “Amended
Nunc Pro Tunc Judgment Entry of Conviction Warrant for Removal” to correct the amount
of jail time credit awarded in its previous judgment entry.
{¶ 17} Hatcher’s “Criminal Docket Statement” filed in each of his appeals
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delineates the following probable issue for review: “Abuse of discretion re: sentencing.”
Counsel for Hatcher asserts that a potential “assignment of error might exist relating to
due process, because the record does not reflect that the defendant received a written
statement by the fact finder as to the evidence relied upon and the reasons for revoking
community control.”
{¶ 18} The following is well-settled:
“The right to continue on community control depends upon
compliance with community control conditions and is a matter resting within
the sound discretion of the court. Accordingly, we review the trial court's
decision to revoke a defendant's community control for an abuse of
discretion. Abuse of discretion has been defined as an attitude that is
unreasonable, arbitrary, or unconscionable.” (Internal citations
omitted.) State v. Lewis, 2d Dist. Montgomery No. 23505, 2010-Ohio-3652,
¶ 11.
A defendant is entitled to due process when his community control is
revoked as the result of a violation of a condition imposed on that
control. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d
656 (1973). “The due process rights which must be observed in a
community control revocation hearing are: (1) written notice of the claimed
violations of community control; (2) disclosure of evidence against him; (3)
an opportunity to be heard in person and to present witnesses and
documentary evidence; (4) the right to confront and cross-examine adverse
witnesses; (5) a neutral and detached hearing body; and (6) a written
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statement by the fact finder as to the evidence relied upon and the reasons
for revoking community control.” (Internal citations omitted.) State v.
Cunningham, 2d Dist. Clark Nos. 2014-CA-99, 2014-CA-100, 2015-Ohio-
2554, ¶ 11.
“[C]ommunity control revocation proceedings are not the same as a
criminal trial, and a revocation of community control punishes the failure to
comply with the terms and conditions of community control, not the specific
conduct that led to the revocation.” State v. Black, 2d Dist. Montgomery No.
24005, 2011-Ohio-1273, ¶ 17. Upon revoking community control, the trial
court may (1) lengthen the term of the community control sanction; (2)
impose a more restrictive community control sanction; or (3) impose a
prison term on the offender, provided that the prison term is within the range
of prison terms available for the offense for which community control had
been imposed and the term does not exceed the prison term specified in
the notice provided to the offender at the original sentencing hearing. R.C.
2929.15(B).
State v. Shumway, 2d Dist. Montgomery No. 2017-CA-51, 2018-Ohio-1227, ¶ 10-12.
{¶ 19} We conclude that this potential assignment of error is meritless. Hatcher
acknowledged that he received the affidavit delineating his alleged community control
violations, and he admitted to testing positive for drugs and alcohol and to missing an
appointment at the probation office. Other than the pay stub from Dole, Hatcher failed
to provide proof that he sought employment as directed, and he admitted to making
payments toward his fines and costs “in spurts” and not regularly. In other words, he
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was aware of the evidence relied upon and the reasons for revoking community control.
See State v. Hill, 2d Dist. Montgomery No 7301, 1982 WL 3811, *2 (holding that the
requirement of a written statement is met by advising “the probationer at the hearing itself,
with particularity, of the evidence and the reasons for revocation, and ascertain[ing] that
the announced revocation rationale is transcribed for the record.”) Hatcher’s hearing
was transcribed, and the court entered a written judgment. The record reflects that
Hatcher received the due process to which he was entitled.
{¶ 20} Counsel for Hatcher concludes that “[n]o abuse of discretion can be argued
in case 15-CR-426 since the court complied with the applicable case law and statutory
procedure. Therefore, an appeal is without merit and is spurious.” We agree.
{¶ 21} As this Court has previously noted:
A trial court has full authority to impose any authorized sentence, and
the sentencing court is not required to articulate its findings or set forth its
reasons for imposing a particular sentence. State v. King, 2013-Ohio-
2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, the sentencing court must
consider the R.C. 2929.11 and 2929.12 sentencing factors. State v.
Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d
Dist.), citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d
1, ¶ 38.
Felony sentences are reviewed in accordance with R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 516. Based upon the plain language of R.C. 2953.08(G)(2) “an
appellate court may vacate or modify a felony sentence on appeal only if it
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determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence
is otherwise contrary to law.” Marcum at ¶ 1. “This is a very deferential
standard of review, as the question is not whether the trial court had clear
and convincing evidence to support its findings, but whether [the appellate
court] clearly and convincingly find[s] that the record fails to support the trial
court’s findings. State v. Cochran, 2d Dist. Clark No. 2016-CA-33, 2017-
Ohio-217, ¶ 17.
State v. Skapik, 2d Dist. Champaign No. 2017-CA-16, 2018-Ohio-2661, ¶ 8-9.
{¶ 22} Pursuant to R.C. 2929.14(C)(4):
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
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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.
{¶ 23} Hatcher was sentenced to 12 months in the 2015 case, which was within
the statutory range for a felony of the fifth degree. R.C. 2929.14(A)(5). His sentence in
the 2017 case was within the statutory range for a felony of the fourth degree. R.C.
2929.14(A)(4). “ ‘The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum * * * sentences.’ State v. King, 2013-Ohio-2021, 992
N.E.2d 491, ¶ 45 (2d Dist.).” State v. Ferguson, 2017-Ohio-7930, 98 N.E.3d 987, ¶ 77 (2d
Dist.). The court indicated that it considered the principles and factors in R.C. 2929.11
and 2929.12. Finally, the court made the requisite findings to impose consecutive
sentences. We conclude that the sentences are neither contrary to law nor clearly and
convincingly unsupported by the record.
{¶ 24} Having performed our duty pursuant to Anders, and for the forgoing
reasons, we conclude that Hatcher’s appeal is wholly frivolous. The trial court’s judgment
is affirmed.
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HALL, J. and TUCKER, J., concur.
Copies sent to:
Andrew P. Pickering
Joe Cloud
Christopher Hatcher
Hon. Richard J. O’Neill