State v. Kornegay

[Cite as State v. Kornegay, 2013-Ohio-658.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
V. ) CASE NO. 12 MA 10
)
WALTER KORNEGAY, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 10CR1261
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Attorney Donna Jewell McCollum
201 E. Commerce Street, Suite 346
Youngstown, Ohio 44503
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: February 19, 2013
[Cite as State v. Kornegay, 2013-Ohio-658.]
DONOFRIO, J.
{¶1} Defendant-appellant, Walter Kornegay, appeals from a Mahoning
County Common Pleas Court judgment revoking his community control and
sentencing him to four years in prison.
{¶2} On December 2, 2010, a Mahoning County Grand Jury indicted
appellant on one count of burglary, a second-degree felony in violation of R.C.
2911.12(A)(1)(C).
{¶3} After initially pleading not guilty, appellant entered into a plea
agreement with plaintiff-appellee, the State of Ohio, and changed his plea to guilty.
In exchange, the state recommended that the trial court impose community control
sanctions on appellant. The trial court accepted appellant’s guilty plea.
{¶4} On January 5, 2011, the court sentenced appellant to four years of
community control to be supervised by the Adult Parole Authority (APA). The court
also advised appellant that if he violated his community control terms, he would be
subject to a more severe sanction including an eight-year prison sentence and a fine.
{¶5} On June 30, 2011, the state filed a motion on behalf of the APA to
extend or revoke appellant’s community control alleging that appellant violated his
community control terms. Appellant waived his right to a probable cause hearing and
stipulated to probable cause.
{¶6} Appellant subsequently entered a guilty plea to the violation of
community control. The court found that appellant committed the crimes of burglary,
robbery, and receiving stolen property while on community control. The court
proceeded to sentencing and sentenced appellant to four years in prison to be
served consecutive to his sentence for the other crimes.
{¶7} Appellant filed a timely notice of appeal on January 17, 2012.
{¶8} Appellant's counsel has filed a no merit brief and request to withdraw as
counsel pursuant to State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th
Dist.1970). In Toney, this court set out the procedure to be used when appointed
counsel finds that an indigent criminal defendant's appeal is frivolous.
{¶9} The Toney procedure is as follows:
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3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent's appeal is
frivolous and that there is no assignment of error which could be
arguably supported on appeal, he should so advise the appointing court
by brief and request that he be permitted to withdraw as counsel of
record.
4. Court-appointed counsel's conclusions and motion to withdraw
as counsel of record should be transmitted forthwith to the indigent, and
the indigent should be granted time to raise any points that he chooses,
pro se.
5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the
arguments pro se of the indigent, and then determine whether or not
the appeal is wholly frivolous.
***
7. Where the Court of Appeals determines that an indigent's
appeal is wholly frivolous, the motion of court-appointed counsel to
withdraw as counsel of record should be allowed, and the judgment of
the trial court should be affirmed.
Id. at the syllabus.
{¶10} This court informed appellant that his counsel filed a Toney brief.
Appellant did not file a pro se brief. Likewise, the state did not file a brief.
{¶11} There are two issues to examine in this case, whether the trial court
abused its discretion in revoking appellant’s community control and whether
appellant’s sentence was proper.
{¶12} A trial court's decision to revoke probation is reviewed for an abuse of
discretion. State v. Scott, 6 Ohio App.3d 39, 41, 452 N.E.2d 517 (2d Dist.1982).
Abuse of discretion implies that the court's ruling was unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
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{¶13} The state’s burden at a probation revocation hearing is not proof
beyond a reasonable doubt. State v. Hilson, 7th Dist. No.11-MA-95, 2012-Ohio-
4536, ¶10. Instead, the state need only present evidence of a substantial nature
showing that the probationer has breached a term or condition of his probation. Id.{¶14} Pursuant to Crim.R. 32.3(A), “[t]he 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.” Due process requires that before revoking
community control, the trial court must (1) hold a hearing to determine if probable
cause exists to believe the defendant has violated the terms of his probation and
then (2) hold a hearing to determine if probation should be revoked. State v. Harris,
7th Dist. No.11-MA-51, 2012-Ohio-1304, ¶15.
{¶15} In this case the trial court held the two requisite hearings. At the
probable cause hearing, appellant stipulated to probable cause. Then at the
revocation hearing, appellant entered a guilty plea to the violation of his community
control and openly discussed his drug problem with the court. He stated that he
knew he “messed up” and had “to be punished for my crime.” (Tr. 10). Hence, the
trial court did not abuse its discretion in revoking appellant’s community control.
{¶16} The second issue we must examine is whether appellant's sentence is
contrary to law and whether the trial court abused its discretion in sentencing him.
{¶17} Our review of felony sentences is now a limited, two-fold approach, as
outlined in the plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-
4912, ¶26. First, we must examine the sentence to determine if it is “clearly and
convincingly contrary to law.” Id. (O'Conner, J., plurality opinion). In examining “all
applicable rules and statutes,” the sentencing court must consider R.C. 2929.11 and
R.C. 2929.12. Id. at ¶¶ 13-14 (O'Conner, J., plurality opinion). If the sentence is
clearly and convincingly not contrary to law, the court's discretion in selecting a
sentence within the permissible statutory range is subject to review for abuse of
discretion. Id. at ¶17 (O'Conner, J., plurality opinion). Thus, we apply an abuse of
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discretion standard to determine whether the sentence satisfies R.C. 2929.11 and
R.C. 2929.12. Id. at ¶17 (O'Connor, J., plurality opinion).
{¶18} The trial court sentenced appellant to four years for a second-degree
felony. The possible sentences for a second-degree felony are two, three, four, five,
six, seven, or eight years. R.C. 2929.14(A)(2). Thus, appellant’s sentence was
clearly within the applicable range.
{¶19} Furthermore, in ordering appellant to serve his sentence consecutive to
his sentence in the underlying case, the trial court complied with R.C. 2929.14(C)(4),
which sets out findings the court must make when sentencing a defendant to
consecutive prison terms for multiple offenses. At sentencing, the trial court found
that appellant committed the crimes “during the course of the time period where he
was involved in other matters” and that this demonstrated that a sentence on a single
term would not adequately represent the seriousness of the offenses and would not
adequately protect the public. (Tr. 13-14). The court also noted that recidivism was a
“big problem”. (Tr. 14). It pointed out that when it gave appellant the opportunity for
day reporting and treatment, he was not able to comply. (Tr. 14). Thus, the trial court
gave adequate support under R.C. 2929.14(C)(4) for ordering consecutive
sentences.
{¶20} Additionally, the court stated that it “considered Defendant’s record,
violation report, oral statements, and the principles and purposes of sentencing under
ORC §2929.11 and balanced the seriousness and recidivism factors under ORC
§2929.12.” Thus, the court considered the applicable sentencing statutes and also
considered several other factors in reaching its sentence. There is no indication that
the trial court abused its discretion in sentencing appellant.
{¶21} In sum, after conducting an independent review of the proceedings in
the trial court, we find there are no non-frivolous issues for review.
{¶22} For the reasons stated above, the trial court’s judgment is hereby
affirmed. Counsel’s motion to withdraw is granted.
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Vukovich, J., concurs.
DeGenaro, .P.J., concurs.