State v. Butts

[Cite as State v. Butts, 2022-Ohio-1322.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110819
v. :
BRIAN L. BUTTS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: April 21, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-644705-A and CR-20-651174-C
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Sarah Denney, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Chief Public Defender, and Michael V.
Wilhelm, Assistant Public Defender, for appellant.
JAMES A. BROGAN, J.:
Defendant-appellant Brian L. Butts (“Butts”) appeals the trial court’s
revocation of his community-control sanctions. For the following reasons, we affirm
and remand for further proceedings.
Factual and Procedural History
On October 11, 2019, in Cuyahoga C.P. No. CR-19-644705-A, a
Cuyahoga County Grand Jury indicted Butts on one count of aggravated burglary in
violation of R.C. 2911.11(A)(1); one count of abduction in violation of R.C.
2905.02(A)(2); one count of endangering children in violation of R.C.
2919.22(B)(1); two counts of domestic violence in violation of R.C. 2919.25(A); and
one count of disrupting public services in violation of R.C. 2909.04(A)(3). On
October 28, 2019, the trial court issued a capias for Butts, and the defendant was in
custody as of July 2, 2020. On July 7, 2020, Butts pleaded not guilty to the
indictment.
On July 7, 2020, in Cuyahoga C.P. No. CR-20-651174-C, a Cuyahoga
County Grand Jury indicted Butts on one count of attempted murder in violation of
R.C. 2923.02(A); one count of felonious assault in violation of R.C. 2903.11(A)(1);
one count of kidnapping in violation of R.C. 2905.01(A)(3); and one count of
tampering with evidence in violation of R.C. 2921.12(A)(1). On July 10, 2020, Butts
pleaded not guilty to the indictment.
On April 15, 2021, the court held a change-of-plea hearing on Butts’s
two pending cases. The court explained the maximum potential penalties Butts
faced, including the application of the Reagan Tokes Law to his offenses. After the
trial court engaged Butts in a Crim.R. 11 colloquy, Butts retracted his former pleas
of not guilty and the trial court accepted his guilty pleas.
In Cuyahoga C.P. No. CR-19-644705-A, Butts pleaded guilty to one
amended count of endangering children, a misdemeanor of the first degree, and two
counts of domestic violence, felonies of the fourth degree. The state nolled the
remaining counts. In Cuyahoga C.P. No. CR-20-651174-C, Butts pleaded guilty to
felonious assault, a felony of the second degree, and the state nolled the remaining
counts. The parties recommended two sentencing options: (1) two years on the
felonious assault charge to be served concurrently with the sentences imposed on
the domestic violence and endangering children charges with no opportunity for
judicial release1 or (2) participation in and completion of community-control
sanctions at a community-based correctional facility (“CBCF”) with failure to
complete the program, for any reason, resulting in a five to seven and one-half year
sentence. Butts stated his preference was to complete community-control sanctions
at a CBCF.
On April 27, 2021, the court held a sentencing hearing. The court
heard from the assistant prosecuting attorney, defense counsel, a victim in
Cuyahoga C.P. No. CR-19-644705-A, and Butts. The trial court voiced concerns
about imposing community-control sanctions rather than a prison sentence due to
1
The trial court indicated the two-year sentence was subject to the Reagan Tokes
Law and, therefore, the sentence would be a two to three year sentence.
Butts’s criminal history, a four-year old presentence-investigation report that
classified Butts as a high-risk offender, and the two pending cases stemming from
violent crimes.
In both pending cases, the trial court sentenced the defendant to two
years of community control on each count under the supervision of the adult
probation department’s domestic violence unit. Butts’s sentence was subject to the
following conditions:
(1) defendant must abide by all rules and regulations of the probation
department; (2) defendant must report weekly for three months and
every two weeks thereafter; (3) defendant must attend domestic
violence programming as determined by the probation officer; (4)
defendant must attend additional programming as indicated in his case
plan; (5) defendant must pay a monthly supervision fee; (6) defendant
is subject to random drug testing; and (7) the conditions and terms of
the probation are subject to modification by the probation officer and
approval of the court.
The trial court informed Butts that a violation of the community-control sanctions
could result in a prison term of 36 months under Cuyahoga C.P. No. CR-19-644705-
A and a prison term of five to seven and one-half years under Cuyahoga C.P. No. CR-
20-651174-C. The trial court further stated that any behavior by Butts that resulted
in an unsuccessful termination from the CBCF would result in revocation of the
sanctions and imposition of a five to seven and one-half year prison term. The court
also advised Butts on postrelease control.
On July 6, 2021, Butts was transported to the CBCF. While in the
program, the CBCF alleged that Butts stole another client’s belongings and assaulted
the client. Based upon those allegations, Butts’s CBCF supervision was terminated
on July 28, 2021, due to noncompliance with the program.
On August 11, 2021, the trial court held a community-control
sanctions violation hearing. Butts waived the issue of probable cause thereby
admitting that he violated his community-control sanctions when he was
terminated from the CBCF for reasons other than a successful completion of the
program. However, Butts denied the theft and assault allegations that resulted in
his untimely termination from the CBCF.
The trial court found Butts’s unsuccessful completion and
termination from CBCF violated his community-control sanctions. The trial court
revoked Butts’s community-control sanctions and sentenced him, in Cuyahoga C.P.
No. CR-19-644705-A, to 18 months on each domestic violence charge and 6 months
on the child endangering charge, with all sentences running concurrent to each
other. The court advised Butts that he would be subject to three years’ discretionary
postrelease control. Pursuant to the Reagan Tokes Law, the trial court imposed an
aggregate minimum term of five years and a maximum term of seven and one-half
years in Cuyahoga C.P. No. CR-20-651174-C, with the sentence running concurrent
to the sentence imposed in Cuyahoga C.P. No. CR-19-644705-A and three years’
mandatory postrelease control.
On September 10, 2021, Butts filed a timely notice of appeal stating
verbatim the following three assignments of error:
Assignment of Error I: The Trial Court conducted an improper
Community Control Violation Hearing, violating the Appellant’s Due
Process Rights.
Assignment of Error II: The State must be present to prosecute a
community control violation where no evidence is presented.
Assignment of Error III: The trial court violated Appellant’s
Constitutional Rights by imposing a Reagan-Tokes Sentence, under
S.B. 201.
Legal Analysis
At the trial-court level, Butts did not object to the claimed errors
raised in his first and second assignments of error — due process and the absence of
a state representative. Therefore, review of those claims is limited to plain error.
State v. Frazier, 8th Dist. Cuyahoga No. 104596, 2017-Ohio-470, ¶ 8, citing State v.
Murphy, 91 Ohio St.3d 516, 532, 747 N.E.2d 765 (2001), quoting State v. Childs, 14
Ohio St.2d 56, 62, 236 N.E.2d 545 (1968). Crim.R. 52(B) states “[p]lain errors or
defects affecting substantial rights may be noticed although they were not brought
to the attention of the court.” Appellate courts take notice of plain error only under
exceptional circumstances to prevent a manifest miscarriage of justice. E. Cleveland
v. Harris, 8th Dist. Cuyahoga No. 109404, 2021-Ohio-952, ¶ 20, citing State v.
Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1987). Plain error only applies where
the outcome of the trial would have been different but for the error. Id.I. Due Process
In his first assignment of error, Butts argues that he was denied due
process of law at his community-control sanctions violation hearing. Specifically,
Butts argues that the trial court, as a neutral and detached hearing body, was
required to investigate the facts of the underlying offense before it revoked his
sanctions and imposed a new sentence. Further, Butts argues that the state needed
to introduce substantial evidence of the underlying offense before the court could
revoke his sanctions and impose another sentence. We do not agree.
Butts’s unsuccessful termination from the CBCF qualified as a
community-control sanction violation. While the court heard from Butts’s
probation officer — who described the alleged theft and assault by Butts that
resulted in his early and unsuccessful termination from CBCF — and reviewed the
CBCF’s incident report, the most compelling testimony was Butts’s admission to the
sanction violation.2 Butts’s admission that his early termination from the CBCF
constituted a violation of his community-control sanction was the only evidence the
trial court needed to determine a violation occurred. State v. Jimenez, 8th Dist.
Cuyahoga No. 104735, 2017-Ohio-1553, ¶ 6, citing Frazier at ¶ 17. The trial court
2
Butts argues the probation officer was not sworn in as a witness and, therefore,
the trial court erroneously permitted her testimony into evidence. However, Butts’s
failure to object during the violation hearing to the probation officer’s unsworn testimony
waives any error regarding the trial court’s determination. State v. Fonte, 8th Dist.
Cuyahoga No. 98144, 2013-Ohio-98, ¶ 10, citing State v. Rose, 8th Dist. Cuyahoga No.
70984, 1997 Ohio App. LEXIS 1072, *8-9 (Mar. 20, 1997), citing State v. Williams, 51
Ohio St.2d 112, 364 N.E.2d 1364 (1977).
Butts also argues the incident report could not be introduced as testimony. A
reviewing court may find plain error where the trial court erroneously admitted evidence
that impacted a substantial right of a party. Evid.R. 103. The record shows the incident
report was not formally introduced as an exhibit, but the trial court referenced the
document during the violation hearing. Butts did not object to the document during the
violation hearing. We cannot say that the incident report impacted a substantial right of
Butts. The trial court heard Butts’s admission that he violated his community-control
sanctions and his version of the incident, and that testimony established a community-
control sanction violation occurred rendering the incident report superfluous.
was not required to investigate or relitigate the incident that led to Butts’s expulsion
from the CBCF.
The revocation of community-control sanctions entails a serious loss
of liberty and, therefore, the defendant must be provided due process at the
revocation hearing. State v. Bailey, 8th Dist. Cuyahoga No. 103114, 2016-Ohio-494,
¶ 9, citing Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct.1756, 36 L.Ed.2d 656(1973). A trial court must provide an alleged sanction-violator these minimal due
process rights before imposing punishment for a sanction violation:
1) written notice of the claimed violations; 2) disclosure of evidence
against him; 3) opportunity to be heard 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 statement by the factfinder of the evidence relied upon and
reasons for revocation.
State v. Davis, 8th Dist. Cuyahoga No. 93959, 2010-Ohio-5126, ¶ 26, citing Gagnon
at 786; see Crim.R. 32.3(A).
Further, once a trial court finds a community-control sanction was
violated, the court has wide latitude in sentencing. State v. Brooks, 103 Ohio St.3d
134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 20. After weighing the seriousness of the
original offenses and the gravity of the community-control violation, the trial court
could then impose a longer period of community-control, a more restrictive
community-control sanction, or a prison term. Id.; R.C. 2929.15(B).
Butts’s violation hearing satisfied the requisite due process
requirements. In regards to Butts’s argument about a neutral and detached court, a
trial court is viewed as neutral and detached “unless there is evidence to
demonstrate that undue bias, hostility, or absence of neutrality existed on the part
of the court.” State v. Swails, 8th Dist. Cuyahoga No. 100480, 2014-Ohio-3711, ¶
14, citing State v. Murr, 35 Ohio App.3d 159, 520 N.E.2d 264 (6th Dist.1987),
syllabus.
While the trial court stated at the violation hearing that it did not need
to investigate the events that resulted in Butts’s discharge from the CBCF, the trial
court still provided Butts an opportunity to speak on his own behalf. The trial court
also voiced its frustration that Butts denied performing the acts that led to his
expulsion from the CBCF rather than taking responsibility for his actions. The trial
court noted Butts’s prior violent offenses and the violent crimes Butts allegedly
engaged in at the CBCF, and reiterated its concern about his history of aggressive
behavior. The trial court appears to have weighed the seriousness of the initial
offenses and the gravity of the sanction violation. The fact that the trial court
imposed the sentence it described at the initial sentencing hearing — a five to seven
and one-half year prison term — did not demonstrate the court acted with undue
bias, hostility, or lack of neutrality.
Additionally, Butts’s admission that he violated his community-
control sanctions dispensed with the requirement that the state introduce
substantial evidence demonstrating the violations. State v. English, 8th Dist.
Cuyahoga No. 109645, 2021-Ohio-850, ¶ 12, quoting Frazier, 8th Dist. Cuyahoga
No. 104596, 2017-Ohio-470, at ¶ 11. Thus, Butts’s argument that the state failed to
introduce substantial evidence of his sanction violation is moot.
In accordance with the law, the trial court found Butts violated his
sanctions, revoked those community-control sanctions, and sentenced Butts to a
five to seven and one-half year prison term. We find the record does not
demonstrate a violation of Butts’s due process rights and, therefore, overrule his first
assignment of error.
II. Presence of State Representative
In his second assignment of error, Butts contends that a prosecutor
must be present at a community-control sanction violation hearing to present
evidence in support of the violation.
As stated above, the state was under no obligation to introduce
evidence once Butts admitted to the community-control sanction violation.
Further, Butts’s reliance on State v. Heinz, 146 Ohio St.3d 374, 2016-
Ohio-2814, 56 N.E.3d 965, in support of his argument is misguided. In Heinz, the
state filed an appeal because it was not provided the requisite notice prior to a
violation hearing nor an opportunity to be heard at the hearing. The Ohio Supreme
Court in Heinz determined that the state is a party to a community-control violation
proceeding and, therefore, the prosecuting attorney, as the state’s legal
representative, is entitled to proper notice and an opportunity to be heard at a
violation hearing. Id. at ¶ 21. The Heinz Court did not find a prosecutor’s presence
is required at a community-control violation hearing. Additionally, we find no basis
to require the state’s presence at Butts’s violation hearing where he admitted to his
sanction violation thereby negating the need to introduce evidence of the violation.
Thus, Butts’s second assignment of error is without merit and is overruled.
III. The Reagan Tokes Law
Butts’s third assignment of error argues that his indefinite sentence
under the Reagan Tokes Law is unconstitutional because it violates his due process
rights, violates the separation-of-powers doctrine, and violates his constitutional
right to a trial by jury.3
Butts’s arguments are overruled pursuant to this court’s en banc
decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, which
overruled the challenges presented in this appeal to the Reagan Tokes Law enacted
through S.B. 201. Therefore, we find that Butts’s sentence pursuant to the Reagan
Tokes Law was not a violation of his constitutional rights. Butts’s third assignment
of error is overruled.
IV. Nunc Pro Tunc Journal Entry
Trial courts retain jurisdiction to correct clerical errors in judgment
entries so that the entries accurately reflect the trial court’s decision. State ex rel.
3
In addition to addressing the constitutionality of the Reagan Tokes Law, the state
argues that the defendant failed to timely object to the statute since Butts did not object
at his initial sentencing hearing but at his community-control sanctions violation hearing.
“[T]he question of the constitutionality of a statute must generally be raised at the first
opportunity and, in a criminal prosecution, this means in the trial court.” State v. Awan,
22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986). Butts timely objected to the
constitutionality of the Reagan Tokes Law during his community-control violation
hearing which is a sentencing hearing. R.C. 2929.15(B); State v. Jackson, 150 Ohio St.3d
362, 2016-Ohio-8127, 81 N.E.3d 1237, ¶ 14.
Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19;
Crim.R. 36 (“[c]lerical mistakes in judgments, orders, or other parts of the record,
and errors in the record arising from oversight or omission, may be corrected by the
court at any time”). Clerical mistakes refer to mistakes or omissions that are
“mechanical in nature and apparent on the record” and do not address a legal
decision or judgment. State v. Brown, 136 Ohio App.3d 816, 820, 737 N.E.2d 1057(3d Dist.2000), citing Dentsply Internatl., Inc. v. Kostas, 26 Ohio App.3d 116, 118,
498 N.E.2d 1079 (8th Dist.1985).
In Cuyahoga C.P No. CR-20-651174-C, the April 27, 2021 journal
entry reads that Butts’s violation of his community-control sanctions may result in
more restrictive sanctions or a prison term of five years, as approved by law. On that
same date, the trial court stated in open court that a sanction violation may result in
a prison term of five to seven and one-half years. Tr. 76. On remand, the trial court
shall correct the clerical error in the April 27, 2021 journal entry to accurately reflect
that a sanction violation could result in a prison term of five to seven and one-half
years.
Judgment affirmed and case remanded.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__________________________
JAMES A. BROGAN, JUDGE*
ANITA LASTER MAYS, P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR
*(Sitting by assignment: James A. Brogan, J., retired, of the Second District Court
of Appeals.)
N.B. Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision.
For a full explanation of her analysis, see State v. Delvallie, 8th Dist. Cuyahoga
No. 109315, 2022-Ohio-470 (Laster Mays, J., concurring in part and dissenting in
part).