State v. Torres

[Cite as State v. Torres, 2022-Ohio-889.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2020-P-0094
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
CESAR JAVIER CASTRO TORRES,
Trial Court No. 2019 CR 00825
Defendant-Appellant.
OPINION
Decided: March 21, 2022
Judgment: Reversed and remanded
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Shubhra N. Agarwal, 3732 Fishcreek Road, #288, Stow, OH 44224 (For Defendant-
Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Cesar Javier Castro Torres (“Mr. Torres”), appeals from the
judgment of the Portage County Court of Common Pleas revoking his community control
and sentencing him to consecutive prison terms of 24 months and 18 months.
{¶2} Mr. Torres asserts four assignments of error, contending that (1) the trial
court violated his due process rights during the revocation hearing; (2) his trial counsel
provided ineffective assistance; (3) the trial court’s sentencing entry contains a
discrepancy; and (4) the trial court improperly imposed consecutive sentences.
{¶3} After a careful review of the record and pertinent law, we find as follows:
{¶4} (1) The trial court committed plain error by failing to provide Mr. Torres any
opportunity to consult with his appointed defense counsel prior to revoking his community
control and sentencing him to consecutive prison terms.
{¶5} (2) Our disposition of Mr. Torres’ first assignment of error renders his
remaining assignments of error moot.
{¶6} Thus, we reverse the trial court’s judgment, and we remand this matter for
the trial court to conduct a community control revocation hearing in compliance with all
legal requirements.
Substantive and Procedural History
{¶7} In September 2019, the Ohio State Highway Patrol observed Mr. Torres
speeding in Portage County. He failed to stop, and a pursuit ensued, at which time Mr.
Torres drove up to 119 miles per hour and traveled through a red light. Mr. Torres
eventually came to a stop in Trumbull County and was taken into custody. He was driving
a stolen vehicle belonging to a Pennsylvania resident.
{¶8} The Portage County Grand Jury indicted Mr. Torres for failure to comply
with order or signal of police officer, a felony of the third degree, in violation of R.C.
2921.331 (count one), and receiving stolen property, a felony of the fourth degree, in
violation of R.C. 2913.51 (count two). Count one included an allegation that Mr. Torres’
operation of the motor vehicle “caused a substantial risk of serious physical harm to
persons or property,” which elevated the offense from a misdemeanor of the first degree
to a felony of the third degree. See R.C. 2921.331(C)(3) and (C)(5)(a)(ii).
{¶9} Mr. Torres initially pleaded not guilty to the charges. In December 2019,
Mr. Torres entered written and oral pleas of guilty to both counts. Following a plea
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colloquy, the trial court accepted Mr. Torres’ guilty pleas, found him guilty, and ordered a
presentence investigation (“PSI”) and a NEOCAP evaluation.
{¶10} In January 2020, the trial court sentenced Mr. Torres to 180 days in jail with
credit for 147 days; 12 months of intensive supervision and 36 months of general
supervision, with certain conditions; a fine; and court costs. The trial court permitted Mr.
Torres to transfer his supervision to West Virginia, i.e., his place of residence, if accepted.
The trial court notified Mr. Torres that if he violated the terms of his community control, it
could impose more restrictive community control sanctions or prison terms of 36 months
and 18 months to run consecutively.
{¶11} In March 2020, the trial court filed a judgment entry finding that “via Adult
Probation Department, [Mr. Torres] has absconded from Interstate Compact from West
Virginia” and issued a nationwide warrant for Mr. Torres’ arrest. On November 13, Mr.
Torres was served with the warrant, arrested, and incarcerated in the Portage County
Jail. On November 17, a hearing notice was filed scheduling the matter for “sentencing”
on November 30.
{¶12} Mr. Torres appeared at the scheduled hearing via video Zoom. His
appointed defense counsel and the prosecutor appeared in person, and a probation
officer appeared by phone.
{¶13} The trial court began by stating that it was recalling the warrant. It noted
Mr. Torres’ prior guilty pleas and listed the potential penalties associated with each
offense. It then stated, “Before I sentence the Defendant, I’d like to hear from Defense
Counsel.”
{¶14} Defense counsel informed the trial court that he was not aware “these
clients weren’t being brought over from the jail” and that he did not have the opportunity
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to speak to Mr. Torres. However, it was his understanding that Mr. Torres’ probation had
been transferred to West Virginia. Mr. Torres was “not in compliance with probation there”
and had been in custody in Portage County since November 13. Defense counsel
requested that the trial court reinstate Mr. Torres’ community control sanctions and permit
him to complete his supervision in Ohio if he had a suitable residence in the county.
{¶15} The trial court responded, “Again, this is not a sentencing hearing. This is,
I guess, motion to revoke or modify.” The trial court noted that it had already sentenced
Mr. Torres but that “somehow somebody set it for a sentencing hearing today.” The trial
court noted that Mr. Torres was arrested on a nationwide warrant.
{¶16} The prosecutor stated that the probation department did not provide him
with a copy of its motion to revoke or its recommendation; rather, he only received the
PSI. The trial court replied, “That’s what I got, too. So I don’t know why it was set the
way it was set. It’s wrong.” The prosecutor further stated that the matter involved “a
courtesy supervision in West Virginia” and that Mr. Torres had not complied there.
{¶17} The trial court reiterated that it was recalling the warrant and asked the
prosecutor if he wanted to reset the matter. The prosecutor replied, “Whatever is
convenient for the Court, Your Honor.”
{¶18} The probation officer then addressed the trial court and stated that Mr.
Torres had “actually gotten it prior to making it to West Virginia. He never reported to
West Virginia and was considered absconded; therefore, a nationwide was issued for his
arrest.”
{¶19} The trial court stated it that would proceed on the “motion to revoke” and
asked if defense counsel had anything to say on Mr. Torres’ behalf. Defense counsel
asked the court to consider the results of Mr. Torres’ NEOCAP evaluation and stated that
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Mr. Torres was “amenable to community control despite his recent conduct.” Defense
counsel again requested that the trial court continue Mr. Torres’ community control
sanctions.
{¶20} The prosecutor argued that Mr. Torres was no longer amenable to
community control sanctions because he was not compliant and had never reported to
probation.
{¶21} The trial court requested to hear from Mr. Torres. Mr. Torres stated that he
was incarcerated in Pennsylvania and had been incarcerated for 15 months. He was
unable to get his interstate compact transferred to West Virginia. He still had the
paperwork given to him in January 2020 and requested an opportunity to “get out there
and get that taken care of.” In response to the trial court’s inquiry, Mr. Torres stated that
he was incarcerated in Pennsylvania “for a vehicle.” He was on probation and was being
permitted to transfer “everything” to West Virginia.
{¶22} Following Mr. Torres’ remarks, the trial court found that he was no longer
amenable to community control sanctions and that a prison term was warranted. The trial
court sentenced Mr. Torres to prison terms of 24 months on count one (failure to comply)
and 12 months on count two (receiving stolen property) with credit for time served in the
Portage County Jail. The trial court determined that the prison terms were mandated to
run consecutively because of the failure to comply offense in count one.
{¶23} Following the trial court’s explanation of post-release control, the trial court
asked Mr. Torres if he understood. Mr. Torres stated, “I – I don’t. I don’t – I don’t
understand what’s – what’s happening, Your Honor.” The trial court replied, “You’re going
to prison.” The trial court then specified Mr. Torres’ jail-time credit and concluded the
hearing.
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{¶24} The trial court subsequently filed a judgment entry memorializing the
November 2020 hearing and Mr. Torres’ sentences. The sentencing entry lists Mr.
Torres’ prison term on count two (receiving stolen property) as 18 months rather than 12
months. The sentencing entry also contains two consecutive sentence findings pursuant
to R.C. 2929.14(C)(4).
{¶25} Mr. Torres appealed and asserted two assignments of error:
{¶26} “[1.] The trial court committed reversible error and plain error by proceeding
to sentence Mr. Torres on a community control violation without providing notice and first
holding a community control violation/revocation hearing thus violating Mr. Torres’ right
to due process.
{¶27} “[2.] Mr. Torres was denied his constitutional right to effective assistance of
counsel at trial when his trial counsel failed to request a continuance or object to the trial
court proceeding to sentence Mr. Torres on a community control violation without first
providing notice and holding a community control violation/revocation hearing.”
{¶28} In response to this court’s sua sponte order for supplemental briefing, Mr.
Torres asserted two additional assignments of error:
{¶29} “[3.] The discrepancy in Mr. Torres’ prison sentence as reflected in the
sentencing transcript and the corresponding judgment entry constitutes prejudicial error.
{¶30} “[4.] The trial court improperly imposed consecutive prison sentences for
Mr. Torres’ violation of community control.”
Due Process
{¶31} In his first assignment of error, Mr. Torres contends that the trial court
violated his due process rights in several respects prior to revoking his community control
and sentencing him to prison.
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Standard of Review
{¶32} Since Mr. Torres did not raise the alleged due process violations in the trial
court, he has forfeited all but plain error. State v. Solomon, 11th Dist. Portage No. 2017-
P-0078, 2019-Ohio-1841, ¶ 10.
{¶33} Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” To find plain
error, we must conclude (1) there was an error, i.e., a deviation from a legal rule, (2) the
error was plain, i.e., an obvious defect in the trial proceedings, and (3) the error affected
substantial rights, i.e., the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d
21, 27, 759 N.E.2d 1240 (2002). In other words, the defendant must demonstrate a
reasonable probability that the error resulted in prejudice, which is the same deferential
standard for reviewing ineffective assistance of counsel claims. State v. Rogers, 143
Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.
{¶34} Plain error must be noticed “with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
Due Process Requirements
{¶35} This court has recognized that a community control revocation hearing is
not a criminal trial. State v. Mayle, 2017-Ohio-8942, 101 N.E.3d 490, ¶ 14 (11th Dist.).
Therefore, a defendant faced with revocation of community control is not afforded the full
panoply of rights given to a defendant in a criminal prosecution. Id.{¶36} However, a defendant is entitled to due process at a revocation hearing.
See State v. Thomas, 2018-Ohio-1024, 109 N.E.3d 12, ¶ 8 (11th Dist.); Gagnon v.
Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). These due process
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rights include (1) written notice of the claimed violations of community control; (2)
disclosure of evidence against the defendant; (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
statement by the fact finder as to the evidence relied upon and the reasons for revoking
community control. Thomas at ¶ 8; see Gagnon at 786.
{¶37} Revocation of community control is also governed by Crim.R. 32.3, which
provides, in relevant part, as follows:
{¶38} “(A) Hearing. The 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. The defendant may be admitted for bail pending hearing.
{¶39} “(B) Counsel. The defendant shall have the right to be represented by
retained counsel and shall be so advised. Where a defendant convicted of a serious
offense is unable to obtain counsel, counsel shall be assigned to represent the defendant,
unless the defendant after being fully advised of his or her right to assigned counsel,
knowingly, intelligently, and voluntarily waives the right to counsel. Where a defendant
convicted of a petty offense is unable to obtain counsel, the court may assign counsel to
represent the defendant.”
Law and Analysis
{¶40} The record in this case demonstrates numerous irregularities. Most
crucially, however, the trial court did not provide Mr. Torres with any opportunity to consult
with his appointed counsel prior to revoking his community control and sentencing him to
consecutive prison terms.
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{¶41} The Supreme Court of the United States has explained that a court’s duty
to appoint counsel “is not discharged by an assignment at such a time or under such
circumstances as to preclude the giving of effective aid in the preparation and trial of the
case.” Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Otherwise,
“the denial of opportunity for appointed counsel to confer, to consult with the accused and
to prepare his defense, could convert the appointment of counsel into a sham and nothing
more than a formal compliance with the Constitution’s requirement that an accused be
given the assistance of counsel.” Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84
L.Ed. 377 (1940).
{¶42} In the context of probation revocation/sentencing hearings, the court has
found that “the necessity for the aid of counsel in marshaling the facts, introducing
evidence of mitigating circumstances and in general aiding and assisting the defendant
to present his case as to sentence is apparent.” Mempa v. Rhay, 389 U.S. 128, 135, 88
S.Ct. 254, 19 L.Ed.2d 336 (1967).
{¶43} Although Mr. Torres’ appointed counsel appeared at the November 2020
hearing, he expressly informed the trial court that he did not have an opportunity to speak
with Mr. Torres. There is no indication in the record that defense counsel was ever given
such an opportunity. The transcript indicates that Mr. Torres appeared via video Zoom,
while defense counsel appeared in person, and there were no recesses.
{¶44} During the hearing, defense counsel essentially conceded that Mr. Torres
violated his community control and requested leniency based on Mr. Torres’ prior
NEOCAP evaluation. By contrast, Mr. Torres contended, on his own behalf, that his prior
incarceration in Pennsylvania made him “unable” to transfer his community control to
West Virginia.
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{¶45} The state argues that there is no reasonable probability of a different
outcome in this case, citing the Seventh District’s decision in State v. McClellan, 7th Dist.
Mahoning No. 10 MA 181, 2011-Ohio-4557. In that case, the court stated that “when a
probationer fails to report because he or she is in jail, probation can be legally revoked.”
Id. at ¶ 23.
{¶46} In McClellan, however, defense counsel was familiar with the facts
underlying the defendant’s prior incarceration, and those facts were presented to the trial
court for consideration. See id. at ¶ 21-22. Here, the transcript suggests that defense
counsel was unaware of the facts underlying Mr. Torres’ incarceration in Pennsylvania.
In addition, such facts were not fully developed at the hearing, nor are they reflected in
the record before us.
{¶47} Further, the Supreme Court has recognized that “‘the right to be
represented by counsel is by far the most pervasive * * * [o]f all the rights that an accused
person has, * * * for it affects his ability to assert any other rights he may have.’” United
States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), quoting
Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 8 (1956). Thus,
the Supreme Court has determined that a showing of prejudice is not required in rare
circumstances, including “when counsel was either totally absent, or prevented from
assisting the accused during a critical stage of the proceeding.” Id. at 659, fn. 25; see,
e.g., Hunt v. Mitchell, 261 F.3d 575, 584 (6th Cir.2001) (finding a presumption of prejudice
where “there [was] no indication that [appellant] consulted with his lawyer even once
before the start of voir dire”).
{¶48} Since Mr. Torres was not given any opportunity to consult with his defense
counsel prior to revocation/sentencing, he was necessarily prevented from having
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counsel’s assistance in investigating the circumstances of his prior incarceration,
obtaining relevant evidence, and properly presenting a defense or mitigating
circumstances. When this fact is considered along with the confusion of all participants
about the nature of the proceeding and Mr. Torres’ statement to the court confirming that
confusion, we have no other alternative but to find error.
{¶49} Accordingly, we conclude that (1) the trial court violated Mr. Torres’ right to
representation by counsel pursuant to Crim.R. 32.3; (2) the trial court’s error was an
obvious defect in the proceedings, and (3) prejudice to Mr. Torres is presumed.
{¶50} Mr. Torres’ first assignment of error has merit. The trial court’s judgment is
reversed, and this matter is remanded for the trial court to conduct a community control
revocation hearing in compliance with all legal requirements.
{¶51} Our disposition of Mr. Torres’ first assignment of error renders his remaining
assignments of error moot.
{¶52} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas is reversed, and this matter is remanded for further proceedings
consistent with this opinion.
THOMAS R. WRIGHT, P.J.,
JOHN J. EKLUND, J.,
concur.
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