State v. Baldwin

2021 Ohio 4602

Opinion

[Cite as State v. Baldwin, 2021-Ohio-4602.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : BRET D. BALDWIN : Case No. 2021 AP 06 0013 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2020 CR 01 0012

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: December 29, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KRISTINE W. BEARD DAVID V. PATTON 125 E. High Ave. 34194 Aurora Road New Philadelphia, OH 44663 Suite 242 Solon, OH 44139 Tuscarawas County, Case No. 2021 AP 06 0013 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant Bret D. Baldwin appeals the May 15, 2021 judgment

of the Tuscarawas County Court of Common Pleas which denied his Motion to Modify

Sentencing Order. Plaintiff-Appellee is the state of Ohio.

Facts and Procedural History

{¶ 2} A recitation of the underlying facts leading to appellant's convictions is

unnecessary to our resolution of this appeal.

{¶ 3} On May 17, 2020, Appellant pled guilty to one count each of domestic

violence, having weapons under disability, abduction, and disrupting public services. On

July 15, 2020, following a presentence investigation, the trial court sentenced Appellant

to a four-year term of community control. Conditions of Appellant's community control

included a requirement that he refrain from the use of THC in any form. THC is the main

psychoactive compound in marijuana.

{¶ 4} On February 19, 2021, Appellant, through counsel filed a Motion to Modify

Sentencing Order. Appellant legally possesses a medical marijuana card which was

issued on July 15, 2019. Appellant uses or used medical marijuana to manage his post-

traumatic stress disorder (PTSD). Appellant's motion therefore sought to eliminate the

condition that he refrain from the use of THC. Appellant's motion included a letter from

Mark A. Welty, Ph.D., LPCC-S, LSW describing his work with Appellant in addressing his

PTSD and a copy of Appellant's medical marijuana card.

{¶ 5} The state's response to Appellant's motion argued the motion was a petition

for post-conviction relief and was further barred by the doctrine of res judicata because

Appellant had failed to raise the issue before the trial court or in a direct appeal. Tuscarawas County, Case No. 2021 AP 06 0013 3

{¶ 6} On May 5, 2021 the trial court agreed with the state and denied the motion.

{¶ 7} Appellant timely filed an appeal and the matter is now before this court for

consideration. He raises five assignments of error for our consideration as follow:

I

{¶ 8} "THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION

TO MODIFY THE COMMUNITY CONTROL CONDITIONS REGARDING MARIJUANA

USE BECAUSE SUCH A MODIFICATION IS REQUIRED PURSUANT TO THE EIGHTH

AMENDMENT TO THE U.S. CONSTITUTION’S RIGHT TO MEDICAL CARE."

II

{¶ 9} "THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION

TO MODIFY THE COMMUNITY CONTROL CONDITIONS REGARDING MARIJUANA

USE BECAUSE SUCH A MODIFICATION IS REQUIRED PURSUANT TO ARTICLE I, §

9 OF THE OHIO CONSTITUTION’S RIGHT TO MEDICAL CARE."

III

{¶ 10} "THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION

TO MODIFY THE COMMUNITY CONTROL CONDITIONS REGARDING MARIJUANA

USE BECAUSE SUCH A MODIFICATION IS REQUIRED PURSUANT TO THE

FEDERAL EQUAL PROTECTION CLAUSE."

IV

{¶ 11} "THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION

TO MODIFY THE COMMUNITY CONTROL CONDITIONS REGARDING MARIJUANA

USE BECAUSE SUCH A MODIFICATION IS REQUIRED PURSUANT TO THE OHIO

EQUAL PROTECTION CLAUSE." Tuscarawas County, Case No. 2021 AP 06 0013 4

V

{¶ 12} "THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION

TO MODIFY COMMUNITY CONTROL CONDITIONS REGARDING MARIJUANA USE

BECAUSE THESE CONDITIONS ARE UNCONSTITUTIONAL AS APPLIED TO MR.

BALDWIN."

I, II, III, IV, V

{¶ 13} Because we find Appellant's Motion to Modify Community Control was not

a motion for postconviction relief, and should not have been treated as such, we do not

reach his constitutional challenges.

{¶ 14} In State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131

at syllabus, the Supreme Court of Ohio found:

Where a criminal defendant, subsequent to his or her direct appeal,

files a motion seeking vacation or correction of his or her sentence

on the basis that his or her constitutional rights have been violated,

such a motion is a petition for postconviction relief as defined in R.C.

2953.21.

{¶ 15} Emphasis added.

{¶ 16} While Appellant's Motion to Modify Sentencing Order did set forth

constitutional arguments, he was not seeking to vacate or correct his sentence of four Tuscarawas County, Case No. 2021 AP 06 0013 5

years community control. Rather, he was seeking modification of the conditions of his

community control.

{¶ 17} R.C. 2929.25(B) addresses community control modifications. It provides the

trial court with the authority to modify the conditions of community control as long as the

duration of community control has not expired:

(B) If a court sentences an offender to any community control

sanction or combination of community control sanctions pursuant to

division (A)(1)(a) of this section, the sentencing court retains

jurisdiction over the offender and the period of community control for

the duration of the period of community control. Upon the motion of

either party or on the court's own motion, the court, in the court's

sole discretion and as the circumstances warrant, may modify the

community control sanctions or conditions of release

previously imposed, substitute a community control sanction or

condition of release for another community control sanction or

condition of release previously imposed, or impose an additional

community control sanction or condition of release.

{¶ 18} Emphasis added.

{¶ 19} Because the trial court retains jurisdiction to modify the terms and conditions

of a criminal defendant's community control for the duration of the period of community

control, the trial court erred in treating Appellant's Motion to Modify Sentencing Order as Tuscarawas County, Case No. 2021 AP 06 0013 6

a petition for postconviction relief. We therefore reverse the trial court's judgment and

remand this matter to the trial court for its consideration of the merits of Appellant's

motion.

{¶ 20} The judgment of the Tuscarawas Court of Common Pleas is reversed and

remanded.

By Wise, Earle, J.

Baldwin, P.J. and

Delaney, J. concur.

EEW/rw