State v. Davenport

2018 Ohio 3319

Opinion

[Cite as State v. Davenport, 2018-Ohio-3319.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MERCER COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 10-18-05

v.

MICHAEL R. DAVENPORT, OPINION

DEFENDANT-APPELLANT.

Appeal from Mercer County Common Pleas Court Trial Court No. 15-CR-153

Judgment Affirmed

Date of Decision: August 20, 2018

APPEARANCES:

Kenneth J. Rexford for Appellant

Matthew K. Fox and Joshua A. Muhlenkamp for Appellee Case No. 10-18-05

SHAW, J.

{¶1} Defendant-appellant, Michael R. Davenport (“Davenport”), brings this

appeal from the February 26, 2018, judgment of the Mercer County Common Pleas

Court revoking his community control and sentencing him to serve an aggregate 48-

month prison term for his two Robbery convictions in violation of R.C.

2911.02(A)(3), both felonies of the third degree. On appeal, Davenport argues that

he was denied due process with regard to his community control sanction violations,

and that the trial court erred by imposing consecutive sentences upon him without

previously reserving the power to do so.

Relevant Facts and Procedural History

{¶2} On October 22, 2015, Davenport was indicted for two counts of

Robbery in violation of R.C. 2911.02(A)(2), both felonies of the second degree

(Counts 1 and 3), and two counts of Assault in violation of R.C. 2903.13(A), both

misdemeanors of the first degree (Counts 2 and 4). Davenport originally pled not

guilty to the charges.

{¶3} On April 6, 2016, Davenport entered into a written, negotiated guilty

plea wherein he agreed to plead guilty to two amended counts of Robbery, both

violations of R.C. 2911.02(A)(3), which were felonies of the third degree (rather

than second degree felonies he was originally charged with). In exchange the State

agreed to dismiss the remaining charges against him, and make no sentencing

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recommendation. Notably, the written plea agreement indicated that consecutive

prison terms were not mandatory but could be imposed by the trial court. (Doc. No.

47).

{¶4} On May 24, 2016, matter proceeded to sentencing. At the hearing the

trial court analyzed the seriousness and recidivism factors under R.C. 2929.12(B),

and then ultimately sentenced Davenport to community control. As to the prison

sentence that would be imposed if Davenport violated community control, the trial

court stated as follows.

The Court will notify the Defendant of a prison term for each offense of 24 months, and the Court will advise the Defendant that if he would have to serve those two, 24-month sentences, and was placed under post release control, which is mandatory for a period of three years on each count, upon his release from prison, he violates the terms of post-release control, he could be returned to prison for up to one half of each of those 24-month sentences.

(May 24, 2016, Tr. at 8). The judgment entry stated that Davenport was notified

that if he violated his community control sanctions he would face “a prison term of

Twenty-four (24) months on each count.” (Doc. No. 59).

{¶5} On July 25, 2016, State filed a notice of community control sanctions

violation alleging that Davenport failed to establish a permanent residence and that

he changed his residence without getting permission from his supervising officer in

contravention of the terms of his community control. The matter was set for a

hearing.

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{¶6} On June 28, 2017, a hearing was held to inform Davenport of the

charges against him regarding his alleged violation. Davenport indicated that he

understood the charges and the matter was set for a further hearing.

{¶7} On August 4, 2017, a hearing was held wherein the State made an oral

request to revoke Davenport’s bond due to him testing positive for amphetamine,

cocaine, fentanyl, methamphetamine, and morphine. Davenport also admitted to

using heroin. At that time, Davenport’s bond was revoked.

{¶8} On August 9, 2017, a hearing was held on the alleged community

control violation. Davenport was notified of the fact that if he was found in violation

he could be sentenced to incarceration. Nevertheless, Davenport admitted to

violating his community control as alleged and the matter was set for disposition.

{¶9} On August 30, 2017, the matter proceeded to disposition. At the

beginning of the hearing, Davenport’s counsel argued in favor of keeping Davenport

on community control despite the violation. His counsel stated, “Your honor, today

I would start off with I don’t think failure to change an address warrants going back

to prison for four years.” (August 30, 2017, Tr. at 4). Davenport’s counsel then

noted that he did test positive for drugs, but he admitted as much to his probation

officer. Davenport’s counsel indicated that Davenport was an addict and would

benefit more from being sent to the W.O.R.T.H. Center. The State, however, argued

in favor of revoking Davenport’s community control and sending him to prison.

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{¶10} The trial court elected to continue Davenport’s community control and

send Davenport to the W.O.R.T.H. Center as requested by the defense. However,

the trial court notified Davenport that if he did not successfully complete the

W.O.R.T.H. center he would be sent to prison. “[I]f you fail community control

this time, the Court will impose the two, 24-month prison sentences.” (Id. at 9).

The judgment entry then stated, in bold lettering, that if Davenport violated his

community control he would be subject to a prison term of Twenty-four (24) months

on each count. (Doc. No. 107).

{¶11} On January 19, 2018, the State filed a notice of community control

sanctions violation alleging that Davenport had been unsuccessfully terminated

from the W.O.R.T.H. center.

{¶12} Davenport denied the allegation against him and wanted to proceed to

a hearing. The matter proceeded to a hearing on February 13, 2018.

{¶13} At the hearing, the State called Adam Blevins, who worked at the

W.O.R.T.H. Center. Blevins testified that he had worked there for 3 years and that

he was familiar with Davenport.

{¶14} Blevins testified that Davenport arrived at the facility in September of

2017 and was terminated in January of 2018. Blevins testified that Davenport was

terminated because there was evidence that he had been involved with bringing

contraband into the facility.

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{¶15} Blevins testified that the W.O.R.T.H. Center administration initially

started an investigation believing that a staff member was bringing contraband into

the facility, specifically tobacco. Blevins testified that he looked into the matter,

having phone calls to and from the facility checked. While targeting employees in

the investigation, Blevins learned that Davenport was coordinating with his

boyfriend to have tobacco brought into the facility through a kitchen staff member.

{¶16} Blevins identified multiple calls Davenport had made to his boyfriend

wherein Davenport directed his boyfriend to hide certain items in a trash can at Casa

Lu Al, a restaurant in Lima.

{¶17} Blevins testified that a kitchen staff member confirmed that she was

working with Davenport to bring contraband into the facility, and she was fired.

After the investigation, Davenport was terminated from the W.O.R.T.H. Center,

though Davenport denied any involvement.

{¶18} Following Blevins’ testimony, the trial court found that Davenport

was in violation of his community control for being unsuccessfully terminated from

the W.O.R.T.H. Center. The trial court then proceeded to disposition.

{¶19} During the dispositional phase, Davenport called a witness to testify

that Davenport had made arrangements to be involved in a medically assisted

program for drug treatment. The witness testified that she did not think prison

would benefit Davenport; however, the witness testified that she had worked at the

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W.O.R.T.H. Center previously, that she was aware Davenport was unsuccessfully

terminated, and that she was aware that contraband such as tobacco was taken very

seriously there.

{¶20} The trial court then proceeded to the dispositional phase, ultimately

revoking Davenport’s community control and sentencing him to prison, stating:

The Court will therefore impose the prison terms that were noticed to the Defendant of 24 months on each count and order them to be served consecutively. The Court finding that the consecutive sentences are necessary to protect the public from future crimes and appropriately punish him, and are not disproportionate to the seriousness of his conduct and the danger that he poses to the public for the commission of these offenses.

He did commit these offenses while he was out awaiting trial, or sentencing, or under community control sanctions, and his history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crimes.

The offenses, there being two, were committed as part of one or more courses of conduct. The harm having been caused was great enough that no single prison term for either one, so that they could be run concurrently, would adequately reflect the seriousness of his conduct.

(Tr. at 47-48).

{¶21} A judgment entry memorializing Davenport’s sentence was filed

February 26, 2018. It is from this judgment that Davenport appeals, asserting the

following assignments of error for our review.

Assignment of Error No. 1 The Trial Court erred by denying Mr. Davenport due process as to the allegation of a violation of community control sanctions.

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Assignment of Error No. 2 The Trial Court erred by imposing consecutive sentences at disposition on the CCSV without previously reserving the power to impose consecutive sentencing within any pre-CCSV Brooks notice.

First Assignment of Error

{¶22} In Davenport’s first assignment of error, he argues that he did not

receive due process with regard to the allegation of his community control sanction

violation. Specifically, Davenport seems to contend that there should have been a

hearing to determine if Davenport was rightfully terminated from the W.O.R.T.H.

center. Davenport argues that limiting his community control violation hearing to

the fact of his termination, rather than the legitimacy of the cause of the termination,

denied him due process.

{¶23} Despite Davenport’s claim, both the cause of his termination from the

W.O.R.T.H. Center and the fact of his termination were presented to the trial court

through the testimony of Blevins, a W.O.R.T.H. Center employee.1 There was

ample testimony from Blevins to establish that Davenport did not successfully

complete the W.O.R.T.H. center as required by the trial court due to Davenport’s

involvement in bringing contraband into the facility.

1 As the State notes in its brief, Davenport did not exactly raise this issue to the trial court, therefore we could find that he waived it altogether, though we decline to do so.

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{¶24} As Davenport notes, there are certain requirements that have to be met

before community control can be revoked. There needs to be, inter alia, a written

notice of the alleged violations, disclosure of the evidence, an opportunity to be

heard and cross-examine witnesses, and a neutral and detached hearing body. See

State v. Miller, 42 Ohio St.2d 102 (1975). Though Davenport disagrees, all of these

requirements were present here and complied with.

{¶25} Davenport seems to be requesting this Court to implement a major

shift and provide for some type of administrative hearing process for termination

from the W.O.R.T.H. Center. Creating such a process or an administrative body to

hear it is not within the province of this Court.

{¶26} Regardless, as to Davenport’s community control sanction violation,

the record is clear that Davenport received due process under the law. See Morissey

v. Brewer, 408 U.S. 471 (1972); State v. Miller, 42 Ohio St.2d 102 (1975).

Davenport was notified of his requirements under his community control, he was

notified of his purported violation, he was provided a full hearing, with counsel, to

contest that violation, and then when found in violation—for the second time—his

violation was disposed of, by sentencing him to the previously reserved prison term.

Therefore, his argument is not well-taken, and his first assignment of error is

overruled.

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Second Assignment of Error

{¶27} In Davenport’s second assignment of error, he argues that the trial

court did not reserve the power to impose consecutive sentences in the event that

Davenport violated his community control. Specifically, Davenport contends that

the trial court’s statement that Davenport would be subject to a 24-month prison

term on each count was insufficient to notify Davenport that he would be subject to

consecutive prison terms.

{¶28} Davenport’s arguments rely primarily on the Supreme Court of Ohio’s

decisions in State v. Brooks, 103 Ohio St.3d 134, 2004–Ohio–4746, and State v.

Fraley, 105 Ohio St.3d 13, 2004–Ohio–7110. In Brooks, the Supreme Court of

Ohio held that, “[p]ursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court

sentencing an offender to a community control sanction must, at the time of the

sentencing, notify the offender of the specific prison term that may be imposed for

a violation of the conditions of the sanction, as a prerequisite to imposing a prison

term on the offender for a subsequent violation.” Id. at paragraph two of the

syllabus.

{¶29} Fraley addressed a different scenario. In Fraley, the Court had to

determine “the timing of notification required by the statute in order to impose a

prison term when an offender violates his community control sanctions multiple

times.” Id. at ¶ 15. At Fraley’s original sentencing hearing, he was not notified of

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the possible prison sentence that could be imposed if he violated community

control. See id. at ¶ 19. However, at Fraley’s third violation hearing, he was

properly notified, and, thus, the Court concluded that Fraley could be sentenced to

prison when he was found to have violated community control a fourth

time. Id. The Court held that, “pursuant to R.C. 2929.19(B)(5) and 2929.15(B), a

trial court sentencing an offender upon a violation of the offender’s community

control sanction must, at the time of such sentencing, notify the offender of the

specific prison term that may be imposed for an additional violation of the

conditions of the sanction as a prerequisite to imposing a prison term on the offender

for a subsequent violation.” Id. at ¶ 18. Fraley thus essentially held that “if at a

subsequent violation hearing where the community control is continued the trial

court notifies the offender of the specific prison term that will be imposed it cures

the defect in the original sentence.” State v. Lyle, 3d Dist. Allen No. 1-13-16, 2014-

Ohio-751, ¶ 13, citing Fraley at ¶ 17.

{¶30} In this case, Davenport is correct that the trial court did not state the

word “consecutive” when referring to his potential prison terms, and the trial court

similarly did not state the number “48 months” as the total aggregate prison term.

However, the omission of the term “consecutive” does not render the phrase “24

months on each count” to mean concurrent. See State v. Ward, 6th Dist. Wood No.

WD-09-043, 2010-Ohio-2619, ¶¶ 15-18.

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{¶31} At his original sentencing hearing, Davenport was notified that he

could serve a prison term “for each offense of 24 months” and he was advised that

“if he would have to serve those two, 24-month sentences” he would be subject to

post-release control. (Emphasis added.) (May 24, 2016, Tr. at 8). Both the phrases

“each offense” and “two, 24-month sentences” clearly indicate the imposition of

consecutive sentences.

{¶32} Additionally, we note that at Davenport’s first community control

violation hearing, his attorney, speaking on his behalf, indicated that Davenport’s

relatively minor infraction of failure to notify the probation department of an

address change did not warrant a four-year prison term. This implies that not only

was the consecutive sentence notification given, but that it was understood by

Davenport and his counsel, as they were clearly aware of the potential consequences

if Davenport was found in violation of his community control.

{¶33} Nevertheless, when Davenport was then sent to the W.O.R.T.H. center

after his first violation, the trial court stated to him, “[I]f you fail community control

this time, the Court will impose the two, 24-month prison sentences.” (Tr. at 9).

The judgment entry ordering Davenport to W.O.R.T.H. stated, in bold, that if he

violated his community control sanctions he would be subject to a prison term of

Twenty-four (24) months on each count.

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{¶34} While it may have also been a good practice for the trial court to have

referred to aggregate 48-month prison term, we cannot find that Davenport has

clearly and convincingly demonstrated that the trial court’s sentence was improper

here. R.C. 2953.08(G)(2). Therefore, Davenport’s second assignment of error is

Conclusion

{¶35} For the foregoing reasons Davenport’s assignments of error are

overruled and the judgment of the Mercer County Common Pleas Court is affirmed.

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr

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