State v. Forro

2024 Ohio 2604

• Court: Ohio Court of Appeals
• Decided: July 8, 2024
• Docket: 2024-P-0006
• Status: Published

Opinion

[Cite as State v. Forro, 2024-Ohio-2604.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2024-P-0006

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

JAMES A. FORRO, Trial Court No. 2020 CR 00337 Defendant-Appellant.

MEMORANDUM OPINION

Decided: July 8, 2024 Judgment: Appeal dismissed

Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

David V. Patton, 34194 Aurora Road, Suite 242, Solon, OH 44139 (For Defendant- Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, James A. Forro (“Mr. Forro”), appeals from judgment of the

Portage County Court of Common Pleas denying his “Motion to Lawfully Use Medical

Marijuana While Serving Community Control Sentence.” This is the third time Mr. Forro

has attempted to appeal this issue.

{¶2} Mr. Forro raises numerous constitutional issues on appeal concerning the

trial court’s ability to prohibit the use of medical marijuana as a condition of community

control. However, these issues are not properly before us since they are issues that relate to the trial court’s sentence and the imposition of such a restriction as a condition of

community control and/or to the trial court’s denial of Mr. Forro’s first motion to allow the

use of medical marijuana, neither of which Mr. Forro appealed.

{¶3} Because Mr. Forro’s present appeal amounts to an attempt at bootstrapping

claims that are now time-barred, we are without jurisdiction to consider his appeal.

{¶4} Mr. Forro’s appeal is dismissed.

Substantive and Procedural History

{¶5} In December 2020, Mr. Forro pleaded guilty to one count of menacing by

stalking, a fourth-degree felony, in violation of R.C. 2903.211(A)(1) and (B)(2)(b). The

trial court sentenced him to five years of community control with conditions, one being to

submit to random substance abuse testing. Mr. Forro never appealed his sentence

and/or the conditions of his community control, and we cannot discern from the record if

Mr. Forro raised the issue of medical marijuana at the sentencing hearing.

{¶6} Mr. Forro filed a motion to modify the terms of his community control to

permit him to use medical marijuana. Following a hearing on January 31, 2022, the trial

court issued a judgment entry denying his motion, requesting medical documentation to

support his request, and rescheduling the matter for 30 days.

{¶7} Mr. Forro filed an appeal from the January 31, 2022 judgment entry, which

we dismissed for lack of a final appealable order in State v. Forro, 2022-Ohio-4691 (11th

Dist.) (“Forro I”). In that opinion, we determined that the appealed judgment entry

contemplated a second hearing on the motion to modify community control and that it

ordered Mr. Forro to submit additional medical documentation evidence to support his

request. Id. at ¶ 15.

Case No. 2024-P-0006 {¶8} On March 11, 2022, while Mr. Forro’s first appeal was pending, the trial

court held the second hearing on his motion to modify community control. The trial court

denied his motion, finding he “failed to provide appropriate medical documentation as

instructed.” In addition, Mr. Forro tested positive for THC at the hearing. The trial court

ordered him to be taken into custody and held pending a hearing on a motion to revoke

his community control triggered by the positive drug test. No appeal was taken from that

March 11, 2022 judgment entry.

{¶9} On December 29, 2022, two days after we dismissed Mr. Forro’s appeal in

Forro I, Mr. Forro filed a “Motion for a Final, Appealable Order for Defendant’s Motion to

Modify Probation.” The trial court denied that motion on March 29, 2023, stating the

“Court has already ruled on all outstanding motions and provided judgment entries. There

is nothing additional for the Court to rule on that has not already been provided.”

{¶10} Mr. Forro appealed the trial court’s March 29, 2023 judgment entry in State

v. Forro, 2023-Ohio-4600 (11th Dist.) (“Forro II”). We determined Mr. Forro could not

bootstrap the lower court’s March 11, 2022 order by appealing the March 29, 2023

judgment entry denying his “motion for a final appealable order.” Id. at ¶ 9. Appealing

the March 29, 2023 judgment entry did not allow us to consider the merits of the trial

court’s March 11, 2022 denial of his motion to modify community control, and it was not

a final appealable order because it did not determine and/or affect a substantial right of

the parties or allow us to provide any type of relief or remedy. Id. We dismissed Mr.

Forro’s second appeal for lack of a final appealable order. Id. at ¶ 10.

{¶11} After our judgment in Forro II, Mr. Forro filed a “Motion to Lawfully Use

Medical Marijuana While Serving Community Control Sentence,” the subject of the instant

Case No. 2024-P-0006 appeal. We note Mr. Forro did not file any of the medical documentation the trial court

requested when considering his first motion.

{¶12} The trial court denied his motion, finding it “not well taken.”

{¶13} Mr. Forro raises ten assignments of error for our review:

{¶14} “[1.] The trial court erred as a matter of law in denying defendant’s motion

to modify community control sanctions such that defendant may lawfully use medical

marijuana while on probation because the defendant has the right to do so under the

Cruel and Unusual Punishment Clause of the Eighth Amendment to the U.S. Constitution.

{¶15} “[2.] The trial court erred as a matter of law in denying defendant’s motion

to modify community control sanctions such that defendant may lawfully use medical

marijuana while on probation because the defendant has the right to do so under the

Cruel and Unusual Punishment Clause of Ohio Constitution, Article I, Section 9.

{¶16} “[3.] The trial court’s order denying defendant’s motion to modify community

control sanctions such that defendant may lawfully use medical marijuana while on

probation fails the rational basis test and, therefore, the defendant has the right to do so

under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

{¶17} “[4.] The trial court’s order denying defendant’s motion to modify community

control sanctions such that defendant may lawfully use medical marijuana while on

probation fails the rational basis test and, therefore, the defendant has the right to do so

under the Equal Protection Clause of the Ohio Constitution.

{¶18} “[5.] The trial court erred as a matter of law in denying defendant’s motion

to modify community control sanctions such that defendant may lawfully use medical

marijuana while on probation because fundamental fairness requires that he be permitted

Case No. 2024-P-0006 to do so under the Due Process Clause of the Fourteenth Amendment to the U.S.

Constitution.

{¶19} “[6.] The trial court erred as a matter of law in denying defendant’s motion

to modify community control sanctions such that defendant may lawfully use medical

marijuana while on probation because fundamental fairness requires that he be permitted

to do so under Due Course of Law Clause of Ohio Constitution, Article I, Section 16.

{¶20} “[7.] The trial court erred as a matter of law in denying defendant’s motion

to modify community control sanctions such that defendant may lawfully use medical

marijuana while on probation because the defendant has the right to do so under Ohio

Constitution, Article I, Section 21(B)’s right to purchase health care.

{¶21} “[8.] The trial court erred as a matter of law in denying defendant’s motion

to modify community control sanctions such that defendant may lawfully use medical

marijuana while on probation because the community control sanction statutes (R.C.

2929.15 and 2929.17) are unconstitutional as applied to the defendant.

{¶22} “[9.] The trial court erred as a matter of law in denying defendant’s motion

to modify community control sanctions such that defendant may lawfully use medical

marijuana while on probation because the trial court’s sentencing order violates the

defendant’s statutory right to use medical marijuana pursuant to R.C. 3796.22(A)(1).

{¶23} “[10.] The trial court abused its discretion in denying defendant’s motion to

modify community control sanctions such that defendant may lawfully use medical

marijuana while on probation because the trial court’s community control sanctions

regarding medical marijuana fail to satisfy any of the Talty factors.”

Case No. 2024-P-0006 Analysis

{¶24} A review of Mr. Forro’s appeal reveals he is striving for a third “bite of the

apple.” He cannot, however, circumvent the fact that he failed to file an appeal of his

sentence and/or the trial court’s March 11, 2022 judgment denying his first motion to use

medical marijuana by filing a motion for a final appealable order (as he did in Forro II) or

by filing a new motion to use medical marijuana in order for the trial court to deny the

motion so he could have another “chance” at an appeal (as in the instant case).

{¶25} For the second time, Mr. Forro is attempting to employ the procedure of

“bootstrapping,” which is defined as “the utilization of a subsequent order to indirectly and

untimely appeal a prior order that was never directly appealed,” and is “procedurally

anomalous and inconsistent with the appellate rules that contemplate a direct relationship

between the order from which the appeal is taken and the error assigned as a result of

that order.” State v. Williamson, 2015-Ohio-5135, ¶ 9 (8th Dist.).

{¶26} In an instructive case, Cleveland v. Sabetta, 2021-Ohio-4426 (8th Dist.), the

Eighth District was confronted with the appellant’s multiple filings to modify the restrictions

on his parental visitation with his minor daughter, which were a condition of his community

control. Id. at ¶ 1. The appellant never filed a direct appeal of his sentence. Id. at ¶ 7.

Instead, he filed a motion to modify his community control, seeking to remove the

condition that required supervised visits with his daughter. Id. After the trial court denied

his motion to modify, the appellant filed a second motion to modify that again sought the

removal of supervised visitation with his daughter. Id. at ¶ 9. After holding a hearing, the

trial court denied the motion. Id. at ¶ 11. On appeal, the appellant contended the trial

Case No. 2024-P-0006 court violated his right to due process by imposing a condition of community control that

restricted his visitation with his minor daughter. Id. at ¶ 15.

{¶27} The Eighth District determined the appellant’s assignment of error pertained

to a purported due process violation that occurred at sentencing, which was prior to the

judgment denying his second motion to modify community control. Id. at ¶ 16. As such,

the appellant’s argument was outside the scope of his appeal. Id. The court further

determined that because the trial court’s alleged due process violation flowed from the

imposition of the court’s sentence, the appellant’s arguments were barred by the doctrine

of res judicata. Id. at ¶ 17. Lastly, the Eighth District determined that the record

suggested the appellant was attempting to bootstrap through his appeal because he did

not argue present circumstances, i.e., that the trial court abused its discretion by denying

his motion to remove the restrictive visitation after his substantial compliance with the trial

court’s various conditions. Id. at ¶ 21. Rather, he argued the trial court abused its

discretion by imposing the condition restricting his parental visitation. Id. Thus, the issue

the appellant raised related to the trial court’s sentence, which the appellant should have

directly appealed. Id.

{¶28} Similarly, in this case, Mr. Forro raises numerous constitutional arguments

related to the trial court prohibiting him from using drugs and/or alcohol, namely medical

marijuana, as a condition of his sentence of community control and to the trial court’s

denial of his first motion to modify his community control to use medical marijuana. Mr.

Forro failed to appeal either of these judgments and cannot bootstrap the constitutional

issues he raises to his second motion to modify his community control to use medical

marijuana. These issues are not properly before the court.

Case No. 2024-P-0006 {¶29} Because Mr. Forro’s present appeal amounts to an attempt at bootstrapping

claims that are now time-barred, we are without jurisdiction to consider the appeal.

Sabetta at ¶ 22.

{¶30} Appeal dismissed.

EUGENE A. LUCCI, P.J.,

JOHN J. EKLUND, J.,

concur.

Case No. 2024-P-0006