State v. Hawk

2020 Ohio 4385

• Court: Ohio Court of Appeals
• Decided: September 9, 2020
• Docket: 20-CA-11
• Status: Published

Opinion

[Cite as State v. Hawk, 2020-Ohio-4385.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : DANIEL L. HAWK : Case No. 20-CA-11 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 19CR09-0281

JUDGMENT: Reversed; Sentence Vacated Remanded

DATE OF JUDGMENT: September 9, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHARLES T. MCCONVILLE TODD W. BARSTOW 117 E. High Street 261 West Johnstown Road Suite 234 Suite 204 Mount Vernon, OH 43050 Columbus, OH 43230 Knox County, Case No. 20-CA-11 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant Daniel Hawk appeals the April 28, 2020 judgment of

the Knox County Court of Common Pleas which found Appellant had violated his

community control, revoked the same, and imposed his previously suspended sentence.

Plaintiff-Appellee is the State of Ohio.

Facts and Procedural History

{¶ 2} On March 26, 2020, Appellant entered pleas of guilty to one count of

aggravated possession of drugs, a felony of the fifth degree, and one count of operating

a vehicle under the Influence of alcohol, a misdemeanor of the first degree. The trial court

sentenced Appellant to community control sanctions pursuant to R.C. 2929.15 for count

one, and pursuant to R.C. 2929.25 for count two.

{¶ 3} In its sentencing judgment entry filed March 31, 2020, the trial court listed

Appellant's community control sanctions. Relevant here, the trial court ordered Appellant

to serve 34 days in the Knox County Jail, submit to an outpatient drug and alcohol

assessment, and comply with any recommended treatment plan. Appellant was further

advised that failure to comply with the terms of his community control sanctions could

result in a more restrictive sentence including a prison term of 11 months on count one

and a prison term of 5 months on count two.

{¶ 4} On April 17, 2020 the trial court, on its own motion, suspend Appellant's jail

sentence and to ordered him to enter Riverside Recovery Services inpatient treatment

program in Southpoint Ohio as a new condition of his community control sanctions.

Appellant refused to do so. Knox County, Case No. 20-CA-11 3

{¶ 5} On April 22, 2020, Appellant appeared before the trial court for a community

control violation hearing. Counsel for Appellant did not object to the trial court's addition

of a new condition of Appellant's community control at any point during the hearing.

Appellant admitted he failed to enter inpatient treatment. Appellant believed entry to

Riverside Recovery inpatient was a condition of release from the balance of his jail time,

and knowing his community control sanctions included outpatient, rather than inpatient

drug and alcohol treatment, appellant elected to remain in jail rather than to leave Knox

County and his family during the COVID-19 pandemic. At the conclusion of the hearing,

the trial court revoked Appellant's community control, imposed the previously suspended

sentences, and ordered Appellant to serve the sentences concurrently.

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

consideration. He raises four assignments of error as follow:

I

{¶ 7} "THE TRIAL COURT WAS WITHOUT AUTHORITY TO IMPOSE

ADDITIONAL COMMUNITY CONTROL SANCTIONS WHERE THERE WAS NO

ALLEGATION THAT APPELLANT HAD VIOLATED THE COMMUNITY CONTROL

CONDITIONS SET FORTH AT SENTENCING."

II

{¶ 8} "THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A FINDING THAT

APPELLANT HAD THE REQUISITE NOTICE TO VIOLATE THE CONDITIONS OF HIS

PROBATION."

III Knox County, Case No. 20-CA-11 4

{¶ 9} "THE TRIAL COURT HAD NO AUTHORITY TO SENTENCE APPELLANT

TO ELEVEN MONTHS ON COUNT ONE BECAUSE APPELLANT'S REFUSAL, IF IT

CONSTITUTED A VIOLATION OF THE TERMS OF HIS PROBATION, WAS A

TECHNICAL VIOLATION."

IV

{¶ 10} "APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT

HIS REVOCATION HEARING DATED APRIL 29, 2020."

{¶ 11} In his first assignment of error, Appellant argues the trial court was without

authority to impose new community control sanctions when there was no allegation that

Appellant had violated any condition of his community control. We agree and the state

concedes.

{¶ 12} As an initial matter, appellant did not lodge an objection to the error he

currently raises and has therefore waived all but plain error. An error not raised in the trial

court must be plain error for an appellate court to reverse. State v. Long, 53 Ohio St.2d

91, 372 N.E.2d 804 (1978) at paragraph one of the syllabus; Crim.R. 52(B). In order to

prevail under a plain error analysis, appellant bears the burden of demonstrating that the

outcome of the trial clearly would have been different but for the error. Id. at paragraph

two of the syllabus. Notice of plain error "is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at

paragraph three of the syllabus.

{¶ 13} Next, double jeopardy restrictions prevent a trial court from modifying a

sentence after execution of the sentence has commenced. State v. Hooks, 128 Ohio Knox County, Case No. 20-CA-11 5

App.3d 750, 716 N.E.2d 778 (1998). A trial court's authority to modify the terms of

community control was addressed in State v. Hayes, 86 Ohio App.3d 110, 619 N.E.2d

1188 (1st Dist.1993). The court held "It is well established in law that once a valid

sentence has been executed, a trial court no longer has the power to modify the sentence

except as provided by the General Assembly." Id. 112.

{¶ 14} Applicable here, R.C. 2929.15(B)(1) permits a trial court to impose

additional sanctions on an offender sentenced to community control only when a term of

community control is violated, the offender has a new violation of law, or the offender

leaves the state without permission from a probation officer.

{¶ 15} In the present case, none of these things happened before the trial court

imposed an additional community control sanction requiring Appellant to submit to

inpatient treatment. Accordingly, we conclude plain error occurred when the trial court

acted without authority in imposing additional conditions of community control upon

Appellant.

{¶ 16} The first assignment of error is sustained.

II, III, IV

{¶ 17} Given our resolution the first assignment of error, we find assignments of

error two, three and four moot. Knox County, Case No. 20-CA-11 6

{¶ 18} The April 28, 2020 judgment of the Knox County Court of Common Pleas is

reversed and the sentence therein is vacated, and this matter is remanded for further

proceedings consistent with this opinion and the law.

By Wise, Earle, J.

Hoffman, P.J. and

Wise, John, J. concur.

EEW/rw