[Cite as State v. Hogya, 2024-Ohio-639.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY
STATE OF OHIO, CASE NO. 2023-L-063
Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas
HOPE C. HOGYA, Trial Court No. 2022 CR 000566 Defendant-Appellant.
OPINION
Decided: February 20, 2024 Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Sarah G. Ogden, Megargel, Eskridge, & Mullins, LLP, 231 South Chestnut Street, Ravenna, OH 44266 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Hope C. Hogya, appeals her conviction and sentence
for Violating a Protection Order. For the following reasons, Hogya’s conviction and
sentence are affirmed.
{¶2} On July 22, 2022, the Lake County Grand Jury indicted Hogya for two
counts of Violating a Protection Order, felonies of the fifth degree in violation of R.C.
2919.27(A)(1). {¶3} On November 2, 2022, Hogya entered a plea of guilty to one count of
Violating a Protection Order. The other count was dismissed.
{¶4} On December 7, 2022, the trial court sentenced Hogya to a community
control sanction for a period of two years. Inter alia, the court imposed the following
specific sanction: “The Defendant is to complete the inpatient program at Square One
and is to follow all recommendations including aftercare recommendations.”
{¶5} On February 8, 2023, the State filed a Motion to Terminate Community
Control Sanctions, alleging the following violation of Rule #11: “On December 5, 2022,
defendant was ordered to enter Square One, follow all treatment recommendations, and
to reside in sober living for six months. On February 1, 2023, she was unsuccessfully
discharged from sober living and treatment.”
{¶6} On May 5, 2023, the State filed a Supplement to Motion to Terminate
Community Control, alleging the violation of Rule #3: “Defendant has not appeared for
probation appointments since January 31, 2023.”; and Rule #4: “Since being discharged
from Square One sober living on February 1, 2023, defendant has not provided this officer
with an updated address.”
{¶7} On May 18, 2023, a probable cause hearing was held at which Hogya pled
guilty to all three rule violations.
{¶8} On May 22, 2023, the trial court issued a Judgment Entry ordering “that
Defendant’s community control sanctions are hereby terminated and that the Defendant,
Hope C. Hogya, be sentenced to serve a term of nine (9) months in the Ohio Reformatory
for Women, Marysville, Ohio, with credit for twenty-three (23) days time served.”
Case No. 2023-L-063 {¶9} On June 6, 2023, Hogya filed a Notice of Appeal. On appeal, she raises
three assignments of error:
[1.] The trial court erred by sentencing Ms. Hogya to nine months[’] imprisonment for technical violations of probation.
[2.] Appellant’s plea was not made knowingly, intelligently, and voluntarily due to ineffective assistance from her trial counsel, who allowed her to enter a plea of guilty despite the state violating her statutory and constitutional rights to a speedy trial.
[3.] The trial court erred by granting Ms. Hogya only eight days jail- time credit when she spent 148 days in jail related to the underlying charge.
{¶10} Under the first assignment of error, Hogya argues that her probation
violations were technical in nature and, therefore, the trial court could only sentence her
to a maximum of ninety days in prison.
{¶11} “As with all felony sentences, we review the trial court’s sentencing decision
for a community control violation under the standard set forth by R.C. 2953.08(G)(2).”
(Citation omitted.) State v. Demangone, 12th Dist. Clermont No. CA2022-11-081, 2023-
Ohio-2522, ¶ 11; State v. Elliott, 1st Dist. Hamilton No. C-220339, 2023-Ohio-1459, ¶ 11.
According to R.C. 2953.08(G)(2), “an appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence that the record
does not support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 1.
{¶12} If an offender has been placed on community control for committing a fifth-
degree felony, the trial court’s ability to impose a prison sentence upon the offender for
violating the terms of his community control is subject to the following limitations: “If the
Case No. 2023-L-063 prison term is imposed for any technical violation of the conditions of a community control
sanction imposed for a felony of the fifth degree, the prison term shall not exceed ninety
days * * *.” R.C. 2929.15(B)(1)(c)(i); State v. Castner, 163 Ohio St.3d 19, 2020-Ohio-
4950, 167 N.E.3d 939, ¶ 10. A “technical violation” for present purposes means “a
violation of the conditions of a community control sanction imposed for a felony of the fifth
degree” unless “[t]he violation consists of or includes the offender’s articulated or
demonstrated refusal to participate in the community control sanction imposed on the
offender or any of its conditions, and the refusal demonstrates to the court that the
offender has abandoned the objects of the community control sanction or condition.” R.C.
2929.15(E)(2).
{¶13} “In determining whether a violation of community control is a technical or
nontechnical violation, a trial court should * * * ‘engage in a practical assessment of the
case before it, i.e., * * * consider the nature of the community-control condition at issue
and the manner in which it was violated, as well as any other relevant circumstances in
the case.’” Demangone at ¶ 14, quoting State v. Nelson, 162 Ohio St.3d 338, 2020-Ohio-
3690, 165 N.E.3d 1110, ¶ 26. “Such considerations will be especially helpful in
determining under R.C. 2929.15(E)(2) whether an offender’s articulated or demonstrated
refusal to participate in a condition of the offender’s community control demonstrates that
the offender has abandoned the objects of his or her community-control condition.” Id.
{¶14} In the present case, Hogya’s failure to complete the inpatient program at
Square One does not constitute a technical violation of her community control and so the
trial court was not limited to imposing a prison term of ninety days for the violation. We
note that the failure to complete a treatment program when ordered to do so as a condition
Case No. 2023-L-063 of a community control sanction has often been found to be non-technical in nature,
although some of these cases were decided prior to adoption of the statutory definition of
a “technical violation” on April 12, 2021. Castner at ¶ 16; Elliott, 2023-Ohio-1459, at ¶ 16;
State v. Mannah, 5th Dist. Fairfield No. 17-CA-54, 2018-Ohio-4219, ¶ 15; State v. Davis,
12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672, ¶ 18.
{¶15} When sentencing Hogya for the violation, the trial court made it clear that,
by being unsuccessfully discharged from sober living and treatment at Square One, she
had abandoned the objects of her community control sanction:
You know, the problem here is that Ms. Hogya has before, and is continuing in this case, to take the position that she’s going to do things the way she wants to do it. It doesn’t matter what the Court orders, it doesn’t matter what other people say, she’s going to do it how she wants to do it and that’s not the way it works. You don’t make the decisions in regards to what treatment you’re going to do. What conditions you’re not going to follow. You don’t decide that this condition doesn’t make sense, “Then there’s no reason I should do it so I’m not going to do it.” You don’t decide what treatment you’re going to do. The Court decides that. Probation decides that. You don’t accept that. You never have before and you’re still not doing that.
Now, you’ve been on probation to me before in the past and you’ve violated multiple times. I sent you to Oak House before and you got kicked out of that program for not being successful -- for unsuccessfully being discharged there.
I gave you a second chance when I put you on probation in this case. Because before that you were on probation to me previously and you * * * violated multiple times before I sent you to prison and you’ve got out and you’ve continued the criminal conduct. You were on probation at the time you did this and you’ve continued being on -- performing on probation the same way you’ve always been on probation and that’s to do things the way you want to do them. Well, that’s not the way it works. I’m not going to send you back to a program that you were terminated from unsuccessfully last time [Hogya asked the court to receive treatment at Oak House instead of Square One]. I mean it’s clear to the Court that you’re just not amenable to community control sanctions. 5
Case No. 2023-L-063 {¶16} Hogya argues the requirement that she complete the Square One
residential treatment program was not related to the underlying conviction for Violating a
Protection Order. “There is no indication in the record that any drug or alcohol use
contributed to her violation of protection order. It cannot be said that the residential
treatment program requirement was ‘“specifically tailored to address” matters related to
the defendant’s misconduct or * * * a “substantive rehabilitative requirement which
addressed a significant factor contributing to” the defendant’s misconduct.’” Brief of
Defendant-Appellant at 5, quoting Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, 165
N.E.3d 1110, at ¶ 26.
{¶17} We reject Hogya’s argument. As an initial matter, Nelson’s holding that non-
technical violations must relate to the underlying misconduct or constitute a substantive
rehabilitative requirement predates the enactment of R.C. 2929.15(E). While it has been
stated that the Nelson decision remains “relevant” or “instructive” after the adoption of
R.C. 2929.15(E), there can be no question that the statute is ultimately controlling.
Demangone, 2023-Ohio-2522, at ¶ 14 (“Nelson remains relevant”); State v. Crose, 3d
Dist. Crawford No. 3-22-34, 2023-Ohio-880, ¶ 12 (“Nelson remains instructive”); State v.
Bryant, 160 Ohio St.3d 113, 2020-Ohio-1041, 154 N.E.3d 31, ¶ 12 (“[i]f the statutory
language is clear and unambiguous, [the courts] apply it as written, giving effect to its
plain meaning”). Nevertheless, even applying the standard for a non-technical violation
set forth in Nelson, Hogya’s argument fails. As noted supra at ¶ 14, under the Nelson
standard, Ohio courts routinely found the failure to complete a treatment program to be a
non-technical violation of community control sanctions. In the present case, it is
abundantly clear that, at the time Hogya was sentenced for Violating a Protection Order, 6
Case No. 2023-L-063 all parties considered the successful completion of the Square One residential treatment
program to be a substantive rehabilitative requirement of her community control
sanctions. As stated by defense counsel: “We’re hopeful that she is able to comply [with
Square One]. Stay in treatment, stay sober. Stay out of trouble and we’re looking forward
to not seeing her in court again.” As stated by Hogya: “I’ll stay in their program and go to
the sober living and, I don’t know, I really like it there. And I definitely, definitely plan on
staying sober and not coming back.” And as stated by the prosecutor: “[T]he State is also
recommending community control sanctions with an emphasis and recommendation that
she continue with the treatment program at Square One, continue with sober living.”
{¶18} Hogya also argues that she “was not unsatisfactorily discharged from the
program because she lost sobriety, but because of an interpersonal conflict, which is in
and of itself a technical violation.” Brief of Defendant-Appellant at 5. Again, we disagree.
Contrary to Hogya’s claim that she was unsuccessfully discharged because of an
interpersonal conflict, the trial court deemed her failure to be part of a continuing pattern
of willful disregard for the conditions of her community control sanctions. Accordingly,
her unsuccessful discharge satisfies the standard set by R.C. 2929.15(E)(2) (“[t]he
violation consists of or includes the offender’s articulated or demonstrated refusal to
participate in the community control sanction imposed on the offender or any of its
conditions, and the refusal demonstrates to the court that the offender has abandoned
the objects of the community control sanction or condition”). Compare Demangone at ¶
17 (“[t]he court was entitled to discredit appellant’s excuses for violating his community
control and find that appellant’s actions demonstrated his refusal to participate in a
Case No. 2023-L-063 community-control condition that had been specifically tailored to address matters relating
to his alcohol usage, which contributed to his trespass in a habitation offense”).
{¶19} We wish to clarify that the trial court’s comments referencing Hogya’s
repeated failure to abide by the conditions of probation is a relevant consideration in
imposing a sentence for the present violation of her community control sanctions but is
only minimally relevant to the issue of whether the violation itself was a “technical
violation.” As noted above, a non-technical violation is described by R.C. 2929.15(E)(2)
as a violation that demonstrates a refusal to participate in the community control sanction
or condition and that the offender has abandoned the objects of the community control
sanction or condition. It is the comments made by the court and parties at the time Hogya
entered her plea that demonstrate that the successful completion of Square One was an
essential element of her community control sanction. At sentencing, the court found that
Hogya had abandoned this element so that the violation was of a non-technical nature
while also observing that her conduct was part of a pattern of refusing to abide by the
conditions of her community control.
{¶20} With respect to the violations for failing to appear for probation
appointments and failing to provide the probation officer with an updated address, the trial
court did not indicate whether it considered these to be technical or non-technical
violations. Since we have already concluded that the failure to complete the Square One
residential treatment program constituted a non-technical violation, it is not necessary that
we determine the nature of these violations. Elliott, 2023-Ohio-1459, at ¶ 18 (“[b]ecause
the prison term imposed on Elliott was for both technical and nontechnical violations, the
trial court was not limited to imposing the 180-day period for technical violations”).
Case No. 2023-L-063 {¶21} The first assignment of error is without merit.
{¶22} In the second assignment of error, Hogya argues that she received
ineffective assistance of counsel with respect to her speedy trial rights.
{¶23} “To establish ineffective assistance of counsel, [a defendant] must show (1)
that counsel’s performance was deficient, i.e., that counsel’s performance fell below an
objective standard of reasonable representation, and (2) that counsel’s deficient
performance prejudiced the defendant, i.e., that there is a reasonable probability that but
for counsel’s errors, the proceeding’s result would have been different.” State v. Drain,
170 Ohio St.3d 107, 2022-Ohio-3697, 209 N.E.3d 621, ¶ 36. “When a defendant enters
a guilty plea, he waives a claim of ineffective assistance of counsel except to the extent
that ineffective assistance of counsel caused the defendant’s plea to be less than
knowing, intelligent, and voluntary.” State v. Hatcher, 8th Dist. Cuyahoga No. 112552,
2023-Ohio-3884, ¶ 24; State v. Brown, 11th Dist. Trumbull No. 2023-T-0010, 2023-Ohio-
2540, ¶ 9. “To prevail on an ineffective assistance of counsel claim in such
circumstances, the defendant must show that he was prejudiced by demonstrating a
reasonable probability that but for counsel’s errors, he would not have pled guilty to the
charged offenses and would have instead insisted on going to trial.” Hatcher at ¶ 24.
{¶24} “A person against whom a charge of felony is pending: * * * shall be
accorded a preliminary hearing within fifteen consecutive days after the person’s arrest if
the accused is not held in jail in lieu of bail on the pending charge or within ten consecutive
days after the person’s arrest if the accused is held in jail in lieu of bail on the pending
charge; [and] shall be brought to trial within two hundred seventy days after the person’s
arrest.” R.C. 2945.71(C)(1) and (2).
Case No. 2023-L-063 {¶25} The present case was originally filed in Mentor Municipal Court on March
21, 2022. After twice failing to appear for arraignment, a warrant was issued for Hogya’s
arrest. Hogya was arrested on the underlying charge on May 17, 2022. At this time, bond
was set and a preliminary hearing was scheduled for May 25. There is no indication that
Hogya posted bond or was otherwise released from custody following her arrest. On May
25, the preliminary hearing was rescheduled for June 1. At the preliminary hearing,
Hogya was bound over to the Lake County Court of Common Pleas. She argues her
speedy trial rights were violated because she did not receive a preliminary hearing within
ten days of her arrest as she was held in jail until the hearing.
{¶26} We find no error for the reason that Hogya cannot establish prejudice.
When an accused is not accorded a preliminary hearing as required by R.C. 2945.71 the
felony charge shall be dismissed, however, “[s]uch a dismissal has the same effect as a
nolle prosequi,” i.e., “without prejudice to the initiation of further criminal proceedings.”
R.C. 2945.73(A); State v. Bonarrigo, 62 Ohio St.2d 7, 12, 402 N.E.2d 530 (1980). “Thus,
a valid indictment can be returned subsequent to either a nolle prosequi or a dismissal of
prior felony charges for failure to provide a preliminary hearing within 15 [or 10] days of
the initial arrest.” Bonarrigo at 12; State v. Lichtenwalter, 5th Dist. Guernsey Nos.
20CA000013 and 20CA000023, 2021-Ohio-1394, ¶ 32 (“even though the appellant was
not provided a timely preliminary hearing, he was subsequently indicted by a grand jury
following a bind over and convicted”); State v. Washington, 30 Ohio App.3d 98, 99, 506
N.E.2d 1203 (8th Dist.1986) (“the general rule is that a subsequent indictment by the
grand jury renders any defects in the preliminary hearing moot”). Hogya was indicted by
Case No. 2023-L-063 the Lake County Grand Jury on July 22, 2022, thus rendering moot any error in the
timeliness of the preliminary hearing.
{¶27} Hogya further asserts that her guilty plea was entered more than two
hundred and seventy days following her arrest. According to Hogya’s calculations, a
period of seventy-two days passed between her arrest (May 17) and a court-ordered
competency evaluation on July 28, 2022, which tolled the speedy-trial time. R.C.
2945.72(B) (“[t]he time within which an accused must be brought to trial * * * may be
extended * * * by * * * [a]ny period * * * during which the accused’s mental competence to
stand trial is being determined”). The trial court determined that she was competent on
September 14, 2022. Twenty-eight days later, on October 12, 2022, Hogya posted bond
and was released from jail. This period of one hundred days during which she remained
in jail in lieu of bail counts as three hundred days for speedy-trial purposes. R.C.
2945.71(E) (“each day during which the accused is held in jail in lieu of bail on the pending
charge shall be counted as three days”). Although entitled to discharge at this point
(October 12), Hogya would not plead guilty for another twenty-one days on November 2,
2022.
{¶28} The State essentially follows Hogya’s dates and calculations with one
exception: the State contends that, on May 25, 2022, Hogya began serving a jail sentence
in Mentor Municipal Court Case No. CRB2101251A, and so lost the benefit of the
statutory triple-count provision. State v. MacDonald, 48 Ohio St.2d 66, 357 N.E.2d 40
(1976) (“R.C. 2945.71([E]) is applicable only to those defendants held in jail in lieu of bail
solely on the pending charge”). Adjusting the calculations so that Hogya enjoyed the
Case No. 2023-L-063 benefit of the triple-count provision from May 17 to 25 only, a total of one hundred thirty-
eight days elapsed before the entry of her guilty plea (November 2).1
{¶29} Hogya counters that “[t]he record does not indicate that Ms. Hogya was
serving a sentence in any other matter during the pendency of this case.” Reply Brief of
Defendant-Appellant at 3. We disagree. The presentence investigation report records a
conviction for “Violate TPO” in Mentor Municipal Court Case No. 21CRB1251 with the
following notation: “May 25, 2022 Found guilty of probation violation; 146 days jail
forthwith.” At the time she was originally sentenced in the present matter, defense
counsel advised the court that, “[p]rior to entering Square One Recovery, [Hogya] was in
the Lake County Jail for about a hundred and twenty days on a different unrelated matter.”
Likewise, the prosecutor advised the court that “[Hogya] was awaiting sentencing on a
different violating a protection order” during the pendency of this case. We further note
that Hogya appealed the jail sentence imposed in the “different unrelated matter” with this
Court which appeal was the subject of State v. Hogya, 11th Dist. Lake Nos. 2022-L-058
and 2022-L-059, 2023-Ohio-342. Accordingly, Hogya has failed to demonstrate that her
plea was invalid on account of trial counsel not seeking to dismiss the charges for speedy-
trial violations.
{¶30} The second assignment of error is without merit.
{¶31} In the third assignment of error, Hogya argues the trial court erred in only
awarding her eight days of jail-time credit rather than the full one hundred forty-eight days
she spent in jail while the case remained pending, i.e., from her arrest (May 17) until her
1. Between May 17 and 25, twenty-four days elapsed at the three to one count; between May 25 and July 28, sixty-five days elapsed; and between September 14 and November 2, forty-nine days elapsed. 12
Case No. 2023-L-063 posting bond (October 12). We note that Hogya’s argument relates to her initial
sentencing on December 5, 2022, when the court imposed community control sanctions.
If the award of eight days at the initial sentencing was proper, the award of twenty-three
days of jail-time credit at the sentencing for violating her community control sanctions is
also proper (inasmuch as she was arrested on May 4, 2023, for violating her community
control sanctions and was sentenced to prison on May 18).
{¶32} “[I]f the sentencing court determines at the sentencing hearing that a prison
term is necessary or required, the court shall * * * [d]etermine, notify the offender of, and
include in the sentencing entry the total number of days * * * that the offender has been
confined for any reason arising out of the offense for which the offender is being
sentenced and by which the department of rehabilitation and correction must reduce the
definite prison term imposed on the offender as the offender’s stated prison term.” R.C.
2929.19(B)(2)(g)(i). “A defendant is not entitled to jail-time credit while held on bond if, at
the same time, the defendant is serving a sentence on an unrelated case.” State v. Cupp,
156 Ohio St.3d 207, 2018-Ohio-5211, 124 N.E.3d 811, syllabus.
{¶33} As under the second assignment of error, the question of whether Hogya
was in jail as of May 25 on an unrelated case is determinative. If Hogya was serving a
jail-sentence for an unrelated case, she would only be entitled to eight days of credit from
May 17 to 25. The evidence that she did, in fact, begin a jail sentence on May 25 for an
unrelated case was set forth under the second assignment of error. Here, we additionally
note that eight days of jail-time credit is consistent with the amount of credit as determined
by the presentence investigation report (“8 days as of December 5, 2022”) and with the
trial court’s own explanation of its sentence: “I’m going to sentence you to serve eight
Case No. 2023-L-063 days in jail and you have eight days of credit on this case. So that the record’s clear on
how much time there has been so far in this case. The other time obviously was on the
probation violation you received.”
{¶34} The third assignment of error is without merit.
{¶35} For the foregoing reasons, Hogya’s conviction and sentence for Violating a
Protection Order are affirmed. Costs to be taxed against the appellant.
MARY JANE TRAPP, J.,
JOHN J. EKLUND, J.,
concur.
Case No. 2023-L-063