[Cite as State v. Jimenez, 2017-Ohio-1553.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104735
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JOSHUA JIMENEZ DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597623-A
BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: April 27, 2017 ATTORNEY FOR APPELLANT
Jeffrey Froude P.O. Box 771112 Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor By: Ashley B. Kilbane Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:
{¶1} Joshua Jimenez appeals the revocation of his community control sanction.
We affirm in part, vacate the sentence imposed, and remand for a new sentencing hearing.
{¶2} Jimenez pleaded guilty to the third-degree felony for the failure to provide
notice of his changed address under R.C. 2950.05(E)(1), a requirement of his sexual
offender classification. In February 2016, the trial court imposed one year of community
control sanctions to be served at a community-based correctional facility (“CBCF”), if
Jimenez was able to secure placement in the institution.1 The trial court ordered CBCF
personnel to screen Jimenez. If Jimenez was found ineligible, he was to be returned to
the trial court for further determination. The court warned Jimenez that any violation of
the terms of community control could lead to a 36-month sentence on the charge to which
Jimenez pleaded guilty.
{¶3} In May of that year, Jimenez was returned to the trial court for failing to abide
by the conditions of CBCF confinement, which resulted in Jimenez being terminated from
the program. Jimenez appeared in court and admitted that he had failed to meet the
guidelines. The trial court followed through on the promise to sentence Jimenez to a
36-month term of imprisonment, with credit for 172 days served.
{¶4} Jimenez appealed, claiming the procedure by which his violation was found
deprived him of his constitutional right to due process, that the 36-month sentence was
1 There is no indication as to the duration of time to be spent in the residential confinement, but that issue has not been raised or briefed. contrary to law because the court “predetermined” the sentence without considering the
R.C. 2929.11 and 2929.12 sentencing factors, and that his counsel at the hearing was
ineffective for not inquiring into the nature of the violation. We affirm in part, but
vacate the sentence and remand for a full sentencing hearing.
{¶5} Jimenez failed to object to the proceedings below and has waived all but
plain error. State v. Frazier, 8th Dist. Cuyahoga No. 104596, 2017-Ohio-470, ¶ 8, citing
State v. Murphy, 91 Ohio St.3d 516, 532, 2001-Ohio-112, 747 N.E.2d 765, quoting State
v. Childs, 14 Ohio St.2d 56, 62, 236 N.E.2d 545 (1968) (“[e]ven constitutional rights
‘may be lost as finally as any others by a failure to assert them at the proper time.’”).
Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” Id.
{¶6} This court has repeatedly held that oral notice coupled with the complete
admission at the preliminary hearing on the violation of sanctions satisfies any due
process or effective assistance of counsel concerns. See, e.g., Frazier at ¶ 10-12; State v.
Patton, 2016-Ohio-4867, 68 N.E.3d 273, ¶ 9 (8th Dist.) (oral notice of alleged violation
may be sufficient to satisfy constitutional due process concerns); State v. Jones, 8th Dist.
Cuyahoga No. 102999, 2016-Ohio-2626, ¶ 10; State v. Washington, 8th Dist. Cuyahoga
Nos. 101157 and 101170, 2015-Ohio-305, ¶ 22; State v. Lenard, 8th Dist. Cuyahoga No.
93373, 2010-Ohio-81, ¶ 12; Lakewood v. Sullivan, 8th Dist. Cuyahoga No. 79382,
2002-Ohio-2134, ¶ 26. Further, the admission to the violation during a preliminary
hearing waives any further argument as to whether the offender violated the terms of his community control sanctions during subsequent proceedings. Frazier at ¶ 17. Jimenez
has not provided any basis for us to diverge from our precedent, much less even identified
any of the controlling law in his appellate brief. App.R. 16(A)(7).
{¶7} At the violation hearing, for which Jimenez has not argued that he lacked any
notice, Jimenez and his counsel both conceded the violation had indeed occurred. As a
result of his noncompliance, Jimenez was terminated from the CBCF program, an express
term of the community control sanctions. The notification coupled with Jimenez’s
concession satisfied any due process concerns. Further, if any error existed, Jimenez
invited that error himself by expressly conceding to the violation and the summary nature
of the preliminary proceedings. Frazier at ¶ 12. “Under the settled principle of invited
error, a litigant may not ‘take advantage of an error which he himself invited or
induced.’” Murphy at 535-536, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor
Co., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus.
{¶8} Jimenez, however, has also argued that the trial court failed to consider the
sentencing factors before imposing the 36-month sentence, citing State v. Heinz, 146
Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965. In Frazier, it was concluded that “a
sentence imposed following a community control violation constitutes a full sentencing
hearing where the court must abide by the relevant sentencing provisions and the rights
that inure to a criminal defendant.” Frazier, 8th Dist. Cuyahoga No. 104596,
2017-Ohio-470, at ¶ 15, citing Heinz at ¶ 15; State v. Saxon, 8th Dist. Cuyahoga No.
104295, 2017-Ohio-93, ¶ 8; State v. Morris, 8th Dist. Cuyahoga No. 104013, 2016-Ohio-7614, ¶ 12. “Because offenders are sentenced anew, they must be afforded
the same rights as those afforded during an original sentencing hearing.” Frazier at ¶ 13;
see also State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17.
{¶9} In Fraley, for example, the Ohio Supreme Court determined that under R.C.
2929.19(B)(5) and 2929.15(B), trial courts must notify the offender of the specific prison
term that may be imposed for the violation of the conditions of sanctions. Fraley at ¶ 18.
The statutory section, R.C. 2929.19(B)(5), is meant to “put the offender on notice of the
specific prison term he or she faces if a violation of the conditions occurs.” Notice,
however, is just that. As the Ohio Supreme Court further held, “[a]t this second hearing,
the court sentences the offender anew and must comply with the relevant sentencing
statutes.” Id., citing State v. Martin, 8th Dist. Cuyahoga No. 82140, 2003-Ohio-3381, ¶
35 (trial court committed reversible error in failing to consider the minimum term under
the version of R.C. 2929.14(B) then in effect at the sentencing hearing on the violation of
community control sanctions). If the trial court is imposing a prison term upon the
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[Cite as State v. Jimenez, 2017-Ohio-1553.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104735
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JOSHUA JIMENEZ DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597623-A
BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: April 27, 2017 ATTORNEY FOR APPELLANT
Jeffrey Froude P.O. Box 771112 Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor By: Ashley B. Kilbane Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:
{¶1} Joshua Jimenez appeals the revocation of his community control sanction.
We affirm in part, vacate the sentence imposed, and remand for a new sentencing hearing.
{¶2} Jimenez pleaded guilty to the third-degree felony for the failure to provide
notice of his changed address under R.C. 2950.05(E)(1), a requirement of his sexual
offender classification. In February 2016, the trial court imposed one year of community
control sanctions to be served at a community-based correctional facility (“CBCF”), if
Jimenez was able to secure placement in the institution.1 The trial court ordered CBCF
personnel to screen Jimenez. If Jimenez was found ineligible, he was to be returned to
the trial court for further determination. The court warned Jimenez that any violation of
the terms of community control could lead to a 36-month sentence on the charge to which
Jimenez pleaded guilty.
{¶3} In May of that year, Jimenez was returned to the trial court for failing to abide
by the conditions of CBCF confinement, which resulted in Jimenez being terminated from
the program. Jimenez appeared in court and admitted that he had failed to meet the
guidelines. The trial court followed through on the promise to sentence Jimenez to a
36-month term of imprisonment, with credit for 172 days served.
{¶4} Jimenez appealed, claiming the procedure by which his violation was found
deprived him of his constitutional right to due process, that the 36-month sentence was
1 There is no indication as to the duration of time to be spent in the residential confinement, but that issue has not been raised or briefed. contrary to law because the court “predetermined” the sentence without considering the
R.C. 2929.11 and 2929.12 sentencing factors, and that his counsel at the hearing was
ineffective for not inquiring into the nature of the violation. We affirm in part, but
vacate the sentence and remand for a full sentencing hearing.
{¶5} Jimenez failed to object to the proceedings below and has waived all but
plain error. State v. Frazier, 8th Dist. Cuyahoga No. 104596, 2017-Ohio-470, ¶ 8, citing
State v. Murphy, 91 Ohio St.3d 516, 532, 2001-Ohio-112, 747 N.E.2d 765, quoting State
v. Childs, 14 Ohio St.2d 56, 62, 236 N.E.2d 545 (1968) (“[e]ven constitutional rights
‘may be lost as finally as any others by a failure to assert them at the proper time.’”).
Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” Id.
{¶6} This court has repeatedly held that oral notice coupled with the complete
admission at the preliminary hearing on the violation of sanctions satisfies any due
process or effective assistance of counsel concerns. See, e.g., Frazier at ¶ 10-12; State v.
Patton, 2016-Ohio-4867, 68 N.E.3d 273, ¶ 9 (8th Dist.) (oral notice of alleged violation
may be sufficient to satisfy constitutional due process concerns); State v. Jones, 8th Dist.
Cuyahoga No. 102999, 2016-Ohio-2626, ¶ 10; State v. Washington, 8th Dist. Cuyahoga
Nos. 101157 and 101170, 2015-Ohio-305, ¶ 22; State v. Lenard, 8th Dist. Cuyahoga No.
93373, 2010-Ohio-81, ¶ 12; Lakewood v. Sullivan, 8th Dist. Cuyahoga No. 79382,
2002-Ohio-2134, ¶ 26. Further, the admission to the violation during a preliminary
hearing waives any further argument as to whether the offender violated the terms of his community control sanctions during subsequent proceedings. Frazier at ¶ 17. Jimenez
has not provided any basis for us to diverge from our precedent, much less even identified
any of the controlling law in his appellate brief. App.R. 16(A)(7).
{¶7} At the violation hearing, for which Jimenez has not argued that he lacked any
notice, Jimenez and his counsel both conceded the violation had indeed occurred. As a
result of his noncompliance, Jimenez was terminated from the CBCF program, an express
term of the community control sanctions. The notification coupled with Jimenez’s
concession satisfied any due process concerns. Further, if any error existed, Jimenez
invited that error himself by expressly conceding to the violation and the summary nature
of the preliminary proceedings. Frazier at ¶ 12. “Under the settled principle of invited
error, a litigant may not ‘take advantage of an error which he himself invited or
induced.’” Murphy at 535-536, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor
Co., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus.
{¶8} Jimenez, however, has also argued that the trial court failed to consider the
sentencing factors before imposing the 36-month sentence, citing State v. Heinz, 146
Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965. In Frazier, it was concluded that “a
sentence imposed following a community control violation constitutes a full sentencing
hearing where the court must abide by the relevant sentencing provisions and the rights
that inure to a criminal defendant.” Frazier, 8th Dist. Cuyahoga No. 104596,
2017-Ohio-470, at ¶ 15, citing Heinz at ¶ 15; State v. Saxon, 8th Dist. Cuyahoga No.
104295, 2017-Ohio-93, ¶ 8; State v. Morris, 8th Dist. Cuyahoga No. 104013, 2016-Ohio-7614, ¶ 12. “Because offenders are sentenced anew, they must be afforded
the same rights as those afforded during an original sentencing hearing.” Frazier at ¶ 13;
see also State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17.
{¶9} In Fraley, for example, the Ohio Supreme Court determined that under R.C.
2929.19(B)(5) and 2929.15(B), trial courts must notify the offender of the specific prison
term that may be imposed for the violation of the conditions of sanctions. Fraley at ¶ 18.
The statutory section, R.C. 2929.19(B)(5), is meant to “put the offender on notice of the
specific prison term he or she faces if a violation of the conditions occurs.” Notice,
however, is just that. As the Ohio Supreme Court further held, “[a]t this second hearing,
the court sentences the offender anew and must comply with the relevant sentencing
statutes.” Id., citing State v. Martin, 8th Dist. Cuyahoga No. 82140, 2003-Ohio-3381, ¶
35 (trial court committed reversible error in failing to consider the minimum term under
the version of R.C. 2929.14(B) then in effect at the sentencing hearing on the violation of
community control sanctions). If the trial court is imposing a prison term upon the
violation of the community control sanctions already imposed, the court must
independently consider the sentencing factors at the time of the violation and in the
ensuing final sentencing entry that complies with all applicable requirements for finality.
{¶10} In response, the state claims that the trial court considered the factors
enumerated in R.C. 2929.11 and 2929.12 because at the original sentencing hearing the
court noted such. The state argues that this case is analogous to the decision in State v.
Hutchinson, 8th Dist. Cuyahoga No. 102856, 2016-Ohio-927, ¶ 21. In that case, the offender was placed on community control facing a potential 36-month sentence for
burglary upon any violation. Id. The trial court subsequently found a violation occurred
and sentenced the offender to the 36-month prison sentence after considering the
sentencing factors a second time. Id. The decision in Hutchinson is controlling, but not
for the reason the state now claims. As alluded to in that case, it was concluded that the
trial court must consider the sentencing factors in the new sentencing hearing that occurs
following a violation of the community control sanctions. Id. at ¶ 20 (noting the trial
court held a second sentencing hearing following the violation at which time the court
considered the felony sentencing factors anew).
{¶11} The summary nature of Jimenez’s brief hearing for the notice of violation
precludes us from affirming. The trial court failed to consider the sentencing factors
before imposing the 36-month sentence at the hearing and in the final sentencing entry.
Jimenez’s sentence is, therefore, contrary to law. State v. Gaines, 8th Dist. Cuyahoga
No. 103476, 2016-Ohio-4863, ¶ 8 (a sentence is contrary to law if the trial court fails to
consider the purposes and principles of felony sentencing under R.C. 2929.11 and
2929.12). The sentence is vacated, and the case is remanded for a complete sentencing
hearing at which time Jimenez’s sentence is to be considered de novo. Jimenez
personally admitted to the violation during the original hearing, however, so he has
waived any argument that he did not commit a violation, which shall remain the law of
this case. Frazier at ¶ 17. The sentence imposed is vacated, and the matter remanded. It is ordered that appellant and appellee share costs herein taxed. The court
finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. Case remanded to the trial court for
resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
TIM McCORMACK, P.J., and MARY J. BOYLE, J., CONCUR