[Cite as State v. Saxon, 2017-Ohio-93.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104295
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
MARK SAXON DEFENDANT-APPELLANT
JUDGMENT: REVERSED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-587204-A
BEFORE: S. Gallagher, J., Keough, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: January 12, 2017 ATTORNEY FOR APPELLANT
Matthew C. Bangerter Bangerter Law, L.L.C. P.O. Box 148 Mentor, Ohio 44061
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} Appellant, Mark Saxon, appeals the imposition of sentence for a violation of
his community control sanction. Upon review, we reverse the judgment of the trial court.
{¶2} On July 17, 2014, Saxon was indicted on one count of failure to verify
address and one count of failure to provide notice of change of address, both felonies of
the third degree. On January 7, 2015, Saxon entered a plea of guilty of failure to verify
address as charged in Count 1 of the indictment. The remaining count was nolled. The
trial court complied with the requirements of Crim.R. 11 and found that Saxon’s plea was
entered knowingly, intelligently, and voluntarily.
{¶3} A sentencing hearing was held on February 18, 2015. Defense counsel
indicated that Saxon admitted his guilt with regard to failure to verify his address in Ohio.
Defense counsel stated that Saxon was living with his sister in Texas and was actively
registering in Texas; however, he did not inform the state of Ohio that he was leaving.
Saxon expressed his belief that it was an honest mistake and that he did not know he
needed permission to leave Ohio. The state noted Saxon’s criminal history, including a
prior sentence for failure to notify.
{¶4} The trial court sentenced appellant to one year of community control and
ordered Saxon to abide by the rules and regulations of the probation department and to
submit to regular drug testing. The court indicated it would allow Saxon’s probation to
be transferred to Texas. The court also imposed a $1,000 fine, which was suspended,
ordered Saxon to pay restitution in the amount of $1,390.80 for the costs of extradition, and imposed court costs. The trial court indicated on the record that “[t]he court may
modify this order as needed to protect the public, punish violation of the order by
assessing a longer period of supervision, a more restrictive community control sanctions
or prison term.” The trial court further specified in its order that violation of the terms
and conditions “may result in more restrictive sanctions, or a prison term of 36 month(s)
as approved by law.”
{¶5} Over the next several months, the trial court issued a number of orders that
imposed additional terms of community control. On March 5, 2015, the trial court
ordered Saxon to enter and complete inpatient drug and alcohol treatment. On April 14,
2015, the trial court ordered Saxon to be screened for eligibility to enter a
community-based correctional facility (“CBCF”). On May 6, 2015, the trial court
ordered Saxon to enter and complete CBCF. On September 30, 2015, Saxon’s parole
officer sought and was granted a capias for Saxon. On October 13, 2015, the trial court
ordered Saxon to complete six months of work release at Harbor Lights. On January 14,
2016, the trial court transferred Saxon to the City Mission and placed him on
electronic/GPS monitoring for five months. With regard to these actions, there was no
violation of community control found or even referenced in the record.
{¶6} It was not until February 2, 2016, that the trial court held a community
control violation hearing. At the hearing, it was determined that on the first day of
electronic monitoring, Saxon violated the terms. Saxon claimed that on his way to the
mission, he made a couple of stops on Payne Avenue, to speak to a homeless woman he knew and to buy cigarettes, that he claimed he did not know were unauthorized. The
trial court found Saxon to be in violation of community control sanctions, sentenced him
to a prison term of 36 months with credit for time served, and advised him of postrelease
control. This appeal followed.
{¶7} On appeal, appellant raises two assignments of error for our review. Under
his first assignment of error, appellant claims the trial court erred by imposing more
restrictive community control sanctions without due process. He claims that he should
have been afforded notice and an opportunity to be heard.
{¶8} Pursuant to R.C. 2929.19(B), when a sentencing court chooses to impose a
community control sanction, the court is required to notify the offender that if the
offender violates the conditions of the sanction, violates the law, or leaves the state
without permission, “the court may impose a longer time under the same sanction, may
impose a more restrictive sanction, or may impose a prison term on the offender and shall
indicate the specific prison term that may be imposed as a sanction for the violation[.]”
Pursuant to R.C. 2929.15(B)(1), when an offender violates the conditions of community
control, the trial court is authorized to extend the term of community control, impose a
more restrictive sanction, or impose a prison term. Following a community control
violation, the trial court conducts a “second sentencing hearing” at which the court
sentences the offender anew and must comply with the relevant sentencing statutes.
State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965, ¶ 15.1
1 The state has the burden of proving that a community control violation occurred. Id. at ¶ {¶9} As this court has previously recognized, “R.C. 2929.15(B) authorizes the
post-sentencing imposition of more restrictive community control sanctions only if the
original probationary conditions are violated.” State v. Hooks, 128 Ohio App.3d 750,
753, 716 N.E.2d 778 (8th Dist.1998). A trial court does not have authority to modify the
terms of community control after execution of the sentence has commenced, so long as
the defendant has satisfied the originally announced terms of that probation. Id.; see
also State v. Wycuff, 5th Dist. Stark No. 2000CA00328, 2001 Ohio App. LEXIS 2418,
4-6 (May 21, 2001).
{¶10} In this case, appellant claims that his due process rights were violated when
the trial court imposed additional terms of community control without notice or a
hearing.2 There was never any notice of a violation and no hearing was conducted with
regard to the court’s orders modifying and extending the community control sanctions.
Although not raised, the imposition of additional terms of community control in this
matter also implicated double jeopardy concerns. See Hooks at 753; Wycuff at 4. We
recognize that a timely objection was never raised and arguably Saxon may have waived
any constitutional challenges herein. See State v. Stanley, 8th Dist. Cuyahoga No.
103152, 2016-Ohio-1540, ¶ 11, 14-16. Further, a direct appeal was never filed from the
orders.
18.
In support of his argument, appellant cites State v. Whitaker, 2d Dist. Montgomery No. 2
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[Cite as State v. Saxon, 2017-Ohio-93.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104295
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
MARK SAXON DEFENDANT-APPELLANT
JUDGMENT: REVERSED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-587204-A
BEFORE: S. Gallagher, J., Keough, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: January 12, 2017 ATTORNEY FOR APPELLANT
Matthew C. Bangerter Bangerter Law, L.L.C. P.O. Box 148 Mentor, Ohio 44061
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} Appellant, Mark Saxon, appeals the imposition of sentence for a violation of
his community control sanction. Upon review, we reverse the judgment of the trial court.
{¶2} On July 17, 2014, Saxon was indicted on one count of failure to verify
address and one count of failure to provide notice of change of address, both felonies of
the third degree. On January 7, 2015, Saxon entered a plea of guilty of failure to verify
address as charged in Count 1 of the indictment. The remaining count was nolled. The
trial court complied with the requirements of Crim.R. 11 and found that Saxon’s plea was
entered knowingly, intelligently, and voluntarily.
{¶3} A sentencing hearing was held on February 18, 2015. Defense counsel
indicated that Saxon admitted his guilt with regard to failure to verify his address in Ohio.
Defense counsel stated that Saxon was living with his sister in Texas and was actively
registering in Texas; however, he did not inform the state of Ohio that he was leaving.
Saxon expressed his belief that it was an honest mistake and that he did not know he
needed permission to leave Ohio. The state noted Saxon’s criminal history, including a
prior sentence for failure to notify.
{¶4} The trial court sentenced appellant to one year of community control and
ordered Saxon to abide by the rules and regulations of the probation department and to
submit to regular drug testing. The court indicated it would allow Saxon’s probation to
be transferred to Texas. The court also imposed a $1,000 fine, which was suspended,
ordered Saxon to pay restitution in the amount of $1,390.80 for the costs of extradition, and imposed court costs. The trial court indicated on the record that “[t]he court may
modify this order as needed to protect the public, punish violation of the order by
assessing a longer period of supervision, a more restrictive community control sanctions
or prison term.” The trial court further specified in its order that violation of the terms
and conditions “may result in more restrictive sanctions, or a prison term of 36 month(s)
as approved by law.”
{¶5} Over the next several months, the trial court issued a number of orders that
imposed additional terms of community control. On March 5, 2015, the trial court
ordered Saxon to enter and complete inpatient drug and alcohol treatment. On April 14,
2015, the trial court ordered Saxon to be screened for eligibility to enter a
community-based correctional facility (“CBCF”). On May 6, 2015, the trial court
ordered Saxon to enter and complete CBCF. On September 30, 2015, Saxon’s parole
officer sought and was granted a capias for Saxon. On October 13, 2015, the trial court
ordered Saxon to complete six months of work release at Harbor Lights. On January 14,
2016, the trial court transferred Saxon to the City Mission and placed him on
electronic/GPS monitoring for five months. With regard to these actions, there was no
violation of community control found or even referenced in the record.
{¶6} It was not until February 2, 2016, that the trial court held a community
control violation hearing. At the hearing, it was determined that on the first day of
electronic monitoring, Saxon violated the terms. Saxon claimed that on his way to the
mission, he made a couple of stops on Payne Avenue, to speak to a homeless woman he knew and to buy cigarettes, that he claimed he did not know were unauthorized. The
trial court found Saxon to be in violation of community control sanctions, sentenced him
to a prison term of 36 months with credit for time served, and advised him of postrelease
control. This appeal followed.
{¶7} On appeal, appellant raises two assignments of error for our review. Under
his first assignment of error, appellant claims the trial court erred by imposing more
restrictive community control sanctions without due process. He claims that he should
have been afforded notice and an opportunity to be heard.
{¶8} Pursuant to R.C. 2929.19(B), when a sentencing court chooses to impose a
community control sanction, the court is required to notify the offender that if the
offender violates the conditions of the sanction, violates the law, or leaves the state
without permission, “the court may impose a longer time under the same sanction, may
impose a more restrictive sanction, or may impose a prison term on the offender and shall
indicate the specific prison term that may be imposed as a sanction for the violation[.]”
Pursuant to R.C. 2929.15(B)(1), when an offender violates the conditions of community
control, the trial court is authorized to extend the term of community control, impose a
more restrictive sanction, or impose a prison term. Following a community control
violation, the trial court conducts a “second sentencing hearing” at which the court
sentences the offender anew and must comply with the relevant sentencing statutes.
State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965, ¶ 15.1
1 The state has the burden of proving that a community control violation occurred. Id. at ¶ {¶9} As this court has previously recognized, “R.C. 2929.15(B) authorizes the
post-sentencing imposition of more restrictive community control sanctions only if the
original probationary conditions are violated.” State v. Hooks, 128 Ohio App.3d 750,
753, 716 N.E.2d 778 (8th Dist.1998). A trial court does not have authority to modify the
terms of community control after execution of the sentence has commenced, so long as
the defendant has satisfied the originally announced terms of that probation. Id.; see
also State v. Wycuff, 5th Dist. Stark No. 2000CA00328, 2001 Ohio App. LEXIS 2418,
4-6 (May 21, 2001).
{¶10} In this case, appellant claims that his due process rights were violated when
the trial court imposed additional terms of community control without notice or a
hearing.2 There was never any notice of a violation and no hearing was conducted with
regard to the court’s orders modifying and extending the community control sanctions.
Although not raised, the imposition of additional terms of community control in this
matter also implicated double jeopardy concerns. See Hooks at 753; Wycuff at 4. We
recognize that a timely objection was never raised and arguably Saxon may have waived
any constitutional challenges herein. See State v. Stanley, 8th Dist. Cuyahoga No.
103152, 2016-Ohio-1540, ¶ 11, 14-16. Further, a direct appeal was never filed from the
orders.
18.
In support of his argument, appellant cites State v. Whitaker, 2d Dist. Montgomery No. 2
21003, 2006-Ohio-998, which we need not address herein. {¶11} However, the dispositive issue in this matter is whether the trial court had
subject-matter jurisdiction to impose additional terms of community control. It is well
settled that subject-matter jurisdiction cannot be waived and may be raised by the court
sua sponte on appeal. State v. Lomax, 96 Ohio St.3d 318, 2002-Ohio-4453, 774 N.E.2d
249, ¶ 17.
{¶12} “Because community control is part of the sentence, absent statutory
authority, the trial court [has] no jurisdiction to modify the conditions of that sanction.”
State v. Cauthen, 1st Dist. Hamilton No. C-130475, 2015-Ohio-272, ¶ 18. As applicable
in this matter, R.C. 2929.15(B) does not authorize a trial court to impose additional terms
of community control in the absence of a violation. Accordingly, “[a] trial court can
extend or impose more restrictive sanctions with the community control sanction * * *
only if the offender violates the terms of community control.” Bay Village v. Barringer,
8th Dist. Cuyahoga No. 102432, 2015-Ohio-4079, ¶ 8.3 A trial court lacks jurisdiction to
alter the final sentence unless it determines the defendant violated the terms of
community control as imposed in the final sentencing entry. Id.
{¶13} In this case, at the time the additional terms of community control were
imposed by the trial court, there was never any formal determination that Saxon had
violated the terms of his community control. Therefore, the trial court lacked jurisdiction
3 We note that although Barringer involved R.C. 2929.25(D)(2), the same holds true for R.C. 2929.15(B)(1). to impose the additional terms of community control and no violation can be premised
thereon.
{¶14} We sustain the first assignment of error on separate grounds, and we reverse
the decision of the trial court. The second assignment of error is moot.4
{¶15} Judgment reversed.
This cause is reversed and remanded to the lower court for further proceedings
consistent with this opinion.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, A.J., and MARY EILEEN KILBANE, J., CONCUR
4 Appellant’s second assignment of error challenges whether the trial court complied with the sentencing statutes when sentencing him upon the community control violation.