[Cite as State v. Schrack, 2024-Ohio-2654.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. Andrew J. King, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : DONNA SCHRACK, : Case Nos. CT2023-0070 : CT2023-0071 Defendant - Appellant : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case Nos. CR2022-0518, CR2023-0348
JUDGMENT: Affirmed in part; Reversed and Remanded in part
DATE OF JUDGMENT: July 12, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. PALMER APRIL CAMPBELL Assistant Prosecutor Campbell Law, LLC 27 North Fifth St. 545 Metro Place South, Suite 100 Zanesville, Ohio 43702 Dublin, Ohio 43017 Muskingum County, Case No. CT2023-0070,0071 2
Baldwin, J.
STATEMENT OF THE FACTS AND THE CASE
{¶1} The appellant was indicted on October 12, 2022, in Muskingum County
Court of Common Pleas, Case No. CR2022-0518, on one count of illegal use of SNAP
benefits in violation of R.C. 2913.46(B), a fifth degree felony; and, two counts of
telecommunications fraud in violation of R.C. 2913.05(A), fifth degree felonies. The
appellant pleaded not guilty at arraignment, but subsequently agreed to change her plea
to guilty. During the December 12, 2022, change of plea hearing the trial court addressed
the appellant directly, and had the following exchange:
THE COURT: You understand if you went to prison in this matter, it’s
optional, but upon your release the Adult Parole Authority could place you
upon what is known as post-release control, and that could be for a period
of up to two years?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understand while on post-release control, you’d be
subject to a variety of rules and regulations? Should you fail to follow those
rules and regulations, you could be sent back to prison for a period of up to
nine months for each rule violation you may commit. The total amount of
time you could be sent back to prison would be equal to one-half your
original prison sentence?
THE COURT: You also understand if you commit a new felony while
on post-release control, in addition to any sentence you receive for that new Muskingum County, Case No. CT2023-0070,0071 3
felony, additional time can be added to that sentence in the form of the time
you have left on post-release control or one year, whichever’s greater?
The trial court accepted the appellant’s guilty plea, ordered a pre-sentence investigation,
and scheduled the matter for sentencing.
{¶2} The pre-sentence investigation was completed on January 12, 2023, and
included a summary of the appellant’s past criminal record, which contained both felonies
and misdemeanors. The PSI reported that the appellant’s felony record included forgery
in 1988; aggravated trafficking in drugs, and theft with prior conviction charges in 1993;
theft over $500 in 1999; and, trafficking in drugs within the vicinity of a juvenile in 2001.
{¶3} The appellant’s misdemeanor record included three counts of disorderly
conduct in 1986; failure to honor a subpoena, and obstruction of justice in 1988; disorderly
conduct in 1992; petit theft in 1993; soliciting prostitution on 4/28/1993, and again on
5/21/1993; criminal trespassing in 1996; soliciting on 8/7/1996; soliciting on 8/25/1996;
two separate charges of criminal trespassing in 1998; possession of drug paraphernalia
in 1998; soliciting on 5/20/1998, and again on 10/29/1998; four counts of petit theft in
1999, one count of which, on 4/10/1999, also included soliciting; possession of marijuana
in 2001; soliciting on 1/13/2001, and again on 8/31/2001; soliciting on 1/12/2004, and
again on 5/27/2004; soliciting on 9/12/2005; soliciting on 9/18/2007; assault in 2008, as
well as soliciting on 8/6/2008; loiter to solicit on 11/17/2009; soliciting on 12/5/2012;
soliciting on 10/23/2013; theft and domestic violence in 2015; petty theft and theft (less
than $1000) in 2016; and, complicity in 2019. Her past criminal record included, inter alia,
sixteen (16) solicitation charges and one (1) loiter to solicit charge. Muskingum County, Case No. CT2023-0070,0071 4
{¶4} On January 23, 2023, the trial court conducted a sentencing hearing in Case
No. CR2022-0518, during which it had the following exchange with the appellant:
THE COURT: Thank you. Well, the Court has received the
presentence investigation and had an opportunity to review the same.
The Court will note for the record you entered a plea of guilty to three
felonies of the fifth degree, and the case plan - - or the presentence
investigation does indicate what was already mentioned.
You do have couple prior felonies, but they’ve been - - more than 22
years ago was the last time you had a felony. And you’ve had a number of
misdemeanors going back into the ‘80s and working up through. I think it
was 2016 or ’17 was the last one I saw. So for a few years, though, you’ve
been not coming into the courts.
But you’re here today on $628 or something like that. So I’m going
to place you upon community control for a period of one year with the
primary condition that you pay your restitution.
THE DEFENDANT: Okay.
THE COURT: Once you’ve completed that, the probation department
will decide what else you need to do, but at this point in time that’s all I’m’
ordering you to do.
THE COURT: You’re remanded into custody until such time as
arrangements can be made to place you upon community control. Good
luck to you. Muskingum County, Case No. CT2023-0070,0071 5
{¶5} While the trial court advised the appellant at her change of plea hearing of
the consequences that may transpire if she violated the conditions of her community
control, it did not do so during her sentencing hearing.
{¶6} On June 1, 2023, the appellant was indicted in Muskingum County Court of
Common Pleas, Case No. CR2023-0348, on two counts of burglary in violation of R.C.
2911.12(A)(2) and (D), second degree felonies; and two counts of misdemeanor theft in
violation of R.C. 2913.02(A)(1) and (B)(2), first degree misdemeanors.
{¶7} On July 13, 2023, the appellee filed a motion in Case No. CR2022-0518
asking the trial court to schedule a hearing on the issue of whether the offenses for which
the appellant was indicted in Case No. CR2023-0348 constituted a violation of her
community control in connection with Case No. CR2022-0518, asserting that the
appellant failed to comply with the conditions of community control.
{¶8} On July 24, 2023, the appellant entered into a plea agreement in Case No.
CR2023-0348 in which she agreed to plead guilty to one count of burglary, and the
appellee agreed to dismiss the remaining counts. In addition, a hearing was held on July
24, 2023, at which the appellant, inter alia, pleaded guilty to community control violations
in Case No. CR2022-0518. The trial court determined, after consultation with counsel,
that it would address sentencing on both the community control violation case (CR2022-
0518) and the burglary case (CR2023-0348) during the hearing. After presenting the
testimony of appellant’s probation officer, the appellee addressed the trial court as
follows:
MR. LITLE: The Court is in possession of the presentence
investigation here. Ms. Schrack has an eye-watering record of criminal Muskingum County, Case No. CT2023-0070,0071 6
behavior which dates back, at the very least, to the first Reagan
administration.
The - - if she was here - - you know, this is not her first felony of the
second degree, so that’s why we have mandatory prison time. She has a
record of committing offenses both great and small, and of being a
continuous, ongoing, and unapologetic nuisance. Now, being a nuisance is
not a reason we send someone to prison, but it is explanation of some of
the character reference - - or contents in terms of determining sentencing.
In terms of determining recidivism, her recidivism is a virtual
guarantee. Like, this is just how she has behaved for the past four decades
continuously. She is a known entity to not just law enforcement, but even to
individuals who are just members of the community attempting to be
productive.
I - - I mentioned the owner of the Sunshine Shoppe, where she is
often down there prostituting and doing things and being a menace, who
just is at the end of his rope with that frustration.
Here we have a burglary that has a part of its main components of
betrayal. Right. It’s not just that she burglarized someone, it’s that she got
them to do her the favor of allowing her into their house so that she could
do a medial task to justify their charity towards her, and then she betrayed
that trust and used it to commit burglary. That is - - there is a deep-seated
character law related to that. Muskingum County, Case No. CT2023-0070,0071 7
Similarly, she went down to Job & Family Services o her underlying
case, where she applied and asked for help, and the she lied about all of
that and - -
DEFENDANT: No.
MR. LITLE: -- was taking the money from the SNAP
violations.
So, you know, the question is what’s - - what’s the right sentence
here. Sometimes when someone gets up older in age it seems like, okay,
maybe their criminal behavior is going to slow down or confine itself to
something Just doesn’t appear to be the case here.
So she has three years of exposure on the community control case,
and she has eight years of exposure on the burglary case. I would suggest
that a sentence of five to six years is appropriate for the cases in
combination. And that will give her an opportunity to reflect on possibly
changing the decisions that she makes and it will give the community an
opportunity to have some breathing room from her behavior.
{¶9} With regard to the community control violation charges in Case No.
CR2022-0518, the trial court sentenced the appellant to six months in prison on each
count, to be served concurrently with one another for an aggregate prison sentence of six
months, with credit for time served.
{¶10} With regard to the burglary charge in Case No. CR2023-0348, the trial court
sentenced the appellant to a mandatory minimum prison term of four years, and an
indefinite prison term of six years. The court stated further that “Provided, however, the Muskingum County, Case No. CT2023-0070,0071 8
term of incarceration imposed herein shall be served mandatory consecutive to the
sentence imposed in the community control violation in … Case No. CR2022-0518.”
(Emphasis original.) The court further notified the appellant that she was subject to
mandatory post-release control for “eighteen (18) months up to three (3) years.”
(Emphasis original.)
{¶11} The appellant filed a timely appeal in which she sets forth the following
assignments of error:
{¶12} “I. FIRST ASSIGNMENT OF ERROR: SCHRACK’S RIGHT TO DUE
PROCESS WAS DENIED BECAUSE OF THE PROSECUTOR’S MISCONDUCT IN
PERSISTENTLY ATTACKING HER CHARACTER WHEN THE TRIAL COURT
SENTENCED SCHRACK.”
{¶13} “II. SECOND ASSIGNMENT OF ERROR: SCHRACK’S SENTENCE WAS
CONTRARY TO LAW: THE TRIAL COURT COULD NOT IMPOSE A SANCTION ON
SCHRACK FOR BEING INDICTED WITH A NEW FELONY OFFENSE WHILE ON
COMMUNITY CONTROL, BECAUSE IT DID NOT NOTIFY HER AT HER SENTENCING
HEARING THAT THIS WAS A POSSIBILITY.”
{¶14} “III. THIRD ASSIGNMENT OF ERROR: SCHRACK’S SENTENCE WAS
CONTRARY TO LAW: THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
SENTENCES ON SCHRACK BECAUSE AT THE TIME THE TRIAL COURT-IMPOSED
COMMUNITY CONTROL, IT DID NOT NOTIFY HER THAT CONSECUTIVE
SENTENCES ON REVOCATION WAS A POSSIBILITY. NOR DID IT ADVISE HER OF
THE POTENTIAL LENGTH IN PRISON SHE COULD SERVE.” Muskingum County, Case No. CT2023-0070,0071 9
{¶15} “IV. FOURTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED IN
IMPOSING CONSECUTIVE SENTENCES ON SCHRACK BECAUSE THAT
SENTENCE WAS CONTRARY TO LAW: MANDATORY CONSECUTIVE SENTENCES
ARE NOT REQUIRED IN THIS CASE. AND BECAUSE THE TRIAL COURT DID NOT
MAKE CONSECUTIVE SENTENCING FINDINGS, ANY PROPER SENTENCE MUST
BE RUN CONCURRENTLY.”
ASSIGNMENT OF ERROR NUMBER ONE
{¶16} The appellant argues in her first assignment of error that the prosecutor
engaged in prosecutorial misconduct, thereby denying her due process rights. We
disagree.
STANDARD OF REVIEW
{¶17} The appellant failed to object to the prosecutor’s allegedly prejudicial
comments during the July 24, 2023 sentencing hearing that she now claims were
improper.
In cases where a defendant “fails to object to the prosecutor's alleged
misconduct, he waives all but plain error.” Wellston v. Horsley, 4th Dist. No.
05CA18, 2006-Ohio-4386, 2006 WL 2457392, ¶ 22, citing Crim.R. 52; State
v. Hartman, 93 Ohio St.3d 274, 294, 754 N.E.2d 1150 (2001). Notice of
plain error, pursuant to Crim.R. 52(B), “is to be taken with the utmost of
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” Id. Further, “[p]lain error should not be invoked
unless it can be said that, but for the error, the outcome of the trial would
clearly have been otherwise.” Id. Muskingum County, Case No. CT2023-0070,0071 10
State v. Fudge, 2018-Ohio-601, ¶49 (10th Dist.). Thus, the appellant has waived all but
plain error.
{¶18} The Ohio Supreme Court recently discussed the doctrine of plain error in
State v. Bailey, 2022-Ohio-4407:
Under the plain-error doctrine, intervention by a reviewing court is
warranted only under exceptional circumstances to prevent injustice. State
v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus (“Notice of plain error * * * is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a miscarriage of
justice”). To prevail under the plain-error doctrine, Bailey must establish that
“an error occurred, that the error was obvious, and that there is ‘a
reasonable probability that the error resulted in prejudice,’ meaning that the
error affected the outcome of the trial.” (Emphasis added in Rogers.) State
v. McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, ¶ 66,
quoting Rogers at ¶ 22; see also State v. Wilks, 154 Ohio St.3d 359, 2018-
Ohio-1562, 114 N.E.3d 1092, ¶ 52.
The elements of the plain-error doctrine are conjunctive: all three
must apply to justify an appellate court's intervention. State v. Barnes, 94
Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002) (“By its very terms, the rule
places three limitations on a reviewing court's decision to correct an error
despite the absence of a timely objection at trial”). Muskingum County, Case No. CT2023-0070,0071 11
Id. at ¶8-9. Thus, the appellant must establish that (1) an error occurred; (2) that
the error was obvious; and, (3) that there is ‘a reasonable probability that the error
resulted in prejudice.
{¶19} The issue of prosecutorial misconduct was recently discussed by this Court
in State v. Lee, 2024-Ohio-2044 (5th Dist.):
The test for prosecutorial misconduct is whether the prosecutor's
comments and remarks were improper and if so, whether those comments
and remarks prejudicially affected the substantial rights of the accused.
Sunbury v. Sullivan, 5th Dist. Delaware No. 11CAC030025, 2012-Ohio-
3699, ¶ 30, citing State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).
In reviewing allegations of prosecutorial misconduct, it is our duty to
consider the complained-of conduct in the context of the entire trial. Darden
v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). A trial
is not unfair if, in the context of the entire trial, it appears clear beyond a
reasonable doubt the jury would have found the defendant guilty even
without the improper comments. State v. Treesh, 90 Ohio St.3d 460, 464,
2001-Ohio-4, 739 N.E.2d 749.
Allegations of prosecutorial misconduct implicate due process
concerns, and the touchstone of the analysis is the “ ‘fairness of the trial,
not the culpability of the prosecutor.’ ” State v. Newton, 108 Ohio St.3d 13,
2006-Ohio-81, 840 N.E.2d 593, ¶ 92, quoting Smith v. Phillips, 455 U.S.
209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Muskingum County, Case No. CT2023-0070,0071 12
If any misconduct occurred, the court must consider the effect it had
on the jury “in the context of the entire trial.” State v. Keenan, 66 Ohio St.3d
402, 410, 613 N.E.2d 203 (1993). With regard to each allegation of
misconduct, we must determine whether the conduct was “improper, and, if
so, whether [it] prejudicially affected substantial rights of the defendant.”
State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[A]
defendant's substantial rights cannot be prejudiced when the remaining
evidence, standing alone, is so overwhelming that it constitutes defendant's
guilt, and the outcome of the case would have been the same regardless of
evidence admitted erroneously.” State v. Hicks, 194 Ohio App.3d 743,
2011-Ohio-3578, 957 N.E.2d 866, ¶ 30 (8th Dist. 2011), citing State v.
Williams, 38 Ohio St.3d 346, 349–350, 528 N.E.2d 910 (1988).
Whether statements made by a prosecutor amount to misconduct
and whether such statements render a trial fundamentally unfair are mixed
questions of law and fact, which we review de novo. State v. Razey, 5th
Dist. Delaware No. 23CAC030021, 2023-Ohio-4190, ¶ 28, citing United
States v. Carson, 560 F.3d 566, 574 (6th Cir. 2009).
Id. at ¶¶46-50.
ANALYSIS
{¶20} The appellant argues that the prosecutor’s statements during the
sentencing hearing regarding her criminal history, specifically his reference to her
“prostituting,” “being a menace,” and “having a deep-seated character flaw,” constituted
“a persistent attack on her character that was so improper as to deny her due process.” Muskingum County, Case No. CT2023-0070,0071 13
{¶21} We find, after reviewing the record, that the prosecutor, while colloquial in
his presentation, accurately summarized the appellant’s criminal history, which included
no fewer than sixteen incidents of prostitution. While the appellant implies that the
prosecutor repeatedly referred her as a prostitute, he in fact only mentioned that part of
her history on one occasion in the context of summarizing her criminal history as set forth
in the PSI in connection with sentencing. The remark was not improper. Furthermore,
assuming arguendo that it was improper, there is no evidence that the trial court was
influenced by said comments when it imposed sentence.
{¶22} The case sub judice does not present sufficiently exceptional circumstances
that would warrant application of the plain error doctrine. The prosecutor’s comments
were not improper and, further, did not prejudicially affect the appellant’s substantial
rights. Accordingly, the appellant’s first assignment of error is without merit, and is
overruled.
ASSIGNMENT OF ERROR NUMBERS TWO, THREE AND FOUR
{¶23} The appellant’s second, third, and fourth assignments of error all deal with
the trial court’s imposition of a six-month sentence for her failure to comply with the
conditions of her community control for the illegal use of SNAP benefits and
telecommunications fraud charges in Case No. CR2022-0518, and will therefore be
considered together.
{¶24} R.C. 2929.19(B)(4) addresses the imposition of community control
sanctions, and provides:
If the sentencing court determines at the sentencing hearing that a
community control sanction should be imposed and the court is not Muskingum County, Case No. CT2023-0070,0071 14
prohibited from imposing a community control sanction, the court shall
impose a community control sanction. The court shall notify the offender
that, if the conditions of the sanction are violated, if the offender commits a
violation of any law, or if the offender leaves this state without the
permission of the court or the offender's probation officer, 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 range from which the prison term may be imposed as a sanction
for the violation, which shall be the range of prison terms for the offense that
is specified pursuant to section 2929.14 of the Revised Code and as
described in section 2929.15 of the Revised Code.
{¶25} The Ohio Supreme Court discussed the issue further in State v. Brooks,
2004-Ohio-4746, holding that “a trial court sentencing an offender must, at the time of
sentencing, notify the offender of the specific prison term that may be imposed for a
violation of the conditions of the sanction, as a prerequisite to imposing a prison term on
the offender for a subsequent violation.” (Emphasis added.) Id. at ¶29. See, also, State
v. Delcol, 2009-Ohio-3870, ¶53 (5th Dist.).
{¶26} The remedy for a trial court’s failure to advise a defendant at the sentencing
hearing of the consequences of violating the terms of community control was discussed
in Brooks, which stated:
When a trial court makes an error in sentencing a defendant, the
usual procedure is for an appellate court to remand to the trial court for
resentencing. See R.C. 2953.08(G); Comer, 99 Ohio St.3d 463, 2003-Ohio- Muskingum County, Case No. CT2023-0070,0071 15
4165, 793 N.E.2d 473, at ¶ 10, 23, 27. In community control sentencing
cases in which the trial court failed to comply with R.C. 2929.19(B)(5),
however, a straight remand can cause problems. Due to the particular
nature of community control, any error in notification cannot be rectified by
“renotifying” the offender. When an offender violates community control
conditions and that offender was not properly notified of the specific term
that would be imposed, an after-the-fact reimposition of community control
would totally frustrate the purpose behind R.C. 2929.19(B)(5) notification,
which is to make the offender aware before a violation of the specific prison
term that he or she will face for a violation. Consequently, where no such
notification was supplied, and the offender then appeals after a prison term
is imposed under R.C. 2929.15(B), the matter must be remanded to the trial
court for a resentencing under that provision with a prison term not an
option.2 In this case, since the prison term has already been served, there
will be no remand for resentencing.
Id. at ¶33. The Court noted further at footnote 2:
When a trial court sentences an offender who has violated conditions
of community control and the defendant did not receive notice of the specific
term under R.C. 2929.19(B)(5) so that a prison term is not an option, the
trial court at the R.C. 2929.15 sentencing must choose one of the other
options under R.C. 2929.15(B) (imposing a longer time under the same
sanction or imposing a more restrictive sanction). We do not reach the issue
of whether a trial judge who, in that situation, at the time of the R.C. Muskingum County, Case No. CT2023-0070,0071 16
2929.15(B) sentencing, informs the offender of the specific term he or she
faces for a violation of the conditions of community control may
subsequently impose a prison term if the offender violates conditions of
community control a second time.
{¶27} In this case, while the trial court discussed with the appellant the
ramifications of violating conditions of community control at her change of plea hearing
and in the judgment entry in Case No. CR2022-0518, it did not do so at the sentencing
hearing. The appellant’s second, third, and fourth assignments of error are, therefore,
sustained. Muskingum County, Case No. CT2023-0070,0071 17
CONCLUSION
{¶28} Based upon the foregoing, the appellant’s first assignment of error is
overruled. The appellant’s second, third, and fourth assignments of error are sustained,
and the issue of sentencing for violation of community control conditions in Case No.
CR22-0518 is reversed and remanded for further proceedings consistent with this
opinion.
By: Baldwin, J.
King, P.J. and
Wise, John, J. concur.