State v. Wacker , 2019 Ohio 3997 ( 2019 )


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  • [Cite as State v. Wacker, 2019-Ohio-3997.]
    IN THE COURT OF APPEALS
    ELEVENTH APPELLATE DISTRICT
    ASHTABULA COUNTY, OHIO
    STATE OF OHIO,                                         :            OPINION
    Plaintiff-Appellee,                   :
    CASE NOS. 2019-A-0044
    - vs -                                         :                      2019-A-0045
    MARCUS T. WACKER,                                      :
    Defendant-Appellant.                  :
    Criminal Appeals from the Conneaut Municipal Court, Case Nos. 2017 TRC 01537 and
    2018 CRB 00043.
    Judgment: Reversed.
    Kyle B. Smith, Conneaut Law Director, and Christopher M. Newcomb, Assistant
    Conneaut Law Director, 294 Main Street, Conneaut, OH 44030 (For Plaintiff-
    Appellee).
    Phillip L. Heasley and Marie Lane, Ashtabula County Public Defender, Inc., 4817 State
    Road, Suite 202, Ashtabula, OH 44004 (For Defendant-Appellant).
    CYNTHIA WESTCOTT RICE, J.
    {¶1}     Appellant, Marcus T. Wacker, appeals from the judgment of the Conneaut
    Municipal Court, finding him guilty of community control violations in two separate
    cases, and sentencing him to consecutive terms of 175 and 180 days in jail in each of
    the separate matters. We reverse the trial court’s sentence.
    {¶2}     Appellant     originally    pleaded       guilty   to   two   separate   first-degree
    misdemeanor offenses in two separate cases; to wit:                      in Case No. 17 TRC 1537,
    operating a vehicle while under the influence (“OVI”) and in Case No. 18 CRB 43,
    assault. In the OVI case, he was sentenced in February 2018 to 180 days, with 175
    days suspended and placed upon supervised community control. Thereafter, in April
    2018, appellant was sentenced in the assault case to 180 days, all of which were
    suspended, on conditions of supervised community control.
    {¶3}   After failing to follow the terms of his community control, separate motions
    to revoke were filed in each case.      In the OVI case, the motion alleged appellant
    violated community control when he “failed to attend and complete the driver
    intervention program; failed to follow any recommended treatment program; failed to
    attend probation appointment on June 26, 2018; failed UDS for [THC] and
    benzodiazepines on March 4, 2019.” In the assault case, the motion alleged appellant
    violated community control when he “failed to attend probation appointment on June 26,
    2018 and failed to complete comprehensive diagnostic reassessment at Signature
    Health within 30 days, by May 23, 2018.”
    {¶4}   On March 19, 2019, the trial court held a hearing on both motions to
    revoke. At a pre-revocation hearing, the record reflects appellant waived his right to
    counsel; and prior to the revocation hearing, the court confirmed appellant still wished to
    proceed pro se. After receiving evidence from two probation officers, the trial court
    found appellant guilty on both separate violations.         Appellant was subsequently
    sentenced and received 175 days in jail in the OVI case and 180 days in jail in the
    assault case, to be served consecutively. Appellant now appeals and assigns three
    errors. His first alleges:
    2
    {¶5}   “The trial court erred in imposing consecutive jail sentences in appellant’s
    revocation hearing.”
    {¶6}   Under his first assignment of error, appellant argues the trial court erred in
    ordering him to serve the jail terms from his original convictions consecutively after
    revoking community control. He maintains the trial court’s failure to state, in its original
    judgments on conviction, that a violation of community control could result in the
    imposition of consecutive sentences invalidates the underlying order. In other words,
    he maintains the trial court was without authority to run the sentences consecutive after
    revocation because they were not originally imposed consecutively.
    {¶7}   The state maintains the trial court was not required “to explain consecutive
    sentencing” to appellant during the original sentencing proceedings. Rather, the state
    argues, the trial court was simply imposing sentences that had already been issued in
    separate cases. And, because appellant knew jail time was possible if he violated, the
    court did not err in imposing a consecutive term.
    {¶8}   We first point out that the state misconstrues appellant’s argument.
    Appellant is not asserting the trial court was required to explain the possibility of
    consecutive sentences during the original, separate sentencing proceedings. Rather,
    he is arguing the trial court could not make the sentences run consecutively after
    revoking community control because they were not originally imposed consecutively in
    the initial judgment(s) on conviction.
    {¶9}   With this clarification in mind, appellant cites State v. Fankle, 2d Dist.
    Montgomery Nos. 26350, 26351, 26352, 2015-Ohio-1581, in support of his position. In
    Fankle, the defendant received a 180-day suspended jail sentence and was placed on
    3
    community control. Two months later, the defendant was charged with two additional
    crimes and received two 180-day jail terms, to run concurrently with each other, with
    120 days suspended. He was again placed on community control. One month later, the
    defendant was charged with violating a protection order. For this violation, the trial court
    imposed a 180-day jail term, revoked the community control in the first two cases, and
    reinstated the prior suspended sentences.        The trial court ran each 180-day term
    consecutively.   On appeal, the defendant did not take issue with the trial court’s
    authority to order his sentence from the third case to run consecutively with the
    sentences arising from his first and second. Instead, he argued that the trial court
    lacked authority to run the sentences of the first two cases consecutively because the
    trial court had not included language regarding consecutive sentences in these
    judgment entries. The Second District agreed.
    {¶10} While acknowledging that the trial court could not have included
    consecutive sentencing language in the first judgment entry, as it was the sole sentence
    at the time, the court emphasized the second sentencing entry failed to include
    consecutive-sentencing language, despite the existence of the first conviction. Because
    the trial court had the ability to include such language, or at least expressly inform the
    defendant, but failed to do so, the Second District concluded the first two sentences
    were concurrent jail terms. And the trial court’s order to run the suspended sentences
    consecutively was an impermissible modification of the defendant’s previously entered
    definite sentences. 
    Id. at ¶8.
      The facts of Fankle are legally analogous to the matter
    before this court.
    4
    {¶11} Both judgments from the Conneaut Municipal Court are “form entries” in
    which the trial court wrote in the details of the conviction and checked boxes for the
    conditions of community control it elected to impose. Each judgment entry includes a
    condition which provides the sentence could be served “[c]onsecutive to all other
    [s]entences in all other cases” if a defendant violates community control. The trial court
    did not check this box in either judgment entry.       In the OVI case, appellant was
    sentenced in February 2018 to a suspended 180-day term and placed on community
    control. As it was the only matter pending at the time, it would make little sense for the
    trial court to indicate that sentence would be served consecutively with other cases in
    the event of a violation. Because, however, appellant was sentenced in the assault
    case one month after the OVI case, the trial court had the ability to check the box and
    thereby require appellant to serve the sentences consecutively in the event his
    community control was revoked as a result of a violation. The trial court failed to do so
    and thus it lacked authority to run the sentences consecutively after revocation.
    {¶12} R.C. 2929.41(B)(1) provides: “A jail term or sentence of imprisonment for
    a misdemeanor shall be served consecutively to any other prison term, jail term, or
    sentence of imprisonment when the trial court specifies that it is to be served
    consecutively * * *.” The trial court did not specify appellant could serve the sentences
    for the OVI and assault consecutively in either judgment entry. Had the court checked
    the box indicating “[c]onsecutive to all other [s]entences in all other cases,” appellant
    would have been on notice of the potential for such a sentence, although the full
    implication of this condition is, at best, ambiguous. Further, as no transcript of the
    original sentencing hearing was filed with this court, we have no way of knowing
    5
    whether appellant was placed on notice of the possibility of consecutive sentencing
    during those proceedings. When the trial court revoked appellant’s community control
    and imposed the suspended sentences, it was ordering into execution definite jail terms
    it had previously imposed.      By ordering the terms to be served consecutively, it
    impermissibly transcended the definite term of confinement it had previously ordered.
    We therefore hold the trial court erred in ordering appellant to serve the previously
    suspended sentences consecutively after revoking community control.
    {¶13} Appellant’s first assignment of error is sustained.
    {¶14} Appellant’s second assignment of error provides:
    {¶15} “The trial court erred in accepting appellant’s waiver of counsel in his
    revocation hearing.”
    {¶16} Appellant contends the trial court failed to fully inquire into whether he fully
    understood the nature of his right to counsel before accepting his relinquishment of the
    same. He cites the trial court’s initial inquiry at the revocation hearing where the trial
    court noted appellant was representing himself pro se. The court then asked: “Do you
    still wish to do that?” To which appellant responded: “Correct.”
    {¶17} Crim.R. 32.3 sets forth the procedural framework for community control
    revocation hearing.    Subsection (B) governs a defendant’s right to counsel in such
    proceedings. It provides, in relevant part:
    {¶18} Where a defendant convicted of a serious offense is unable to
    obtain counsel, counsel shall be assigned to represent the
    defendant, unless the defendant after being fully advised of his or
    her right to assigned counsel, knowingly, intelligently, and
    voluntarily waives the right to counsel. Where a defendant
    convicted of a petty offense is unable to obtain counsel, the court
    may assign counsel to represent the defendant.
    6
    {¶19} Appellant was convicted of two petty offenses (i.e., offenses that involve a
    penalty of up to six months confinement.). The rule indicates, if a defendant is unable to
    obtain counsel, the court may assign counsel.       The language of the rule suggests
    representation by counsel during a revocation hearing is discretionary and the trial
    court’s discretion is only activated upon a defendant’s representation that he or she is
    unable to obtain counsel. Appellant did not state he was unable to obtain counsel, but
    merely indicated he wished to represent himself.            In this respect, the court’s
    discretionary authority to assign counsel was not triggered.
    {¶20} Regardless of this point, the record reveals a pre-revocation hearing was
    held before the court at which appellant waived representation by counsel. Appellant
    did not produce a transcript of the pre-revocation hearing. “The duty to provide a
    transcript for appellate review falls upon the appellant. This is necessarily so because
    an appellant bears the burden of showing error by reference to matters in the record.”
    Knapp v. Edwards Laboratories, 
    61 Ohio St. 2d 197
    , 199 (1980) citing State v. Skaggs,
    
    53 Ohio St. 2d 162
    (1978). As appellant has not provided a complete record of all
    proceedings relevant to the error he assigns, we shall presume regularity below.
    {¶21} Appellant’s second assignment of error lacks merit.
    {¶22} Appellant’s third assignment of error provides:
    {¶23} “Did the trial court err by improperly considering Signature Health reports
    in revoking appellant’s probation?”
    {¶24} Appellant contends the trial court erred in considering unauthenticated
    records from a counseling clinic appellant visited pursuant to his community control
    conditions vis-à-vis the OVI conviction. We do not agree.
    7
    {¶25} A community control revocation hearing is not a criminal trial, and, as a
    result, the state does not have the burden of establishing a violation with proof beyond a
    reasonable doubt. State v. Stockdale, 11th Dist. Lake No. 96-L-172, 
    1997 WL 663688
    ,
    *3 (Sept. 26, 1997). Rather, the state need only present evidence of a substantial nature
    showing that the probationer has breached a term or condition of her probation. Id.; see
    also State v. Hilson, 7th Dist. No. 11-MA-95, 2012-Ohio-4536, ¶10. “[A] revocation
    hearing is an informal one, ‘structured to assure that the finding of a * * * violation will be
    based on verified facts and that the exercise of discretion will be informed by an
    accurate knowledge of the (defendant’s) behavior.’” State v. Orr, 11th Dist. No. 2008-G-
    2861, 2009-Ohio-5515, ¶21, quoting State v. Alexander, 1st Dist. No. C-070021, 2007-
    Ohio-5457, at ¶7.
    {¶26} While the trial court did peruse a Signature Health report in open court, no
    objection was entered.      Moreover, the testimonial evidence demonstrated appellant
    failed to adhere to many and various conditions of his community control.              To wit,
    evidence was adduced that he was to attend and complete driver intervention; he also
    failed to follow recommended treatment and failed to attend two probation
    appointments; he additionally tested positive for THC and benzodiazepines; and, finally,
    he failed to complete a diagnostic assessment at Signature Health within 30 days. Any
    error in the court’s consideration of the unauthenticated document is rendered harmless
    by the weight of the evidence supporting the revocation.
    {¶27} Appellant’s third assignment of error lacks merit.
    {¶28} For the reasons discussed in this opinion, the judgment of the Conneaut
    Municipal Court sentencing appellant to consecutive jail terms is reversed. Because
    8
    appellant could only be sentenced to concurrent terms, the maximum jail sentence he
    could receive was 180 days. The judgment at issue was entered on March 19, 2019; as
    such, appellant was eligible for release on September 14, 2019. It is therefore the order
    of this court that appellant be immediately released from the Ashtabula County Jail.
    MATT LYNCH, J., concurs,
    TIMOTHY P. CANNON, J., concurs with a Concurring Opinion.
    _____________________
    TIMOTHY P. CANNON, J., concurring.
    {¶29} I concur with the judgment of the majority but write separately to expound
    upon why I believe it is appropriate in this case to follow the Second District’s opinion in
    State v. Fankle, 2d Dist. Montgomery Nos. 26350, et seq., 2015-Ohio-1581.
    {¶30} Pursuant to R.C. 2929.25(A)(1), a trial court has two options when
    sentencing an offender for a misdemeanor.           The sentencing court may either (a)
    “directly impose a sentence that consists of one or more community control sanctions”
    or (b) “impose a jail term * * *, suspend all or a portion of the jail term imposed, * * * and
    place the offender under a community control sanction.”
    {¶31} In Fankle, the sentencing court did not directly impose sentences that
    consisted of community control sanctions.         Rather, it imposed jail terms upon the
    offender, suspended a portion of the jail terms imposed, and then placed the offender
    under community control sanctions. When it imposed the partially suspended jail term
    in the second case, the sentencing court “said nothing about the possibility of
    consecutive jail terms if community control were revoked.” 
    Fankle, supra
    , at ¶11. It was
    9
    because the sentencing court chose option (b) under R.C. 2929.25(A)(1) that the
    Second District was “compelled to conclude that the trial court imposed concurrent jail
    terms.” Id.; see R.C. 2929.41(B)(1) (“A jail term or sentence of imprisonment for a
    misdemeanor shall be served consecutively to any other prison term, jail term, or
    sentence of imprisonment when the trial court specifies that it is to be served
    consecutively * * *.”) (emphasis added).
    {¶32} Here, the trial court also chose option (b) when sentencing appellant. It
    imposed definite jail terms, suspended all or a portion of the jail terms imposed, and
    placed appellant under community control sanctions. When it imposed the suspended
    jail term in the second case, the trial court chose not to advise appellant, at least not in
    the sentencing form entry, that a violation of those sanctions could result in consecutive
    jail terms.
    {¶33} On the other hand, if the trial court had chosen option (a) when sentencing
    appellant, i.e., if it had directly imposed a sentence of community control, I believe the
    outcome here would have been different.             In that scenario, pursuant to R.C.
    2929.25(A)(3), the trial court is required to notify the offender that the court may do one
    of the three things set forth in R.C. 2929.25(A)(3)(a), (b) or (c) upon finding a violation of
    the community control sanctions.       There is no such requirement if the sentence is
    imposed under option (b). When an offender is sentenced for violating community
    control that was directly imposed, a definite jail term is not imposed until the sentencing
    hearing for the violation. This is because the jail term is actually being imposed for
    violating community control. Thus, the trial court would have the discretion at that time
    to impose consecutive jail terms.
    10
    {¶34} I recognize we have no transcript of the original sentencing hearing. It
    may be that the trial court orally advised appellant that the suspended sentence could
    be imposed consecutively to any other sentence.          However, if there is a sentence
    imposed under subsection (b), the advisement that the sentence could be consecutive
    needs to be included in the original sentencing entry.
    11
    

Document Info

Docket Number: 2019-A-0044 2019-A-0045

Citation Numbers: 2019 Ohio 3997

Judges: Rice

Filed Date: 9/30/2019

Precedential Status: Precedential

Modified Date: 9/30/2019