State v. Cozzone , 114 N.E.3d 601 ( 2018 )

[Cite as State v. Cozzone, 2018-Ohio-2249.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-G-0141
- vs - :
MADISON K. COZZONE, :
Defendant-Appellant. :
Criminal Appeal from the Geauga County Court of Common Pleas.
Case No. 2012 C 000154.
Judgment: Affirmed in part and reversed in part; remanded.
James R. Flaiz, Geauga County Prosecutor, and Christopher J. Joyce, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For
Plaintiff-Appellee).
Anthony J. Bondra, 1414 South Green Road, Suite 310, Cleveland, OH 44121 (For
Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Madison K. Cozzone, appeals from the October 17, 2017 order
of the Geauga County Court of Common Pleas. Appellant raises issues pertaining to her
sentence. For the following reasons, the trial court’s judgment is affirmed in part and
reversed in part, and the matter is remanded for resentencing.
{¶2} Appellant was previously employed as a pharmacy technician in a
supermarket pharmacy. After the pharmacy received complaints from customers
indicating their prescriptions for various strengths of Oxycodone/APAP did not contain the
full amount of prescribed medication, the pharmacy surveillance footage was reviewed.
The footage showed appellant tampering with customer prescriptions on September 27,
October 8, and October 17, 2012. Appellant was questioned regarding the incidents and
admitted to stealing Oxycodone/APAP and Xanax from customer prescriptions.
{¶3} On December 7, 2012, appellant was indicted on three counts of Theft of
Drugs, fourth-degree felonies in violation of R.C. 2913.02(A)(1) and (B)(6), and one count
of Aggravated Possession of Drugs, a fifth-degree felony in violation of R.C. 2925.11(A)
and (C)(1)(a). Appellant entered a plea of not guilty.
{¶4} On March 28, 2013, appellant filed a motion requesting intervention in lieu
of conviction. A hearing was held, and the court found appellant met the eligibility
requirements and granted her motion pursuant to R.C. 2951.041. The court accepted
appellant’s guilty plea, found her guilty, and stayed all criminal proceedings against her.
Appellant was ordered to serve three years of rehabilitation pursuant to her intervention
plan and to comply with the conditions outlined by the court. The court notified appellant
that she could be sentenced for a violation of intervention to 18 months in prison on each
of Count 1, Count 2, and Count 3 and 12 months in prison on Count 4. The trial court
stated Count 3 and Count 4 would merge for purposes of sentencing and also notified
appellant regarding post-release control.
{¶5} On January 9, 2015, the Adult Probation Department filed a petition alleging
appellant had violated the conditions of her intervention. Appellant had failed to report to
her Supervising Officer on December 10, December 17, and December 31, 2014; failed
to verify her chemical dependency treatment; and tested positive for opiates on December
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19 and December 24, 2014. At a hearing on the petition, appellant admitted to the
violations. The trial court ordered a presentence investigation report (“PSI”).
{¶6} On July 10, 2015, the trial court sentenced appellant to a total of three years
of community control sanctions. Appellant was ordered to serve six months of residential
sanctions in the Geauga County Safety Center and up to six months in the NorthEast
Ohio Community Alternative Program (“NEOCAP”) with the balance of community control
to be served as nonresidential sanctions. Appellant was further ordered to pay a fine and
costs. The trial court notified appellant she faced a potential prison term of 66 months for
a violation of community control sanctions.
{¶7} After a review hearing, appellant was released from NEOCAP on January
14, 2016, and the trial court suspended her remaining period of incarceration in the
Geauga County Safety Center.
{¶8} On July 26, 2016, the Adult Probation Department filed a petition alleging
appellant had violated the conditions of her community control. Appellant had overdosed
on heroin on July 22, 2016. Appellant admitted to the violation at a hearing on the petition.
Appellant was ordered to remain in the Geauga County Safety Center. The hearing was
continued for appellant to be interviewed by a physician and later resumed on October 3,
2016. The trial court modified and extended appellant’s community control for a total
period of five years under the same conditions imposed in its July 10, 2015 entry with the
added condition that appellant would participate in the Lake-Geauga Recovery Centers’
alcohol and drug program and follow all recommendations.
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{¶9} On May 16, 2017, the Adult Probation Department filed another petition
alleging appellant had violated the conditions of community control. Appellant had
overdosed on heroin on May 12, 2017.
{¶10} On October 5, 2017, appellant filed a mitigation packet, including opioid
treatment progress reports, medical records, an employment letter, and personal letters
from appellant’s family and friends.
{¶11} A hearing on the Adult Probation Department’s petition was held on October
6, 2017. Appellant admitted to the community control violation. After finding appellant
had violated her community control sanctions, the trial court merged Count 4 with Count
3 and sentenced appellant to a prison term of 18 months on each of Count 1, Count 2,
and Count 3 to be served consecutively for a total prison term of 54 months with 380 days
of jail-time credit. Regarding the imposition of consecutive sentences, the trial court
stated the following at the hearing:
I do find that consecutive service is necessary to protect the public
from future crime on the part of this defendant and to punish this
defendant. I also find that consecutive sentences are not
disproportionate to the seriousness of the defendant’s conduct and
to the danger she poses to the public.
And people may want to say, well, she’s not hurting the public. Yes,
she is. At the very least, again, she is stealing medication belonging
to somebody else.
And each call on an overdose where the emergency squads get to
come and treat her is another time that that squad’s unavailable to
somebody who has a medical need that this defendant has chosen,
albeit unwittingly because of addiction, to utilize those services for
herself. So the public does need protection from her conduct.
And certainly her history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by her.
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Appellant was notified of post-release control and the consequences for violating post-
release control. The trial court further invited the parties to submit, after the sentence
was journalized, written arguments addressing whether the amendments to R.C. 2929.15
were applicable to appellant’s case.
{¶12} The trial court’s sentencing entry was filed October 17, 2017. The
sentencing entry states:
Pursuant to R.C. §2929.14(C)(4), the Court finds that consecutive
sentences are necessary to protect the public from future crime and
to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and that pursuant to
§R.C. 2929.14(C)(4)(a), the offender committed one or more of the
multiple offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section 2929.16, 2929.17,
or R.C. 2929.18 of the Revised Code, or was under post-release
control for a prior offense, and pursuant to R.C. 2929.14(C)(4)(c), the
offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by
the offender.
We note the finding under R.C. 2929.14(C)(4)(a) included in the sentencing entry was not
made at the sentencing hearing.
{¶13} On October 24, 2017, appellant filed a motion for reconsideration of her
sentence in response to the trial court’s invitation to brief the issue of the applicability of
R.C. 2929.15. Appellant maintained that under newly enacted R.C. 2929.15(B)(1)(c), the
maximum prison term that could be imposed for a “technical” community control violation
on a theft-related fourth-degree felony was 180 days per case. The state filed a response,
arguing appellant’s violation of community control was not “technical” in nature. On
November 16, 2017, the trial court overruled appellant’s motion, noting Ohio law does not
provide for the filing of motions for reconsideration of sentences.
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{¶14} Appellant noticed a timely appeal from the trial court’s October 17, 2017
sentencing entry.
{¶15} Appellant asserts three assignments of error on appeal. They state:
[1.] The sentence imposed was not supported by the record and was
contrary to law.
[2.] The imposition of maximum consecutive sentences was not
supported by the record and it is contrary to law.
[3.] The trial court erred by not following the mandates of R.C.
2929.15.
{¶16} Under appellant’s first assignment of error, she argues her sentence is not
supported by the record and is contrary to law because the trial court failed to consider
the purposes and principles of felony sentencing set forth in R.C. 2929.11 and the
sentencing factors in R.C. 2929.12.
{¶17} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing * * * if it clearly and
convincingly finds * * * (a) [t]hat the record does not support the sentencing court’s
findings under division * * * (C)(4) of section 2929.14, or * * * (b) [t]hat the sentence is
otherwise contrary to law.” R.C. 2953.08(G)(2).
{¶18} “‘A sentence is contrary to law if (1) the sentence falls outside the statutory
range for the particular degree of offense, or (2) the trial court failed to consider the
purposes and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing
factors in R.C. 2929.12.’” State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-
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7127, ¶18, quoting State v. Price, 8th Dist. Cuyahoga No. 104341, 2017-Ohio-533, ¶14
(citations omitted). “‘When a sentence is imposed solely after the consideration of the
factors in R.C. 2929.11 and 2929.12, appellate courts “may vacate or modify any
sentence that is not clearly and convincingly contrary to law”’” only if the appellate court
clearly and convincingly finds that the record does not support the sentence. Id. at ¶18,
quoting Price, supra, at ¶14, quoting State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-
1002, ¶23.
{¶19} Appellant could have received a prison term of 18 months on each of Count
1, Count 2, and Count 3. See R.C. 2913.02(B)(6) and R.C. 2929.14(A)(4). Therefore,
after merging Count 4 with Count 3, the trial court’s imposition of a prison term of 18
months on each of Count 1, Count 2, and Count 3 is within the statutory range. The trial
court did not explicitly state it considered R.C. 2929.11 and R.C. 2929.12 when it imposed
appellant’s sentence; however, we presume a trial court considered R.C. 2929.11 and
R.C. 2929.12 from a silent record. State v. Foster, 11th Dist. Portage No. 2011-P-0087,
2012-Ohio-3744, ¶9.
{¶20} To ensure the sentence complies with the overriding principles of felony
sentencing as stated in R.C. 2929.11, a court imposing a felony sentence is required to
consider the seriousness and recidivism factors found in R.C. 2929.12. The trial court,
however, “is not required to ‘use specific language or make specific findings on the record
in order to evince the requisite consideration of the applicable seriousness and recidivism
factors (of R.C. 2929.12.)’” State v. Webb, 11th Dist. Lake No. 2003-L-078, 2004-Ohio-
4198, ¶10, quoting State v. Arnett, 88 Ohio St. 3d 208, 215 (2000); see also State v.
O’Neil, 11th Dist. Portage No. 2010-P-0041, 2011-Ohio-2202, ¶34. Further, the “trial
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court is not required to give any particular weight or emphasis to a given set of
circumstances” when considering the statutory factors. State v. DelManzo, 11th Dist.
Lake No. 2007-L-218, 2008-Ohio-5856, ¶23.
{¶21} Prior to imposing sentence, the trial court stated it had reviewed the
mitigation packet provided by appellant’s counsel. The trial court also heard from a
representative of the Lake-Geauga Recovery Centers. The trial court heard from the
prosecutor, who stated: “Your, Honor, in reviewing the history of supervision that was
provided to the state * * * I’m at a loss I suppose for what else I can recommend to this
Court other than a period of incarceration, more specifically prison.” Finally, the trial court
reviewed appellant’s history of violating community control in the present case. The trial
court stated:
[I]n imposing sentence I have to take into account her conduct. And,
again, the overdoses are how she got caught. But since May there
has been no reporting. She hasn’t shown up once to contact her
probation officer. And that’s consistent with behavior the Court has
seen with this defendant.
{¶22} A prison term was appropriate where appellant continually failed to comply
with the reasonable conditions of intervention and community control. Appellant has
failed to demonstrate that the trial court did not properly consider and weigh the statutory
purposes and principles of felony sentencing or the statutory seriousness and recidivism
factors.
{¶23} Appellant’s first assignment of error is without merit.
{¶24} Under appellant’s second assignment of error, she argues the record does
not support the trial court’s findings for the imposition of consecutive sentences.
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{¶25} R.C. 2929.41, which governs multiple sentences, provides, in pertinent part:
“Except as provided in * * * division (C) of section 2929.14, * * * a prison term, jail term,
or sentence of imprisonment shall be served concurrently with any other prison term, jail
term, or sentence of imprisonment imposed by a court of this state, another state, or the
United States.” R.C. 2929.41(A) (emphasis added).
{¶26} Pursuant to R.C. 2929.14(C)(4), a trial court may order separate prison
terms for multiple offenses to be served consecutively only if the court finds it “necessary
to protect the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public[.]” The trial court must also find that one of
the following statutory factors applies:
(a) The offender committed one or more of the multiples offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or unusual
that no single prison term for any of the offenses committed as part
of any of the courses of conduct adequately reflects the seriousness
of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
{¶27} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry[.]” State v. Bonnell, 140 Ohio St. 3d
209, 2014-Ohio-3177, ¶37. The trial court’s failure to incorporate its findings in the
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sentencing entry after making them at the sentencing hearing does not render the
sentence contrary to law and can be corrected through a nunc pro tunc entry. Id. at ¶30.
However, the failure to make the findings at the sentencing hearing renders the sentence
contrary to law, and the matter must be remanded for resentencing. See id. at ¶36-37.
The trial court has no obligation, however, to engage in a “word-for-word recitation” of the
language in the statute or to set forth its reasons to support its findings, as long as they
are discernible in the record. Id. at ¶28-29. “[A]s long as the reviewing court can discern
that the trial court engaged in the correct analysis and can determine that the record
contains evidence to support the findings, consecutive sentences should be upheld.” Id.
at ¶29.
{¶28} Although the trial court made findings necessary to order appellant to serve
her sentence consecutively, the finding in the sentencing entry made pursuant to R.C.
2929.14(C)(4)(a), that the offenses were committed while the appellant was awaiting trial
or sentencing or was under a sanction or post-release control, was not made by the judge
at the sentencing hearing. Further, our record does not support this finding.
{¶29} The trial court also made a finding pursuant to R.C. 2929.14(C)(4)(c) that
appellant’s “history of criminal conduct demonstrates consecutive sentences are
necessary to protect the public from future crime by the offender.” This finding was made
at both appellant’s sentencing hearing and in the trial court’s judgment entry of sentence;
however, we clearly and convincingly find that the record does not support the finding.
{¶30} At the sentencing hearing, the trial court reviewed the offenses leading to
the instant case and appellant’s conduct of violating court orders and overdosing on
drugs. However, the judge explicitly stated: “I have to note that I am not imposing
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sentence for overdoses. I’m not. I’m not imposing sentences for drug use. I’m not.” After
a review of appellant’s PSI, we find appellant’s criminal history includes only the offenses
charged in the instant case and four minor traffic violations. Appellant has no significant
prior criminal history. We, therefore, clearly and convincingly find that the record does
not support the trial court’s finding under R.C. 2929.14(C)(4)(c) as stated at the
sentencing hearing and included in the sentencing entry.
{¶31} Because we clearly and convincingly find that the trial court’s findings are
not supported by the record, appellant’s sentence is contrary to law. The sentence must
be reversed and the matter remanded for resentencing.
{¶32} Appellant’s second assignment of error has merit.
{¶33} Under her third assignment of error, appellant argues the trial court abused
its discretion when it overruled her motion for reconsideration.
{¶34} It is well established that a trial court cannot reconsider a valid final
judgment in a criminal case. State ex rel. Hansen v. Reed, 63 Ohio St. 3d 597, 599 (1992),
citing Brook Park v. Necak, 30 Ohio App. 3d 118, 120 (8th Dist.1986). A motion for
reconsideration of a final judgment in the trial court is a nullity. Pitts v. Ohio Dept. of
Transp., 67 Ohio St. 2d 378, 379 (1981). A purported judgment ruling on a motion for
reconsideration is likewise a nullity. Id. at 381. The trial court’s invitation to brief the
potential applicability of R.C. 2929.15 to this case does not change the fact that it had
already imposed a final judgment of sentence. Accordingly, we will not consider
appellant’s third assignment of error as it pertains to her motion for reconsideration.
{¶35} We consider appellant’s third assignment of error only to the extent she
argues her sentence was not imposed in accordance with R.C. 2929.15(B).
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{¶36} Appellant argues her community control violation was “technical” in nature
and that, therefore, under newly enacted R.C. 2929.15(B), the maximum prison term that
could be imposed for the violation was 180 days.
{¶37} R.C. 2929.15(B) provides the penalties a trial court may impose upon an
offender for a violation of community control sanctions. R.C. 2929.15(B) was recently
amended by 2017 H.B. 49.1 The amendment places limitations on the prison sentence
that may be imposed for an offender who has violated community control for certain
fourth- or fifth-degree felonies. R.C. 2929.15 states, in pertinent part:
(B)(1) If the conditions of a community control sanction are violated
or if the offender violates a law or leaves the state without the
permission of the court or the offender’s probation officer, the
sentencing court may impose upon the violator one or more of the
following penalties:
***
(c) A prison term on the offender pursuant to section 2929.14 of the
Revised Code and division (B)(3) of this section, provided that a
prison term imposed under this division is subject to the following
limitations, as applicable:
***
(ii) If the prison term is imposed for any technical violation of the
conditions of a community control sanction imposed for a felony of
the fourth degree that is not an offense of violence and is not a
sexually oriented offense or for any violation of law committed while
under a community control sanction imposed for such a felony that
consists of a new criminal offense and that is not a felony, the prison
term shall not exceed one hundred eighty days.
1. 2017 H.B. 2017 took effect on September 29, 2017. Prior to the amendment, R.C. 2929.15(B)(1) stated:
“If the conditions of a community control sanction are violated or if the offender violates a law or leaves the
state without the permission of the court or the offender’s probation officer, the sentencing court may impose
upon the violator one or more of the following penalties: * * * (c) A prison term on the offender pursuant to
section 2929.14 of the Revised Code.
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{¶38} The General Assembly has not defined “technical” under R.C. 2929.15.
Other districts, however, have addressed “technical” violations as they pertain to
revocation of community control sanctions and violations of parole. In Cearfoss, the Fifth
Appellate District stated that the appellant’s failure to follow the probation officer’s order
to open the front door was a “technical” violation. State v. Cearfoss, 5th Dist. Stark No.
2004CA00085, 2004-Ohio-7310, ¶20. In Jenkins, the Second Appellate District
determined that the appellant’s failure to notify his parole officer before moving out of his
residence where a convicted felon resided was “at best a ‘technical’ violation.” State v.
Jenkins, 2d Dist. Champaign No. 2005-CA-22, 2006-Ohio-2639, ¶15. Additionally, the
Twelfth Appellate District has explained that “technical” violations, albeit in the context of
parole, are “‘“those violations of the terms and conditions of the parole agreement which
are not criminal in nature[,] such as failure to report to the parole officer, association with
known criminals, leaving employment, leaving the State, etc.”’” Amburgey v. Ohio Adult
Parole Auth., 12th Dist. Madison No. CA2001-07-016, 2001 WL 1256365, *3 (Oct. 22,
2001), quoting State ex rel. Taylor v. Ohio Adult Parole Auth., 66 Ohio St. 3d 121, 124
(1993), quoting Inmates’ Councilmatic Voice v. Rogers, 541 F.2d 633, 635, fn.2 (6th
Cir.1976).
{¶39} Here, appellant violated the terms of her community control when she
overdosed on heroin. Although appellant was not charged or convicted for this conduct,
overdosing on drugs is criminal in nature and cannot be considered a “technical” violation
of the terms and conditions of community control. Accordingly, appellant’s argument is
not well taken.
{¶40} Appellant’s third assignment of error is without merit.
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{¶41} The judgment of the Geauga County Court of Common Pleas is affirmed in
part and reversed in part, and the matter is remanded for resentencing. On remand, the
trial court may consider applicable findings that are supported by the record under R.C.
2929.14(C)(4) for the imposition of consecutive sentences, or the trial court may impose
concurrent sentences.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.
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