State v. Dagley

• Docket Number: 110947
• Decision Date: 04 August 2022
• Citation: 2022 Ohio 2671
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. BENJAMIN DAGLEY, Defendant-Appellant.
• Court: Ohio Court of Appeals

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2022-Ohio-2671

STATE OF OHIO, Plaintiff-Appellee, v. BENJAMIN DAGLEY, Defendant-Appellant.

No. 110947

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 4, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-620960-A

JUDGMENT AFFIRMED

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher, Assistant Prosecuting Attorney, for appellee.

Jonathan N. Garver, for appellant.

JOURNAL ENTRY AND OPINION

ANITA LASTER MAYS, P.J.

{¶ 1} Defendant-appellant Benjamin Dagley ("Dagley") appeals the trial court's determination that Dagley violated his community control sanctions and imposed the prison term handed down at the original sentencing. We affirm.

I. Background and Facts

{¶ 2} Dagley was originally indicted on nine counts arising from admitted self-help efforts after legal efforts seeking $1 million for a business dispute with the tenant business owners of a building owned by Dagley were unfruitful. Frustrated and believing that the building was unoccupied at the time, Dagley broke into the victims' premises, cut holes in containers, and knocked over 55-gallon drums resulting in a release of noxious gases and dangerous chemicals. A security guard required treatment for toxic gas exposure.

{¶ 3} Dagley was indicted for:

Count 1: Deployment, release, or use of a chemical, biological, or nuclear weapon, in violation of R.C. 2909.27(B)(4), a felony of the first degree;

Count 2: Felonious assault (serious physical harm to [B.E.]), in violation of R.C. 2903.11(A)(1), a felony of the second degree;

Count 3: Felonious assault (cause or attempt to cause physical harm to [B.E.] by means of a deadly weapon, to wit: toxic gas), in violation of R.C. 2903.11(A)(1), a felony of the second degree;

Count 4: Inducing panic (resulting in economic harm of $150,000 or more), in violation of R.C. 2917.31(A)(3), a felony of the third degree;

Count 5: Inducing panic (resulting in physical harm to any person), in violation of RC. 2917.31(A)(3), a felony of the fourth degree;

Count 6: Breaking and entering, in violation of R.C. 2911.13(B)(A)(3), a felony of the fifth degree; Count 7: Vandalism (physical harm to property of [business owners K.C. and/or E.C.]), in violation of R.C. 2909.05(B)(1)(a), a felony of the fifth degree;

Count 8: Vandalism (physical harm to property of [business owners K.C. and/or E.C.]), in violation of R.C. 2909.05(B)(1)(a), a felony of the fifth degree; and

Count 9: Extortion (threaten to commit crime of violence, to wit: vandalism), in violation of R.C. 2905.11(A)(2), a felony of the third degree.

{¶ 4} On June 25, 2018, pursuant to a plea agreement, Dagley pleaded guilty to amended Count 2 for attempted felonious assault under RC. 2923.02 and 2903.11(A)(1), a third-degree felony; Count 4, inducing panic under R.C. 2917.31(A)(3), a third-degree felony; and Count 7, vandalism, a fifth-degree felony, under RC. 2909.05(B)(1)(a). The remaining counts were nolled.

{¶ 5} On July 26, 2018, Dagley was sentenced to:

Sixty month(s) of community control/probation on each count, under supervision of the Adult Probation Department with the following conditions: defendant to abide by the rules and regulations of the Probation Department. Court orders defendant to be supervised by: Intensive Special Probation Supervision Unit, participate and successfully complete an anger management program. No contact with victim(s) as a condition of supervision, defendant is required to serve 30 days in county jail. Defendant is to report to county jail on July 27, 2018, at 8:00 a.m. Violation of the terms and conditions may result in more restrictive sanctions or a prison term of 36 month(s) as approved by law, 36 months at Lorain Correctional Institution [on] Count 2 (F3); 36 months at Lorain Correctional Institution Count 4 (F3); 12 months at Lorain Correctional Institution on Count 7 (F5). Counts are to run concurrently to each other for a total of 36 months in prison. Up to 3 years [discretionary post release control] on Counts 4 and 7. Mandatory [postrelease control] 3 years on Count 2. Defendant advised of postrelease control for 3 years mandatory. Defendant advised that if/when post release control supervision is imposed following his/her release from prison and if he/she violates that supervision or condition of postrelease control under RC 2967.131(B), parole board may impose a prison term as part of the sentence of up to one-half of the stated prison term originally imposed upon the offender. Supervision fees to be paid at a rate of $20.00 a month. Restitution ordered in the amount of $10,000.00 to Cleveland Plating; payable through the Probation Department. Restitution ordered in the amount of $3,113.40 to Cleveland Police Department; payable through the Probation Department. Restitution ordered in the amount of $2,257.46 to Division of Cleveland Fire; payable through the Probation Department. The defendant is ordered to pay a fine in the sum of $ 5,000.00. Fine is on Count F2. The court hereby enters judgment against the defendant in an amount equal to the costs of this prosecution. All motions not specifically ruled on prior to the filing of this judgment entry are denied as moot. Defendant ordered released.

Journal entry No. 104779942, p. 1 (July 26, 2018).

{¶ 6} Dagley served the 30-day sentence and regularly reported to his probation officer for three years. Dagley also met with the probation officer and executed the acknowledgment of the conditions of probation and penalties for violation. Dagley states he was advised at the August 24, 2021 probation meeting that he needed to make a payment toward his restitution obligation and that a probation violation had been requested. On August 26, 2021, the court scheduled a violation hearing for September 15, 2021.

{¶ 7} The probation department was advised on August 31, 2021, that Dagley had been involved in an incident involving an MSNBC reporter and cameraman in Mississippi. An August 31, 2021, journal entry provides "at the request of probation officer * * *, defendant has left the state of Ohio without permission. Capias to issue." Journal entry No. 118482756, p. 1. (Aug. 31, 2021). Dagley was taken into custody on September 4, 2021. The violation hearing was continued to September 29, 2021, due to Dagley's isolation per Covid protocols.

{¶ 8} Dagley appeared at the September 29, 2021 probation violation hearing represented by appointed counsel. Dagley admitted to the listed violations, expressed remorse, and was sentenced to a concurrent sentence of 36 months on Counts 2 and 4, and 12 months on Count 7.

{¶ 9} Dagley appeals.

II. Assignments of Error

{¶ 10} Dagley assigns nine errors:

I. Appellant was denied due process of law because he was not provided with timely notice of the alleged probation violations.

II. The trial court denied Appellant due process of law at the commencement of the probation violation hearing by inadequately and inaccurately advising Appellant of his rights at the probation violation hearing.

III. The trial court denied Appellant due process of law by considering the unsworn statements of the probation officer at Appellant's probation violation hearing.

IV. The trial court denied Appellant due process of law by accepting the vaguely worded admission offered by his attorney and by not addressing Appellant personally and ascertaining what charges Appellant was admitting to and what charges he was denying.

V. The sentence imposed by the court is contrary to law and a denial of due process of law because it is fundamentally unfair to place an offender on probation for five (5) years, after ordering him to pay restitution, a fine, the cost of supervision, and court costs, and then to punish him three (3) years later for not yet making restitution when he had been given five (5) years to complete the terms and conditions of his probation and when no payment schedule had ever been established by the court or the probation officer for the payment of restitution.

VI. The judgment and sentence imposed by the court is contrary to law and a denial of due process of law, and equal protection of the laws because it is unlawful to incarcerate an offender for failing to pay restitution, the fine, or court costs where the evidence demonstrates that Appellant was 53 years old, unemployed, living with his brother, had no assets, and there was no basis for concluding that he would be able to pay restitution, the fine, or court costs in the foreseeable future and where the court twice found him to be indigent in the same proceeding.

VII. The imposition of a maximum 12-month prison sentence for a "technical violation" of the community control sanction imposed on the vandalism charge is contrary to law.

VIII. The imposition of maximum terms of imprisonment when Appellant was found to have violated a community control sanction three (3) years after he was placed on probation is not supported by the record, is contrary to law, and constitutes a denial of due process of law.

IX. Appellant was denied his right to the effective assistance of counsel. Sixth and Fourteenth Amendments, Constitution of the United States; Article I, Section 10, Constitution of the State of Ohio.

III. Scope of Review

{¶ 11} "The revocation of community control sanctions can result in a prison sentence; thus, a probationer must be accorded due process at the revocation hearing." State v. English, 8th Dist. Cuyahoga No. 109645, 2021-Ohio-850, ¶ 11, citing State v. Bailey, 8th Dist. Cuyahoga No. 103114, 2016-Ohio-494, ¶ 9, citing Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); see also Crim.R. 32.2(A).

{¶ 12} The minimum due process rights to be afforded are:

(1) written notice of

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