State v. Joseph

• Decision Date: 24 June 2014
• Citation: 2014 Ohio 2733
• Parties: State of Ohio, Plaintiff-Appellee, v. Jamigo I. Joseph, Defendant-Appellant.
• Court: Ohio Court of Appeals

2014 Ohio 2733

State of Ohio, Plaintiff-Appellee, v. Jamigo I. Joseph, Defendant-Appellant.

No. 13AP-752

M.C. No. 13CRB-3826

13AP-753

M.C. No. 13CRB-7020

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

Rendered: June 24, 2014

(REGULAR CALENDAR)

DECISION

Richard C. Pfeiffer, Jr., City Attorney, and Orly Ahroni, for appellee.

Yeura Venters, Public Defender, and Timothy E. Pierce, for appellant.

APPEALS from the Franklin County Municipal Court

CONNOR, J.

{¶ 1} Defendant-appellant, Jamigo I. Joseph, appeals from a judgment of the Franklin County Municipal Court, finding him guilty, pursuant to guilty plea, of two charges of violating a protection order, in violation of R.C. 2919.27. Because (1) R.C. 2930.14 does not apply to this action, (2) the trial court did not deprive defendant of his right to due process of law, and (3) the trial court did not deprive defendant of his rights under Crim.R. 32(A), we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On April 2, 2012, in case No. 12CRB-6987, defendant pled guilty to the charge of violating a protection order, a misdemeanor of the first degree. The protected person under the protection order was Angel Washington. The court sentenced defendant to a 180-day prison term, but suspended 90 days of the prison term, andplaced defendant on one year of reporting probation. As part of his probation requirements, defendant was obligated to complete a domestic violence counseling class, to stay away from Washington, and not to incur any new charges.

{¶ 3} On January 23, 2013, the court signed an entry extending defendant's probation until April 2, 2014, or until defendant completed domestic violence counseling. On February 19, 2013, defendant's probation officer informed the court that defendant had violated his probation by incurring a new charge for violating a protection order. On July 26, 2013, defendant's probation officer informed the court that defendant had violated his probation by incurring another charge for violating a protection order charge and because defendant was unsuccessfully terminated from his domestic violence counseling for excessive absences. Defendant's probation officer recommended that defendant's probation be revoked for these violations.

{¶ 4} On February 17, 2013, under case No. 13CRB-3826, the state filed a complaint against defendant for violating a protection order, a misdemeanor of the first degree. The complaint stated that on January 30, 2013, defendant violated the terms of a protection order by making contact with Washington via telephone. On March 24, 2013, under case No. 13CRB-7020, the state filed a complaint against defendant for violating a protection order, a misdemeanor of the first degree. The complaint stated that on March 23, 2013, defendant violated the terms of a protection order by making contact with Washington via telephone. On August 5, 2013, the court held a joint probation revocation hearing, plea hearing, and sentencing hearing on the three separate cases.

{¶ 5} At the hearing, the court noted that the attorneys had worked out a plea bargain whereby defendant would plead guilty to the two new charges violating a protection order, and the court would revoke defendant's probation in case No. 12CRB-6987. The court engaged in a plea colloquy with the defendant and accepted defendant's guilty plea to the two new charges.

{¶ 6} The state noted that the prosecuting witness, Washington, was present in court and had "provided the Court with a copy of the victim impact statement under [R.C.] 2930.14." (Tr. 4.) The prosecutor asked for the maximum sentence on the charges, noting that the two new charges were the "sixth and seventh violations of thesame [protection] order with the same prosecuting witness." (Tr. 4.) Defense counsel noted that the parties had "discussed these cases off the record prior to going on the record here today," and noted it was her understanding that the court was planning to "review the victim impact statement as part of the Court's [sentencing] decision." (Tr. 5-6.) Defense counsel objected "to the Court reviewing that without defense counsel being permitted to see it first." (Tr. 6.) The prosecutor noted the state was requesting that the victim's letter not be shared with the defendant "simply because of the sensitive nature of what is contained in there." (Tr. 7.) The parties made the victim's letter an exhibit for purposes of the instant appeal.

{¶ 7} The court terminated defendant's probation in case No. 12CRB-6987, sentenced defendant to a 154-day prison term for the charge in case No. 13CRB-3826 and to a 154-day prison term for the charge in case No. 13CRB-7020, and credited defendant with 14 days for time served. The court ordered that defendant serve the two prison terms consecutively. The court informed defendant that he did not give defendant the maximum sentence of "365 [days] because you came right out and admitted you did wrong." (Tr. 10.) However, the court informed defendant that he wanted to give him "enough time so you know you are not to contact her any more or there is more jail time coming to you." (Tr. 10.)

II. ASSIGNMENTS OF ERROR

{¶ 8} Defendant appeals, assigning the following errors:

First Assignment of Error: During Appellant's sentencing hearing the lower court erred by relying on an ex parte communication from the victim in letter form containing new material facts relevant to punishment without continuing the sentencing or taking other appropriate action to allow Appellant and his attorney an adequate opportunity to respond to the new material facts. The court's reliance on this ex parte communication violated R.C. 2930.14(B) as well as Appellant's right to due process of law under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution.

Second Assignment of Error: By denying Appellant access to the victim's letter or taking other appropriateactions affording Appellant and his attorney an opportunity to respond to its contents the lower court violated Rule 32 of the Ohio Rules of Criminal Procedure thereby implicating Appellant's right to allocution and to present mitigation in response to this ex parte evidence the court relied upon at sentencing.

III. FIRST ASSIGNMENT OF ERROR - R.C. 2930.14 AND DUE PROCESS

{¶ 9} Defendant's first assignment of error asserts the trial court violated R.C. 2930.14(B) in imposing defendant's sentence because the court relied on the victim's letter which contained new material facts, but the court did not allow defendant an adequate opportunity to respond to the new material facts. Defendant further asserts that, by relying on the victim's letter in imposing sentence but not allowing defendant to view the letter, the court violated defendant's right to due process of law. We note that it is unclear from the record whether the trial court relied on the letter, or merely considered it, in imposing sentence.

{¶ 10} The state addresses defendant's substantive arguments regarding R.C. 2930.14(B), but then notes that the statute is inapplicable to the instant action as defendant was sentenced for two misdemeanor violations of violating a protection order. After reviewing the applicable statutes, we agree that R.C. 2930.14 does not apply to this action. R.C. 2930.14 provides as follows:

(A) Before imposing sentence upon, or entering an order of disposition for, a defendant or alleged juvenile offender for the commission of a crime or specified delinquent act, the court shall permit the victim of the crime or specified delinquent act to make a statement. The court may give copies of any written statement made by a victim to the defendant or alleged juvenile offender and defendant's or alleged juvenile offender's counsel and may give any written statement made by the defendant or alleged juvenile offender to the victim and the prosecutor. The court may redact any information contained in a written statement that the court determines is not relevant to and will not be relied upon in the sentencing or disposition decision. The written statement of the victim or of the defendant or alleged juvenile offender is confidential and is not a public record as used in section 149.43 of the Revised Code. Any person to whom a copy of a written statement was released by thecourt shall return it to the court immediately following sentencing or disposition.

(B) The court shall consider a victim's statement made under division (A) of this section along with other factors that the court is required to consider in imposing sentence or in determining the order of disposition. If the statement includes new material facts, the court shall not rely on the new material facts unless it continues the sentencing or dispositional proceeding or takes other appropriate action to allow the defendant or alleged juvenile offender an adequate opportunity to respond to the new material facts.

{¶ 11} R.C. 2930.01 provides definitions for the terms used in Chapter 2930 of the Revised Code. Notably, R.C. 2930.01(A) defines "crime" to mean any of the following:

(1) A felony;

(2) A violation of section 2903.05, 2903.06, 2903.13, 2903.21, 2903.211, 2903.22, 2907.06, 2919.25, or 2921.04 of the Revised Code, a violation of section 2903.07 of the Revised Code as it existed prior to March 23, 2000, or a violation of a substantially equivalent municipal ordinance;¹

(3) A violation of division (A) or (B) of section 4511.19, division (A) or (B) of section 1547.11, or division (A)(3) of section 4561.15 of the Revised Code or of a municipal ordinance substantially similar to any of those divisions that is the proximate cause of a vehicle, streetcar, trackless trolley, aquatic device, or aircraft accident in which the victim receives injuries for which the victim receives medical treatment either at the scene of the accident by emergency medical services personnel or at a hospital, ambulatory care facility, physician's office, specialist's office, or

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