State v. Monroe
| Decision Date | 21 February 2020 |
| Docket Number | Appellate Case No. 2018-CA-124 |
| Citation | 2020 Ohio 597 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. DEON MONROE Defendant-Appellant |
| Court | Ohio Court of Appeals |
2020 Ohio 597
STATE OF OHIO Plaintiff-Appellee
v.
DEON MONROE Defendant-Appellant
Appellate Case No. 2018-CA-124
COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
February 21, 2020
Trial Court Case No. 2017-CR-551
(Criminal Appeal from Common Pleas Court)
OPINION
JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor's Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
TRAVIS KANE, Atty. Reg. No. 0088191, 130 West Second Street, Suite 460, Dayton, Ohio 45402 Attorney for Defendant-Appellant
FROELICH, J.
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{¶ 1} Deon Monroe appeals from a judgment of the Clark County Court of Common Pleas, which found that he violated the terms of his community control, revoked his community control sanctions, and ordered him to serve concurrent sentences totaling two years in prison. For the following reasons, the trial court's judgment will be affirmed in part, reversed in part, and remanded for the limited purpose of the trial court's entering a revised judgment entry.
{¶ 2} According to the bill of particulars and the facts stated at the plea hearing, police officers conducted a traffic stop of a vehicle that Monroe was operating on August 13, 2017. Upon receiving consent from the vehicle's owner (Monroe's girlfriend1), officers searched the vehicle and located a loaded black 9mm Hi Point Lugar under the passenger seat where Monroe had been observed reaching when the officers pulled him over. The handgun was tested and found to be operable. Monroe had a prior drug conviction, which rendered him unable to carry a gun legally.
{¶ 3} Monroe subsequently was indicted for carrying a concealed weapon, a fourth-degree felony (Count One), improper handling of firearms in a motor vehicle, a fourth-degree felony (Count Two), and having weapons while under disability, a third-degree felony (Count Three). In April 2018, Monroe pled no contest to all charges; the State agreed to a presentence investigation and to remain silent at sentencing. The trial court found Monroe guilty and ordered a presentence investigation. Prior to sentencing, defense counsel called a witness, who testified that she had placed the gun in Monroe's
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"wife's" vehicle and did not tell Monroe or his wife that it was there. At the conclusion of the hearing, the trial court delayed disposition until June 5, 2018.
{¶ 4} On June 5, 2018, the trial court sentenced Monroe to four years of community control with intensive supervision. As part of the intensive supervision, Monroe was required to (1) serve either 90 days in jail or 90 days on house arrest with electronic monitoring, (2) refrain from the use of alcohol and drugs and not enter establishments that serve alcohol, (3) be subject to random alcohol and drug screens, (4) complete 120 hours of community service, and (5) work with the Clark County reentry program to obtain employment and get a GED. The court also ordered Monroe to pay a supervision fee and court costs.
{¶ 5} The court informed Monroe that one of his conditions of community control would be compliance with all laws, so he could not drive without a license or insurance, which Monroe had done several times previously. The court told Monroe that because one of Monroe's convictions was for a felony of the third degree, "I [the judge] don't have to worry about that being a technical or nontechnical violation. I can sentence you to prison. If I find you are no longer amenable to community control, you will be sentenced to prison for 18 months on Count 1; 18 months on Count 2, and 24 months on Count 3 * * *."
{¶ 6} The trial court issued a written judgment entry on June 8, 2018. Monroe did not appeal from his convictions.
{¶ 7} On August 21, 2018, Monroe's probation officer filed an affidavit stating that Monroe had violated the terms of his community control in three respects: (1) failing to report to the probation department for scheduled office visits as directed, (2) submitting
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fraudulent community service hours to the adult probation department, and (3) failing to comply with "his GPS schedule as ordered." At his preliminary hearing on the violations, Monroe agreed that he had received notice of the alleged violations, denied the violations, and waived a probable cause hearing.
{¶ 8} Over two days, the trial court heard testimony from several witnesses regarding the alleged violations. Stated generally, Robert Mims, Director of Re-Entry Services at Clark County (OIC) Opportunities for Individual Change, testified about how individuals are credited community service hours for participation in certain programs. Mims signed documentation showing that Monroe had completed 120 hours of community service for participation in the Opportunities for New Direction (OND) program and also participated in a nutrition program. Monroe had received certificates for completing the two programs. However, Alice Fent, electronic monitoring officer for the Clark County Common Pleas Court, testified that tracking data for Monroe showed him at OIC for limited periods of time and substantially less than 120 hours. Fent also provided information that Monroe had gone to locations not authorized by the terms of his electronic monitoring. Monroe's probation officer, Jason Hunt, testified that Monroe had indicated to him that he (Monroe) had completed his community service hours on site, which was not substantiated by GPS data. Hunt further testified that Monroe's GPS data showed him "all over town" on August 15, 2018. In addition, Hunt testified that Monroe failed to report to his probation officer on two occasions: June 27, 2018 and August 15, 2018.
{¶ 9} The trial court found that Monroe had violated the terms of his community control, and it imposed the previously-stated prison sentences, to be served concurrently
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for a total of 24 months in prison. Monroe appeals from the revocation of his community control.
{¶ 10} Monroe's original appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he found "no error by the trial court prejudicial to the rights of appellant which may be argued to this court on appeal." Upon an initial review, we found several non-frivolous issues related to the revocation of Monroe's community control. We rejected the Anders brief and appointed new counsel.
{¶ 11} Monroe, with new counsel, now raises two assignments of error, which we will address together:
1. The trial court abused its discretion when it revoked the Appellant's community control sanctions and sentenced the Appellant to two years in prison.
2. The trial court imposed a sentence that is contrary to law pursuant to R.C. 2953.08(G)(2) and R.C. 2929.15(B)(1)(c)(ii).
{¶ 12} Monroe first challenges the trial court's conclusion that he violated the conditions of his community control.
{¶ 13} The right to continue on community control depends upon compliance with the conditions of community control and is a matter within the sound discretion of the trial court. State v. Lewis, 2d Dist. Montgomery No. 23505, 2010-Ohio-3652, ¶ 11. Accordingly, we review the trial court's revocation of community control for an abuse of discretion. State v. Morgan, 2d Dist. Montgomery No. 26132, 2014-Ohio-5071, ¶ 11.
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An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); State v. Dalton, 2019-Ohio-4364, ___ N.E.3d ___, ¶ 11 (2d Dist.).
{¶ 14} "[A] revocation of community control punishes the failure to comply with the terms and conditions of community control, not the specific conduct that led to the revocation." State v. Black, 2d Dist. Montgomery No. 24005, 2011-Ohio-1273, ¶ 17. Crim.R. 32.3, which governs revocation of community control, provides that the trial court "shall not impose a prison term for violation of the conditions of a community control sanction or revoke probation except after a hearing at which the defendant shall be present and apprised of the grounds on which action is proposed."
{¶ 15} "Community control violation proceedings are not equivalent to criminal prosecutions." Black at ¶ 12. Nevertheless, "[a] defendant is entitled to certain due process protections before a court may revoke community control sanctions, although the full panoply of rights due a defendant in a criminal prosecution does not apply to the revocation of community control." State v. Harmon, 2d Dist. Champaign No. 2007-CA-35, 2008-Ohio-6039, ¶ 6, citing Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). First, a defendant is entitled to a preliminary hearing to determine whether there is probable cause to believe that the defendant has violated the terms of his or her community control. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); State v. Blakeman, 2d Dist. Montgomery No. 18983, 2002 WL 857659, *2. Second, due process requires a final hearing to determine whether community control should be revoked. Id.
{¶ 16} At the final revocation hearing, the State must (1) provide the defendant
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with written notice of the alleged violations of community control; (2) disclose the evidence against the defendant; (3) give the defendant an opportunity to be heard in person and to present witnesses and documentary evidence; (4) allow the defendant to confront and cross-examine adverse witnesses; (5) afford the defendant a neutral and detached hearing body; and, (6) provide the defendant with a written statement by the fact finder as to the evidence relied upon and the reasons for revoking community control. State v. Klosterman, 2d Dist. Darke Nos. 2015-CA-9 and 2015-CA-10, 2016-Ohio-232, ¶ 15; State v. Gilreath, 2d Dist. Greene No. 2000-CA-1, 2000 WL 896319, *2 (July 7, 2000).
A. Community...
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