State v. Powers

• Decision Date: 10 December 2015
• Docket Number: No. 15AP-422,No. 15AP-424,15AP-422,15AP-424
• Parties: State of Ohio, Plaintiff-Appellant, v. Rafael R. Powers, Defendant-Appellee.
• Court: Ohio Court of Appeals

2015 Ohio 5124

State of Ohio, Plaintiff-Appellant, v. Rafael R. Powers, Defendant-Appellee.

No. 15AP-422

No. 15AP-424

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

December 10, 2015

(C.P.C. No. 12CR-1261)

(REGULAR CALENDAR)

DECISION

Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellant.

Kravitz, Brown & Dortch, LLC, Paula Brown, and Richard Parsons, for appellee.

ON MOTION TO DISMISS

BRUNNER, J.

{¶ 1} Defendant-appellee, Rafael R. Powers, requests that this court dismiss the state's appeals in this consolidated case for want of jurisdiction. Because we find that the trial court's orders do not fit any of the categories of matters that are appealable by the state as of right and as such must be strictly construed, and because the sealing in this case was not a separate civil matter, we find that the state should have requested leave to appeal. Since the state failed to request leave, we lack jurisdiction to consider these consolidated appeals and find that they must be dismissed.

I. FACTS

{¶ 2} On March 9, 2012, Powers was indicted for cocaine possession. On September 17, 2012, Powers filed a motion requesting intervention in lieu of conviction pursuant to R.C. 2951.041. The parties and the trial court agreed to continue the case to allow Powers to be evaluated by NetCare Forensic Psychiatry Center to determine his suitability for intervention, and the trial court filed an order on November 6, 2012 requiring such an evaluation.

{¶ 3} A clinical and forensic psychologist with NetCare reported his evaluation of Powers to the trial court by letter dated December 3, 2012. The psychologist indicated that he had evaluated Powers on November 21, 2012, and had determined that Powers' "drug use was a factor leading to the criminal offense," that he is a "drug dependent person and that intervention would reduce the probability of his engaging in future criminal activity." Following the report, the trial court, on December 12, 2012, held a hearing at which the parties jointly recommended intervention in lieu of conviction. Accordingly, the trial court accepted a guilty plea from Powers, granted the request for intervention in lieu of conviction, and stayed the case pending successful compliance with intervention in lieu of conviction. The trial court filed an entry setting forth the terms of Powers' intervention in lieu program in more detail on December 14, 2012. The trial court set a community control period of three years and set forth a number of conditions of the intervention in lieu plan:

1 The defendant shall abstain from the use of illegal drugs and alcohol for the period of supervision

2 The defendant shall submit to regular random drug and alcohol testing

3 The defendant shall successfully complete in-patient drug treatment and follow any recommended aftercare

4 The defendant shall avoid contact with known drug users

5 Following the completion of treatment, the defendant shall obtain/maintain verifiable employment

6 The defendant shall attend three (3) 12 step meetings per week and maintain weekly contact with his sponsor [Followed by a handwritten note stating:] Probation to be Flexible work within & aid his work schedule

7 The defendant shall pay supervision fee and court costs

8 The defendant shall follow any and all recommendations of the court intervention plan.

{¶ 4} More than two years later, on February 13, 2015, the probation department filed with the trial court a statement listing the following alleged violations:

1. The defendant failed to drop on 12/12/13, 02/25/13 and 01/29/15.

2. The defendant provided a Negative Diluted Urine screen on 11/25/14, 08/28/14, 07/31/14, 05/29/14, 04/24/14, 01/30/14[,] 07/18/13 and 07/14/13.

3. The defendant failed to report to the probation office on 12/18/14, 10/30/14, 09/25/14, 06/26/14, 09/19/13, 08/22/13 and 06/20/13[.]

4. The defendant has failed to show proof of attending AA/NA meetings.

5. The defendant has failed to obtain or verify a sponsor or working the 12 steps of AA or NA.

6. The defendant has failed to maintain employment.

7. The defendant tested positive for marijuana and cocaine on 09/30/14.

8. The defendant has had contact with known drug users.

{¶ 5} On February 19, 2015, the trial court attempted to serve a hearing notice on Powers notifying him of his obligation to appear at a revocation hearing. However, the notice was returned undeliverable. On March 19, 2015, the trial court issued a capias for Powers' arrest. On March 30, 2015, a Franklin County Sheriff's Officer reported to the trial court that the capias had been executed on March 26, 2015.

{¶ 6} On April 2, 2015, the trial court held a hearing based on the probation department's statement of violations. Powers did not contest the violations at the hearing. Powers was represented by counsel and offered the following in mitigation:

THE COURT: I talked to probation. I talked to Dave Buckley. I talked to your lawyer. You did a lot of things. You had an office administrative hearing. It's my understanding you were working, but you basically couldn't get off marijuana. It's marijuana and cocaine.

What would you like to tell me in mitigation, if anything?

[DEFENSE COUNSEL]: Well, as we discussed yesterday, Your Honor, Mr. Powers is 35 years old. He has two children. He has a son who is a senior in high school, and he has a younger son, eight years old.

As Mr. Buckley said, Mr. Powers has always tried to keep a job. He's had some problems with that felony on the record, but he's always done temp work. He's had no criminal record and is really trying to do the right thing with his family.

THE COURT: How many days jail credit does he have?

[DEFENSE COUNSEL]: He has 26 days.

THE COURT: Anything you would like to tell me directly, sir?

DEFENDANT: Thank you.

THE COURT: Anything you would like to tell me?

DEFENDANT: I'm truly sorry that I didn't hold up my end of the bargain that you gave me the last time when I stood before you.

THE COURT: Well, you basically have been through more than anybody would have been through on a charge like this, because intervention is more difficult, I think, than probation in some ways. You spent time in jail on an F-5 when you have no record. That doesn't usually happen either.

I'm going to close this case out for 26 days served. I'm going to grant the intervention in lieu. The case will be dismissed. I'm going to treat it as if he completed it. That's it. You're released. It will take you all day to get out, but you will be out. Good luck to you. Happy Easter.

(Apr. 2, 2015 Tr. 4-5.)

{¶ 7} Thereafter, on April 8, 2015, the trial court filed an entry finding as follows:

On December 12, 2012, * * * [t]he Defendant * * * entered a plea of guilty to Count One of the Indictment, to wit: POSSESSION OF COCAINE, a violation of R.C. 2925.11, and a Felony of the Fifth Degree.

The Court found the Defendant guilty of the charge(s) to which the plea was entered.

On December 12, 2012, the Defendant was sentenced to TREATMENT IN LIEU OF CONVICTION.

On April 2, 2015, a revocation hearing was held pursuant to R.C. 2951.041(f). * * * Upon stipulated violations of said Treatment in Lieu of Conviction, it is hereby ordered that Defendant's Treatment in Lieu of Conviction is hereby REVOKED.

* * *

The Court has considered all maters [sic] required by Section 2929.12 and 2951.02 of the Ohio Revised Code and it is the sentence of this Court that the Defendant pay the cost of this action and serve a term of TWENTY-SIX (26) DAYS AT THE FRANKLIN COUNTY JAIL - CASE CLOSED FOR TIME SERVED AND INTERVENTION IS CONSIDERED SUCCESSFUL AND COMPLETE AND THIS CASE IS HEREBY DISMISSED. COURT COSTS WAIVED. NO FINE IMPOSED.

The Court finds that the Defendant has -26- days of jail credit and hereby certifies the time to the Ohio Department of Corrections. The Defendant is to receive jail time credit for all additional jail time served while awaiting transportation to the institution from the date of the imposition of this sentence.

One day later, on April 9, 2015, the trial court filed a subsequent entry based on the successful completion of intervention in lieu, ordering that all the records relating to the dismissed case be sealed.

{¶ 8} On April 17, 2015, the state filed a notice that it was appealing the trial court's entry that operated to dismiss the case. The appeal of this entry became case No. 15AP-422. Nearly simultaneously, the state filed a second notice of appeal, this time of the trial court's April 9, 2015 sealing order. The appeal of this entry became case No. 15AP-424. On May 6, 2015, we consolidated the two cases. On July 20, 2015, Powers moved to dismiss the consolidated appeals on grounds that the state was required to seek leave to appeal and did not do so. The state has responded and Powers has replied. This decision now follows.

II. DISCUSSION

{¶ 9} "[T]he state may appeal in a criminal case only when a statute gives the state express authority to do so." State v. Thompson, 10th Dist. No. 03AP-841, 2004-Ohio-3229, ¶ 11, citing Ohio Constitution, Article IV, Section 3(B)(2); State v. Fraternal Order of Eagles Aerie 0337 Buckeye, 58 Ohio St.3d 166, 167 (1991); State ex rel. Leis v. Kraft, 10 Ohio St.3d 34, 35 (1984); State v. Brenneman, 36 Ohio St.2d 45, 46 (1973); State v. Hughes, 41 Ohio St.2d 208, 210 (1975); Mick v. State, 72 Ohio St. 388 (1905), paragraph one of the syllabus. The Supreme Court of Ohio has held that exceptions to the general rule prohibiting the state's appeals in criminal prosecutions must be strictly construed. State v. Bassham, 94 Ohio St.3d 269, 271 (2002); State v. Caltrider, 43 Ohio St.2d 157 (1975), paragraph one of the syllabus.

{¶ 10} The types of matters the state may appeal as a matter of right are set forth by statutes.

A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion

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