Opinion
L-20-1150
11-05-2021
State of Ohio Appellee v. Stephen Lynn Simmons Appellant
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.
Trial Court No. CR0201802713
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
DECISION AND JUDGMENT
DUHART, J.
{¶ 1} This case is before the court on appeal by appellant, Stephen Simmons, from the judgment of the Lucas County Common Pleas Court e-journalized on August 3, 2020. For the reasons that follow, we affirm in part, reverse in part, and remand to the trial court for a nunc pro tunc judgment entry consistent with this opinion.
Background
{¶ 2} On or about September 14, 2018, appellant was charged by way of indictment with three counts of breaking and entering, in violation of R.C. 2911.13(A) and (C), each a felony of the fifth degree. Appellant initially pled not guilty.
{¶ 3} On October 10, 2018, appellant withdrew his plea of not guilty and pled no contest to the second and third counts of breaking and entering. The trial court accepted appellant's plea, found him guilty of the charges, ordered a presentence investigation and appellant to be screened for drug court, and continued the matter for sentencing.
{¶ 4} On October 31, 2018, appellant was sentenced to three years of community control and the court ordered appellant's case transferred to the supervision of the Lucas County Drug Court program ("drug court"). The court also reserved two ten-month sentences to be served consecutively, for a total of 20 months, and notified appellant that this sentence could be imposed if he violated the terms of his community control.
{¶ 5} In an order journalized on November 13, 2018, appellant's case was transferred to drug court. A capias was then issued as a result of appellant's violations of certain conditions of his community control. Appellant was arrested on the capias on January 18, 2019.
{¶ 6} On February 7, 2019, appellant appeared before the court on his community control violations. Appellant admitted to the violations, was advised of the terms and conditions of drug court, and signed the drug court participation agreement. The court then found appellant in violation of his community control, appellant's community control was extended with certain added conditions, and a prison term of ten months for counts 2 and 3, to be served consecutively, was again reserved.
{¶ 7} Appellant was successful in the drug court program for a number of months, however, on August 27, 2019, a capias was issued for appellant as a result of his second failure to comply with conditions of his community control. Appellant was arrested on the capias on February 16, 2020.
{¶ 8} Appellant admitted the violations on February 20, 2020, and the matter was continued for sentencing. On March 5, 2020, the court continued appellant on community control with additional conditions. The court also notified appellant that if he violated the terms and conditions of his community control, it might result in a longer or more restrictive sanction, or the court would impose two prison terms of 12 months to be run consecutive to one another for a total of 24 months.
{¶ 9} Similarly, in the court's judgment entry journalized March 10, 2020, the court stated that, at the March 5, 2020 hearing, it had notified appellant that a violation of community control would lead to a longer or more restrictive sanction, including a prison term of 12 months as to count 2 and 12 months as to count 3, to be served consecutively for a total of 24 months.
{¶ 10} Appellant appeared before the court on July 23, 2020, and admitted to new community control violations which took place subsequent to March 5, 2020. At this hearing, the following exchange took place.
THE COURT: You were placed or continued on community control, and as to each count the Court reserved a 12[-]month prison sentence to be served consecutively to one another for a total of 24 months in the state penitentiary. Do you understand as a result of your plea you face 24 months in prison?
[APPELLANT]: No, Your Honor. I believe it was 10 months on each charge. The first one -- they gave me 10 months on each charge and ran it consecutive. Should have been 20 months, Your Honor.
THE COURT: And the last time you ran I told you that I would continue you on drug court, but I was reserving a 12[-]month prison sentence and you agreed with that.
{¶ 11} The court then found appellant in violation of his community control and sentenced him to 12 months each on counts 2 and 3, to be served consecutively.
{¶ 12} Appellant appealed.
Assignments of Error
I. The Drug Court abused its discretion and erred to the prejudice of Appellant by sentencing Appellant to a prison term that exceeded the original trial court's reserved sentence.
II. The trial court erred to the prejudice of Appellant by waiving the costs of confinement and appointed counsel fees at Appellant's sentencing hearing, while imposing said costs in Appellant's judgment entry.
III. Appellant received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Ohio Constitution.
Law and Analysis
{¶ 13} We review felony sentences pursuant to R.C. 2953.08(G)(2). State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2021-Ohio-875, ¶ 7. R.C. 2953.08(G)(2) allows an appellate court to increase, reduce, or otherwise modify a sentence, or vacate the sentence and remand for resentencing if the court finds by clear and convincing evidence that the sentence is contrary to law.
{¶ 14} In his first assignment of error, appellant alleges that, when the trial court increased his sentence from the originally reserved 20-month sentence to 24 months, the trial court abused its discretion and issued a sentence that is contrary to law. Appellant maintains that the trial court's initial judgment entry was a final appealable judgment and thus, the trial court did not have authority to increase his sentence.
{¶ 15} Pursuant to the relevant version of R.C. 2929.19(B)(4), if a sentencing court imposes a community control sanction, "[t]he court shall notify the offender that, if the conditions of the sanction are violated *** the court may impose *** a prison term on the offender and shall indicate the specific prison term that may be imposed as a sanction for the violation." Then, if a community control violation occurs, the relevant version of R.C. 2929.15 permits a trial court to impose a prison term, provided that the imposed term is within the range of prison terms available for that offense, and it does "not exceed the prison term specified in the notice provided to the offender at the sentencing hearing." R.C. 2929.15(B)(1) and (3).
{¶ 16} In State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, the Ohio Supreme Court held that "a trial court sentencing an offender to a community control sanction must, at the time of the sentencing, notify the offender of the specific prison term that may be imposed for a violation of the conditions of the sanction, as a prerequisite to imposing a prison term on the offender for a subsequent violation." Id. at paragraph two of the syllabus. This notice requirement "is meant to put the offender on notice of the specific prison term he or she faces if a violation of the conditions occurs." (Emphasis sic.) Id. . at ¶ 23.
{¶ 17} In State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, the defendant was not notified of the specific prison term that could be imposed for a violation of community control at his initial sentencing hearing, but he was notified at a subsequent hearing which occurred after a violation. When the defendant violated community control again, he was sentenced to the reserved term. The court noted that Brooks had not addressed the timing of the notification required by the statute in order to impose a prison term after an offender violates his community control when the offender violates community control multiple times. Id. at ¶ 15-16. The court found that the trial court conducts a second sentencing hearing after a community control violation where "the court sentences the offender anew and must comply with the relevant sentencing statutes." Id. at ¶ 17. The court then found that, even if the court did not properly provide notice at the initial sentencing hearing, a trial court is in compliance with both the sentencing statutes and Brooks if the court provides notice at a subsequent hearing of the specific prison term that could be imposed for a violation occurring thereafter. Id.
{¶ 18} Appellant was initially notified that a violation of his community control could result in the imposition of two 10-month sentences to be served consecutively, for a total of 20 months. However, after appellant's second community control violation, appellant was notified, both at the March 5, 2020 sentencing hearing, and in the judgment entry journalized March 10, 2020, that a violation of community control would lead to a longer or more restrictive sanction, including a prison term of 12 months as to each count, to be served consecutively for a total of 24 months. As stated in Brooks, the purpose of the R.C. 2929.19(B) notice requirement is "to make the offender aware before a violation of the specific prison term that he or she will face for a violation." (Emphasis sic.) Brooks at ¶ 33. Moreover, the court in Fraley found that a sentencing hearing after a violation is a new sentencing hearing and that the notice required by R.C. 2929.15(B) and R.C. 2929.19(B) could come at a later sentencing hearing.
{¶ 19} Here, appellant was made aware of the specific prison term he would face prior to his violation and, following the reasoning in Brooks and Fraley, we find that the statutory requirements of R.C. 2929.15(B)(3) and R.C. 2929.19(B)(4) were met. We therefore conclude that appellant's sentence was not contrary to law. Accordingly, appellant's first assignment of error is not well-taken.
{¶ 20} In his second assignment of error, appellant asserts that the trial court erred by waiving his costs of confinement and appointed counsel fees at his sentencing hearing, but then imposing said costs in the judgment entry.
{¶ 21} At the July 23, 2020 hearing, the court stated that it had considered appellant's present and future ability to pay and found that appellant "does not have or may not reasonably be expected to have the means to pay the applicable court-appointed counsel fees or costs of confinement." The court then waived those fees. However, in the court's August 3, 2020 judgment entry the court found appellant had, or reasonably would be expected to have, the means to pay all or part of the applicable costs of supervision, confinement, assigned counsel, and prosecution and ordered appellant to reimburse the state and Lucas County for those costs.
{¶ 22} The state acknowledges this error and suggests this error can be corrected by remanding the case to the trial court with an order to issue a nunc pro tunc judgment entry. We concur that this error can be rectified by the trial court in a nunc pro tunc judgment entry and thus remand the matter to the trial court for a nunc pro tunc judgment entry to correct the error. See State v. Kurth, 6th Dist. Lucas Nos. L-15-1238, L-15-1239, 2016-Ohio-7698, ¶ 14. We therefore find appellant's second assignment of error well-taken.
{¶ 23} In his third assignment of error, appellant argues that his counsel was ineffective by failing to object on March 5, 2020, when the trial court originally increased his reserved sentence from 20 months to 24 months and on July 23, 2020, when the court imposed this increased reserve sentence.
{¶ 24} "To prevail on a claim of ineffective assistance of counsel, appellant must prove counsel's performance was deficient, as it fell below an objective standard of reasonable representation, and but for counsel's errors, there is a reasonable probability that the outcome of the trial would have been different." State v. Lewis, 6th Dist. Lucas No. L-18-1069, 2019-Ohio-3929, ¶ 35.
{¶ 25} A legitimate claim of ineffective assistance of counsel cannot be based on counsel's failure to make a meritless objection. State v. Hart, 6th Dist. Lucas No. L-20-1107, 2021-Ohio-767, ¶ 50. In appellant's first assignment of error, we found that the trial court's sentence was not contrary to law. Therefore, we do not find that appellant's counsel's performance was deficient. Furthermore, we do not find that the outcome would have been any different, and we note that appellant himself objected to the imposition of the 24 months at sentencing. Accordingly, appellant's third assignment of error is not well-taken.
{¶ 26} The judgment of the Lucas County Common Pleas Court is affirmed, in part, and reversed, in part. We remand the matter to the trial court to issue a nunc pro tunc judgment entry waiving the costs of confinement and appointed counsel fees as orally announced at the sentencing hearing. Pursuant to App.R. 24, the parties are hereby ordered to split the costs incurred on appeal.
Judgment affirmed, in part, And reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J., Gene A. Zmuda, P.J., Myron C. Duhart, J. Judge Concur.