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State v. Favors

December 3, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
KENNETH FAVORS, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 05CR300.

The opinion of the court was delivered by: Donofrio, J.

OPINION

JUDGMENT: Affirmed.

JUDGES: Hon. Gene Donofrio, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro.

{¶1} Defendant-appellant, Kenneth Favors, appeals from a Mahoning County Common Pleas Court judgment revoking his community control.

{¶2} After reaching a plea agreement with plaintiff-appellee, the State of Ohio, appellant pleaded guilty to one count of intimidation, a third-degree felony in violation of R.C. 2921.03(A), and one count of retaliation, a third-degree felony in violation of R.C. 2921.05(A)(C). The trial court subsequently sentenced appellant to four years in prison on the intimidation count and four years on the retaliation count to be served concurrently.

{¶3} The trial court also stated that it would grant appellant judicial release subject to good behavior after he served 180 days. As a condition of judicial release, the court specified that appellant would be on probation for five years, subject to all laws and regulations, among other conditions. Additionally, the court stated that if appellant violated the terms of his probation, he would be sent to the penitentiary to complete his prison term and would then be subject to post-release control for up to 50 percent of his total sentence.

{¶4} On March 20, 2007, appellant filed a motion for judicial release. The trial court granted the motion on April 13, 2007. It placed appellant on a community control sanction for five years. The court informed appellant that if he violated any of the conditions of his community control, he would be retuned to the penitentiary to serve the remainder of his sentence.

{¶5} On June 19, 2007, the state filed a motion to revoke appellant's community control. The trial court found that probable cause existed of a probation violation. Therefore, it held a merit hearing on the state's motion.

{¶6} At the hearing, the state presented three witnesses. Given their testimony, the trial court found by clear and convincing evidence that appellant assaulted Debra Landry by striking her several times with a vacuum cleaner. The court found that appellant's conduct constituted misdemeanor assault. Because the court found that appellant violated the law, it consequently found that he violated the terms of his community control. Therefore, the court ordered appellant to serve the remainder of his sentence, or 710 days.

{¶7} Appellant did not file a timely appeal from this judgment. But he did file a motion for a delayed appeal. This court granted appellant leave to file a delayed appeal on March 17, 2008.

{¶8} Appellant raises two assignments of error, the first of which states:

{¶9} "THE TRIAL COURT DENIED MR. FAVORS HIS RIGHT TO ALLOCUTION AS REQUIRED BY CRIM.R. 32(A)(1)."

{ΒΆ10} Appellant argues that the trial court failed to provide him with his right to allocution before it reinstated his sentence at his probation revocation hearing. He asserts that the trial court only elicited statements from the prosecutor and defense counsel. Appellant argues that the court should have given him the opportunity to speak in ...


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