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State v. Davis

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 9, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
KENNETH R. DAVIS, JR. DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-591134-A

          APPELLANT Kenneth R. Davis, Jr., pro se

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Eben McNair Assistant County Prosecutor

          BEFORE: Kilbane, P.J., Stewart, J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, PRESIDING JUDGE

         {¶1} Defendant-appellant, Kenneth R. Davis, Jr. ("Davis"), pro se, appeals the trial court's imposition of a five-day detention in response to his positive drug tests for marijuana while on intervention in lieu of conviction ("ILC"). Davis also appeals the trial court's denial of his motion to withdraw his guilty plea. For the reasons set forth below, we affirm.

         {¶2} In November 2014, Davis was indicted on four counts of trafficking and two counts of drug possession. In April 2015, Davis pled guilty to the indictment, and the trial court granted his request for ILC under R.C. 2951.041. The trial court stayed the proceedings pending Davis's successful completion of the ILC program and placed Davis under the supervision of the probation department for one year, imposing various conditions.

         {¶3} In August 2015, the trial court set a hearing in response to a probation department report that Davis had tested positive for marijuana. The trial court continued this hearing and granted Davis's request to seek out and enroll in an intensive outpatient treatment program. The trial court gave Davis three weeks to coordinate this with his probation officer and to provide verification of his enrollment in a treatment program to the court. The trial court warned Davis that his failure to do so, or to test positive for anything other than marijuana, "due to extended presence in [Davis's] body, " would result in termination from ILC. The record indicates that the hearing was not held.

         {¶4} In February 2016, the trial court held a hearing and found that Davis had tested positive for marijuana a second time. At this hearing, the trial court continued Davis in the ILC program and extended Davis's participation in ILC for six months. The trial court also warned Davis that any future positive test results for marijuana may result in a county jail detention of at least five days.

         {¶5} In March 2016, the trial court held a hearing, for which Davis did not appear. The trial court issued a capias. In April 2016, the trial court held the hearing, at which Davis appeared, and found that Davis tested positive for marijuana a third time. The trial court then imposed a five-day jail detention on Davis. The trial court ordered Davis to report to county jail on April 29, 2016, and further ordered that he be released on May 4, 2016. The trial court again continued Davis in the ILC program with prior conditions.

         {¶6} In July 2016, the trial court held a violation hearing. Davis waived probable cause and the trial court found him in violation of the terms of ILC "due to repeated positive drug tests and negative attitude towards the ILC program." The trial court terminated Davis from the ILC program and made findings of guilt on all counts of the indictment in light of Davis's April 2015 guilty plea. The trial court referred Davis to the probation department for a presentence investigation report and scheduled a sentencing hearing.

         {¶7} In August 2016, Davis filed a pro se "motion to dismiss or as an alternative motion to withdraw * * * guilty plea with request for appointed counsel to join in on instant motion." The trial court never ruled on this motion. In October 2016, the trial court sentenced Davis to community control.

         {¶8} It is from the October 2016 sentencing entry that Davis now appeals. He raises the following ...


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