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State v. Seaman

Court of Appeals of Ohio, Seventh District, Mahoning

June 26, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JOEY SEAMAN, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2017 CR 233

          Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, for Plaintiff-Appellee and

          Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, for Defendant-Appellant.

          BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.

          OPINION AND JUDGMENT ENTRY

          Robb, J.

         {¶1} Defendant-Appellant Joey Seaman appeals the decision of the Mahoning County Common Pleas Court sentencing him to prison due to his violation of community control. He contends the court violated R.C. 2929.13(E)(2), which requires the sentencing court to "determine on the record" one of two statutory criteria before imposing a prison term for a community control violation if the violation is "solely by reason of producing positive results on a drug test." Appellant also believes the court failed to consider R.C. 2929.11 and R.C. 2929.12 before sentencing him and the sentence was not supported by the record. For the following reasons, the trial court's judgment is affirmed.

         STATEMENT OF THE CASE

         {¶2} On March 30, 2017, Appellant was indicted for aggravated burglary, attempted rape, two counts of menacing by stalking, assault, and intimidation of a witness. The victim in all charges was his former girlfriend, except for the intimidation charge which involved another witness. His bond was revoked in June 2017, when his former girlfriend reported a new burglary. That charge was dismissed when she failed to appear at the preliminary hearing, and bond was reinstated with orders to obtain a particular mental health assessment within three days, have no contact with the victim, and refrain from drug use. Bond was revoked again in August 2017, after the state reported Appellant tested positive for drugs and failed to report for the mental health assessment.

         {¶3} On April 11, 2018, Appellant pled guilty to: an amended charge of burglary (a third-degree felony with a maximum sentence of 36 months); menacing by stalking (a fourth-degree felony with a maximum sentence of 18 months); and assault (a first-degree misdemeanor with maximum sentence of 180 days). After disclosing the plea agreement was based upon the victim's wishes, the state agreed to dismiss the other charges and recommend five years of community control with an order for a mental health assessment and participation in all treatment recommendations. The court accepted the plea and ordered a mental health assessment and a pre-sentence investigation. (4/12/18 J.E.; 4/19/18 J.E.).

         {¶4} Subsequently, the court sentenced Appellant to five years of community control. Appellant was also ordered to complete 250 hours of community service, follow all recommendations in a mental health assessment, and follow all recommendations after obtaining an assessment from a certain drug treatment agency. (6/15/18 J.E.).

         {¶5} On August 6, 2018, the state filed a motion to revoke Appellant's community control. The notice provided to Appellant alleged he violated the first condition of his community control (obeying all laws, including those related to illegal drug use) by: (A) admitting to drug use on July 30, 2018; (B) having contact with the victim; (C) testing positive for cocaine on August 2, 2018; and (D) testing positive for marijuana on August 2, 2018. The notice also alleged he violated the second condition of his community control (requiring Appellant to follow all orders of supervising officers, including submitting to drug testing) by: (A) failing to report to the supervising officer as ordered on or about August 1, 2018.

         {¶6} At the September 10, 2018 revocation hearing, the prosecutor explained that Appellant would be stipulating to certain facts involving his violation of community control and the state would not be proceeding on the allegation of contact with the victim. (Tr. 2-3). After defense counsel spoke about the stipulation, Appellant voiced his understanding that he was waiving the right to have the state prove he violated community control at a hearing by stipulating to the violation and that the court would proceed with judgment and sentence. (Tr. 4-5).

         {¶7} As a sentencing recommendation, the state asked the court to impose a prison term. The prosecutor disclosed the difficulty in making the earlier recommendation of community control due to Appellant's criminal history (but noted the state was faced with an "extremely uncooperative victim"). (Tr. 6-7). Defense counsel said: on July 30, 2018, Appellant followed instructions to sign up with the drug treatment agency; Appellant admitted to drug use prior to the August 2, 2018 arrest and drug testing; and the drug violations required treatment rather than prison. (Tr. 8-9). Appellant asked the court for help with his habit. (Tr. 10).

         {¶8} The court revoked Appellant's community control and imposed a prison sentence. In the September 25, 2018 entry, the court imposed 36 months for burglary, 18 months for menacing by stalking, and 180 days for assault, all running concurrently. Appellant received 263 days of credit for time served. Appellant filed a timely notice of appeal.

         ASSIGNMENT OF ERROR ONE: VIOLATION BY DRUG TEST

         {¶9} Appellant sets forth three assignments of error, the first of which provides: "The trial court's sentence of Appellant was contrary to law because Appellant was sanctioned solely for the results of a positive drug test under R.C. 2929.13(E)(2)."

         {¶10} Appellant contends his community control violation was solely due to positive drug test results. He therefore argues the trial court was required to make one of two determinations on the record in order to impose a prison sentence for the violation. As the trial court did not make either determination on the record at the revocation hearing, [1] Appellant concludes the sentence must be ...


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