Court of Appeals of Ohio, Seventh District, Mahoning
Criminal Appeal from the Court of Common Pleas of Mahoning
County, Ohio Case No. 2017 CR 233
Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M.
Rivera, Assistant Prosecuting Attorney, for
Brian A. Smith, Brian A. Smith Law Firm, LLC, for
BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite,
OPINION AND JUDGMENT ENTRY
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.
OF THE CASE
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was revoked in June 2017, when his former girlfriend reported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 Bond was revoked again in August 2017,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.
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.).
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.).
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.
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).
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).
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.
OF ERROR ONE: VIOLATION BY DRUG TEST
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)."
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,
Appellant concludes the sentence must be ...