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State v. Trice

Court of Appeals of Ohio, Ninth District, Summit

December 11, 2019

STATE OF OHIO Appellee
v.
MYLES M. TRICE Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. CR 2017 01 0085 CR 2018 02 0558

          RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN, Presiding Judge.

         {¶1} Appellant, Myles Trice, appeals a judgment finding that he violated the terms of community control and imposing a prison term for his previous offenses. This Court affirms.

         I.

         {¶2} In 2017, Mr. Trice pleaded no contest to carrying concealed weapons and possession of marijuana. The trial court sentenced him to two years of community control. Approximately one year later, Mr. Trice pleaded guilty to violating the terms of his community control and, in a second criminal case, pleaded guilty to aggravated possession of drugs. On April 17, 2018, the trial court extended his community control for two years from the date of its order. The trial court reiterated several terms of community control that had previously been imposed and required Mr. Trice to "[e]nter and successfully complete the Oriana Halfway House program." The trial court also informed him that "violation of any sentence imposed may lead to more restrictive sanctions * * * up to and including a prison term of 12 months, to run consecutively with the prison term in Case Number CR 2018 02 0558, for a total prison term of 18 months." The trial court's order in the second criminal case is similar to that in the first.

         {¶3} Two months later, Mr. Trice pleaded guilty to a second community control violation after he was terminated from the Halfway House program for exhibiting aggression toward staff members. On July 5, 2018, the trial court continued his period of community control, reiterated the conditions previously imposed, and required Mr. Trice to "[e]nter into * * * and successfully complete the Community Based Correctional Facility Program operated by the Oriana House and follow through with all aftercare counseling and treatment as recommended." Approximately three months later, Mr. Trice was charged with a third community control violation after he was terminated from the Oriana House Community Based Correctional Facility Program ("CBCF"). Following a hearing, the trial court found Mr. Trice guilty of violating the terms of his community control. The trial court sentenced Mr. Trice to a prison term of 180 days in the first case and 90 days in the second case and ordered Mr. Trice to serve the terms consecutively.

         {¶4} Mr. Trice appealed. His six assignments of error are rearranged for purposes of discussion.

         II.

         MOOTNESS

         {¶5} As an initial matter, the State has argued that because Mr. Trice has served his prison terms, this appeal is moot. Mr. Trice responded to the State's position during oral argument. Because Mr. Trice was convicted of felonies, however, his appeal is not moot even though his sentence has been served. See State v. Golston, 71 Ohio St.3d 224 (1994), syllabus.

         ASSIGNMENT OF ERROR NO. 6

         THE COURT FAILED TO ADVISE MR. TRICE OF HIS SANCTIONS AND RISK IN THE JEOPARDY OF HIS CCV VIOLATION BY FAILING TO TELL HIM AT ARRAIGNMENT WHAT HIS EXPOSURE WAS UPON A FINDING OF VIOLATION.

         {¶6} In his sixth assignment of error, Mr. Trice appears to argue that the requirements of Crim.R. 5(A) apply to charges alleging community control violations and that the trial court failed to comply with those requirements in this case.

         {¶7} Crim.R. 5(A), which sets forth the procedure that must be followed upon a defendant's initial appearance, requires a court to inform the defendant of the nature of the charges and, among other constitutional rights, "[t]hat the defendant need make no statement and any statement made may be used against the defendant[.]" The purpose of Crim.R. 5(A) is "to advise the accused of his constitutional rights and to inform him of the nature of the charge against him." Hamilton v. Brown, 1 Ohio App.3d 165, 168 (12th Dist.1981). Alleged deficiencies in a trial court's compliance with Crim.R 5(A) are forfeited if not raised by objection before trial. Akron v. Lewis, 179 Ohio App.3d 649, 2008-Ohio-6256, ¶ 9.

         {¶8} Mr. Trice did not raise the trial court's alleged failure to comply with Crim.R. 5(A) and his argument that the Rule applies to community control revocation hearings by objection in the trial court, so he has forfeited all but plain error in connection with these arguments. In that respect, however, a community control revocation hearing is not a new proceeding for which a defendant must make an initial appearance, but a second sentencing hearing during which the trial court determines whether to impose one of the penalties provided by RC. 2929.15(B)(1). See State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, ¶ 11-13. Because "error * * * [is] the starting point for a plain-error inquiry," Mr. Trice's sixth assignment of error is not well-taken. See State v. Hill, 92 Ohio St.3d 191, 200 (2001); Crim.R. 52(B).

         {¶9} Mr. Trice's sixth assignment ...


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