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.
BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
S. CALLAHAN, Presiding Judge.
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.
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.
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
Mr. Trice appealed. His six assignments of error are
rearranged for purposes of discussion.
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
OF ERROR NO. 6
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
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.
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.
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).
Mr. Trice's sixth assignment ...