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State v. Goetz

Court of Appeals of Ohio, Sixth District, Ottawa

December 31, 2019

State of Ohio Appellee
v.
Kyle Goetz Appellant

          Trial Court Nos. 17-CR-195, 18-CR-004

          James J. VanEerten, Ottawa County Prosecuting Attorney, and Barbara Gallé Rivas, Assistant Prosecuting Attorney, for appellee.

          Mary M. Bollinger, for appellant.

          DECISION AND JUDGMENT

          ZMUDA, J.

         {¶ 1} In this consolidated appeal, appellant, Kyle A. Goetz, appeals the judgment of the Ottawa County Court of Common Pleas sentencing him to 28 months in prison after admitting to violating the terms of his community control. We affirm the judgment of the trial court.

         I. Background

         {¶ 2} On November 30, 2017, appellant was indicted by grand jury on one count of aggravated possession of drugs in violation of R.C. 2925.11(A)(C)(1)(a), a fifth-degree felony, and one count of possession of drug abuse instruments in violation of R.C. 2925.12(A)(C), a first-degree misdemeanor. The November 30, 2017 indictment was assigned Ottawa County Court of Common Pleas case No. 17-CR-195. Appellant was arraigned on December 4, 2017, and entered a not guilty plea to both counts. That same day, appellant was released on his own recognizance, pursuant to R.C. 2937.29 with the condition he report to the Ottawa County Probation Department for drug testing both before his release and after as required by the department. The trial court's order on bail stated appellant "must test negative for all substances prior to release." Additionally, the trial court's order stated any positive drug tests would result in the revocation of bail and appellant's immediate incarceration.

         {¶ 3} On January 3, 2018, the state filed a "Complaint of Bond Violation" requesting the trial court revoke appellant's bail. As the basis for revocation, the state alleged appellant admitted to the use of cocaine and brought previously-dispensed urine to his mandatory drug test in a device designed to provide a clean sample. The trial court conducted a bond revocation hearing and pretrial on January 8, 2018. There, the trial court established a trial date and entered an order addressing various procedural issues in advance of trial. The record does not include a specific finding as to the requested bail revocation. However, the trial court entered an order permitting appellant's release on personal recognizance under the same conditions as the December 4, 2017 entry.

         {¶ 4} Appellant was subsequently indicted on January 10, 2018, on one count of tampering with evidence in violation of R.C. 2921.12(A)(2)(B), a third-degree felony, and one count of possession of criminal tools in violation of R.C. 2923.24(A)(C), a fifth-degree felony. The conduct underlying this indictment was appellant's attempted tampering with the January 3, 2018 drug test. The January 10, 2018 indictment was assigned Ottawa County Court of Common Pleas case No. 18-CR-004. Appellant was arraigned on January 12, 2018, and entered a not guilty plea. He was held without bond pending trial.

         {¶ 5} On February 14, 2018, appellant appeared before the trial court at a consolidated pretrial hearing. At that hearing, the state moved to dismiss Count 2 in both cases and amend Count 1 in case No. 18-CR-004 to attempted tampering with evidence in violation of R.C. 2923.02(A), a fourth-degree felony. The trial court granted the state's motions. Appellant then entered a guilty plea to Count 1, aggravated possession of drugs, in case No. 17-CR-195 and the amended Count 1, attempted tampering with evidence, in case No. 18-CR-004. The trial court accepted appellant's guilty pleas and set the matter for sentencing.

         {¶ 6} At the March 29, 2018 sentencing, the trial court imposed three years of community control. The trial court advised appellant it was reserving an 11-month prison sentence for the conviction on Count 1 in case No. 17-CR-195 and a 17-month prison sentence for the conviction on Count 1 in case No. 18-CR-004.[1] The trial court also advised appellant that upon a violation of the conditions of community control, the sentences would be imposed and would be served consecutively for an aggregate prison term of 28 months.

         {¶ 7} The community control conditions required appellant to serve 30 days in the Ottawa County Detention Facility, the timing of which was at the discretion of the probation department to permit appellant to satisfy any ongoing program requirements, and 180 days at the WORTH Community Based Correctional Facility. While at WORTH, appellant was required to refrain from the use of any controlled substances and to participate and complete all recommended counseling and programming.

         {¶ 8} Upon successful completion of any programming recommended by WORTH counselors, appellant was also required to participate in and successfully complete the DATA (Ottawa County drug court) program and, if recommended by WORTH counselors, the court's mental health program. Appellant was also ordered to comply with the residency and program requirements at Light House Sober Living following his completion of any recommended WORTH programs as well as any other treatment recommendations from the county probation department.

         {¶ 9} Appellant successfully completed the WORTH programming and entered the county DATA program. On November 29, 2018, the trial court found appellant was in violation of the rules and requirements of the DATA program and terminated his participation.[2] The next day, the probation department filed a "Motion and Complaint of Community Control Violation." The complaint alleged two violations of the community control sanctions. First, the state alleged appellant had tested positive for cocaine metabolites and admitted to the use of cocaine on November 16, 2018. Second, the state alleged appellant violated the terms of his community control sanction as a result of his termination from the DATA program. At a hearing on December 28, ...


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