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State v. Philpot

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 16, 2020

STATE OF OHIO, Plaintiff-Appellee,
v.
TY'JUAN PHILPOT, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-14-590162-M, CR-17-621326-A, and CR-18-632516-B

         JUDGMENT: AFFIRMED IN PART; VACATED IN PART; REMANDED.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Christopher D. Schroeder, Assistant Prosecuting Attorney, for appellee.

          Paul W. Flowers Co., L.PA., and Louis E. Grube, for appellant.

          JOURNAL ENTRY AND OPINION

          EILEEN A GALLAGHER, J.

         {¶ 1} In this consolidated appeal, defendant-appellant Ty'Juan Philpot appeals his consecutive sentences after (1) he pled guilty to one count of having weapons while under disability and one count of attempted carrying concealed weapons in Cuyahoga C.P. No. CR-18-632516-B ("CR-18-632516") and (2) was found to have violated community control in Cuyahoga C.P. Nos. CR-14-590162-M ("CR-14-590162") and CR-17-621326-A ("CR-17-621326"). Philpot contends that (1) the sentencing journal entries in CR-14-590162 and CR-17-621326 are contrary to law to the extent they impose consecutive sentences because the trial judge did not make the requisite findings for the imposition of consecutive sentences "in the manner required by statute" and (2) the record clearly and convincingly does not support the findings set forth by the trial court for the imposition of consecutive sentences. Philpot also contends that he is entitled to additional jail-time credit and that the trial court lacked subject matter jurisdiction in CR-14-590162 due to the juvenile court's failure to comply with the juvenile transfer statutes. For the reasons that follow, we vacate the trial court's imposition of consecutive sentences in all three cases and remand for the trial court to consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4) and if so, to make all of the required findings on the record and incorporate those findings in its sentencing journal entries. We also vacate the trial court's calculation of jail-time credit and remand for the trial court to recalculate the amount of jail-time credit to which Philpot is entitled under RC. 2967.191. We affirm the trial court in all other respects.

         Factual Background and Procedural History

         {¶ 2} On June 10, 2014, the state filed a delinquency complaint against Philpot in the Cuyahoga County Court of Common Pleas, Juvenile Division (the "juvenile court") in Cuyahoga J.C. No. DL-14-107121, charging him with various offenses based on allegations that he had engaged in a pattern of criminal gang activity as a member of the Heartless Felons. At that time, Philpot was 16. The state filed a motion for discretionary transfer of the case to the Cuyahoga County Court of Common Pleas, General Division (the "general division").

         {¶ 3} After hearings on probable cause and Philpot's amenability to care and rehabilitation within the juvenile system, the juvenile court found that (1) there was probable cause to believe that Philpot had committed acts that would be felonies if committed by an adult, including participating in a criminal gang, engaging in a pattern of corrupt activity, conspiracy, robbery, extortion, kidnapping and attempted felonious assault, (2) there were reasonable grounds to believe that Philpot was not amenable to care or rehabilitation within the juvenile system and (3) the safety of the community may require that Philpot be subject to adult sanctions. The juvenile court transferred the matter to the general division pursuant to the discretionary transfer provisions, R.C. 2152.10(B) and 2152.12(B).

         {¶ 4} On November 5, 2014, a Cuyahoga County Grand Jury indicted Philpot in CR-14-590162 on one count of participating in a criminal gang, one count of engaging in a pattern of corrupt activity, one count of kidnapping, one count of attempted felonious assault, one count of assault, two counts of robbery and two counts of extortion. The kidnapping, attempted felonious assault, robbery and extortion counts included criminal gang activity specifications. The case was assigned to Judge John Sutula. In June 2015, Philpot pled guilty to one count of attempted participating in a criminal gang (a second-degree felony), one count of assault (a first-degree misdemeanor), one count of attempted robbery (a third-degree felony) and one count of extortion (a third-degree felony). In exchange for his guilty pleas, the criminal gang activity specifications were deleted and the remaining counts were dismissed.

         {¶ 5} On July 7, 2015, the trial court sentenced Philpot to six months at the Ohio Department of Youth Services ("ODYS") on the assault count, to be served concurrently with a sentence he was then serving in an unrelated juvenile case, Cuyahoga J.C. No. DL-13-115317, at ODYS. On the remaining counts, the trial court imposed a 48-month term of community control. After he completed his term at ODYS, Philpot was ordered to serve a six-month term at a community-based correctional facility ("CBCF") on each of the felony counts. The trial court further ordered that after Philpot completed his term at the CBCF, he be subject to electronic home monitoring for 100 days, he perform 375 hours of community service, he submit to random drug testing and complete an anger management program and he obtain and maintain verifiable employment. Judge Sutula warned Philpot that if he violated community control, he would sentence him to 36 months in prison on each of the three felony counts and would run those sentences consecutively "for a total of 108 months in prison."

         {¶ 6} While at the CBCF, Philpot received multiple violations for being in an unauthorized area and possessing contraband. Due to his behavior, his placement at the CBCF was terminated. On December 9, 2015, the trial court held a community control violation hearing. Philpot admitted the community control violations. The trial court found Philpot to have violated community control and continued his community control with modified conditions. The trial court ordered Philpot to serve 120 days in the county jail. After the completion of his jail sentence, the trial court ordered that Philpot be placed on GPS monitoring for 180 days. Once again, the trial court warned: "Violation of the terms and conditions [of community control] may result in more restrictive sanctions as approved by law. 108 months in prison, 36 months on each of the fel[ony]-3's consecutive."

         {¶ 7} While he was on community control, Philpot allegedly committed additional criminal offenses. On October 16, 2016, Philpot was arrested after he was indicted on charges of robbery, kidnapping and having a weapon while under disability in Cuyahoga C.P. No. CR-16-611522-B. Those charges were dismissed on March 29, 2017. On March 30, 2017, the trial court held a second community control violation hearing. Once again, Philpot admitted the violation. The trial court found Philpot to have violated community control, continued his community control with modified conditions and ordered that Philpot receive transdermal alcohol detection monitoring for 120 days and perform an additional 100 hours of community service. The trial court warned Philpot that the "[n]ext violation" would be "108 months in prison, 36 months on each count, and those will run consecutive."

         {¶ 8} On September 11, 2017, Philpot was arrested on new charges. In CR-17-621326, Philpot waived indictment and was charged by information with one count of having weapons while under disability, one count of improperly handling a firearm in a motor vehicle, one count of carrying a concealed weapon and one count of obstructing official business. Each of the charges included a forfeiture specification. The case was assigned to Judge John Sutula. On October 13, 2017, Philpot pled guilty to the having weapons while under disability and obstructing official business counts and the remaining counts were dismissed. On November 2, 2017, the trial court conducted a sentencing hearing in CR-17-621326 and a third violation of community control hearing in CR-14-590162. In CR-17-621326, the trial court sentenced Philpot to 90 days in jail (suspended) on the obstructing official business count and three years of community control on the having weapons while under disability count. Philpot was ordered to serve a six-month term at a CBCF. The trial court imposed 180 days of GPS monitoring after Philpot completed his term at the CBCF and also ordered Philpot to perform 200 hours of community service, submit to random drug testing, complete an inpatient drug treatment program, obtain and maintain verifiable employment and obtain his GED. The trial court advised Philpot that if he violated community control he would receive a 36-month prison sentence.

         {¶ 9} With respect to Philpot's alleged community control violations in CR-14-590162, the trial court found Philpot to have violated community control, continued his community control with modified conditions and ordered Philpot to perform an additional 300 hours of community service. Judge Sutula warned Philpot that this was his "last opportunity" and that if he violated community control again, he would receive a 36-month prison sentence on each of the felony counts, to be served consecutively:

THE COURT: * * * Next violation will be 108 months in prison. That's 36 months as to each F-2 and F-3, consecutive. That's 108 months. You got 36 here. That's 144. How long is that?
THE DEFENDANT: Twelve years.
THE COURT: Twelve.
THE DEFENDANT: Twelve years, right.
[THE COURT:] This is your last opportunity. Do you understand me? * * * Do you understand? Last opportunity. Last-ditch effort here.
THE DEFENDANT: I understand.

         {¶ 10} Philpot was discharged from the CBCF for physical aggression and, on December 27, 2017, the trial court held a fourth community control violation hearing in CR-14-590162 and an initial community control violation hearing in CR-17-621326. The trial court continued the hearing so it could determine whether Philpot was eligible for placement in a CBCF outside Cuyahoga County. In January 2018, Philpot was accepted into a Lorain County/Medina County CBCF. Philpot completed that CBCF program and was released in May 2018.

         {¶ 11} On October 2, 2018, a Cuyahoga County Grand Jury indicted Philpot on one count of having weapons while under disability and one count of carrying concealed weapons in a third criminal case, CR-18-632516. Both counts included forfeiture specifications. The case was assigned to Judge Pamela Barker.

         {¶ 12} In December 2018, Philpot pled guilty to the having weapons while under disability count and an amended count of attempted carrying concealed weapons. Judge Barker ordered a presentence investigation report and scheduled the matter for sentencing. On January 16, 2019, Judge Barker conducted the sentencing hearing in CR-18-632516 and the community control violation hearing in CR-14-590162 and CR-17-621326.

         {¶ 13} At the outset of the hearing, Judge Barker observed that CR-14-590162 and CR-17-621326 "have been presided over by the Honorable John Sutula" and that Judge Sutula "has asked that this Court handle the hearings associated with the alleged probation violations in those two cases." Judge Barker indicated that Judge Sutula had previously "reserved" a 108-month sentence in CR-14-590162 and a 36-month sentence in CR-17-621326 and that he had stated he would run those sentences consecutively if Philpot committed another community control violation. Judge Barker explained:

I'm basically taking over for Judge Sutula in terms of handling this matter because of the third case that's before me, but therefore I wanted to know what Judge Sutula had to say with regard to this defendant based upon the numerous violations that the record indicates have occurred over some years.

         {¶ 14} After hearing from the state, Philpot, defense counsel and Philpot's probation officer and reviewing the presentence investigation report prepared for CR-18-632516, the status report from Philpot's probation officer, the "prior presentence investigation reports and the journal entries that were assigned by Judge Sutula relative to the other probation violation hearings" and considering the purposes and principles of sentencing under RC. 2929.11 and the relevant sentencing factors under R.C. 2929.12, Judge Barker sentenced Philpot to an aggregate sentence of 14 years as follows:

• In CR-14-590162, to a sentence of 108 months - 36 months on the attempted criminal gang activity count, 36 months on the attempted robbery count, 36 months on the extortion count and 180 days on the assault count, with the sentence on the assault count to be served concurrently to the sentences on the other counts and the sentences on the other counts to be served consecutively to each other and consecutively to the sentences imposed in CR-17-621326 and CR-18-632516.
• In CR-17-621326, to a sentence of 36 months - 36 months on the having weapons while under disability count and 90 days on the obstructing official business count to be served concurrently to each other and consecutively to the sentences imposed in CR-14-590162 and CR-18-621326.
• In CR-18-632516, to a sentence of 24 months - 24 months on the having weapons while under disability count and 12 months on the attempted carrying of concealed weapons count to be served concurrently to each other and consecutively ...

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