[Cite as State v. Davenport, 2018-Ohio-3319.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 10-18-05
v.
MICHAEL R. DAVENPORT, OPINION
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Trial Court No. 15-CR-153
Judgment Affirmed
Date of Decision: August 20, 2018
APPEARANCES:
Kenneth J. Rexford for Appellant
Matthew K. Fox and Joshua A. Muhlenkamp for Appellee
Case No. 10-18-05
SHAW, J.
{¶1} Defendant-appellant, Michael R. Davenport (“Davenport”), brings this
appeal from the February 26, 2018, judgment of the Mercer County Common Pleas
Court revoking his community control and sentencing him to serve an aggregate 48-
month prison term for his two Robbery convictions in violation of R.C.
2911.02(A)(3), both felonies of the third degree. On appeal, Davenport argues that
he was denied due process with regard to his community control sanction violations,
and that the trial court erred by imposing consecutive sentences upon him without
previously reserving the power to do so.
Relevant Facts and Procedural History
{¶2} On October 22, 2015, Davenport was indicted for two counts of
Robbery in violation of R.C. 2911.02(A)(2), both felonies of the second degree
(Counts 1 and 3), and two counts of Assault in violation of R.C. 2903.13(A), both
misdemeanors of the first degree (Counts 2 and 4). Davenport originally pled not
guilty to the charges.
{¶3} On April 6, 2016, Davenport entered into a written, negotiated guilty
plea wherein he agreed to plead guilty to two amended counts of Robbery, both
violations of R.C. 2911.02(A)(3), which were felonies of the third degree (rather
than second degree felonies he was originally charged with). In exchange the State
agreed to dismiss the remaining charges against him, and make no sentencing
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recommendation. Notably, the written plea agreement indicated that consecutive
prison terms were not mandatory but could be imposed by the trial court. (Doc. No.
47).
{¶4} On May 24, 2016, matter proceeded to sentencing. At the hearing the
trial court analyzed the seriousness and recidivism factors under R.C. 2929.12(B),
and then ultimately sentenced Davenport to community control. As to the prison
sentence that would be imposed if Davenport violated community control, the trial
court stated as follows.
The Court will notify the Defendant of a prison term for each
offense of 24 months, and the Court will advise the Defendant that
if he would have to serve those two, 24-month sentences, and was
placed under post release control, which is mandatory for a
period of three years on each count, upon his release from prison,
he violates the terms of post-release control, he could be returned
to prison for up to one half of each of those 24-month sentences.
(May 24, 2016, Tr. at 8). The judgment entry stated that Davenport was notified
that if he violated his community control sanctions he would face “a prison term of
Twenty-four (24) months on each count.” (Doc. No. 59).
{¶5} On July 25, 2016, State filed a notice of community control sanctions
violation alleging that Davenport failed to establish a permanent residence and that
he changed his residence without getting permission from his supervising officer in
contravention of the terms of his community control. The matter was set for a
hearing.
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{¶6} On June 28, 2017, a hearing was held to inform Davenport of the
charges against him regarding his alleged violation. Davenport indicated that he
understood the charges and the matter was set for a further hearing.
{¶7} On August 4, 2017, a hearing was held wherein the State made an oral
request to revoke Davenport’s bond due to him testing positive for amphetamine,
cocaine, fentanyl, methamphetamine, and morphine. Davenport also admitted to
using heroin. At that time, Davenport’s bond was revoked.
{¶8} On August 9, 2017, a hearing was held on the alleged community
control violation. Davenport was notified of the fact that if he was found in violation
he could be sentenced to incarceration. Nevertheless, Davenport admitted to
violating his community control as alleged and the matter was set for disposition.
{¶9} On August 30, 2017, the matter proceeded to disposition. At the
beginning of the hearing, Davenport’s counsel argued in favor of keeping Davenport
on community control despite the violation. His counsel stated, “Your honor, today
I would start off with I don’t think failure to change an address warrants going back
to prison for four years.” (August 30, 2017, Tr. at 4). Davenport’s counsel then
noted that he did test positive for drugs, but he admitted as much to his probation
officer. Davenport’s counsel indicated that Davenport was an addict and would
benefit more from being sent to the W.O.R.T.H. Center. The State, however, argued
in favor of revoking Davenport’s community control and sending him to prison.
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{¶10} The trial court elected to continue Davenport’s community control and
send Davenport to the W.O.R.T.H. Center as requested by the defense. However,
the trial court notified Davenport that if he did not successfully complete the
W.O.R.T.H. center he would be sent to prison. “[I]f you fail community control
this time, the Court will impose the two, 24-month prison sentences.” (Id. at 9).
The judgment entry then stated, in bold lettering, that if Davenport violated his
community control he would be subject to a prison term of Twenty-four (24) months
on each count. (Doc. No. 107).
{¶11} On January 19, 2018, the State filed a notice of community control
sanctions violation alleging that Davenport had been unsuccessfully terminated
from the W.O.R.T.H. center.
{¶12} Davenport denied the allegation against him and wanted to proceed to
a hearing. The matter proceeded to a hearing on February 13, 2018.
{¶13} At the hearing, the State called Adam Blevins, who worked at the
W.O.R.T.H. Center. Blevins testified that he had worked there for 3 years and that
he was familiar with Davenport.
{¶14} Blevins testified that Davenport arrived at the facility in September of
2017 and was terminated in January of 2018. Blevins testified that Davenport was
terminated because there was evidence that he had been involved with bringing
contraband into the facility.
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{¶15} Blevins testified that the W.O.R.T.H. Center administration initially
started an investigation believing that a staff member was bringing contraband into
the facility, specifically tobacco. Blevins testified that he looked into the matter,
having phone calls to and from the facility checked. While targeting employees in
the investigation, Blevins learned that Davenport was coordinating with his
boyfriend to have tobacco brought into the facility through a kitchen staff member.
{¶16} Blevins identified multiple calls Davenport had made to his boyfriend
wherein Davenport directed his boyfriend to hide certain items in a trash can at Casa
Lu Al, a restaurant in Lima.
{¶17} Blevins testified that a kitchen staff member confirmed that she was
working with Davenport to bring contraband into the facility, and she was fired.
After the investigation, Davenport was terminated from the W.O.R.T.H. Center,
though Davenport denied any involvement.
{¶18} Following Blevins’ testimony, the trial court found that Davenport
was in violation of his community control for being unsuccessfully terminated from
the W.O.R.T.H. Center. The trial court then proceeded to disposition.
{¶19} During the dispositional phase, Davenport called a witness to testify
that Davenport had made arrangements to be involved in a medically assisted
program for drug treatment. The witness testified that she did not think prison
would benefit Davenport; however, the witness testified that she had worked at the
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W.O.R.T.H. Center previously, that she was aware Davenport was unsuccessfully
terminated, and that she was aware that contraband such as tobacco was taken very
seriously there.
{¶20} The trial court then proceeded to the dispositional phase, ultimately
revoking Davenport’s community control and sentencing him to prison, stating:
The Court will therefore impose the prison terms that were
noticed to the Defendant of 24 months on each count and order
them to be served consecutively. The Court finding that the
consecutive sentences are necessary to protect the public from
future crimes and appropriately punish him, and are not
disproportionate to the seriousness of his conduct and the danger
that he poses to the public for the commission of these offenses.
He did commit these offenses while he was out awaiting trial, or
sentencing, or under community control sanctions, and his history
of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crimes.
The offenses, there being two, were committed as part of one or
more courses of conduct. The harm having been caused was great
enough that no single prison term for either one, so that they could
be run concurrently, would adequately reflect the seriousness of
his conduct.
(Tr. at 47-48).
{¶21} A judgment entry memorializing Davenport’s sentence was filed
February 26, 2018. It is from this judgment that Davenport appeals, asserting the
following assignments of error for our review.
Assignment of Error No. 1
The Trial Court erred by denying Mr. Davenport due process as
to the allegation of a violation of community control sanctions.
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Assignment of Error No. 2
The Trial Court erred by imposing consecutive sentences at
disposition on the CCSV without previously reserving the power
to impose consecutive sentencing within any pre-CCSV Brooks
notice.
First Assignment of Error
{¶22} In Davenport’s first assignment of error, he argues that he did not
receive due process with regard to the allegation of his community control sanction
violation. Specifically, Davenport seems to contend that there should have been a
hearing to determine if Davenport was rightfully terminated from the W.O.R.T.H.
center. Davenport argues that limiting his community control violation hearing to
the fact of his termination, rather than the legitimacy of the cause of the termination,
denied him due process.
{¶23} Despite Davenport’s claim, both the cause of his termination from the
W.O.R.T.H. Center and the fact of his termination were presented to the trial court
through the testimony of Blevins, a W.O.R.T.H. Center employee.1 There was
ample testimony from Blevins to establish that Davenport did not successfully
complete the W.O.R.T.H. center as required by the trial court due to Davenport’s
involvement in bringing contraband into the facility.
1
As the State notes in its brief, Davenport did not exactly raise this issue to the trial court, therefore we could
find that he waived it altogether, though we decline to do so.
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{¶24} As Davenport notes, there are certain requirements that have to be met
before community control can be revoked. There needs to be, inter alia, a written
notice of the alleged violations, disclosure of the evidence, an opportunity to be
heard and cross-examine witnesses, and a neutral and detached hearing body. See
State v. Miller, 42 Ohio St.2d 102 (1975). Though Davenport disagrees, all of these
requirements were present here and complied with.
{¶25} Davenport seems to be requesting this Court to implement a major
shift and provide for some type of administrative hearing process for termination
from the W.O.R.T.H. Center. Creating such a process or an administrative body to
hear it is not within the province of this Court.
{¶26} Regardless, as to Davenport’s community control sanction violation,
the record is clear that Davenport received due process under the law. See Morissey
v. Brewer, 408 U.S. 471 (1972); State v. Miller, 42 Ohio St.2d 102 (1975).
Davenport was notified of his requirements under his community control, he was
notified of his purported violation, he was provided a full hearing, with counsel, to
contest that violation, and then when found in violation—for the second time—his
violation was disposed of, by sentencing him to the previously reserved prison term.
Therefore, his argument is not well-taken, and his first assignment of error is
overruled.
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Second Assignment of Error
{¶27} In Davenport’s second assignment of error, he argues that the trial
court did not reserve the power to impose consecutive sentences in the event that
Davenport violated his community control. Specifically, Davenport contends that
the trial court’s statement that Davenport would be subject to a 24-month prison
term on each count was insufficient to notify Davenport that he would be subject to
consecutive prison terms.
{¶28} Davenport’s arguments rely primarily on the Supreme Court of Ohio’s
decisions in State v. Brooks, 103 Ohio St.3d 134, 2004–Ohio–4746, and State v.
Fraley, 105 Ohio St.3d 13, 2004–Ohio–7110. In Brooks, the Supreme Court of
Ohio held that, “[p]ursuant to R.C. 2929.19(B)(5) and 2929.15(B), a trial court
sentencing an offender to a community control sanction must, at the time of the
sentencing, notify the offender of the specific prison term that may be imposed for
a violation of the conditions of the sanction, as a prerequisite to imposing a prison
term on the offender for a subsequent violation.” Id. at paragraph two of the
syllabus.
{¶29} Fraley addressed a different scenario. In Fraley, the Court had to
determine “the timing of notification required by the statute in order to impose a
prison term when an offender violates his community control sanctions multiple
times.” Id. at ¶ 15. At Fraley’s original sentencing hearing, he was not notified of
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the possible prison sentence that could be imposed if he violated community
control. See id. at ¶ 19. However, at Fraley’s third violation hearing, he was
properly notified, and, thus, the Court concluded that Fraley could be sentenced to
prison when he was found to have violated community control a fourth
time. Id. The Court held that, “pursuant to R.C. 2929.19(B)(5) and 2929.15(B), a
trial court sentencing an offender upon a violation of the offender’s community
control sanction must, at the time of such sentencing, notify the offender of the
specific prison term that may be imposed for an additional violation of the
conditions of the sanction as a prerequisite to imposing a prison term on the offender
for a subsequent violation.” Id. at ¶ 18. Fraley thus essentially held that “if at a
subsequent violation hearing where the community control is continued the trial
court notifies the offender of the specific prison term that will be imposed it cures
the defect in the original sentence.” State v. Lyle, 3d Dist. Allen No. 1-13-16, 2014-
Ohio-751, ¶ 13, citing Fraley at ¶ 17.
{¶30} In this case, Davenport is correct that the trial court did not state the
word “consecutive” when referring to his potential prison terms, and the trial court
similarly did not state the number “48 months” as the total aggregate prison term.
However, the omission of the term “consecutive” does not render the phrase “24
months on each count” to mean concurrent. See State v. Ward, 6th Dist. Wood No.
WD-09-043, 2010-Ohio-2619, ¶¶ 15-18.
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{¶31} At his original sentencing hearing, Davenport was notified that he
could serve a prison term “for each offense of 24 months” and he was advised that
“if he would have to serve those two, 24-month sentences” he would be subject to
post-release control. (Emphasis added.) (May 24, 2016, Tr. at 8). Both the phrases
“each offense” and “two, 24-month sentences” clearly indicate the imposition of
consecutive sentences.
{¶32} Additionally, we note that at Davenport’s first community control
violation hearing, his attorney, speaking on his behalf, indicated that Davenport’s
relatively minor infraction of failure to notify the probation department of an
address change did not warrant a four-year prison term. This implies that not only
was the consecutive sentence notification given, but that it was understood by
Davenport and his counsel, as they were clearly aware of the potential consequences
if Davenport was found in violation of his community control.
{¶33} Nevertheless, when Davenport was then sent to the W.O.R.T.H. center
after his first violation, the trial court stated to him, “[I]f you fail community control
this time, the Court will impose the two, 24-month prison sentences.” (Tr. at 9).
The judgment entry ordering Davenport to W.O.R.T.H. stated, in bold, that if he
violated his community control sanctions he would be subject to a prison term of
Twenty-four (24) months on each count.
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{¶34} While it may have also been a good practice for the trial court to have
referred to aggregate 48-month prison term, we cannot find that Davenport has
clearly and convincingly demonstrated that the trial court’s sentence was improper
here. R.C. 2953.08(G)(2). Therefore, Davenport’s second assignment of error is
overruled.
Conclusion
{¶35} For the foregoing reasons Davenport’s assignments of error are
overruled and the judgment of the Mercer County Common Pleas Court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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