[Cite as State v. Davis, 2022-Ohio-2123.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
CHRISTOPHER J. DAVIS, : Case No. 21-COA-017
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County
Court of Common Pleas, Case No.
18-CRI-103
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 21, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL DAVID C. KNOWLTON
Ashland County Prosecuting Attorney Kennedy, Cicconetti, Knowlton
& Barnard Co., LPA
By: NADINE HAUPTMAN 111 South Buckeye Street, Suite 270
Assistant Prosecuting Attorney Wooster, Ohio 44691
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 21-COA-017 2
Baldwin, J.
{¶1} Defendant-appellant Christopher Davis appeals his sentence from the
Ashland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 15, 2018, the Ashland County Grand Jury indicted appellant on
one count of aggravated possession of drugs in violation of R.C. 2925.11(A), a felony of
the fifth degree, and one count of possession of marihuana in violation of R.C. 2925.11(A),
also a felony of the fifth degree. At his arraignment on February 7, 2019, appellant
entered a plea of not guilty to the charges.
{¶3} Thereafter, on April 23, 2019, appellant withdrew his former not guilty plea
and entered a plea of guilty to aggravated possession of drugs. The remaining count was
dismissed. As memorialized in a Judgment Entry filed on June 6, 2019, appellant was
placed on three (3) years of community control. As part of his community control
sanctions, appellant was ordered to obey all federal, state and local laws. The Judgment
Entry provided that if appellant violated his community control, he would serve a twelve
(12) month prison sentence. No appeal was taken.
{¶4} On October 21, 2020, an alleged community control violation was filed
against appellant alleging as follows:
{¶5} COUNT ONE (1): TO WIT: On or about October 17, 2020, in the vicinity of
Cleveland, OH, you caused or attempted to cause physical harm to Veronica Downey.
{¶6} COUNT TWO (2): TO WIT: On or about October 17, 2020, in the vicinity of
Cleveland, OH, you knowingly caused Veronica Downey to believe that you would cause
serious physical harm to Veronica Downey.
Ashland County, Case No. 21-COA-017 3
{¶7} COUNT THREE (3): TO WIT: On or about October 17, 2020, in the vicinity
of Cleveland, OH, you being the parent of John Doe (DOB: 12/18/2019) who did create a
substantial risk to the health and safety of John Doe, by violating a duty of care, protection
or support.
{¶8} The document further alleged that appellant had been charged with
domestic violence, aggravated menacing and child endangering in a Cleveland Municipal
Court case and, therefore, had violated the condition of his community control requiring
him to obey all federal, state and local laws. On April 21, 2021, the Municipal Court sua
sponte dismissed the matter without prejudice.
{¶9} An evidentiary hearing on the alleged community control violations occurred
on June 18, 2021 before a Magistrate. The Magistrate, in a Decision file on June 28,
2021, found that the State of Ohio had established by substantial proof that appellant had
violated the terms of his community control orders ”as set for the in Count One of the
October 21, 2020 Alleged Community Control Violation Complaint by causing or
attempting to cause physical harm to Veronica Downey” and that the State had not
established the remaining violations. After no objections to the Decision were filed, the
trial court, pursuant to a Judgment Entry filed on July 21, 2021, adopted the Magistrate’s
Decision.
{¶10} On August 31, 2021, the trial court held a sanctioning hearing. As
memorialized in a Judgment Entry filed on September 4, 2021, the trial court sentenced
appellant to six (6) months in prison.
{¶11} Appellant now appeals, raising the following assignments of error on
appeal:
Ashland County, Case No. 21-COA-017 4
{¶12} “I. THE TRIAL COURT’S SENTENCE CONSISTING OF A PRISON TERM
OF SIX MONTHS FOR A FIFTH DEGREE FELONY DRUG OFFENSE IS CONTRARY
TO LAW.”
{¶13} “II. THE TRIAL COURT ERRED BY FAILING TO CONSIDER AND APPLY
THE CAPS SET FORTH IN [SECTION] 2929.15(B)(1)(C)(i) WHEN SANCTIONING
APPELLANT FOR VIOLATING HIS COMMUNITY CONTROL, THUS RESULTING IN A
SENTENCE THAT IS CONTRARY TO LAW.”
I
{¶14} Appellant, in his first assignment of error, argues that his six (6) month
prison sentence for a fifth degree felony drug offense is contrary to law. Appellant
specifically contends that, in revoking his community control and sentencing him to prison,
the trial court “relied upon an unspecified, unproven allegation of Appellant’s refusal to
abide by a recommendation of his supervising officer, a recommendation that was made
six months after the formal community control complaint was filed and wholly unrelated
to the violations alleged therein.”
{¶15} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,
citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for sentencing where we clearly and convincingly find either the record does
not support the sentencing court's findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(l), or the sentence is otherwise contrary to law. Id.,
citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
Ashland County, Case No. 21-COA-017 5
{¶16} In the case sub judice, appellant was placed on community control under
specified terms and conditions. After the Cleveland incident in October, appellant was
further advised by his probation officer to get domestic violence counseling. There is no
dispute that appellant did not do so. However, no community control violation was ever
filed against appellant alleging that he failed to complete domestic violence counseling.
As noted by appellant, the trial court, in sentencing appellant to prison, placed great
weight on appellant’s refusal to do so. The trial court stated, in relevant part, on the record:
“And basically what they are saying is that you just refused to comply to (sic) the terms
and conditions of the supervision and that refusal had led to this violation, coupled with
the offenses that you committed, and I am pretty much agreeing with the State, that I think
a prison sanctions is appropriate under these circumstances.” Transcript at 13.
{¶17} Based on the foregoing, we concur with appellant that “the court’s
conclusion that Appellant failed to comply with his supervision terms, drawn from an
unspecified, unproven allegation by his supervising officer, and basing its decision to
impose a prison sanction on the same, is clearly erroneous.” Appellant had no notice of
such allegation that he had failed to enter into domestic violence counseling and no notice
to defend against the same. Moreover, such a violation has not been established or
proven by substantial evidence.
{¶18} Appellant’s first assignment of error is, therefore, sustained.
II
{¶19} Appellant, in his second assignment of error, argues that the trial court erred
by failing to consider and apply the caps set forth in R.C. 2929.15(B)(1)(c)(i) when
sanctioning appellant for violating his community control.
Ashland County, Case No. 21-COA-017 6
{¶20} Based on our disposition of appellant’s first assignment of error, appellant’s
second assignment of error is moot.
{¶21} Accordingly, the judgment of the Ashland County Court of Common Pleas
is reversed and this matter is remanded to the trial court for resentencing in accordance
with this Opinion.
By: Baldwin, J.
Gwin, P.J. and
Hoffman, J. concur.