[Cite as State v. Brooks, 2017-Ohio-5825.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2016-CA-17
:
v. : T.C. NO. 16-CR-55
:
LAVON O. BROOKS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___14th __ day of _____July_____, 2017.
...........
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecutor, 61 Greene Street,
Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
ADAM JAMES STOUT, Atty. Reg. No. 0080334, 2600 Far Hills Avenue, Suite 315,
Dayton, Ohio 45419
Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Lavon O. Brooks pled guilty in the Greene County Court of Common Pleas
to an amended charge of aggravated possession of drugs, a third-degree felony; as part
of the plea, three additional charges were dismissed.1 The trial court imposed an agreed
1
As part of the plea agreement, Brooks also pled guilty to aggravated possession of
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sentence of 30 months in prison with risk reduction programming. In its judgment entry,
the trial court disapproved placement in an intensive program prison (IPP) and transfer to
transitional control.
{¶ 2} Brooks appeals from his conviction, claiming that the trial court erred when it
disapproved placement in IPP (1) without providing a factual basis for its disapproval and
(2) after the court had “construed the plea agreement to include IPP along with risk
reduction.” For the following reasons, the trial court’s judgment will be affirmed in part,
reversed in part, and remanded for further proceedings.
{¶ 3} IPP “includes institutions that have military-type regimen programs as
described in R.C. 5120.031 and institutions that focus on ‘educational achievement,
vocational training, alcohol and other drug abuse treatment, community service and
conservation work, and other intensive regimens or combinations of intensive regimens.’”
State v. Howard, 190 Ohio App.3d 734, 2010-Ohio-5283, 944 N.E.2d 258, ¶ 11, quoting
R.C. 5120.032(A).
{¶ 4} “At the time of sentencing, the court may recommend the offender for
placement in * * * an intensive program prison under section 5120.032 of the Revised
Code, disapprove placement of the offender in * * * an intensive program prison of that
nature, or make no recommendation on placement of the offender.” R.C. 2929.14(I).
However, “[i]f the court recommends or disapproves placement, it shall make a finding
that gives its reasons for its recommendation or disapproval.” R.C. 2929.19(D).
{¶ 5} The trial court’s judgment entry addressed IPP, stating, “IPP is approved/not
drugs, a fifth-degree felony, in Case No. 2015-CR-93. Brooks’s appeal does not concern
Case No. 2015-CR-93.
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approved, sentence given is appropriate”; the phrase “is approved” was crossed out.
{¶ 6} In its appellate brief, the State acknowledges that Brooks was statutorily
eligible for IPP, and it agrees with Brooks that the trial court’s factual findings were
inadequate. The State notes that we addressed a similar circumstance in State v. Berry,
2d Dist. Greene No. 2013-CA-34, 2014-Ohio-132, in which we reversed a judgment
disapproving IPP when the trial court did not discuss IPP at sentencing and the
sentencing entry simply stated, “IPP is approved/not approved, sentence given is
appropriate”; as here, the phrase “is approved” was crossed out on the entry. We
concluded in Berry that this statement was not a factual finding, commenting, “There may
be facts in the record justifying disapproval of IPP, but the trial court did not refer to them
when deciding to disapprove Berry for placement in IPP.” Id. at ¶ 49. We reversed the
portion of the judgment concerning the disapproval of IPP and remanded for further
proceedings on this issue. Id.
{¶ 7} We agree with the State that this case is governed by Berry and other cases
in which we have required the trial court to make findings that give its reasons for
disapproving IPP. See also, e.g., State v. Bailey, 2d Dist. Greene No. 2014-CR-569,
2016-Ohio-2957. As in Berry, the phrase “the sentence is appropriate” is not a factual
finding for purposes of R.C. 2929.19(D). Brooks’s first assignment of error is sustained.
{¶ 8} The State argues, however, that the trial court did not err in failing to
recommend IPP, because IPP was not a term of the plea agreement. The parties’ plea
agreement was memorialized in a Plea Agreement Report. The Plea Agreement Report,
which addressed two pending cases against Brooks, read:
The Defendant will make a plea of guilty in Case 2015 CR 0093 to Count
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One O.R.C. §2925.11(A), Aggravated Possession of Drugs, a felony of the
fifth degree. Count Two will be dismissed. The Defendant will make a
plea of guilty in Case 2016 CR 0055 to Amended Count Three O.R.C. §
2925.11(A), Aggravated Possession of Drugs, a felony of the third degree.
Counts One, Two and Four will be dismissed. The State will not proceed
on any charges from the incident on January 27, 2016. The parties
stipulate to a 30-month prison sentence with Risk Reduction Programming
in Case No. 2016 CR 0055 and Community Control in Case No. 2015 CR
0093.
(Emphasis in original.)
{¶ 9} At the plea hearing, the trial court reviewed the terms of the plea deal with
Brooks, saying:
THE COURT: Now, I also have a document called a Plea Agreement
Report, which is the written position of the Greene County Prosecutor’s
Office and the police in your case. I want to read this to make sure we’re
all on the same page and have the same understanding as to what this deal
is. The Prosecutor says, the Defendant will plead guilty in Case 93 to
aggravated possession of drugs, a felony of the fifth degree. Count 2 of
the indictment will be dismissed. Defendant will plead guilty in case 55 to
an amended Count 3, aggravated possession of drugs, a felony three, and
Counts 1, 2, and 4 will be dismissed. The State will not proceed on any
charges from the incident on January 27, 2015 2 – I presume you
2
Later in the plea hearing, the parties informed the court that the year should read “2016,”
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understand what this is? I don’t know.
DEFENDANT LAVON BROOKS: Yes.
THE COURT: And the parties stipulate to a 30-month prison sentence with
Risk Reduction Programming in Case Number 2015 [sic] CR 55, and
Community Control in Case Number 15 CR 93. Now, what I read, is that
your understanding of the position of the Prosecutor and the police in your
case?
DEFENDANT LEVON BROOKS: Yes.
THE COURT: Are there any other deals or conditions or promises present
in this case that we haven’t discussed?
DEFENDANT LAVON BROOKS: No.
{¶ 10} IPP was not included in the terms of the written plea agreement, and IPP
was not mentioned at the plea hearing.
{¶ 11} IPP was first raised by Brooks at the sentencing hearing. In his allocution,
Brooks apologized to the State and to his family, expressed regret at the “terrible mistake”
that has resulted from his drug abuse, and asked the trial court “if with your compassion,
that I can get granted IPP program.” The court responded by asking about the agreed
terms of disposition, and the attorneys responded that there was an agreement that there
be a risk reduction sentence. The court then stated:
THE COURT: Actually having reviewed the plea agreement, it does say
specifically that there’s an agreement as to a 30-month prison sentence and
Risk Reduction Programming, so I think * * * that would include IPP.
and the date was corrected on the Plea Agreement Report.
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[PROSECUTOR]: That’s correct.
[DEFENSE COUNSEL]: That’s correct, Your Honor.
As stated above, the court imposed the 30-month prison sentence with Risk Reduction
Programming.
{¶ 12} Based on the record, it is unclear whether IPP was included within the
parties’ agreement to a risk reduction sentence. The parties agreed in their written
agreement to risk reduction programming as part of the 30-month prison sentence; they
did not expressly agree to IPP as an additional term. As stated above, IPP was not
mentioned at the plea hearing, and Brooks did not express that his plea was based on an
understanding that he would receive IPP. When Brooks asked for IPP at sentencing, the
court and the parties apparently agreed that IPP was “included” in the risk reduction
sentence. However, it is unclear from the discussion at sentencing whether parties and
the trial court understood that Brooks’s risk reduction sentence included a
recommendation by the trial court in favor of IPP, that the risk reduction sentence would
include an evaluation by the Ohio Department of Rehabilitation and Correction of Brooks’s
eligibility and suitability for IPP (which would occur if the trial court made no
recommendation regarding IPP pursuant to R.C. 5120.32(B)(1)(a)), or that IPP was
precluded because the parties had agreed to risk reduction instead.
{¶ 13} In short, we cannot conclude, from the record before us, that the parties
agreed that the court would expressly recommend IPP in addition to ordering the risk
reduction sentence, and we cannot conclude that the trial court erred in failing to approve
IPP as part of Brooks’s sentence. However, in light of the discussion of IPP at Brooks’s
sentencing hearing, the trial court should determine upon remand whether the parties’
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plea agreement included IPP, and if so, whether it included the possibility of IPP or a
recommendation for IPP.
{¶ 14} Brooks’s second assignment of error is overruled.
{¶ 15} Although not raised as an assignment of error by Brooks, the State notes in
its appellate brief that the trial court also erred in disapproving transitional control in its
judgment entry. The trial court’s judgment entry read: “Transfer to Transitional control is
approved/not approved”; the phrase “is approved” was crossed out, and the phrase “risk
reduction” was handwritten after the statement. Citing Berry, the State acknowledges
that we have “routinely held that a trial court errs when it prematurely disapproves of
transitional control in its judgment entry.” Berry, 2d Dist. Greene No. 2013-CA-34, 2014-
Ohio-132, at ¶ 54. The State indicates that “this case should also be remanded to the
trial court for the limited purpose of amending the judgment entry to delete the disapproval
of the defendant for transitional control.”
{¶ 16} The trial court’s judgment will be reversed to the extent that it disapproves
IPP and transitional control, and the matter will be remanded for further proceedings on
those matters, consistent with this opinion. In all other respects, the trial court’s
judgment will be affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies mailed to:
Nathaniel R. Luken
Adam James Stout
Hon. Stephen A. Wolaver