State v. Mayle

[Cite as State v. Mayle, 2017-Ohio-8942.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2017-A-0005
- vs - :

DOUGLAS M. MAYLE, JR., :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014
CR 00298.

Judgment: Affirmed.

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Richard Tadd Pinkston, 103 Fifth Street, S.E., Suite L, Barberton, OH 44203 (For
Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Douglas M. Mayle, Jr., appeals revocation of his community

control sanctions and imposition of a thirty-month prison term on his conviction for

attempted felonious assault. He challenges the trial court’s acceptance of his admission

to the community control violation and his sentence. We affirm.

{¶2} In July 2014, appellant was indicted on one count of felonious assault, a
second-degree felony under R.C. 2903.11(A)(1), based upon an allegation that

appellant threw a kitchen chair that hit his girlfriend in the chest, injuring her sternum.

{¶3} Ultimately, appellant entered an Alford guilty plea to an amended charge

of attempted felonious assault, a third-degree felony. The trial court accepted the plea

and found appellant guilty.

{¶4} A sentencing hearing was later scheduled and held. Speaking on his own

behalf, appellant claimed he never intended any harm. He also informed that he was

experiencing serious health problems, including liver failure. After appellant’s

statement, the prosecutor agreed incarceration was not appropriate. The trial court

sentenced appellant to two years of community control, placing him on intensive

supervision. The court informed appellant that he would be subject to a thirty-month

prison term if he violated community control sanctions.

{¶5} Approximately fifteen months later, the trial court issued a capias for

appellant’s arrest on the grounds that he repeatedly violated the terms of community

control. Appellant was apprehended and confined in the county jail. His probation

officer filed a “violation” complaint, alleging failure to report for over six months.

{¶6} A probable cause hearing on the alleged violation was held. After the trial

court explained the purpose of a probable cause hearing, appellant stated that he did

not wish to challenge the allegation. He asserted that he was not receiving proper

medical care in the county jail, and that he needed to be transferred to a state

penitentiary as soon as possible to obtain adequate care. Thereafter, appellant

consulted off the record with his counsel, who then informed that his client waives the

probable cause and final hearing, and enters an admission on the violation.

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 {¶7} After the trial court accepted the admission, appellant’s counsel requested

a shorter prison term than the thirty-month term referenced when community control

sanctions were imposed. While acknowledging that appellant had taken some steps to

change his behavior, the trial court imposed a thirty-month prison term finding appellant

no longer amenable to community control sanctions, and that a prison term was

necessary to satisfy the overriding purposes and principles of felony sentencing.

{¶8} Appellant appeals raising:

{¶9} “[1.] The trial court erred when it accepted a de facto Alford guilty plea

from [appellant] without following the proper procedure laid out in State v. Piacella, 27

Ohio St.2d 92, 271 N.E.2d 852 (1971).

{¶10} “[2.] The trial court erred in failing to notify [appellant] that an admission of

violating community control at his probable cause hearing would trigger a thirty-month

prison sentence under R.C. 2929.15 and R.C. 2929.19 and additionally by failing to

refer to R.C. 2929.11 and R.C. 2929.12 at sentencing.”

{¶11} Under his first assignment, appellant maintains the trial court erred when it

accepted his admission. He contends that his admission should be likened to a guilty

plea under North Carolina v. Alford, 400 U.S. 25 (1970), and that his admission should

not have been accepted because his sole motive in admitting the violation was to

immediately obtain adequate health care at a state prison, not to avoid a jury trial or to

obtain a shorter prison term.

{¶12} The state argues that Alford is inapplicable and that Crim.R. 32.3 controls.

{¶13} Alford applies in limited circumstances to guilty pleas to original charges in

an indictment or complaint. We decline to extend it to community control violation

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hearings. There is ample precedent for the proposition that the rules governing guilty

pleas, such as Crim.R. 11(C)(2), do not apply to community control revocation hearings.

{¶14} “At the outset we would note that, ‘“A community control revocation

hearing is not a criminal trial[.]”’ State v. Parsons, 4th Dist. Athens No. 09CA4, 2009-

Ohio-7068, ¶11, quoting State v. Belcher, 4th Dist. Lawrence No. 06CA32, 2007-Ohio-

4256, at ¶12. For that reason, a ‘defendant faced with revocation of probation or parole

is not afforded the full panoply of rights given to a defendant in a criminal prosecution.’

State v. Alexander, 1st Dist. Hamilton No. C-070021, 2007-Ohio-5457, at ¶7; State v.

Orr, 11th Dist. Geauga No. 2008-G-2861, 2009-Ohio-5515, at ¶21; State v. Malone, 6th

Dist. Lucas No. L-03-1299, 2004-Ohio-5246, at ¶13-14. More specifically, ‘the

requirements of Crim.R. 11(C)(2) do not apply to a community-control-violation hearing.’

Alexander at ¶7; Orr at ¶21.” State v. Brown, 3rd Dist. Logan No. 8-14-04, 2015-Ohio-

468, ¶13.

{¶15} Revocation of community control is governed by Crim.R. 32.3, providing in

part:

{¶16} “(A) Hearing. The court shall not impose a prison term for violation of the

conditions of a community control sanction or revoke probation except after a hearing at

which the defendant shall be present and apprised of the grounds on which action is

proposed. The defendant may be admitted for bail pending hearing.

{¶17} “(B) Counsel. The defendant shall have the right to be represented by

retained counsel and shall be so advised. Where a defendant convicted of a serious

offense is unable to obtain counsel, counsel shall be assigned to represent the

defendant, unless the defendant after being fully advised of his or her right to assigned

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counsel, knowingly, intelligently, and voluntarily waives the right to counsel. Where a

defendant convicted of a petty offense is unable to obtain counsel, the court may assign

counsel to represent the defendant.”

{¶18} In Brown, supra, the defendant maintained that, as part of the community

control revocation hearing, the trial court was obligated to inform him of any potential

consequences of admitting a community control violation, and of his right to confront

and cross-examine witnesses as mandated under Crim.R. 11. This argument was

rejected on the basis that Crim.R. 32.3 does not contain any language requiring such:

“Criminal Rule 32.3(A) merely requires a trial court to (1) hold a hearing, (2) where the

defendant is present, (3) and apprised of the grounds on which action is proposed.

None of the Crim.R. 11(C)(2) requirements are contained within the rule.” Brown, 2015-

Ohio-486, at ¶15; State v. Orr, 11th Dist. Geauga No. 2008-G-2861, 2009-Ohio-5515.

See, also, State v. Patton, 8th Dist. Cuyahoga No. 103737, 2016-Ohio-4867, 68 N.E.3d

273; State v. Mullins, 12th Dist. Butler Nos. CA2011-10-195 & CA2011-10-196, 2012-

Ohio-5005; State v. Johnson, 6th Dist. Lucas No. L-09-1218, 2010-Ohio-1887.

{¶19} Without addressing differences between the procedural rules governing

pleas and community control revocation hearings, appellant argues applying Alford to

community control revocation hearings would be consistent with the Ohio Supreme

Court’s trend to eliminate informality in such proceedings. In support, he cites: State v.

Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81 N.E.3d 1237, holding that, after a

finding of a violation has been made, the defendant must be afforded an opportunity for

allocution before community control sanctions are terminated and a prison term is

imposed; State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965, holding

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that, since the state is a party to a community control revocation hearing, the prosecutor

is entitled to proper notice of the proceeding and must be given an opportunity to be

heard and; State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995,

holding that, if a defendant’s community control sanctions are not terminated as a result

of his first violation, the trial court is required to give him notice of the length of the

prison term that could be imposed in the event of a second violation.

{¶20} Both Jackson and Fraley pertain solely to afforded rights following a

determination that a violation was committed. While Heinz characterized a community

control revocation hearing as formal and adversarial, it did so in the context of deciding

that the state is entitled to fully participate. To this extent, none of the cited opinions

support an extension of Alford to community control revocation hearings.

{¶21} Before accepting appellant’s admission and imposing sentence, the trial

court held a hearing, appellant was represented and present, and he was advised of the

alleged violation. Crim.R. 32.3 was fully satisfied. His first assignment is without merit.

{¶22} Under his second assignment, appellant challenges his prison term. He

first argues that the trial court should not have accepted his admission without first

informing that he could be sentenced to thirty months, citing Fraley supra.

{¶23} Fraley, however, holds that in order for a trial court to impose a prison

term for a violation of community control sanctions, it was required to have informed the

defendant at the original sentencing hearing or the sentencing hearing held in relation to

a prior sanctions violation, of the potential sentence for a future violation. Fraley, 2004-

Ohio-7110, at ¶18-19. Fraley does not require the trial court to repeat the potential

prison term during the violation proceeding resulting in the imposition of a prison term.

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 {¶24} As part of the discussion required before accepting an original guilty plea,

the trial court must inform a defendant of the maximum potential penalty. See Crim.R.

11(C)(2)(a). But, as noted, Crim.R. 11(C) does not apply to a revocation proceeding.

The trial court simply had no duty to again inform appellant of the potential prison term

before accepting his admission or entering sentence.

{¶25} Appellant separately asserts that the trial court erred in failing to consider

the general purposes and principles of sentencing, R.C. 2929.11, and the sentencing

factors for seriousness and recidivism, R.C. 2929.12.

{¶26} Before sentencing appellant to prison, the trial court referenced “the

overriding purposes and principles of sentencing” without specifically mentioning R.C.

2929.11 or R.C. 2929.12. Furthermore, the sentencing judgment does not reference

either statute. That the trial court did not expressly reference the two statutes is not

outcome determinative:

{¶27} “[W]e have also stated that R.C. 2929.11 and 2929.12 delineate specific

factors which a trial court is required to consider as a general guide for imposing a

sentence. [State v. Kirkpatrick, 11th Dist. Trumbull No. 2010-T-0025, 2010-Ohio-6578,]

at ¶41. However, in satisfying this obligation, the trial court does not have a

corresponding duty to divulge its analysis of the various factors:

{¶28} “‘It is well-settled that R.C. 2929.12 does not require a sentencing court to

discuss the statutory criteria on the record or even to state on the record that it has

considered them. State v. Chapdelain, 11th Dist. Lake No. 2009-L-166, 2010-Ohio-

2683, at ¶14. In fact, the Court in Kalish noted that where a sentencing court does not

memorialize on the record that it considered the factors, a presumption arises that the

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factors were properly considered. [Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912], at ¶27,

f.n. 4. “By implication, as long as there is some indication that the factors were

considered, a reviewing court is bound to uphold the sentence.” Chapdelaine, supra.’

Id. at ¶42.

{¶29} “See, also, State v. Tenney, 11th Dist. Ashtabula No. 2009-A-0015, 2010-

Ohio-6248, at ¶14, in which this court concluded that a silent record raises a

presumption that the relevant statutory factors were duly considered before the

sentencing determination was made.” State v. Vargo, 11th Dist. Portage No. 2010-P-

0065, 2011-Ohio-6690, ¶22-24. See, also, State v. Bisson, 11th Dist. Portage No.

2012-P-0050, 2013-Ohio-2141.

{¶30} The presumption is unrebutted. Appellant had a significant criminal

record, including convictions for trafficking in drugs, possession of drugs, assault,

domestic violence, theft, forgery, and receiving stolen property. He had also served at

least four previous prison terms of six months or more.

{¶31} Appellant’s sentence is not clearly and convincingly contrary to law. R.C.

2953.08(G)(2). As a result, his second assignment also lacks merit.

{¶32} The judgment of the Ashtabula County Court of Common Pleas is

affirmed.

CYNTHIA WESTCOTT RICE, P.J.,

DIANE V. GRENDELL, J.,

concur.

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