[Cite as State v. Mery,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2010-CA-00218 JUAN R. MERY : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2009- CR-1780

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 18, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN FERRERO WAYNE E. GRAHAM, JR. STARK COUNTY PROSECUTOR Suite 300 Renaissance Centre 110 Central Plaza South 4580 Stephen Circle N.W. Canton, OH 44702 Canton, OH 44718 [Cite as State v. Mery,

.]

Gwin, P.J.

{¶1} Defendant-appellant Juan R. Mery appeals the revocation of his

community control and imposition of a six-year prison sentence following an evidentiary

hearing in the Stark County Court of Common Pleas. Plaintiff-appellee is the State of

Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant was indicted by the Stark County Grand Jury for one count of

robbery, one count of trafficking in controlled substances and one count of improperly

handing a firearm in a motor vehicle.

{¶3} The facts related to the charges are documented in the Bill of Particulars,

filed with the Court on December 29, 2009, as stated below:

{¶4} “On or about October 28, 2009, in the City of Canal Fulton, Stark County,

Ohio:

{¶5} “The Appellant aided and abetted each other in committing this offense.

Defendant Kauffman drove defendants Secor and appellant to Canal Fulton City Park.

Defendant Secor had arranged a drug sale to a confidential police informant. The

defendants, however, brought counterfeit drugs. The defendants also planned to steal

money from the informant and brought a .380 auto caliber Hi-POINT semi-automatic

pistol with them. The firearm was accessible to all three defendants.”

{¶6} On January 15, 2010, the state dismissed the charge of improperly

handing a firearm in a motor vehicle and appellant pled guilty to robbery and trafficking Stark County, Case No. 2010-CA-00218 3

in counterfeit controlled substances. A pre-sentence investigation was ordered and

sentencing was continued.1

{¶7} On February 19, 2010, appellant was sentenced to four years community

control. The conditions of appellant's community control included that he enter and

successfully complete the program at the Stark Regional Community Correction Center

(SRCCC). The court reserved a six-year sentence in the event appellant failed to

comply with the terms and conditions of his community control.

{¶8} Appellant entered SRCCC on February 23, 2010. He was provided with

the rules of the facility and completed an orientation program. Appellant signed a form

indicating his receipt and understanding of the rules.

{¶9} From February 23 through the end of April, appellant complied with all the

rules and performed well at SRCCC. Thereafter, his behavior deteriorated. He

accumulated nine rule violations including being late for cocaine anonymous classes,

dress code violation, failure to attend education class, inappropriate behavior, failure to

attend job club, tampering with SRCCC property, unkempt living area, lying to staff and

inappropriate physical contacts. After appellant kicked open a bathroom stall door while

another resident was occupying the stall, he was placed in segregation.

{¶10} Upon his release from segregation, Diane Wilson, the operations director

at SRCCC attempted to convince appellant to alter his negative behavior, reminding him

that he had gone for more than a month without any rules infractions. Appellant agreed

that he was capable of complying with the rules and the program. Nonetheless, his

negative behavior continued. Appellant was therefore terminated from the program.

1 No transcript from appellant’s original change of plea or sentencing hearing was provided this Court on appeal. Stark County, Case No. 2010-CA-00218 4

{¶11} As a result of his failure to successfully complete the SRCCC program,

appellant's probation officer filed a motion to revoke or modify appellant’s community

control. A hearing was held on the matter on June 30, 2010. The state presented

evidence from Ms. Wilson as well as appellant's probation officer Rachel Carosello.

Appellant presented evidence from Tamika West, an outpatient therapist at Phoenix

Rising Behavioral Healthcare. Ms. West diagnosed appellant with 1). Axis I bipolar one

moderate, with cannabis and alcohol abuse; and 2). Axis II personality disorder NOS.

She testified that she and her organization were prepared to work with appellant and

further, that organizations exist within the community to assist in helping appellant make

the adjustments he needs to function in the community.

{¶12} After hearing all the evidence, the court found appellant had violated his

community control, revoked appellant's community control, and imposed the previously

suspended six-year sentence.

{¶13} Appellant has timely appealed raising two assignments of error,

{¶14} “I. REVOCATION OF THE APPELLANT'S PROBATION AND

IMPOSITION OF SENTENCE WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.

{¶15} “II. APPELLANT'S FIVE YEAR SENTENCE FOR INTIMIDATION IS

GROSSLY DISPROPORTIONATE TO THE CRIME AND THEREFORE

CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.” Stark County, Case No. 2010-CA-00218 5

I.

{¶16} Appellant first contends that the state did not produce sufficient evidence

to warrant the revocation of his community control, and that his revocation is against the

manifest weight of the evidence.

{¶17} The right to continue on community control depends on compliance with

community control conditions and “is a matter resting within the sound discretion of the

court.” State v. Garrett, Stark App. No. 2010 CA 00210,

; State v.

Schlecht, 2nd Dist. No. 2003-CA-3,

, citing State v. Johnson (May 25,

2001), 2nd Dist. No. 17420.

{¶18} A community control revocation hearing is not a criminal trial. State v.

White, Stark App. No. 2009-CA-00111,

. The state therefore need not

establish a community control violation by proof beyond a reasonable doubt. White,

supra at ¶13; State v. Ritenour, Tuscarawas App. No. 2006AP010002,

; State v. Spencer, Perry App. No. 2005-CA-15,

; State v.

Henry, Richland App. No. 2007-CA-0047,

. As this Court noted in

Ritenour, “Rather, the prosecution must present substantial proof that a defendant

violated the terms of his or her probation ... Accordingly, in order to determine whether a

defendant's probation revocation is supported by the evidence, a reviewing court should

apply the ‘some competent, credible evidence’ standard set forth in C.E. Morris Co. v.

Foley Constr. Co. (1978),

,

... This highly deferential

standard is akin to a preponderance of evidence burden of proof ...” State v.

. (Citations omitted). See also, State v. Gullet, Muskingum App. No.

CT2006-0010,

. Stark County, Case No. 2010-CA-00218 6

{¶19} Once a court finds a defendant violated the terms of probation, the

decision whether to revoke probation lies within the court's sound discretion. State v.

White, supra at ¶14. (Citing State v.

). (Internal Citations

omitted). Thus, a reviewing court will not reverse a trial court's decision absent an abuse

of discretion. State v. Sheets (1996),

,

; State v.

. An abuse of discretion connotes more than an error in law or

judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable. State v. Maurer (1984),

,

.

{¶20} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. Jamison (1990),

,

, certiorari denied (1990),

,

,

. Reviewing

courts should accord deference to the trial court's decision because the trial court has

had the opportunity to observe the witnesses' demeanor, gestures, and voice inflections

which cannot be conveyed to us through the written record, Miller v. Miller (1988),

,

.

{¶21} In the instant case, as set forth above, the trial court heard testimony from

appellant's probation officer and the operations director at SRCCC that appellant

violated the terms of his community sanctions. He accumulated nine rules violations.

{¶22} As an appellate court, we neither weigh the evidence nor judge the

credibility of witnesses. Our role is to determine whether there is relevant, competent

and credible evidence, upon which the fact finder could base its judgment. Cross Truck

v. Jeffries (February 10, 1982), Stark App. No. CA-5758. Accordingly, a judgment

supported by competent, credible evidence going to all the essential elements of the Stark County, Case No. 2010-CA-00218 7

case will not be reversed as being against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Constr. (1978),

,

.

{¶23} Based on such testimony, we find that the trial court did not abuse its

discretion in finding that appellant violated the terms and conditions of his community

control and revoking same.

{¶24} Appellant argues, in essence, that his mental health problems constitute a

mitigating factor. See, State v. Wolfe, Stark App. No. 2008-CA-00064,

.

In State v. Bleasdale (1990),

, the defendant was given a suspended

sentence, was placed on probation on the condition that he be accepted by, and

successfully complete a specific drug program. The defendant was ultimately

terminated from the program after he was diagnosed as suffering from several mental

disorders and the staff determined that it was not equipped to deal with the mental

problems that the defendant exhibited. After a probable cause hearing, the trial court

revoked the defendant's probation and reinstated his sentence of confinement. On

appeal, the Eleventh District Court of Appeals determined that the trial court had abused

its discretion in revoking the defendant's probation because the defendant had not

willfully or intentionally violated the conditions of his probation. Rather, the court stated,

the defendant had been cooperating with the program but was terminated "due to the

program's inability to properly minister his case."

.

{¶25} In the case at bar, the facts supporting the revocation of appellant’s

community control sanctions are clearly distinguishable from those in Bleasdale. In this

case, the court revoked appellant’s community control solely based on his voluntary

conduct, not based on conditions over which appellant had no control. Stark County, Case No. 2010-CA-00218 8

{¶26} We agree that the trial judge should take into consideration all factors,

including physical and mental examinations, in the reevaluation and reassessment of

the correctness of the sentence upon a revocation of community control. See State v.

Qualls (1988),

,

. However, appellant's argument that

it was unfair to not extend yet another attempt at treatment is without merit. The trial

court has no such requirement imposed upon it. See State v.

State v.

Wheat, Stark App. No. 2007 CA 00165,

.

{¶27} Appellant's first assignment of error is overruled.

II.

{¶28} In his Second Assignment of Error, appellant contends that his sentence

constitutes cruel and unusual punishment because it is disproportionate to his crimes

and disproportionate to the sentences imposed on his co-defendants. We disagree.

{¶29} Appellant’s arguments refer to matters not contained in the trial court

record. “‘We cannot * * * add matter to the record before us that was not part of the

court of appeals' proceedings and then decide the appeal on the basis of the new

matter.’ North v. Beightler,

,

,

,

quoting Dzina v. Celebrezze,

,

,

.” Squire v. Geer,

,

,

at

¶11. Accordingly, appellant’s new material may not be considered.

{¶30} In a plurality opinion, the Supreme Court of Ohio established a two-step

procedure for reviewing a felony sentence. State v. Kalish,

, 2008-

Ohio-4912,

. The first step is to “examine the sentencing court's

compliance with all applicable rules and statutes in imposing the sentence to determine Stark County, Case No. 2010-CA-00218 9

whether the sentence is clearly and convincingly contrary to law.”

. If this

first step “is satisfied,” the second step requires the trial court's decision be “reviewed

under an abuse-of-discretion standard.”

{¶31} As a plurality opinion, Kalish is of limited precedential value. See Kraly v.

Vannewkirk (1994),

,

(characterizing prior case

as “of questionable precedential value inasmuch as it was a plurality opinion which

failed to receive the requisite support of four justices of this court in order to constitute

controlling law”). See, also, State v. Franklin (2009),

,

,

at ¶ 8. “Whether Kalish actually clarifies the issue is open to

debate. The opinion carries no syllabus and only three justices concurred in the

decision. A fourth concurred in judgment only and three justices dissented.” State v.

Ross, 4th Dist. No. 08CA872,

, at FN 2; State v. Welch, Washington

App. No. 08CA29,

at ¶ 6; State v. Ringler (Nov. 4, 2009), Ashland App.

No. 09-COA-008. Nevertheless, until the Supreme Court of Ohio provides further

guidance on the issue, we will continue to apply Kalish to appeals involving felony

sentencing State v. Welch, supra; State v. Reed, Cuyahoga App. No. 91767, 2009-

Ohio-2264 at FN2; State v. Ringler, supra.

{¶32} The Supreme Court held, in Kalish, that the trial court's sentencing

decision was not contrary to law. “The trial court expressly stated that it considered the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12.

Moreover, it properly applied post release control, and the sentence was within the

permissible range. Accordingly, the sentence is not clearly and convincingly contrary to

law.”

. The Court further held that the trial court “gave careful and Stark County, Case No. 2010-CA-00218 10

substantial deliberation to the relevant statutory considerations” and that there was

“nothing in the record to suggest that the court's decision was unreasonable, arbitrary,

or unconscionable.”

; State v. Wolfe, Stark App. No. 2008-CA-00064,

.

{¶33} The relevant sentencing law is now controlled by the Ohio Supreme

Court's decision in State v. Foster, i.e. “ * * * trial courts have full discretion to impose a

prison sentence within the statutory range and are no longer required to make findings

or give their reasons for imposing maximum, consecutive, or more than the minimum

sentences.”

,

at ¶ 100,

.

{¶34} Accordingly, if appellant violates his community control sanctions, the trial

court must conduct a second sentencing hearing following the community-control

violation and at that time comply with the decision in Foster. Thus, at the time of the

second sentencing hearing, appellant could be sentenced to a term of incarceration

either less than, but not more then, the six year term that the court advised at the

original sentencing hearing. The trial court has full discretion to impose a prison

sentence within the statutory range and is no longer required to make findings or give

reasons for imposing maximum, consecutive, or more than the minimum sentences.

State v. Hines, Ashland App. No. 2005-COA-046,

; State v.

{¶35} In the case at bar, at the original sentencing hearing in this case the trial

court notified appellant that the prison term to be imposed upon revocation of his

community control sanction would be six years. [See, Judgment Entry, Sentence

(Community Sanction), filed March 1, 2010 at 5]. When the trial court subsequently Stark County, Case No. 2010-CA-00218 11

revoked appellant's community control, it imposed that very sentence. The sentence

was within the statutory sentencing range. Furthermore, the record reflects that the trial

court considered the purposes and principles of sentencing and the seriousness and

recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised

Code and advised appellant regarding post release control. Therefore, the sentence is

not clearly and convincingly contrary to law.

{¶36} The Eighth Amendment to the United States Constitution prohibits

“[e]xcessive” sanctions. It provides: “Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.”

{¶37} Section 9, Article I of the Ohio Constitution sets forth the same restriction:

“Excessive bail shall not be required; nor excessive fines imposed; nor cruel and

unusual punishments inflicted.”

{¶38} “The Eighth Amendment does not require strict proportionality between

crime and sentence. Rather, it forbids only extreme sentences that are grossly

disproportionate” to the crime. State v. Weitbrecht (1999),

,

, quoting Harmelin v. Michigan (1991),

,

,

(Kennedy, J., concurring in part and in judgment). A court's proportionality analysis

under the Eighth Amendment should be guided by objective criteria, including (i) the

gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on

other criminals in the same jurisdiction; and (iii) the sentences imposed for commission

of the same crime in other jurisdictions. (Footnotes omitted.)” Solem v. Helm (1983),

,

,

. (Internal

quotation marks omitted). Stark County, Case No. 2010-CA-00218 12

{¶39} “It is well established that sentences do not violate these constitutional

provisions against cruel and unusual punishment unless the sentences are so grossly

disproportionate to the offenses as to shock the sense of justice in the community. State

v. Chaffin (1972),

,

,

; State v. Jarrells

(1991),

,

.” State v. Hamann (1993),

,

.

{¶40} In State v. Hairston the Court reiterated, "’[a]s a general rule, a sentence

that falls within the terms of a valid statute cannot amount to a cruel and unusual

punishment.’” State v. Hairston

,

, 1077, 2008-

Ohio-2338 at ¶ 21. [Quoting McDougle v. Maxwell (1964),

,

]. See also, State v. Morin, Fairfield App. No. 2008-CA-10,

.

{¶41} In State v. Hill (1994),

,

, the defendant

was convicted of complicity to trafficking in marijuana, and sentenced to one year in

prison and further ordered to forfeit his apartment complex. His co-defendant received

probation instead of a prison sentence.

, 635 N.E.2d at 1252. On appeal, he

argued that the trial court abused its discretion by giving him a harsher sentence than

was given his co-defendant. Id. The Ohio Supreme Court observed: “[t]here is no

question that on its face the sentence received by appellant, when compared to

Newbauer's punishment, is disproportionate. Given the fact that Newbauer received

probation, appellant's one-year prison sentence does appear to be harsh. However, as

a general rule, an appellate court will not review a trial court's exercise of discretion in

sentencing when the sentence is authorized by statute and is within the statutory limits. Stark County, Case No. 2010-CA-00218 13

See, generally, Toledo v. Reasonover (1965),

,

,

. See, also, State v. Cassidy (1984),

,

21 OBR 107, 108-109,

; State v. Burge (1992),

,

; and State v. Grigsby (1992),

,

.” Hill,

,

. See also, State v.

Templeton, Richland App. No. 2006-CA-33,

; State v. Kingrey,

Delaware App. No 04-CAA-04029,

.

{¶42} Appellant cites no precedent, or any other authority, for reversal of an

otherwise valid sentence on the basis that more culpable co-defendants were not

punished more severely. There is no requirement that co-defendants receive equal

sentences. State v. Lloyd, 11th Dist. No. 2002-L-069,

; United

State v. Frye (6th Cir. 1987),

. Each defendant is different and nothing

prohibits a trial court from imposing two different sentences upon individuals convicted

of similar crimes. State v. Aguirre, 4th Dist. No. 03CA5,

at ¶ 50.

“(W)hen there is a multiple codefendant situation and those co-defendants are

essentially charged with the same crimes, what may seem to be a disparity in certain

situations may not be a disparate sentence. This may occur when the records submitted

in such cases provide a different table of review which may appropriately result in a

varied sentence in a given case when evaluated according to the pertinent statutory

criteria.’ [State v.] Rupert, [11th Dist. No. 2003-L-154,]

] at ¶ 13. * * *.”

State v. Martin, 11th Dist. No. 2006-T-0111,

.

{¶43} In this case, there is nothing in the record to show that the difference in

appellant's sentence from those of similar offenders was the result of anything other Stark County, Case No. 2010-CA-00218 14

than the individualized factors that were applied to appellant. State v. Beasley, 8th Dist.

No. 82884,

; State v.

State v.

{¶44} There is no evidence in the record that the judge acted unreasonably by,

for example, selecting the sentence arbitrarily, basing the sentence on impermissible

factors, failing to consider pertinent factors, or giving an unreasonable amount of weight

to any pertinent factor. We find nothing in the record of appellant’s case to suggest that

his sentence was based on an arbitrary distinction that would violate the Due Process

Clause of the Fifth Amendment. State v. Firouzmandi, Licking App. No. 2006-CA-41,

. Further, appellant was not convicted or punished for the

offense of having a mental illness. Brookpark v. Danison (1996),

,

; State v. Morin, Fairfield App. No. 2008-CA-10, 2008-Ohio-

6707 at ¶ 74. Finally, the trial court considered appellant's mental health issues at

sentencing.

{¶45} It appears to this Court that the trial court's statements at the sentencing

and the revocation hearings were guided by the overriding purposes of felony

sentencing to protect the public from future crime by the offender and others and to

punish the offender. R.C. 2929.11.

{¶46} Based on the transcript of the sentencing hearing, the revocation hearing

and the subsequent judgment entries, this Court cannot find that the trial court acted

unreasonably, arbitrarily, or unconscionably, or that the trial court violated appellant’s

rights to due process under the Ohio and United States Constitutions in its sentencing

appellant.

{¶47} Appellant’s second assignment of error is overruled. Stark County, Case No. 2010-CA-00218 15

{¶48} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas of Stark County, Ohio is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. PATRICIA A. DELANEY

WSG:clw 0404 [Cite as State v. Mery,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JUAN R. MERY : : : Defendant-Appellant : CASE NO. 2010-CA-00218

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. PATRICIA A. DELANEY