[Cite as State v. Haworth,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NOS. 2019-P-0042 - vs - : 2019-P-0043 2019-P-0044 DENNIS W. HAWORTH, : 2019-P-0045

Defendant-Appellant. :

Criminal Appeals from the Portage County Court of Common Pleas, Case Nos. 2016 CR 00824, 2016 CR 00827, 2017 CR 00646, and 2017 CR 00649 C.

Judgment: Affirmed in part, reversed in part, and remanded.

Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).

Thomas Rein, 820 West Superior Avenue, Suite 800, Cleveland, Ohio 44113 (For Defendant-Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, Dennis W. Haworth (“Mr. Haworth”), appeals from two Portage

County Court of Common Pleas’ judgment entries. The first judgment entry, from trial

court case. no. 2017 CR 0649C, revoked Mr. Haworth’s sentence of community control

and imposed an 18-month term of imprisonment. At the outset, we note that Mr. Haworth

did not attach that judgment entry to his notice of appeal nor raise an assignment of error

related to it. {¶2} The second judgment entry is from three separate criminal cases that were

consolidated in the trial court below, nos. 2016 CR 0824, 2016 CR 0827, and 2017 CR

0646. The trial court revoked Mr. Haworth’s community control and imposed five

consecutive one-year terms of imprisonment for various offenses, generally possession

of drugs and theft.

{¶3} Mr. Haworth raises three assignments of error on appeal. In his first

assignment of error, Mr. Haworth argues he did not enter his guilty plea knowingly,

intelligently, and voluntarily in trial court case no. 2017 CR 646, where he pleaded guilty

to one count of possession of methamphetamine, a fifth degree felony. He argues that

the trial court failed to strictly comply with Crim.R. 11(C) by not informing him of his right

to a jury trial and that he cannot be compelled to testify against himself.

{¶4} In his second and third assignments of error, Mr. Haworth challenges the

trial court’s imposition of his five consecutive one-year terms of imprisonment following

the revocation of his community control in the three consolidated cases. He contends

that the trial court did not specify how he violated his community control per R.C. 2929.15.

Lastly, he argues the trial court erred in imposing consecutive sentences without making

the appropriate findings pursuant to R.C. 2929.14 and HB 86.

{¶5} At the outset, we cannot consider Mr. Haworth’s first assignment of error

since he is attempting to appeal the voluntariness of his plea to an underlying offense to

which he previously pleaded guilty in 2017. We are without jurisdiction to consider this

on an appeal from his 2019 revocation of community control.

{¶6} Secondly, we disagree with Mr. Haworth’s contention that the trial court did

not specify his violation of community control. Mr. Haworth admitted during the hearing

2 to using methamphetamine, an act that is criminal in nature and that was in direct

contravention of his community control restrictions.

{¶7} Thirdly, we find Mr. Haworth’s last assignment of error to have merit in that

the trial court failed to make all of the necessary findings pursuant to R.C. 2929.14(C)(4)

both at the hearing and in the court’s sentencing judgment entry when it sentenced him

to five consecutive one-year sentences. Thus, we remand to the trial court for

resentencing.

{¶8} Accordingly, the judgment of the Portage County Court of Common Pleas

is affirmed in part, reversed in part, and remanded.

Substantive and Procedural History

{¶9} In January 2017, Mr. Haworth pleaded guilty to offenses in two separate

cases. In case no. 2016 CR 0824, Mr. Haworth pleaded guilty to four counts of receiving

stolen property, felonies of the fifth degree, in violation of R.C. 2913.51. In case no. 2016

CR 0827, Mr. Haworth pleaded guilty to one count of possession of drugs, a fifth-degree

felony, in violation of R.C. 2925.11(A) and (C)(1)(a). The trial court subsequently

imposed a term of community control.1

{¶10} In October 2017, in case no. 2017 CR 0646, Mr. Haworth pleaded guilty to

one count of aggravated possession of drugs, a fifth-degree felony, in violation of R.C.

1 As we noted above, Mr. Haworth also appealed a judgment in a fourth case, trial ct. case no. 2017 CR 0649C and ct. of appeals case no. 2019-P-0045, to which he did not attach the judgment entry to his notice of appeal nor raise an assignment of error. This case was not consolidated with the other three cases in the trial court. Thus, in case no. 2017 CR 0649C, Mr. Haworth pleaded guilty to theft from a person in a protected class, a fourth-degree felony, in violation of R.C. 2913.02, in October of 2017. In that case, a second revocation of community control hearing was held in December 2018. The trial court revoked community control after finding it no longer sufficient and imposed a prison term of 18 months. We dismiss case no. 2019-P-0045 for lack of an appealed judgment entry and failure to assign an error therefrom.

3 2925.11. He was sentenced in December 2017 to a term of community control.

Subsequently, the trial court consolidated the three cases.

{¶11} In January 2019, at his second revocation of community control hearing on

all three cases, after finding Mr. Haworth violated the terms of his community control by

possessing and using methamphetamine, the trial court imposed five consecutive one-

year terms of imprisonment for each count in case nos. 2016 CR 0824, 2016 CR 0827,

and 2017 CR 0646, to be served concurrently to the 18-month sentence in case no. 2017

CR 0649C.

{¶12} Mr. Haworth raises three assignments of error on appeal:

{¶13} “[1.] Appellant did not enter his guilty plea knowingly, intelligently, or

voluntarily because the trial court failed to act in strict compliance by not properly

informing him of his constitutional rights as required by Crim.R. 11(C).

{¶14} “[2.] The trial court erred by not following the mandates of R.C. 2929.15

when it sentenced Appellant to five years in prison.

{¶15} “[3.] The trial court erred by ordering Appellant to serve a consecutive

sentence without making the appropriate findings required by R.C. 2929.14 and HB 86.”

Jurisdiction

{¶16} In his first assignment of error, Mr. Haworth claims the trial court failed to

comply with Crim.R. 11(C)(2)(c) in case no. 2017 CR 0646, thus rendering his guilty plea

to the underlying offense invalid.

{¶17} Mr. Haworth’s assignment of error pertains to the trial court’s judgment in

2017, in which it accepted his guilty plea to one count of possession of methamphetamine,

a felony of the fifth degree, in violation of R.C. 2925.11. The trial court subsequently

4 sentenced him to a term of community control in December of that year. Mr. Haworth did

not appeal those judgments.

{¶18} In this appeal, Mr. Haworth only challenges the revocation of community

control and subsequent sentencing. Thus, we cannot consider his challenge to the

voluntariness of his plea, which should have been raised via direct appeal.

{¶19} As the Second District aptly stated in State v. Grimes, 2d Dist. Montgomery

No. 20746,

, “[i]f there was a problem with the voluntariness of [Mr.

Haworth’s] plea, [he] should have raised it in response to the earlier judgment. * * * We

cannot – for want of appellate jurisdiction – consider the untimely argument raised under

this assignment.” Id. at ¶11, citing State v. Wood, 3d Dist. Defiance No. 4-01-14, 2001-

Ohio-2339; App.R. 4(A). Similarly, in State v. Peltier, 2d Dist. Champaign No. 2018-CA-

21,

, the Second District found the appellant could not collaterally attack

his unappealed conviction for aggravated possession of drugs through an appeal of the

trial court’s revocation of community control. Id. at ¶17. Likewise in State v. Ryan, 2d

Dist. Greene No. 2008-CA-99,

, the court determined it was without

jurisdiction to consider any other issues, including the validity of the appellant’s guilty plea,

since the appellant was appealing only the revocation of his community control. Id. at ¶4.

{¶20} Mr. Haworth’s first assignment of error is overruled.

Community Control Violations

{¶21} In Mr. Haworth’s second assignment of error, he contends the trial court

erred in finding he violated his community control sanctions. More specifically, he argues

the trial court was silent as to its findings regarding any violations, and that if he did violate

his community control sanctions, it was merely technical in nature.

5 {¶22} We review a trial court’s finding of a community control violation under an

abuse of discretion standard, and a “trial court’s decision to revoke community control

even for a ‘minor’ violation, is not an abuse of discretion.” (Citations omitted.) State v.

Bika, 11th District Portage Nos. 2018-P-0096 & 2018-P-0097,

. An

abuse of discretion is a term of art, “connoting judgment exercised by a court, which does

not comport with reason or the record.”

citing State v. Underwood, 11th Dist. Lake

No. 2008-L-113,

, citing State v. Ferranto,

(1925). Stated differently, an abuse of discretion is the trial court's “ ‘failure to exercise

sound, reasonable, and legal decision-making.’” Bika at ¶28, quoting State v. Beechler,

2d Dist. Clark No. 09-CA-54,

, ¶62, quoting Black's Law Dictionary 11

(8th Ed.Rev. 2004).

{¶23} R.C. 2929.15(B)(1)(c)(i) states, in relevant part, that “[i]f the conditions of a

community control sanction are violated or if the offender violates a law * * *, the

sentencing court may impose upon the violator one or more of the following penalties: *

* * If the prison term is imposed for any technical violation of the conditions of a community

control sanction imposed for a felony of the fifth degree or for any violation of law

committed while under a community controls sanction imposed for such a felony that

consists of a new criminal offense and that is not a felony, the prison term shall not exceed

ninety days.” (Emphasis added.)

{¶24} Further, what constitutes a “technical violation” is not defined in R.C.

2929.15(B)(1). In Inmates’ Councilmatic Voice v. Rogers,

(6th Cir. 1976),

the United States Court of Appeals for the Sixth Circuit defined the term as it pertained to

a parole revocation: “those violations of the terms and conditions of the parole agreement

6 which are not criminal in nature[,] such as failure to report to the parole officer, association

with known criminals, leaving employment, leaving the State, etc.”

.

{¶25} In State ex rel. Taylor v. Ohio Adult Parole Auth.,

(1993),

the Supreme Court of Ohio adopted the definition of technical violation set forth in Rogers.

Courts of appeal have subsequently applied this definition to sentencing determinations

under R.C 2929.15. State v. Cozzone, 11th Dist. Geauga No. 2017-G-0141, 2018-Ohio-

2249; ¶38; State v. Abner, 4th Dist. Adams Nos. 18CA1061 & 18CA1062, 2018-Ohio-

4506, ¶13.

{¶26} In the instant case, Mr. Haworth failed to appear for his second revocation

hearing. The trial court issued a capias warrant and rescheduled the hearing. Mr.

Haworth now argues that the trial court failed to specify his violation and that if his failure

to appear for the first hearing date is considered a “violation,” it was merely technical in

nature.

{¶27} We disagree. A review of the revocation hearing transcript reveals more

than one violation, including Mr. Haworth’s admission that he started using

methamphetamine once again. The trial court reminded Mr. Haworth that it had warned

him at the first revocation hearing he had one last chance at community control, that it

had given him several chances for treatment, and that while he is an addict, he also

commits “crimes against other people,” which “cannot be tolerated.”

{¶28} This court and many of our sister districts have reviewed the “technical

violation” issue under R.C. 2929.15(B)(1)(c)(i) or R.C. 2929.15(B)(1)(c)(ii) and have

concluded that felonious drug use, whether revealed by admission or testing, overcomes

the applicable prison term limitation. See, e.g., Cozzone; Abner; State v. Johnson, 5th

7 Dist. Licking No. 18-CA-37,

; State v. Palmer, 2d Clark No. 2018 CA 74,

.

{¶29} In Cozzone, the appellant overdosed on heroin while on community control

for three fourth-degree felonies and one fifth-degree felony. At the revocation hearing,

the appellant admitted to violating her community control, and the trial court imposed a

54-month prison sentence. Id. at ¶11. We disagreed with the appellant’s argument that

overdosing on heroin was a technical violation and determined that “[a]lthough [Cozzone]

was not charged or convicted for [the heroin use], overdosing on drugs is criminal in

nature and cannot be considered a ‘technical’ violation of the terms and conditions of

community control.” Id. at ¶39.

{¶30} Likewise, in Palmer, the Second District held that “[w]e agree with our sister

districts that a defendant's felonious use of drugs while serving a [community control]

sentence allows a trial court, under R.C. 2929.15(B)(1)(c)(i) or (ii), to sentence the

defendant upon revocation to a prison term in excess of 90 or 180 days, as applicable.

[Appellant] admitted he failed several drug tests, indicating his use of methamphetamine,

which is a felony.” Id. at ¶11.

{¶31} Similarly, in Johnson, the trial court found the appellant violated his

community control for a fifth-degree felony sentence by testing positive for

methamphetamine, to which the appellant admitted along with other violations. The court

revoked the appellant’s community control and sentenced her to a term of 12 months.

Id. at ¶4. The Fifth District disagreed with the appellant’s argument that because the drug

use did not result in a criminal charge, it constituted a technical violation, stating that

“[Johnson's] use of methamphetamine * * * constituted a felony offense rather than a

8 technical [violation] and the trial court was not required to cap her prison sentence at 90

days.” Id. at ¶15.

{¶32} In Abner, the appellant tested positive for heroin while serving a community

control sentence for a fifth-degree felony. The appellant also admitted that she had used

heroin on other occasions. Id. at ¶5. The trial court revoked her community control and

imposed a 12-month prison term. Id. at ¶6. The Fourth District affirmed, stating that

“[a]lthough Abner was not charged or convicted for felony possession of heroin, her

admitted use of heroin constituted a [felony] crime rather than a mere technical violation

of community control.” Id. at ¶15. Thus, the trial court was “not constrained by R.C.

2929.15(B)(1)(c)(i) to cap [Abner's] prison sentence at 90 days.” Id. at ¶16. “[T]he

knowing * * * use of heroin is per se criminal in Ohio and it constitutes a felony offense.”

Id. at ¶15.

{¶33} We find Mr. Haworth’s argument that the trial court was silent as to his

violations of community control meritless. The transcript reveals his admissions to

violations of felonious drug use, which are “per se criminal in nature.” Thus, we cannot

say the trial court abused its discretion in revoking Mr. Haworth’s community control

sanctions and imposing a prison term.

{¶34} Mr. Haworth’s second assignment of error is without merit.

Sentencing

{¶35} In Mr. Haworth’s third assignment of error, he challenges the trial court’s

sentence following the revocation of his community control sanctions.

{¶36} “The court hearing an appeal [of a felony sentence] shall review the record,

including the findings underlying the sentence or modification given by the sentencing

9 court.” State v. Ferrell, 11th Dist. Portage No. 2017-P-0069,

, quoting

R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand the

matter to the sentencing court for resentencing * * * if it clearly and convincingly finds * *

* [t]hat the record does not support the sentencing court's findings under division * * *

(C)(4) of section 2929.14, or * * * [t]hat the sentence is otherwise contrary to law.”

quoting R.C. 2953.08(G)(2)(a) and (b).

{¶37} Because Mr. Haworth failed to object to his sentence, “our review is limited

to consideration of whether the trial court committed plain error.”

quoting State v.

Moore, 11th Dist. Trumbull No. 2015-T-0072,

. In order to prevail

under a plain error standard, an appellant must demonstrate that there was an obvious

error in the proceedings and, but for the error, the outcome would have been otherwise.

Bika at ¶19, citing State v. Waxler, 6th Dist. Lucas No. L-15-1214,

,

citing State v. Noling,

,

.

{¶38} We emphasize that in sentencing a defendant following a community control

violation, the trial court must comply with the relevant sentencing requirements. Ferrell

at ¶36, citing State v. Fraley,

,

.

Consecutive Sentences

{¶39} In his third assignment of error, Mr. Haworth contends the trial court erred

in sentencing him to five consecutive one-year prison terms for violating his community

control because the trial court did not make the required findings pursuant to R.C.

2929.14(C) at both the sentencing hearing and in its sentencing entry. The state

10 concedes the trial court’s error and requests a remand for a resentencing hearing. We

agree.

{¶40} “When the record demonstrates that the trial court failed to make the

findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences * * *, the

appellant's sentence is contrary to law and constitutes plain error.” (Citation omitted.)

Bika at ¶35, quoting Ferrell at ¶36.

{¶41} “Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple

offenses may be ordered to be served consecutively if the court finds it is ‘necessary to

protect the public from future crime or to punish the offender and that consecutive

sentences are not disproportionate to the seriousness of the offender's conduct and to

the danger the offender poses to the public,’ and if the court also finds any of the factors

in R.C. 2929.14(C)(4)(a)-(c) are present. Those factors include the following:

{¶42} “(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

{¶43} “(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

11 {¶44} “(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.

{¶45} “[T]o impose consecutive terms of imprisonment a trial court is required to

make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry.” Id. at ¶40, quoting Ferrell at ¶37-38,

citing State v. Bonnell,

,

, citing R.C.

2929.14(C)(4).

{¶46} In this case, the trial court did not make any findings during the sentencing

hearing when it imposed a prison term following the revocation of Mr. Haworth’s

community control. In the sentencing judgment entry, the trial court recited two of the

R.C. 2929.14(C)(4) findings. Thus, the entry states: “[t]he court finds that the consecutive

sentence is necessary to protect the public from future crime or to punish the Defendant;

that consecutive sentences are not disproportionate to the seriousness of the Defendant’s

conduct and to the danger the defendant poses to the public.”

{¶47} The entry omits a finding under R.C. 2929.14(C)(4)(a), (b), or (c). Thus, the

trial court’s imposition of consecutive sentences is contrary to law and plain error. As the

Supreme Court of Ohio held in Bonnell, “[i]n order to impose consecutive terms of

imprisonment, a trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry * * *. Accordingly, the imposition of consecutive sentences in this case is contrary

to law. Thus, we are constrained to reverse the judgment of the [trial court], vacate the

sentence, and remand the matter to the trial court for resentencing.” Id. at ¶37.

12 {¶48} Mr. Haworth’s third assignment has merit since the record demonstrates

and the state concedes that the requisite findings for consecutive sentences were not

made. Thus, we reverse and remand. The trial court is instructed to resentence Mr.

Haworth, and if it reimposes consecutive sentences, to make all necessary statutory

findings pursuant to R.C. 2929.14(C)(4).

{¶49} The judgment of the Portage County Court of Common Pleas is affirmed in

part, reversed in part, and remanded for further proceedings consistent with this opinion.

{¶50} Case number 2019-P-0045 is hereby dismissed.

TIMOTHY P. CANNON, P.J.,

MATT LYNCH, J.,

concur.

13