[Cite as State v. Sanchez,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109673 v. :

JUAN A. SANCHEZ, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 6, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-625480-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Theodore Parran, III, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant.

MARY J. BOYLE, A.J.:

Defendant-appellant, Juan Sanchez, appeals from the trial court’s

judgment finding that he violated the conditions of his judicial release and reimposing the remainder of his prison sentence. He raises one assignment of error

for our review:

The trial court violated Mr. Sanchez’s state and federal constitutional rights to due process when it revoked his judicial release based on his having violated a condition of which Sanchez had not been properly notified.

We find that we cannot reach the merits of Sanchez’s due process

argument because he admitted to the violation, and thus, we affirm the trial court’s

judgment.

I. Procedural History and Factual Background

The charges in this case stem from January 2018 when police stopped

Sanchez for littering out of his vehicle window and found a loaded handgun, “a few

grams” of cocaine, marijuana, and a scale in his coat. At the time, Sanchez was on

community control supervision for drug possession in Cuyahoga C.P. No. CR-14-

587643 from 2014, and he had already violated the terms of his community control

sanctions three times.

In February 2018, Sanchez was indicted in the case underlying this

appeal, Cuyahoga C.P. No. CR-18-625480, for three counts: Count 1, carrying a

concealed weapon in violation of R.C. 2923.12(A)(2), a fourth-degree felony, with a

forfeiture specification; Count 2, drug possession in violation of R.C. 2925.11(A), a

fifth-degree felony, with a one-year firearm specification; and Count 3, having a

weapon while under disability in violation of R.C. 2923.13(A)(3), a third-degree

felony, with a forfeiture specification. In March 2018, Sanchez agreed to enter a negotiated plea. At the plea

hearing, the state offered to nolle Count 1, carrying a concealed weapon, and the

firearm specification on Count 2, drug possession. In exchange, Sanchez would

plead guilty to amended Count 2, drug possession with no specification, and Count

3, having a weapon while under disability, with the forfeiture specification. Sanchez

accepted the offer, and the trial court found that he entered his guilty plea

knowingly, intelligently, and voluntarily with a full understanding of the rights he

was waiving. The trial court referred him for a presentence investigation report.

At the sentencing hearing in April 2018, the trial court outlined

Sanchez’s extensive criminal history, including, among other offenses, drug

possession, operating a vehicle while intoxicated, disorderly conduct, drug

possession specifically in CR-14-587643, and the three community control

violations in that case. The trial court sentenced Sanchez to 30 months in prison: 12

months for Count 2, drug possession, to run concurrently with 30 months for Count

3, having a weapon while under disability. The trial court imposed court costs, told

Sanchez that “it is my sincere hope that you are put under supervision by the parole

board when you get out for postrelease control,” and explained to Sanchez the

consequences if he were to violate the requirements of postrelease control. The

sentencing judgment entry states that “post release control is part of this prison

sentence for up to 3 years discretionary” and that Sanchez would forfeit the gun to

the state. In the same hearing, the trial court also found Sanchez to be in violation of his community control sanctions in CR-14-587643 and terminated the

community control sanctions in that case.

In May 2019, Sanchez filed a motion for judicial release pursuant to

R.C. 2929.20. In June 2019, the trial court granted Sanchez’s motion and placed

him on community control sanctions for 12 months. At the judicial release hearing,

the trial court advised Sanchez of the following conditions of community control:

“You will be subject to regular alcohol and drug testing. You will be forbidden from

using any alcohol or illicit drugs. You’ll be ordered to maintain employment or full-

time schooling.” The judgment entry states: “12 months community control

sanctions. Regular testing, no alcohol or drugs. Maintain employment or full-time

schooling.”

In February 2020, Sanchez’s probation officer sent a status report to

the trial court to alert the court that Sanchez had tested positive for marijuana. In

response to the status report, on March 6, 2020, the trial court assigned Sanchez

counsel and set a “community control sanctions violation hearing” for March 20,

2020. However, two docket entries on March 9, 2020, reflect that the March 20

hearing “was set in error,” Sanchez retained the same counsel who represented him

earlier in the case, and the trial court held a “hearing on alleged probation violation”

on March 9, 2020.

At the hearing, Sanchez’s probation officer told the court that she sent

the status report because Sanchez provided a medical marijuana card for seizures,

and she explained that some judges have allowed medical marijuana use during community control supervision. The trial court responded, “not in this room,” and

expressed his disdain for the medical marijuana industry. The trial court asked

about the probation department’s standard terms regarding drug use, and the

probation officer clarified that the probation department has a “no tolerance” policy

and that “there should be no substance use whatsoever.”

The trial court asked Sanchez’s counsel what he would like to say on

Sanchez’s behalf, and defense counsel responded, “Well, Judge, he did it.” Sanchez’s

counsel offered the court a copy of the medical marijuana card and a statement from

Sanchez’s doctor “saying it’s okay.” He explained that he told Sanchez, “when the

judge says no alcohol, no drugs, that’s exactly what this judge, this court means. He

understands that now.” Defense counsel said that Sanchez is “willing to accept

whatever punishment this court deems appropriate.”

Sanchez told the court that his decision to use medical marijuana was

“incompetent.” He explained that he thought “it was going to be okay” because he

had a medical marijuana card and a letter from his physician, but he “wasn’t really

thinking things through,” and he did not follow “the absolute underlying word” that

the trial court told him. He said he “made a mistake.”

The trial court asked Sanchez about his seizures, and Sanchez

explained that he has had seizures in his sleep since he was four years old. He told

the court that the seizures are “dormant” and that he has not had one since 2013,

although he gets headaches and migraines. He explained that his doctor said that

certain things like lights and headaches could retrigger his dormant seizures. Sanchez also said that he was diagnosed with epilepsy when he was four years old

and that he was diagnosed with post-traumatic stress disorder (“PTSD”) in 2015.

He told the court that he was prescribed Ativan for his PTSD, but his probation

officer told him it was prohibited, so he had stopped taking it. Sanchez could not

remember the name of the physician who treated his epilepsy or the name of the

medication that the physician had prescribed, but he knew that he had stopped

taking it. Sanchez clarified that the medical marijuana was to treat his epilepsy and

PTSD, but he explained that he could see a psychiatrist for his PTSD and that he

could manage his epilepsy with melatonin.

The trial court again went through Sanchez’s extensive criminal

history, his drug offenses, and his community control violations in CR-14-587643.

The trial court told Sanchez that it did not believe that he sought a medical

marijuana card to treat his epilepsy. The trial court found that Sanchez had violated

the terms of his community control sanctions and ordered that he serve the

remainder of his 30-month prison sentence.

It is from this judgment that Sanchez timely appealed. He filed in the

trial court and in this court a motion for bond and to suspend his sentence pending

appeal, and both courts denied his motion.

II. Law and Analysis

In his sole assignment of error, Sanchez argues that the trial court

violated his due process rights when it revoked his judicial release and reimposed his prison sentence. He contends that the trial court failed to properly notify him

that he could not use medical marijuana.

Pursuant to R.C. 2929.20(K), if a trial court grants judicial release to

an eligible offender, the court “shall place the eligible offender under an appropriate

community control sanction, under appropriate conditions, and under the

supervision of the department of probation serving the court and shall reserve the

right to reimpose the sentence that it reduced if the offender violates the sanction.”

Further, “[a] judicial release revocation hearing is not a criminal trial and does not

result in a conviction.” State v. Westrick,

,

,

(3d Dist.). Therefore, the state is not required to prove a judicial

release violation “beyond a reasonable doubt”; instead, the state must show

“substantial proof that the offender violated the terms of his or her judicial release.”

Id. at ¶ 21. “A trial court’s decision finding a violation of judicial release will not be

disturbed on appeal absent an abuse of discretion.” Id. at ¶ 22, citing State v.

Alexander, 3d Dist. Union No. 14-07-45,

. An abuse of

discretion connotes that the trial court’s attitude was unreasonable, arbitrary, or

unconscionable. Ruwe v. Bd. of Twp. Trustees,

,

(1987).

Sanchez argues that the trial court violated his due process rights

because it failed to notify him that he would be punished if he consumed medical

marijuana. He maintains that the trial court informed him that he could not use

“illicit drugs” and that even his probation officer was not certain whether medical marijuana was prohibited. The parties briefed detailed arguments regarding the

trial court’s discretion to prohibit medical marijuana and the adequacy of the trial

court’s inquiry into Sanchez’s medical marijuana use. However, we cannot reach

the merits of Sanchez’s due process argument because Sanchez conceded at the

March 2020 violation hearing that his medical marijuana use violated his

community control conditions.

Even though the March 2020 hearing was set in response to a status

report, Sanchez knew, or reasonably should have known, that the hearing was for a

violation of his community control sanctions that could result in the revocation of

his judicial release. The trial court’s docket called the hearing a “community control

sanctions violation hearing” and a “hearing on alleged probation violation.” Sanchez

retained counsel for the hearing. The trial court opened the hearing by stating,

“We’re here today for a probation violation hearing.” During the hearing, Sanchez

admitted to the violation. Defense counsel said, “Well, judge, he did it.” Defense

counsel explained that he told Sanchez “no drugs” meant just that, and Sanchez was

“willing to accept” the trial court’s punishment. Sanchez himself conceded that

when he used medical marijuana, he did not follow the “absolute underlying word”

of his community control conditions, and he didn’t think “things through.” Sanchez

explained that using medical marijuana was a “mistake” and an “incompetent”

decision.

Sanchez discussed his medical marijuana card, physician’s letter, and

medical conditions to mitigate his punishment. He did not argue that medical marijuana was or should have been permissible under the conditions of his

community control, and he did not contend that he lacked notice that medical

marijuana use would be a violation. Instead, he admitted to the violation and sought

mitigation.

We find that the trial court did not err in finding substantial proof that

Sanchez had violated the conditions of his community control. Although the trial

court had told Sanchez at the judicial release hearing that he could not use “illicit

drugs,” the judgment entry stated, “no alcohol or drugs,” and the probation

department’s standard terms include a “no tolerance” policy regarding drug use.

During the hearing, Sanchez’s probation officer explained that Sanchez tested

positive for marijuana, and Sanchez admitted that he used medical marijuana in

violation of his community control sanctions. The admissions were substantial

proof of the violation. See, e.g., State v. Kinser, 5th Dist. Licking No. 2020 CA

00032,

, ¶ 24 (appellant’s admission of the violations presented

the trial court with “substantial proof and competent credible evidence” that

appellant had violated her community control sanctions).

Accordingly, we find that the trial court did not abuse its discretion in

finding Sanchez in violation of his conditions of community control, revoking his

judicial release, and reimposing his prison sentence. We therefore overrule

Sanchez’s sole assignment of error.

Judgment affirmed.

It is ordered that appellee recover from appellant the costs herein taxed. The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and LISA B. FORBES, J., CONCUR