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Date: 09-16-2020

Case Style:

STATE OF OHIO -vs- DANIEL L. HAWK

Case Number: 20-CA-11

Judge: Earle E. Wise, Jr

Court: COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

Plaintiff's Attorney: TODD W. BARSTOW

Defendant's Attorney:


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Description: Canton, Ohio - aggravated possession of drugs












{ 2} On March 26, 2020, Appellant entered pleas of guilty to one count of
aggravated possession of drugs, a felony of the fifth degree, and one count of operating
a vehicle under the Influence of alcohol, a misdemeanor of the first degree. The trial court
sentenced Appellant to community control sanctions pursuant to R.C. 2929.15 for count
one, and pursuant to R.C. 2929.25 for count two.
{ 3} In its sentencing judgment entry filed March 31, 2020, the trial court listed
Appellant's community control sanctions. Relevant here, the trial court ordered Appellant
to serve 34 days in the Knox County Jail, submit to an outpatient drug and alcohol
assessment, and comply with any recommended treatment plan. Appellant was further
advised that failure to comply with the terms of his community control sanctions could
result in a more restrictive sentence including a prison term of 11 months on count one
and a prison term of 5 months on count two.
{ 4} On April 17, 2020 the trial court, on its own motion, suspend Appellant's jail
sentence and to ordered him to enter Riverside Recovery Services inpatient treatment
program in Southpoint Ohio as a new condition of his community control sanctions.
Appellant refused to do so.
Knox County, Case No. 20-CA-11 3
{ 5} On April 22, 2020, Appellant appeared before the trial court for a community
control violation hearing. Counsel for Appellant did not object to the trial court's addition
of a new condition of Appellant's community control at any point during the hearing.
Appellant admitted he failed to enter inpatient treatment. Appellant believed entry to
Riverside Recovery inpatient was a condition of release from the balance of his jail time,
and knowing his community control sanctions included outpatient, rather than inpatient
drug and alcohol treatment, appellant elected to remain in jail rather than to leave Knox
County and his family during the COVID-19 pandemic. At the conclusion of the hearing,
the trial court revoked Appellant's community control, imposed the previously suspended
sentences, and ordered Appellant to serve the sentences concurrently.
{ 6} Appellant filed an appeal and the matter is now before this court for
consideration. He raises four assignments of error as follow:
I
{ 7} "THE TRIAL COURT WAS WITHOUT AUTHORITY TO IMPOSE
ADDITIONAL COMMUNITY CONTROL SANCTIONS WHERE THERE WAS NO
ALLEGATION THAT APPELLANT HAD VIOLATED THE COMMUNITY CONTROL
CONDITIONS SET FORTH AT SENTENCING."
II
{ 8} "THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A FINDING THAT
APPELLANT HAD THE REQUISITE NOTICE TO VIOLATE THE CONDITIONS OF HIS
PROBATION."
III
Knox County, Case No. 20-CA-11 4
{ 9} "THE TRIAL COURT HAD NO AUTHORITY TO SENTENCE APPELLANT
TO ELEVEN MONTHS ON COUNT ONE BECAUSE APPELLANT'S REFUSAL, IF IT
CONSTITUTED A VIOLATION OF THE TERMS OF HIS PROBATION, WAS A
TECHNICAL VIOLATION."
IV
{ 10} "APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT
HIS REVOCATION HEARING DATED APRIL 29, 2020."
I
{ 11} In his first assignment of error, Appellant argues the trial court was without
authority to impose new community control sanctions when there was no allegation that
Appellant had violated any condition of his community control. We agree and the state
concedes.
{ 12} As an initial matter, appellant did not lodge an objection to the error he
currently raises and has therefore waived all but plain error. An error not raised in the trial
court must be plain error for an appellate court to reverse. State v. Long, 53 Ohio St.2d
91, 372 N.E.2d 804 (1978) at paragraph one of the syllabus; Crim.R. 52(B). In order to
prevail under a plain error analysis, appellant bears the burden of demonstrating that the
outcome of the trial clearly would have been different but for the error. Id. at paragraph
two of the syllabus. Notice of plain error "is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at
paragraph three of the syllabus.
{ 13} Next, double jeopardy restrictions prevent a trial court from modifying a
sentence after execution of the sentence has commenced. State v. Hooks, 128 Ohio
Knox County, Case No. 20-CA-11 5
App.3d 750, 716 N.E.2d 778 (1998). A trial court's authority to modify the terms of
community control was addressed in State v. Hayes, 86 Ohio App.3d 110, 619 N.E.2d
1188 (1st Dist.1993). The court held "It is well established in law that once a valid
sentence has been executed, a trial court no longer has the power to modify the sentence
except as provided by the General Assembly." Id. 112.
{ 14} Applicable here, R.C. 2929.15(B)(1) permits a trial court to impose
additional sanctions on an offender sentenced to community control only when a term of
community control is violated, the offender has a new violation of law, or the offender
leaves the state without permission from a probation officer.
{ 15} In the present case, none of these things happened before the trial court
imposed an additional community control sanction requiring Appellant to submit to
inpatient treatment. Accordingly, we conclude plain error occurred when the trial court
acted without authority in imposing additional conditions of community control upon
Appellant.
{ 16} The first assignment of error is sustained.
II, III, IV
{ 17} Given our resolution the first assignment of error, we find assignments of
error two, three and four moot.
Knox County, Case No. 20-CA-11 6

Outcome: he April 28, 2020 judgment of the Knox County Court of Common Pleas is
reversed and the sentence therein is vacated, and this matter is remanded for further proceedings consistent with this opinion and the law.

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