State v. Hatcher

2018 Ohio 4348

STATE OF OHIO Plaintiff-Appellee v. CHRISTOPHER HATCHER Defendant-Appellant

Appellate Case No. 2017-CA-88

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

October 26, 2018

Trial Court Case Nos. 2015-CR-426 & 2017-CR-204

(Criminal Appeal from Common Pleas Court)

OPINION

ANDREW P. PICKERING, Atty. Reg. No. 0068770, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

JOE CLOUD, Atty. Reg. No. 0040301, 3973 Dayton-Xenia Road, Beavercreek, Ohio 45432 Attorney for Defendant-Appellant

DONOVAN, J.

{¶ 1} This matter is before the Court on the October 25, 2017 Notices of Appeal of Christopher Hatcher. In Clark County Common Pleas Case No. 2015-CR-426, Hatcher was sentenced to 12 months for violating the terms of his community control sanctions, and in Case No. 2017-CR-204, Hatcher was sentenced to 18 months for possession of cocaine. The 18-month sentence was ordered to be served consecutively to the 12-month sentence.

{¶ 2} Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Hatcher represents that he has found no potentially meritorious issues for review. This Court granted Hatcher an opportunity to file his own brief, pro se, assigning any errors for our review, and he has not done so. The State also did not file a brief in response to Hatcher's appeal. Pursuant to Anders, we have performed our duty to independently review the entire record, and we have found no potential assignments of error having arguable merit.

{¶ 3} In Case No. 2015-CR-426, Hatcher was indicted on August 17, 2015, on one count of possession of cocaine (more than five grams but less than ten grams), in violation of R.C. 2925.11(A), a felony of the fifth degree. Hatcher's pre-sentence investigation report provided Hatcher's version of events relative to the offense:

* * * "Got pulled over speeding. On Moorefield Road. The officer searched an[d] found the coc [sic] in my shoe."

The defendant stated that he had used marijuana earlier in the day and that is why the vehicle smelled of marijuana. The defendant denied using marijuana in the vehicle. The defendant stated that the drugs that were found on him were for his personal use. The defendant stated that he had that amount on him because it was close to Memorial Day weekend. The defendant admitted to this officer that he has sold drugs in the past, but had not sold drugs since he had gotten in trouble for that earlier. The defendant stated that he is currently trying to get on the right track and to stay on the right track. The defendant stated that he is trying to stay out of trouble for his kids.

{¶ 4} In exchange for his guilty plea on November 10, 2015, the State reduced the amount of the drug involved in the offense to less than five grams and agreed to recommend community control sanctions. On December 3, 2015, the court sentenced Hatcher to five years of community control. A numbered list of the conditions of his community control sanctions was attached to Hatcher's Judgment Entry of Conviction. The judgment entry provided: "Violation of any part of this sentence shall lead to a more restrictive sanction, a longer sanction, or a prison term of twelve (12) months."

{¶ 5} On January 11, 2017, the affidavit of probation officer Joshua Hunt was filed, averring that Hatcher violated his community control sanctions as follows:

1. The defendant tested positive for Alcohol on December 08, 2016.

2. The defendant tested positive for marijuana on November 16, 2016 and December 28, 2016.

3. The defendant failed to show for scheduled office visit at the probation department on December 07, 2016.

4. The defendant failed to seek employment as directed.

5. The defendant has failed to make regular payments toward his court costs, fees and or court fine.

6. The defendant has failed to comply with recommended treatment at McKinley Hall.

This is a violation of the Defendant's rules and regulations of Community Control being rules 12F, 7, 5, 2, 12C and 12B.

{¶ 6} An arraignment was held on January 26, 2017, and Hatcher denied committing the violations. He also waived a probable cause hearing. Hatcher was released on his personal recognizance until a hearing on the merits occurred on March 27, 2017.

{¶ 7} At the hearing, Hatcher acknowledged that he received a copy of the January 11, 2017 affidavit. Hatcher identified admissions signed by him indicating that he tested positive for alcohol on December 8, 2016, and tested positive for marijuana on November 16, 2016. Hatcher admitted that he failed to appear for a scheduled appointment at the probation department on December 7, 2016. Hatcher stated that, since he was placed on community control more than a year earlier, he had submitted four or five applications for work and was denied jobs. He stated that he did "tree work" on the side but did not produce proof of employment. He stated that he worked at Dole from January 26, 2017 to February 8, 2017, and identified a Dole pay stub. Hatcher acknowledged that he did not provide any documentation regarding his employment to the probation department. Hatcher stated that he had been working at Fry's Lumber Service for two months prior to the hearing, but he did not provide proof of payment. When asked if he made regular payments toward his court costs, fees and fine, he responded that he "kind of like paid in spurts, not really like regular, just like when I had the extra money to come down and pay, I did." Hatcher testified that he made payments on January 12, January 24, and March 22, 2017. Hatcher identified a certificate of completion for the Criminal Justice Program at McKinley Hall.

{¶ 8} At the conclusion of the hearing, the court determined that Hatcher had violated his community control sanctions, and the court set the matter for disposition. Specifically, the court found that Hatcher violated rules No. 1, No. 2, No. 3, No. 4, and No. 6.

{¶ 9} On April 10, 2017, in Case No. 2017-CR-204, Hatcher was indicted on one count of trafficking in cocaine, in violation of R.C. 2925.03(A)(2), and one count of possession of cocaine (greater or equal to ten grams but less than twenty grams), in violation of R.C. 2925.11(A), both felonies of the third degree. On April 21, 2017, Hatcher entered pleas of not guilty in Case No. 2017-CR-204.

{¶ 10} On August 22, 2017, in Case No. 2017-CR-204, Hatcher pled guilty to possession of cocaine, with the amount of the drug involved amended to be more than five grams but less than ten grams, thereby reducing the offense to a fourth degree felony. The trafficking count was dismissed. The State put the following facts on the record:

November 5, 2016, at Clark County Ohio, the Defendant Christopher Hatcher turned east on Columbia Street and, in doing so, did not turn into the closest lane so the vehicle entered the center lane. The vehicle quickly crossed one or more lanes without signaling. Officers initiated a traffic stop. The defendant quickly ran up to the front porch of 615 West Columbia Street. The defendant ran into the house at 615 West Columbia and the officers followed in hot pursuit. The defendant was apprehended inside after a brief struggle.

During the search incident to arrest for obstructing official business, officers located $2,096 in U.S. currency in the right front pants pocket of the defendant. K-9 alerted to the vehicle. Officers located two bags of cocaine and an electronic scale. Cocaine was found to contain 4.41 grams and 5.65 grams of cocaine respectfully. During a hearing on the 15-CR-426 case, the defendant indicated that the proceeds that were seized in the 17-CR-0204 case was from ill-gotten gains.

Hatcher agreed to forfeit the $2,096.

{¶ 11} The following exchange occurred at the plea hearing:

THE COURT: Do you understand that you are on community control, this conviction would be a violation of your community control; and for that violation, you could get 12 months in prison in the 15-CR- case. That could be ordered consecutive to the maximum term listed, which would be 18 months, or a total maximum penalty of 30 months in prison.

Do you understand that?

* * *

DEFENDANT: Yes, sir.

{¶ 12} On September 8, 2017, Hatcher filed sentencing memorandums in both cases, attached to which were "recent contracts that Defendant has completed working for his tree service. His work has become renowned enough that he is gaining business in surrounding areas as these contracts indicate."

{¶ 13} On September 13, 2017, the trial court sentenced Hatcher to 18 months in Case No. 2017-CR-204, to be served consecutively with the sentence in Case No. 2015-CR-426.

{¶ 14} As noted above, the court sentenced Hatcher to a prison term of 12 months in the 2015 case, to be served prior to and consecutively to a term of 18 months imposed in the 2017 case. The judgment entries of conviction in each case provide as follows:

The court has considered the record, oral statements, the purposes and principles of sentencing under R.C. § 2929.11, the seriousness and recidivism factors relevant to the offense and offender pursuant to R.C. § 2929.12, and the need for deterrence, incapacitation, rehabilitation and restitution and the sentencing guidelines contained in R.C. 2929.13. The Court is guided by the overriding purposes of felony sentencing, including protection of the public from future crime by the offender and others and punishment of the offender, using the minimum sanctions that the court determines will accomplish those purposes without imposing an unnecessary burden on state or local government resources.

The court further finds that, after considering the factors set forth in R.C. §2929.12, a prison term is consistent with the purposes and principles of sentencing set forth in R.C. §2929.11 and the defendant is not amendable to an available community control sanction.

The court further finds that a combination of community control sanctions would demean the seriousness of the defendant's

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