[Cite as State v. Priest, 2020-Ohio-1074.]


                                         COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. John W. Wise, P.J.
        Plaintiff-Appellee                    :       Hon. Craig R. Baldwin, J.
                                              :       Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
CODY PRIEST                                   :       Case No. 19 CAA 07 0043
                                              :
        Defendant-Appellant                   :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 14 CR I 01 0015 A




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     March 18, 2020




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

PAYTON ELIZABETH THOMPSON                             GLORIA L. SMITH
145 N. Union Street                                   1900 Polaris Parkway
3rd Floor                                             Suite 450
Delaware, OH 43015                                    Columbus, OH 43240
Delaware County, Case No. 19 CAA 07 0043                                                2



Wise, Earle, J.

       {¶ 1} Defendant-Appellant Cody R. Priest appeals the June 21, 2019 judgment

of the Delaware County Court of Common Pleas which revoked Priest's Intervention in

Lieu of Conviction (ILC) and placed him on community control. Plaintiff-Appellee is the

state of Ohio.

                          FACTS & PROCEDURAL HISTORY

       {¶ 2} On January 17, 2014 Priest was charged by indictment with one count of

theft and one count of receiving stolen property, both felonies of the fourth degree. On

March 19, 2014, Priest filed a motion for ILC and was later granted the same for a period

of 3 years. Among other conditions of ILC, Priest was ordered to pay restitution to the

victim of his crimes in the amount of $24,576 at a minimum rate of $50 per month

beginning July 1, 2014. During the hearing granting Priest's ILC, the trial court advised

Priest the restitution needed to be paid in full by the end of his time on ILC or his ILC

would be terminated unsuccessfully. Transcript of hearing, June 9, 2014 at 20.

       {¶ 3} On May 11, 2015, a hearing was held to address Priest's failure to make at

least minimum payments. During the hearing the trial court noted between Priest's $50

minimum payment and his co-defendant's $100 minimum payment, the full restitution

amount would not come close to being satisfied by the end of 3 years. The state agreed,

but noted Priest and his co-defendant did not have the ability to pay anything more, and

that some payment was better than none. Transcript of hearing, May 11, 2015 at 9.

       {¶ 4} On March 23, 2017, an agreed judgment entry was filed to extend the period

of Priest's ILC by two years to allow him to "* * *pay the remaining balance of $21,251."
Delaware County, Case No. 19 CAA 07 0043                                                 3


       {¶ 5} On May 29, 2019, the state filed a motion to terminate Priest's ILC and

impose sentence because Priest still owed $22,471 in restitution and $1018.35 in court

costs. At a hearing held on June 19, 2019, Priest, accompanied by counsel, opted to

admit to the violations. Transcript of hearing at 4. Options were discussed, but the trial

court concluded the only option was to terminate Priest's ILC unsuccessfully, as he had

been on ILC for the maximum period. The trial court then placed Priest on 5 years of

community control. Id. 4-11.

       {¶ 6} It is from this judgment that Priest appeals raising five assignments of error

as follow:

                                             I

       {¶ 7} "THE TRIAL COURT ERRED BY TERMINATING APPELLANT'S

INTERVENTION IN LIEU OF CONVICTION AS UNSUCCESSFUL"

                                            II

       {¶ 8} "THE TRIAL COURT ERRED BY TERMINATING APPELLANT'S

INTERVENTION IN LIEU OF CONVICTION AS UNSUCCESSFUL IN VIOLATION OF

THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATED CONSTITUTION."

                                            III

       {¶ 9} "THE    TRIAL     COURT     LACKED      JURISDICTION      TO    TERMINATE

APPELLANT'S INTERVENTION IN LIEU OF CONVICTION AS UNSUCCESSFUL

PURSUANT TO 2929.25 (A)(1)."

                                            IV
Delaware County, Case No. 19 CAA 07 0043                                                   4


       {¶ 10} "THE TRIAL COURT ERRED IN IMPOSING A SENTENCE THAT

CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHT

AMENDMENT TO THE US CONSTITUTION."



                                             V

       {¶ 11} APPELLANT SUFFERED INEFFECTIVE ASSISTANCE OF COUNSEL

OM VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSITTUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

                                              I

       {¶ 12} In his first assignment of error, Priest argues the trial court erred in

terminating his ILC as unsuccessful because he substantially complied with the terms of

his ILC, and he was not required to pay restitution in full in order to comply with the terms

of his ILC. We disagree.

       {¶ 13} Priest argues he was not required to pay restitution in full and therefore

there was no competent, credible evidence to support a finding that he violated his ILC.

He bases this argument on statements made by appellee during the 2015 status hearing

to the effect that some payment was better than none. However, the June 13, 2014

judgment entry placing Priest on ILC clearly required full payment. It stated: "The

defendant shall pay any restitution in full in the sum of $24, 576.00 at a minimum rate of

$50.00 per month, commencing on July 1, 2014."

       {¶ 14} When Priest's ILC was extended by agreement of the parties on March 23,

2014, the judgment entry stated; "* * * Defendant's period of Intervention in Lieu of

Conviction in the above-captioned case is hereby extended for an additional period of two
Delaware County, Case No. 19 CAA 07 0043                                                    5


(2) years, to June 9, 2019, under the supervision of the Delaware County Office of Adult

Services, to allow the Defendant to pay the remaining balance of $21,251.00 in

Restitution."

        {¶ 15} Although Priest relies on statements made by appellee in 2015 indicating it

may have settled for less than full payment, at no time was Priest advised by the trial

court that less than full restitution was acceptable. It is axiomatic that a court speaks only

through its judgment entries. Each judgment entry in this matter has ordered Priest to pay

restitution in full.

        {¶ 16} Priest also argues that because he substantially complied with ILC,

completing everything the court ask of him except payment of the restitution, the trial court

should have terminated his ILC successfully. Priest provides no authority, however, to

support a conclusion that an offender must be discharged successfully from a term of ILC

if he has substantially complied with the same. Pursuant to R.C. 2951.041(F), upon

finding that Priest had violated the terms of his ILC, the trial court had three choices: (1)

continue Priest on intervention in lieu of conviction, (2) continue Priest on intervention in

lieu of conviction with additional terms, conditions, and sanctions, or (3) enter a finding of

guilty and impose an appropriate sanction under R.C. Chapter 2929.

        {¶ 17} Priest had been on ILC for the maximum term. Thus the trial court had but

one option -- to enter a finding of guilty and impose an appropriate sanction, which it did.

        {¶ 18} We find the trial court did not err in revoking Priest's ILC as unsuccessful

and imposing a term of community control.

        {¶ 19} The first assignment of error is overruled.

                                              II
Delaware County, Case No. 19 CAA 07 0043                                                    6


       {¶ 20} In his second assignment of error Priest argues the trial court failed to

inquire into the reasons he failed to pay his financial sanctions as required per Bearden

v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed 221 (1983) thereby denying him due

process. We disagree.

       {¶ 21} Priest's specifically argues the holding in Bearden should extend to

convicting offenders of a felony when they have failed to meet the requirements of their

ILC. We note, however, that Bearden is distinguishable from the matter at bar. "The

Supreme Court's decision in Bearden is limited * * * and stands only for the proposition

that the court cannot imprison a probationer for failure to make required payments unless

the probationer failed to make bona fide efforts to pay and alternatives to imprisonment

are inadequate in a particular situation.” State v. Sheesley, 9th Dist. No. 2015-Ohio-4565,

46 N.E.3d 1134, ¶ 9 quoting State v. Pickett, 12th Dist. Warren No. CA2014-099115,

2015-Ohio-972, 2015 WL 1159701, ¶ 19, emphasis original.

       {¶ 22} Priest was not incarcerated for his inability to pay restitution in a timely

manner, he was placed on community control. We therefore find Bearden inapplicable.

       {¶ 23} The second assignment of error is overruled.

                                             III

       {¶ 24} Next Priest argues the trial court lacked jurisdiction to terminate his ILC as

unsuccessful pursuant to R.C. 2929.15(A)(1) after he had already completed 5 years of

ILC. We disagree.

       {¶ 25} Priest argues that because his hearing took place 10 days after the

expiration of the maximum five-year period of ILC, the trial court was without jurisdiction

to act on the alleged violations. As pointed out by the state, however, the trial court issued
Delaware County, Case No. 19 CAA 07 0043                                                   7


an order on May 31, 2019 suspending Priest's ILC time until such a time as he could be

brought before the court. Moreover, Priest did not object to this suspension of time and

has thus waived all but plain error here on appeal. Priest neither raises nor argues the

trial court committed plain error. The third assignment of error is therefore overruled.




                                             IV

       {¶ 26} In his next assignment of error, Priest argues his sentence constitutes cruel

and unusual punishment in violation of his Eighth Amendment protections. He specifically

argues his sentence is grossly disproportionate. We disagree.

       {¶ 27} 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.”

       {¶ 28} In State v. Pore, 5th Dist. Stark No. 2013CA00119, 2014-Ohio-790 ¶ 13, we

stated:

              The Eighth Amendment does not require strict proportionality

              between crime and sentence. Rather, it forbids extreme sentences

              that are grossly disproportionate to the crime. State v. Weitbrecht, 86

              Ohio St.3d 368, 373, 715 N.E.2d 167 (1999), quoting Harmelin v.

              Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680 (1991),(Kennedy, J.,

              concurring in part and in judgment). In Solem v. Helm, 463 U.S. 277,

              290-292, 103 S.Ct 3001, 3010-3011, 77 L.Ed.2d 637, 649-50 (1983),
Delaware County, Case No. 19 CAA 07 0043                                                 8


             the United States Supreme Court set forth a three-part test for

             determining whether a sentence is disproportionate to the crime: (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. A sentence does not violate the constitutional

             prohibition against cruel and unusual punishment unless the

             sentence is so grossly disproportionate to the offense as to shock

             the sense of justice in the community. State v. Chaffin, 30 Ohio St.2d

             13, 59 O.O.2d 51, 282 N.E.2d 46 (1972).



      {¶ 29} Priest argues a total of 10 years supervision with the probation department

constitutes cruel and unusual punishment. But R.C. 2951.041(F) does not forbid such a

sentence:



             (F) If the court grants an offender's request for intervention in lieu of

             conviction and the offender fails to comply with any term or condition

             imposed as part of the intervention plan for the offender, the

             supervising authority for the offender promptly shall advise the court

             of this failure, and the court shall hold a hearing to determine whether

             the offender failed to comply with any term or condition imposed as

             part of the plan. If the court determines that the offender has failed

             to comply with any of those terms and conditions, it may continue the
Delaware County, Case No. 19 CAA 07 0043                                                 9


              offender on intervention in lieu of conviction, continue the offender

              on intervention in lieu of conviction with additional terms, conditions,

              and sanctions, or enter a finding of guilty and impose an appropriate

              sanction under Chapter 2929. of the Revised Code. If the court

              sentences the offender to a prison term, the court, after consulting

              with the department of rehabilitation and correction regarding the

              availability of services, may order continued court-supervised activity

              and treatment of the offender during the prison term and, upon

              consideration of reports received from the department concerning

              the offender's progress in the program of activity and treatment, may

              consider judicial release under section 2929.20 of the Revised Code.



      {¶ 30} R.C. 2951.041(F) clearly permits the trial court to revoke an offender's ILC,

find him or her guilty of the underlying offenses and impose an appropriate sentence.

Generally, a sentence that falls within the terms of a valid sentencing statute cannot

constitute cruel and unusual punishment. State v. Hairston, 118 Ohio St.3d 289, 888

N.E.2d 1073, 2008-Ohio-2338, ¶ 21. Priest's sentence of five years community control is

a punishment authorized by the legislature, and he does not argue otherwise. We

therefore find Priest's sentence is appropriate and does not constitute cruel and unusual

punishment.

      {¶ 31} The fourth assignment of error is overruled.

                                             V
Delaware County, Case No. 19 CAA 07 0043                                                10


      {¶ 32} In his final assignment of error, Priest argues his counsel rendered

ineffective assistance. Specifically, he argues he received no benefit in exchange for his

admission to violating the terms of his ILC and was therefore prejudiced. We disagree.

      {¶ 33} To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell

below an objective standard of reasonable representation, and (2) that counsel's errors

prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the

result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–

688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. "Reasonable

probability" is "probability sufficient to undermine confidence in the outcome." Strickland

at 694, 104 S.Ct. 2052.

      {¶ 34} We find Priest has not met either Strickland prong. There was no dispute

that Priest failed to pay in full either restitution or court costs during his time on ILC.

Challenging that fact and demanding a hearing would have been an exercise in futility on

the part of Priest's counsel. While Priest complains he received no benefit because he is

now a convicted felon, this is a situation of Priest's own making, and not due to any

deficient representation by his counsel.
Delaware County, Case No. 19 CAA 07 0043                                        11


      {¶ 35} The final assignment of error is overruled.

      {¶ 36} The judgment of the Delaware County Court of Common Pleas is affirmed.

By Wise, Earle, J.

Wise, John, P.J. and

Baldwin, J. concur.



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