[Cite as State v. Benson, 2019-Ohio-4635.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                             STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                       D’ANGELO BENSON,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 18 MA 0042


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 17 CR 209

                                         BEFORE:
                 David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                  Affirmed.


 Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, Assistant
 Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
 for Plaintiff-Appellee and
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 Atty. Cynthia Henry, P.O. Box 4332, Youngstown, Ohio 44515 and Atty. Desirae D.
 DiPiero, Desirae DiPiero, LLC, 8256 East Market Street, Suite 111, Warren, OH 44484,
 for Defendant-Appellant.

                                 Dated: November 4, 2019


 D’Apolito, J.

       {¶1}   Appellant D’Angelo Benson appeals his twelve-month sentence imposed by
the Mahoning County Court of Common Pleas for one count of obstructing justice, in
violation of R.C. 2921.32(A)(C)(2), a felony of the fifth degree.             Absent specific
exceptions, a prison sentence may not be imposed for a conviction of a non-violent fifth
degree felony that meets the additional requirements in R.C. 2929.13(B)(1)(a). However,
a trial court may impose a prison sentence for a non-violent fifth-degree felony if “[t]he
offender violated a term of the conditions of bond as set by the court.”                  R.C.
2929.13(B)(1)(b)(iii). Appellant contends that his sentence is predicated upon his failure
to comply with the conditions of his intervention in lieu of conviction (“ILC”). Because
Appellant’s first violation of his ILC, his illegal drug use, is also a bond violation, we find
that the prison sentence imposed by the trial court is not contrary to law.

                         FACTS AND PROCEDURAL HISTORY

       {¶2}   On February 17, 2017, Appellant attempted to conceal drugs in his shoe
while sitting in a patrol car during a traffic stop. On February 19, 2017, during a second
traffic stop, Appellant attempted to conceal drugs in his mouth, also while sitting in a patrol
car. The validity of the stops and the searches are not challenged in this appeal.
       {¶3}   Appellant was arrested on February 19, 2017. At his initial appearance on
February 21, 2017, bond was set at $5,000.00. The conditions of bond were not included
in the entry and there is no transcript of the hearing in the record. On January 27, 2017,
Appellant waived his right to a preliminary hearing and bond was continued.
       {¶4}   On March 23, 2017, Appellant was indicted for one count of tampering with
evidence, in violation of R.C. 2921.12(A)(1)(B), a felony of the third degree, and one count
of possession of drugs, in violation of R.C. 2925.11(A)(C), a misdemeanor of the first
degree. Appellant was arraigned on April 4, 2017.


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       {¶5}     On April 14, 2017, Appellant entered into a written waiver of his speedy trial
right, which contained the following conditions of bond:

       Defendant is to personally be aware and appear timely and appropriately
       dresses for all future Court proceedings; Defendant is not to violate any
       laws; Defendant is not to own, use, or possess any drugs or firearms;
       Defendant shall not act in any way to cause or attempt to cause any harm
       or threat of harm to any persons or property; Defendant is not to leave the
       State of Ohio without permission of this Court.

(4/14/17 Waiver, p. 1.)

       {¶6}     On May 31, 2017, Appellant entered a plea to the amended charge of
obstructing justice, a fifth-degree felony. The trial court imposed a two-year term of ILC,
pursuant to R.C. 2951.041, because Appellant alleged that drug use was a factor leading
to the commission of his crime.
       {¶7}     At the plea hearing, the trial court explained that Appellant was subject to
the supervision of the Adult Parole Authority and the authority of Treatment Accountability
for Safer Communities (“TASC”) while on ILC, and that Appellant was required “to honor
and obey all of [TASC’s] directives.” The trial court also reiterated Appellant’s bond
conditions, including the prohibition on illegal drug use. (5/31/17 Plea Hrg., p. 18-19.)
       {¶8}     Appellant violated the conditions of his ILC on two occasions. Less than a
month after his plea hearing, Appellant admitted to the use of crystal methamphetamine.
The trial court recognized at the violation hearing that “doing these drugs is a crime,” (Id.,
p. 16), and imposed a 90-day jail term, which was suspended after 30 days, when
Appellant was admitted into a rehabilitation program. Appellant reported to the Adult
Parole Authority immediately upon completion of the substance abuse program to
continue ILC.
       {¶9}     Roughly nine months after the plea hearing, Appellant was terminated from
his TASC program due to his failure to appear for scheduled meetings. At the second
revocation hearing, Appellant admitted the violation but explained that he did not have




Case No. 18 MA 0042
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transportation to the meetings. Appellant was drug tested on the day of his arrest for the
second violation and did not test positive for drugs.
       {¶10} While imposing the sentence, the trial court observed:

       [T]he Court considers the purposes and principles of sentencing and the
       seriousness and recidivism factors and the guidance by the degree of
       felony. The Court considers that I placed this man on [ILC] to help him. He
       violated it. I did not find him guilty of the crime. I continued his [ILC] and
       imposed other sanctions to, once again, help him through. I did the best I
       could to turn the other cheek, which judges are not supposed to do. We’re
       supposed to enforce our orders. I did it. I gave this guy another break and
       here he is thumbing his nose at me again and he’s now guilty of the crime
       that he committed.

(Id., p. 12.) In the sentencing entry, the trial court wrote that it considered the history of
both of Appellant’s ILC violations. The trial court imposed a twelve-month sentence with
jail time credit of 74 days. (Id., p. 2-3.) This timely appeal followed.

                                ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO A
       PRISON TERM AFTER AN INTERVENTION IN LIEU OF CONVICTION
       VIOLATION WHEN THE FACTORS NECESSARY TO OVERCOME THE
       STATUTORY PRESUMPTION FOR COMMUNITY CONTROL WERE
       NOT PRESENT.

       {¶11} Pursuant to State v. Marcum, 146 Ohio St.3d 516, 59 N.E.3d 1231, 2016-
Ohio-1002, ¶ 1, an appellate court may vacate or modify a sentence that is clearly and
convincingly contrary to law, or is clearly and convincingly not supported by the record.
Id. Appellant contends that the trial court was required to impose a community control
sanction. The state argues that a sentence of imprisonment was lawful because the bond
violation exception applies.




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      {¶12} R.C. 2929.13(B)(1)(a) creates a presumption in favor of community control
sanctions for nonviolent felonies of the fourth or fifth degree where the defendant meets
certain additional criteria. The state does not dispute that Appellant fulfills the
requirements of R.C. 2929.13(B)(1)(a). However the trial court has discretion to impose
a prison sentence pursuant to R.C. 2929.13(B)(1)(b) “if any of the following apply”:

      (i) The offender committed the offense while having a firearm on or about
      the offender’s person or under the offender's control.

      (ii) If the offense is a qualifying assault offense, the offender caused serious
      physical harm to another person while committing the offense, and, if the
      offense is not a qualifying assault offense, the offender caused physical
      harm to another person while committing the offense.

      (iii) The offender violated a term of the conditions of bond as set by the
      court.

      (iv) The court made a request of the department of rehabilitation and
      correction pursuant to division (B)(1)(c) of this section, and the department,
      within the forty-five-day period specified in that division, did not provide the
      court with the name of, contact information for, and program details of any
      community control sanction of at least one year's duration that is available
      for persons sentenced by the court.

      (v) The offense is a sex offense that is a fourth or fifth degree felony violation
      of any provision of Chapter 2907. of the Revised Code.

      (vi) In committing the offense, the offender attempted to cause or made an
      actual threat of physical harm to a person with a deadly weapon.

      (vii) In committing the offense, the offender attempted to cause or made an
      actual threat of physical harm to a person, and the offender previously was
      convicted of an offense that caused physical harm to a person.




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       (viii) The offender held a public office or position of trust, and the offense
       related to that office or position; the offender's position obliged the offender
       to prevent the offense or to bring those committing it to justice; or the
       offender's professional reputation or position facilitated the offense or was
       likely to influence the future conduct of others.

       (ix) The offender committed the offense for hire or as part of an organized
       criminal activity.

       (x) The offender at the time of the offense was serving, or the offender
       previously had served, a prison term.

       (xi) The offender committed the offense while under a community control
       sanction, while on probation, or while released from custody on a bond or
       personal recognizance.

       {¶13} We have previously held that a trial court is not required to make specific
findings when imposing a prison sentence pursuant to R.C. 2929.13(B)(1)(b). In State v.
Floyd, 7th Dist. Belmont No. 15 BE 61, 2017-Ohio-4278, we affirmed a prison sentence
because the record established that the defendant had violated the conditions of his bond,
despite the trial court’s failure to make specific findings at the sentencing hearing. Id. at
¶ 7, accord State v. Paxon, 11th Dist. Trumbull No. 2019-T-0011, 2019-Ohio-3551, ¶ 18.
       {¶14} Appellant contends that his sentence is contrary to law because it is
predicated upon a violation of his ILC. R.C. 2951.041, the ILC statute, allows courts to
“‘treat the cause rather than punish the crime.’” State v. Massien, 125 Ohio St.3d 204,
2010-Ohio-1864, 926 N.E.2d 1282, ¶10, quoting State v. Shoaf, 140 Ohio App.3d 75, 77,
746 N.E.2d 674 (10th Dist.2000). The Ohio Supreme Court explained ILC as follows:

       ILC is a statutory creation that allows a trial court to stay a criminal
       proceeding and order an offender to a period of rehabilitation if the court
       has reason to believe that drug or alcohol usage was a factor leading to the
       offense. R.C. 2951.041(A)(1). If, after a hearing, the trial court determines
       that an offender is eligible for ILC, then it shall accept the offender’s guilty



Case No. 18 MA 0042
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       plea, place the offender under the general control and supervision of the
       appropriate probation or other qualified agency, and establish an
       intervention plan for the offender. R.C. 2951.041(C) and (D). The
       intervention plan shall last at least one year, during which the offender is
       ordered to abstain from alcohol and illegal drug use, to participate in
       treatment and recovery-support services, and to submit to regular random
       testing for drug and alcohol use. R.C. 2951.041(D). If the offender
       successfully completes the intervention plan, the trial court shall dismiss
       proceedings against the offender without an adjudication of guilt and may
       order the sealing of records related to the offense. R.C. 2951.041(E). If the
       offender fails to comply with any term or condition imposed as part of the
       intervention plan, the court shall enter a finding of guilt and impose the
       appropriate sanction. R.C. 2951.041(F).

Id. ¶ 9.

       {¶15} Appellant’s bond specifically prohibited drug use. The record reflects that
the trial court considered Appellant’s first ILC violation, his illegal drug use, during
sentencing. Because it can be gleaned from the record that Appellant’s illegal drug use
constitutes a bond violation, we find that Appellant’s prison sentence is not contrary to
law and affirm the judgment entry of the trial court.




Donofrio, J., concurs.

Robb, J., concurs.




Case No. 18 MA 0042
[Cite as State v. Benson, 2019-Ohio-4635.]




         For the reasons stated in the Opinion rendered herein, the assignment of error
 is overruled and it is the final judgment and order of this Court that the judgment of the
 Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
