[Cite as State v. Weeks,
2021-Ohio-3735.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
Nos. 110195 and 110196
v. :
MYRON WEEKS, JR., :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: October 21, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-637358-A and CR-19-639880-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellee.
FRANK D. CELEBREZZE, JR., J.:
Plaintiff-appellant, the state of Ohio, brings this appeal challenging the
trial court’s judgment terminating, sua sponte, defendant-appellee Myron Weeks,
Jr. from community control. The state argues that the trial court erred by failing to
make the findings required by R.C. 2929.15(C), and failing to provide either party
with notice or an opportunity to be heard on the issue of termination. After a
thorough review of the record and law, this court vacates the trial court’s judgment,
reinstates Weeks’s community control sanction, and remands the matter to the trial
court for further proceedings consistent with this opinion.
I. Factual and Procedural History
On August 22, 2019, Weeks pled guilty in two criminal cases. First, in
Cuyahoga C.P. No. CR-19-637358-A, Weeks pled guilty to having weapons while
under disability and obstructing official business. Second, in Cuyahoga C.P. No. CR-
19-639880-A, Weeks pled guilty to attempted burglary, having weapons while under
disability, and tampering with evidence.
The trial court held a sentencing hearing on September 26, 2019. The
trial court sentenced Weeks to two years of community control sanctions under the
supervision of the probation department’s “mental health/developmental
disabilities unit.”
On February 3, 2020, a capias was issued at the request of the probation
department. The trial court held a hearing on February 20, 2020. A representative
of the probation department advised the trial court that the probation department
had not seen Weeks since December 4, 2019. The representative acknowledged,
however, that Weeks called the probation department on December 10, 2019, and
reported that he had been shot and was recovering from his gunshot wounds.
(Tr. 36.) The representative also asserted that Weeks called the probation
department the following week, as he was instructed to do. After this conversation,
the state “lost track of him.” Weeks’s case manager was able to get in contact with
Weeks, but Weeks did not come into the probation department or report to Murtis
Taylor, leading to the capias being issued.
The representative advised the trial court that Weeks spoke with the
state the week before the February 20, 2020 hearing, Weeks was at Murtis Taylor
the day before the hearing, and Weeks completed an outpatient treatment
assessment. Weeks was scheduled to start his outpatient treatment program the
following week. Finally, the representative advised the trial court that Weeks had a
“psych appointment” scheduled on March 4, 2020, and that the state “want[s] him
to go to [the appointment] and continue to be compliant with psychiatric
appointments as well as the [outpatient] treatment.” (Tr. 37.)
Weeks’s counsel addressed the trial court and confirmed that Weeks
would be starting his intensive outpatient (“IOP”) treatment program the following
week. In addition to the IOP treatment, Weeks planned to attend two alcoholics
anonymous (“AA”) meetings per week. Weeks’s counsel advised the court that
Weeks had documentation related to his gunshot wounds, which “did take [Weeks]
out of commission for quite a while.” (Tr. 38.) Weeks’s counsel asserted that Weeks
was back on track and requested that he be continued on community control.
The trial court addressed Weeks during the hearing and inquired about
the nature of the gunshot wounds and the circumstances under which Weeks
sustained them. The trial court stated,
Sounds like we’re getting back on a good path here. I’m really sorry to
hear about you getting shot, that’s horrible. I can’t imagine. I hope
they can get [the bullet] out of there. The only issue that really seems
to be an issue is some marijuana. I’m sure you can handle that and
you’ll take care of that problem, okay?
So the plan that’s set up sounds good, so let’s go with that plan, keep
things going. You’re supposed to be with me for a long time yet,1 but,
you know, if things go well — I think I told you this, Myron, at the
[September 26, 2019] sentencing — you start doing really well, maybe
in a year, 18 months we can finish your probation early. I’d like that to
happen. I’m, sure you would too, all right?
So be an angel, do the stuff we ask you to do, and we’ll be all set, okay?
(Tr. 40-41.)
Following the February 20, 2020 hearing, the trial court recalled the
capias and continued Weeks on community control. The trial court’s judgment
entry was journalized on February 24, 2020.
On December 12, 2020, the trial court, sua sponte, terminated Week’s
community control and waived costs and supervision fees. On December 29, 2020,
the state filed (1) motions for leave to file appeals, and (2) appeals challenging the
trial court’s judgments terminating Weeks’s community control (8th Dist. Cuyahoga
Nos. 110195 and 110196). On January 7, 2021, the state filed a motion to consolidate
the two appeals. This court granted the state’s motion for leave and motion to
consolidate on February 2, 2021. This court consolidated the state’s two appeals for
purposes of briefing, hearing, and disposition.
The hearing took place on February 20, 2020, and Weeks’s two-year term of
1
community control was not set to expire until September 2021.
In challenging the trial court’s judgments terminating Weeks’s
community control, the state assigns two errors for review:
I. The trial court erred when it sua sponte terminated [Weeks] from
community control early without making the requisite findings under
[R.C. 2929.15(C)].
II. The trial court erred when it sua sponte terminated [Weeks] from
community control early without providing notice, or an opportunity
to be heard, to either party.
II. Law and Analysis
A. Termination of Community Control
Both of the state’s assignments of error pertain to the trial court’s
December 12, 2020 judgment entries terminating Weeks from community control.
The Ohio Supreme Court has repeatedly recognized that “‘trial courts
lack authority to reconsider their own valid final judgments in criminal
cases.’” [State v. Raber], 134 Ohio St.3d 350,
2012-Ohio-5636,
982
N.E.2d 684, ¶ 20, citing State ex rel. White v. Junkin,
80 Ohio St.3d
335, 338,
686 N.E.2d 267 (1997). Indeed, “absent statutory authority,
a trial court is generally not empowered to modify a criminal sentence
by reconsidering its own final judgment.” State v. Carlisle, 131 Ohio
St.3d 127,
2011-Ohio-6553,
961 N.E.2d 671, ¶ 1.
State v. Ray, 8th Dist. Cuyahoga No. 101142,
2014-Ohio-4689, ¶ 8.
R.C. 2929.15(C) authorizes a trial court to modify a community
residential sanction (R.C. 2929.16), a nonresidential sanction (R.C. 2929.17), or a
financial sanction (R.C. 2929.18). R.C. 2929.15 provides, in relevant part,
(C) If an offender, for a significant period of time, fulfills the conditions
of a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code in an exemplary manner, the court may reduce the
period of time under the sanction or impose a less restrictive sanction,
but the court shall not permit the offender to violate any law or permit
the offender to leave the state without the permission of the court or
the offender’s probation officer.
“Trial courts lack any statutory authority to terminate community
control outside the statutory framework provided in R.C. 2929.15(C).” State v. Ogle,
4th Dist. Hocking No. 16CA22, 2017-Ohio-869, ¶ 10, citing State v. Castillo, 2d Dist.
Montgomery No. 24022,
2011-Ohio-1821 (a trial court has no power to modify a
sentence or terminate community control except under R.C. 2929.15(C) where the
offender, “for a significant period of time, fulfills the conditions of a sanction in an
exemplary manner”).
Our resolution of the state’s second assignment of error is dispositive
of this appeal, and we need not address the state’s first assignment of error.
1. Notice
In its second assignment of error, the state argues that the trial court
erred in terminating Weeks from community control without holding a hearing,
providing notice to either party, or providing either party with an opportunity to be
heard. As a result, the state contends that neither party had an opportunity to
address the “significant period of time” and “exemplary manner” factors set forth in
R.C. 2929.15(C).
The state directs this court to State v. Heinz, 146 Ohio St.3d 374, 2016-
Ohio-2814,
56 N.E.3d 965. In Heinz, the Ohio Supreme Court held that the state is
entitled to notice and an opportunity to be heard in community control violation
hearings:
The prosecuting attorney has the authority to prosecute all complaints,
suits, and controversies in which the state is a party, and because the
state is a party to community control violation proceedings, because it
has the burden of proving that a violation occurred, because it
maintains an interest in ensuring that the proper sentence is imposed
to punish and rehabilitate the offender while protecting the safety of
the public, and because it is responsible for preserving error for appeal,
the state, through the prosecuting attorney, is entitled to notice and an
opportunity to be heard in all such hearings.
Id. at ¶ 2. The Heinz Court explained, “[b]ecause the state is a party to all community
control violation proceedings, the prosecuting attorney is the state’s legal
representative in those proceedings pursuant to R.C. 309.08(A) and is therefore
entitled to proper notice and an opportunity to be heard at all community control
violation proceedings.” Id. at ¶ 21.
R.C. 309.08(A), governing a prosecuting attorney’s powers and duties,
provides, in relevant part, “[t]he prosecuting attorney shall prosecute, on behalf of
the state, all complaints, suits, and controversies in which the state is a party.”
(Emphasis added.) See State v. Young, 154 Ohio App.3d 609,
2003-Ohio-4501,
798
N.E.2d 629, ¶ 7 (3d Dist.) (although community control sanction violations are not
necessarily considered criminal proceedings, R.C. 309.08 does not limit a
prosecuting attorney’s duties to “purely criminal proceedings,” and empowers
prosecutors to prosecute on behalf of the state, “all complaints, suits, and
controversies in which the state is a party[.]”). (Emphasis sic.) The Heinz Court
explained that the prosecuting attorney “has an interest in ensuring that a proper
sentence is imposed to punish and rehabilitate the offender while protecting the
public[.]” Id. at ¶ 19.
In the instant matter, Weeks concedes that the state was not provided
notice of the trial court’s sua sponte termination of Weeks’s community control.
During oral arguments, Weeks’s counsel acknowledged that it was inappropriate for
the trial court to terminate Weeks’s community control without notifying either
party.
Although this appeal involves the early termination of Weeks’s
community control rather than community control violation proceedings, we find
no distinction between this case and Heinz, 146 Ohio St.3d 374,
2016-Ohio-2814,
56
N.E.3d 965. Based on the Heinz rationale, which mandates notice, and the manner
in which the trial court terminated Weeks’s community control, we find that the trial
court abused its discretion in terminating Weeks’s community control early without
providing notice or an opportunity to be heard to either party.
The trial court terminated Weeks’s community control sua sponte,
without a hearing, and without providing the parties with notice and an opportunity
to be heard. As a result, the prosecuting attorney was unable to adequately represent
the interests of the state by ensuring that Weeks had been properly punished and
rehabilitated while protecting the safety of the public. The state was also denied an
opportunity to preserve the record and assert objections to Weeks’s early
termination for appellate purposes. See Heinz at ¶ 2, 20 (the state, through the
prosecuting attorney, is responsible for preserving error for appeal).
Had the trial court terminated community control upon a motion filed
by Weeks, the state would have had, at a minimum, an opportunity to file a brief in
opposition in which it could have addressed the R.C. 2929.15(C) factors and argued
that Weeks was not eligible for early termination. This was not the case because
Weeks did not file a motion to terminate, and the trial court terminated community
control sua sponte, without providing either party with notice.
Following the February 20, 2020 hearing on the capias, there is no
indication in the record that Weeks violated community control or that any issues
related to Weeks’s community control sanction were brought to the attention of the
trial court. The state argues that the only reason that the record is silent with respect
to any issues that arose with Weeks’s community control after February 2020 was
because the trial court did not provide the state or the probation department with
an opportunity to present this information before the trial court terminated Weeks
early from community control. As a result, the state maintains that the trial court
did not have all of the facts and information in front of it when it terminated Weeks’s
community control. Had the trial court provided notice to the state prior to
terminating Weeks’s community control, as required by Heinz, 146 Ohio St.3d 374,
2016-Ohio-2814,
56 N.E.3d 965, the issue of Weeks’s compliance with the terms of
his community control could have been further developed in the record.
For all of the foregoing reasons, we find that the trial court abused its
discretion in terminating Weeks’s community control without providing the state
with notice or an opportunity to be heard.
The state’s second assignment of error is sustained. Based on our
resolution of the state’s second assignment of error, the state’s first assignment of
error is moot.
The trial court’s judgment terminating Weeks’s community control
sanction is vacated, Weeks’s community control sanction is reinstated, and the
matter is remanded to the trial court for further proceedings consistent with this
opinion.
Judgment vacated and remanded.
It is ordered that appellant recover from appellee 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.
FRANK D. CELEBREZZE, JR., JUDGE
SEAN C. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR
