[Cite as State v. Hammonds,
2023-Ohio-2985.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
DESMONIQUE R. HAMMONDS,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 MA 0071
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 21 CR 597
BEFORE:
Carol Ann Robb, Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Gina DeGenova, Mahoning County Prosecutor, Atty. Edward A. Czopur, Assistant
Mahoning County Prosecutor, Mahoning County Prosecutor's Office, 21 West Boardman
Street, 6th Floor, Youngstown, Ohio 44503 for Plaintiff-Appellee and
Atty. Donald K. Pond, 567 E. Turkeyfoot Lake Road, Suite 107, Akron, Ohio 44319 for
Defendant-Appellant.
Dated: August 24, 2023
–2–
Robb, J.
{¶1} Defendant-Appellant Desmonique R. Hammonds appeals the sentence
imposed by the Mahoning County Common Pleas Court for fourth-degree misdemeanor
criminal trespassing after a bench trial on the greater offense of breaking and entering.
She contends the court violated her right of allocution at sentencing and abused its
discretion by sentencing her to a maximum thirty-day jail term (suspended with two years
of community control). For the following reasons, the trial court’s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} On September 14, 2021, Appellant was arrested for breaking and entering,
a fifth-degree felony, after she moved back to her former leased residence without the
new owner’s permission. (10/7/21 Ind.); R.C. 2911.13(A) (trespassing in an unoccupied
structure by force, stealth, or deception with purpose to commit therein any theft offense
or any felony). This occurred seven months after she was removed by a deputy sheriff
who was executing a writ of possession issued in a foreclosure action against the former
property owner.
{¶3} Appellant waived the right to a jury, and the case was later tried to the court.
As the case presented against her by the state is pertinent to her sentencing arguments
on appeal, we review the evidence from the bench trial.
{¶4} On May 23, 2019, the county treasurer filed a tax foreclosure case against
Donald and Stephen Shetterly (and any unknown spouses) for owing over $30,000 in
unpaid property taxes on 157 Newport Drive in Boardman Township. (Tr. 105-108);
(St.Ex. 9). The owners were served at their residences in the State of Indiana. The
treasurer also initially named as defendants any unknown tenants, occupants, or land
contract vendees. Certified mail sent to any unknown residents at the property was
returned as unclaimed on June 19, 2019, and regular mail was returned with a vacant
property notation on July 30, 2019. (Tr. 109-110); (St.Ex. 13).1
1 Counsel for the treasurer testified any unrecorded lessees or similar occupants were not necessary parties
to a foreclosure action under Ohio law, but they initially name them as defendants in order to provide some
notification. (Tr. 108, 144).
Case No. 22 MA 0071
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{¶5} A few days later, Appellant visited the treasurer’s attorney and told him she
was interested in buying the property. He said his office could send a reminder notice
before the sheriff’s sale if she wished to bid on it, and he subsequently did so as a
courtesy. (Tr. 123). Because the property was vacant, the treasurer dismissed the
unknown residents from the suit on August 29, 2019. (Tr. 110). On the same day, the
treasurer filed a motion for default judgment, which was set for a hearing. (Tr. 112).
{¶6} On October 1, 2019, the court issued a foreclosure decree, which contained
the following holding: “the doctrine of lis pendens attached to the property on May 23,
2019. Thus, all liens and interests filed for record after May 23, 2019 are forever barred.”
(Tr. 113-114); (St.Ex. 10). At trial, the treasurer’s attorney pointed out this meant any
post-complaint lease (such as the one a detective discovered after Appellant’s arrest)
would be ineffective against a new owner. (Tr. 131-132).
{¶7} In November 2019, Appellant returned to the office of the treasurer’s
attorney asking for a quitclaim deed and then leaving in an upset state. She did not claim
to be a tenant at either visit. (Tr. 149).
{¶8} On August 18, 2020, the property sold for $151,000 at a sheriff’s sale to
Portage Banc LLC of Kent, Ohio through its statutory agent and owner Jitendra Kapasi.
(Tr. 118-119, 193). The sale was confirmed in a September 23, 2020 judgment wherein
the purchaser was granted a writ of possession. (Tr. 119); (St.Ex. 11). The sheriff’s deed
was recorded on December 7, 2020. (Tr. 121); (St.Ex. 12).
{¶9} A deputy sheriff then received a writ of possession from the court with
orders to “remove any and all persons” from the property and deliver the property to the
new owner. The deputy posted notice at the property on December 30, 2020, providing
thirty days to any interested person to vacate the premises. (Tr. 40). The deputy was
unable to attend to the matter on January 30, 2021 (the deadline in the notice).
{¶10} On February 3, 2021, Appellant emailed an internal affairs investigator at
the sheriff’s office. Noting the January 30 date, she complained the deputy failed to give
her a “three day notice” and no eviction action was filed against her in “the municipal court
of [M]ahoning [County].” (Tr. 82). Over the phone, this investigator advised Appellant the
only way to stop the process was through court proceedings. (Tr. 84).
Case No. 22 MA 0071
–4–
{¶11} The next day at 4:15 p.m., Appellant filed a pro se letter (with no case
caption), which was electronically filed in the common pleas court action. She asked to
“stop the eviction” and listed the foreclosure case number in the body of the letter. (Tr.
51); (St.Ex. 14). The deputy executed the writ on February 5, 2021, while wearing a body
camera (which was played for the court). (Tr. 42).
{¶12} Appellant told the deputy about her motion. He waited while she made
numerous phone calls, including to the court. He too called the court and then proceeded
with the order to remove the occupants, providing Appellant time to pack her belongings.
(Tr. 45-46). When he emphasized she would not be allowed back on the property for any
reason without court permission, Appellant specifically acknowledged this would
constitute trespassing. (Tr. 46, 56); (St.Ex. 5).
{¶13} On February 8, 2021, a magistrate’s order addressed Appellant’s letter by
stating, “the Court has no pending eviction proceedings and therefore, the Court lacks
jurisdiction and the matter is considered moot.” (Tr. 68, 125); (St.Ex. 14). Appellant filed
another letter (again with no case caption but with the case number in the body), wherein
she seemingly sought to contest the sheriff’s sale. A magistrate’s order found her filing
untimely. (Tr. 126-127); (St.Ex. 14).
{¶14} Appellant then made complaints against the deputy and various
departments. (Tr. 57). For instance, she filed a complaint at the Boardman Police
Department on February 13, 2021. (Tr. 92). In doing so, she acknowledged receiving
the notice posted on the property (while complaining no eviction action was filed against
her). (Tr. 93).
{¶15} After the writ of possession was executed, an agent of the new property
owner changed the locks and looked around the house with police officers and the owner.
(Tr. 159, 197). Sometime thereafter, the agent stopped to check on the property and
noticed someone broke in through the back door. (Tr. 160-161). While there, he heard
Appellant speaking to the police about vehicles and heard her claim the authorities were
conspiring against her. (Tr. 161,169).
{¶16} The property owner testified he was cited by the police for the condition of
the property, including multiple cars left at the property. He believed Appellant would be
removing them after showing title to the police who would tow the remainder. (Tr. 207).
Case No. 22 MA 0071
–5–
{¶17} On April 11, 2021, Appellant complained to a Boardman police officer about
the sheriff’s office executing the writ of possession. She also asked about entering the
property to retrieve forgotten items. When the officer advised she would be subject to
arrest for criminal trespass if she showed up at the property without a court order, she
replied, “Well, you guys are going to have to arrest me.” (Tr. 95-97).
{¶18} A few days later, she asked the owner if she could rent the house for $250
per month and make repairs; she made higher offers later. (Tr. 208-209). He did not
respond to her, testifying the rent offer was extremely low, the house was “trashed,” and
she had threatened him over the phone in the past. (Tr. 211).
{¶19} On September 13, 2021, Appellant met a locksmith at the house. She
pulled up in a limousine and told the locksmith she locked her keys inside her house. As
the property address matched her driver’s license and a piece of mail she possessed, the
locksmith let her in. When asked if she wanted an extra key made, she said she would
be installing new locks she purchased at a store. (Tr. 23-26).
{¶20} The next day, a neighbor called the property owner to report Appellant’s
limo was parked at the property and all the lights were on in the house. (Tr. 162, 175,
187). The owner’s agent went to the property and called the Boardman police. (Tr. 164,
174). When Appellant refused to answer the door, the officers called their supervisor.
(Tr. 184). The supervisor spoke to the property owner on the phone and confirmed
Appellant did not have permission to be on the property. (Tr. 180). The supervisor
remembered previously escorting Appellant to the property to retrieve a vehicle she left
behind. (Tr. 186).
{¶21} When she finally responded to the officers’ requests, Appellant claimed she
had possession of the home and the right to be there. She showed police the locksmith’s
receipt and an online reconnection receipt from the water department; both receipts were
dated the prior day. (Tr. 177-178); (St.Ex. 1, 22).
{¶22} Appellant was arrested for breaking and entering; her children were
retrieved from the house by her mother. (Tr. 181, 188). The supervisor testified it
appeared Appellant intended to take up residence in the home, noting she deprived the
owner of access to his property. The owner’s agent looked through the house after
Case No. 22 MA 0071
–6–
Appellant’s arrest and confirmed it looked as if she had been cleaning the floors and
moving back in. (Tr. 164).
{¶23} A detective subsequently investigating the case subpoenaed records from
the water department. He learned the property owner paid the final bill, opened a new
account in his name, and turned the water off. (Tr. 221-222). However, Appellant was
able to have the water reconnected in her name on September 13, 2021 by presenting
her driver’s license with the property address and a lease. This document purported to
be a five-year lease signed by herself and the foreclosure defendant Don Shetterly on
August 30, 2019 (i.e., Appellant would have entered the lease after the foreclosure action
was filed and after meeting with the treasurer’s attorney about buying the property). (Tr.
138, 220-224); (St.Ex. 22).2
{¶24} After considering the preceding evidence and the arguments on the
breaking and entering element involving purpose to commit a theft offense, the trial judge
found Appellant guilty of the lesser included offense of criminal trespass. See R.C.
2911.21(A)(1) (knowingly enter or remain on the land or premises of another without
privilege to do so), (D)(1) (a fourth-degree misdemeanor).
{¶25} The court imposed a suspended thirty-day jail sentence with three days of
jail time credit and imposed two years of supervised community control with orders to
have no contact with the property or its owner. At the sentencing hearing, the judge noted
he would eliminate her probation after it seemed she was settled into a stable residence
with no intent to return to the property at issue. (Tr. 262). Appellant filed a timely notice
of appeal from the June 3, 2022 sentencing order.
ASSIGNMENT OF ERROR ONE: ALLOCUTION
{¶26} Appellant sets forth two assignments of error, the first of which contends:
“The trial court erred by denying Defendant-Appellant the right of allocution prior
to the imposition of sentence, contrary to the Ohio Rules of Criminal Procedure – Crim.
R. 32(A)(1).”
2 The copy of the lease shows a notary seal and notary signature under the lease parties’ signatures, but
there was no notarial certificate (stating the signatures were acknowledged before the notary in a certain
county on a specific date). The detective spoke to former owner Don Shetterly (who lived in Indiana) in a
recorded phone call; he was uncertain if he signed a lease but said he never received any payments (even
though the lease required an advance payment of the rent and a security deposit). (Tr. 227-228); (St.Ex.
23).
Case No. 22 MA 0071
–7–
{¶27} Pursuant to Crim.R. 32(A)(1), the sentencing court shall not only give
defense counsel an opportunity to speak on behalf of the defendant but shall also
“address the defendant personally and ask if he or she wishes to make a statement in his
or her own behalf or present any information in mitigation of punishment.” The trial judge
must carefully adhere to the affirmative obligation to offer the right of allocution provided
in Crim.R.32(A)(1). State v. Green, 90 Ohio St.3d 352, 359-360,
738 N.E.2d 1208 (2000)
(remanding where the court’s invitation to speak only seemed to refer to two non-capital
counts, as this undercut the constitutional reliability of the death sentence). “A Crim.R.
32 inquiry is much more than an empty ritual: it represents a defendant's last opportunity
to plead his case or express remorse.”
Id.
{¶28} Here, the parties agreed to proceed immediately to sentencing after the trial
judge rendered the finding of guilt on the lesser included offense of criminal trespass.
The state expressed no opinion on a jail term but asked for community control for a long
enough period to ensure Appellant did not return to the property. Defense counsel
pointed out Appellant already spent three days in jail, which he described as “a pretty stiff
sentence for a fourth degree misdemeanor.” He opined Appellant had been punished
enough and no further punishment was necessary. (Tr. 260). 3 Defense counsel then
immediately stated, “If she be given an opportunity to allocute - - do you have anything
you wish to say?” (Tr. 260-261).
{¶29} At this point, the court reporter interrupted the proceedings, and the
prosecutor asked, “Is she saying something, or is she deciding if she wants to say
something.” The court then clarified, “I think she’s telling [her attorney] to say it. Her stuff
is still there, I think.” A discussion was then held off the record. Immediately upon
returning to the record and without invitation to speak, defense counsel announced, “And
we don’t have anything else to say.”
{¶30} The court then personally addressed Appellant, commenting on the need to
ensure “you” have a place to live with “your” children and would no longer keep returning
to the property. (Tr. 261). The court inquired, “I understand you have somewhere to live
now?” (Tr. 261-262). When Appellant responded in the negative, the court said it would
try to help her find somewhere to live, noting that it cannot be at the property at issue.
3 Contrary to the state’s argument, the sentence was not jointly recommended.
Case No. 22 MA 0071
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{¶31} The court then imposed the sentence of 30 days suspended with three days
credit and community control of two years. After noting the community control could be
eliminated upon a showing of stable housing (to confirm the lack of intent to return to the
property), the court asked the attorneys to attend a meeting with the court where they
would find Appellant stable housing. The court also asked Appellant if that was okay, but
she did not answer then or when the court prompted, “Yes, no?” (Tr. 263).
{¶32} Ordinarily a trial court error is waived by failing to object, which leaves an
appellant to invoke the plain error doctrine under Crim.R. 52(B). However, the absolute
right to allocution in Crim.R. 32(A)(1) is not forfeited due to a defendant's mere lack of
objection to the court’s error in failing to comply with its affirmative duty under the rule.
State v. Campbell, 90 Ohio St.3d 320, 325,
738 N.E.2d 1178 (2000). Nevertheless, the
right to allocution can be waived by a failure to respond after the court invites the
defendant to speak.
Id.
{¶33} Working backward, Appellant’s last failures to respond to invitations to
speak were post-sentence and unrelated to allocution as they related to a future method
to eliminate community control. The court’s presentence question on housing was a
personal invitation to speak on a specific topic relevant to the court’s sentencing decision
but did not ask whether Appellant wished to make a statement on her own behalf or
present any information in mitigation of punishment. When the court personally
addresses the defendant for allocution, “the exact language employed by the rule is not
required; however, the invitation to speak should not be ambiguous.” State v. Masson,
2017-Ohio-7705,
96 N.E.3d 1225, ¶ 10 (7th Dist.), citing State v. Roach, 7th Dist. Belmont
No. 15 BE 0031,
2016-Ohio-4656, ¶ 11 (citing examples from other cases).
{¶34} Nevertheless, the focus is on the earlier questioning of Appellant as to
whether she wanted to speak when the topic of her exercising or waiving allocution was
discussed in her presence by all participants (with her whispering her answers to defense
counsel). This situation is distinguishable from the initial holding in Campbell where the
Supreme Court made the following observations:
no evidence exists that the defendant knew he had a right to personally
address the court prior to sentencing. Had the trial court strictly complied
with Crim.R. 32(A)(1), the record would affirmatively show that Campbell
Case No. 22 MA 0071
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had indeed known of that right, thereby allowing him to choose whether to
exercise it or not. But were we to find waiver in this case, where the record
of the sentencing hearing is silent as to the right of allocution, we would in
effect be sanctioning a finding of waiver in every case in which the trial court
failed to comply with the duty imposed by the rule.
Campbell, 90 Ohio St.3d at 325 (noting the rule would also be applied to non-capital
cases). See also Masson,
2017-Ohio-7705 at ¶ 10 (the rights under the rule also apply
to misdemeanor cases).
{¶35} Here, the court afforded defense counsel the opportunity to speak after the
prosecutor, as required by the first part of Crim.R. 32(A)(1). At the end of defense
counsel’s sentencing argument and before the court could speak, defense counsel
immediately interjected himself into the court’s role, specifically announcing his client’s
“opportunity to allocate.” He then immediately took it upon himself to ask his client, “do
you have anything you wish to say?” (Tr. 260-261). There was a question by the
prosecutor (and the court reporter) as to whether Appellant was in the midst of allocuting
or whether she was conferring with counsel to decide whether to say something as they
could not clearly hear her. The court, however, appeared to understand that she was
telling her attorney she wanted him to speak for her and heard her instruct her attorney
to say she left belongings at the home in which she trespassed. After an off-the-record
discussion, defense counsel again interjected himself as the opener of the record by
announcing, “we don’t have anything else to say.” (Tr. 261). The court nevertheless
personally requested Appellant answer a question the court viewed as relevant to its
sentencing decision.
{¶36} Appellant had a clear “opportunity for allocution at the sentencing hearing”
and chose not to speak on the record when pressed (and later answered a specific
question relevant to sentencing). See State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-
8127,
81 N.E.3d 1237, ¶ 15 (requiring resentencing “if an offender is not given an
opportunity for allocution at the sentencing hearing … absent invited or harmless error”).
Additionally, as Appellant acknowledges, a trial court’s failure to be the one to voice the
personal offer of the chance to make a statement in mitigation at sentencing does not
result in automatic reversal for resentencing. If the error was invited or harmless,
Case No. 22 MA 0071
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resentencing is not required. Jackson, 150 Ohio St.3d 362 at ¶ 15; Green,
90 Ohio St.3d
at 359; Campbell,
90 Ohio St.3d at 324-326. Under the doctrine of invited error, a
defendant will not be allowed to benefit from an error induced by the defense or for which
the defense was actively responsible. Campbell,
90 Ohio St.3d at 324. Invited error is
more than mere acquiescence by the defense but involves the defense’s suggestion,
request, or affirmative consent to a procedure.
Id. Under the circumstances reviewed
above, any error in performing the affirmative court obligation on allocution was invited by
the defense.
{¶37} Alternatively, as to harmless error under Crim.R. 52(A): “Any error, defect,
irregularity, or variance which does not affect substantial rights shall be disregarded.”
More specifically, “a trial court's failure to address the defendant at sentencing is not
prejudicial in every case.” Campbell, 90 Ohio St.3d at 325 (finding the error was not
harmless error in the particular capital case where the defendant did not have an
opportunity to make a personal appeal for his life), distinguishing State v. Reynolds,
80
Ohio St.3d 670, 684,
687 N.E.2d 1358 (1998) (where the court found the error was
harmless in a capital case). “[T]he information conveyed to the court by defense counsel
is pertinent in evaluating harmless error.” Masson,
2017-Ohio-7705 at ¶ 10, citing Roach,
7th Dist. No. 15 BE 0031 at ¶ 17-19.
{¶38} Here, sentencing took place immediately after the bench trial. Minutes
before the sentence, defense counsel had just argued how confused Appellant was by
the legal proceedings regarding the property foreclosure, her eviction, her five-year lease,
and her rights. The court knew Appellant and her children were displaced from the home
and expressed concern while offering to actively participate in finding her stable housing.
Defense counsel opined the three days she already spent in jail after her arrest would be
a stiff and sufficient sentence for a misdemeanor of the fourth degree. She was invited
to speak by her counsel, and she refused to do so except through him, but she thereafter
answered the court’s question on a topic the court expressed was important to sentencing
in the context of her situation. The court imposed community control while noting an
intent to eliminate this obligation upon Appellant’s entry into stable housing to show she
abandoned her obsession with the property at issue. Considering all of the circumstances
(including the analysis in the next assignment of error), any error under Crim.R. 32(A)(1)
Case No. 22 MA 0071
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was harmless. For the various reasons expressed supra, Appellant’s first assignment of
error is overruled.
ASSIGNMENT OF ERROR TWO: MAXIMUM JAIL TERM
{¶39} Appellant’s second assignment of error contends:
“The trial court erred by imposing a maximum suspended sentence upon
Defendant-Appellant, contrary to the statutory provisions for misdemeanor sentencing.”
{¶40} “The overriding purposes of misdemeanor sentencing are to protect the
public from future crime by the offender and others and to punish the offender.” R.C.
2929.21(A). These purposes are achieved by considering “the impact of the offense
upon the victim and the need for changing the offender's behavior, rehabilitating the
offender, and making restitution to the victim of the offense, the public, or the victim and
the public.” Id. The sentence “shall be reasonably calculated to achieve the two
overriding purposes of misdemeanor sentencing set forth in division (A) of this section,
commensurate with and not demeaning to the seriousness of the offender's conduct and
its impact upon the victim, and consistent with sentences imposed for similar offenses
committed by similar offenders.” R.C. 2929.21(B).
{¶41} A court imposing a misdemeanor sentence “has discretion to determine the
most effective way to achieve the purposes and principles of sentencing set forth in
section 2929.21 of the Revised Code.” R.C. 2929.22(A) (without creating an unnecessary
burden on local government resources). In imposing a misdemeanor sentence, the court
shall consider all of the following factors: (a) the nature and circumstances of the offense;
(b) any circumstances surrounding the offender and the offense indicating a history of
persistent criminal activity and substantial risk of recidivism; (c) any circumstances
indicating the offender's history, character, and condition show a substantial risk of danger
to others and conduct characterized by a pattern of repetitive, compulsive, or aggressive
behavior with heedless indifference to consequences; (d) any victim characteristics
influencing vulnerability or impacting the seriousness of the offense; (e) the general
likelihood of recidivism; (f) any conditions traceable to military service contributing to the
offense; and (g) any military service record. R.C. 2929.22(B)(1). The court can also
consider other factors considered relevant to sentencing. R.C. 2929.22(B)(2).
Case No. 22 MA 0071
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{¶42} After stating a court shall consider the appropriateness of community control
before imposing a jail term for a misdemeanor, R.C. 2929.22(C) states: “A court may
impose the longest jail term authorized under section 2929.24 of the Revised Code only
upon offenders who commit the worst forms of the offense or upon offenders whose
conduct and response to prior sanctions for prior offenses demonstrate that the imposition
of the longest jail term is necessary to deter the offender from committing a future crime.”
The maximum jail term for a fourth-degree misdemeanor is thirty days. R.C.
2929.24(A)(4). The maximum community control sanction is five years. R.C.
2929.25(A)(2).
{¶43} Pursuant to the misdemeanor community control statute, a court has two
distinct options: (a) directly impose community control sanctions (which may be in addition
to a jail term); or (b) impose a jail term, suspend it (or some of it), and place the offender
on community control. R.C. 2929.25(A)(1). The court here chose the latter option,
sentencing Appellant to thirty days in jail (with three days of jail time credit), suspending
the remaining 27 days, and imposing two years of community control.
{¶44} Appellant argues the suspended part of the sentence constituted an abuse
of discretion, claiming it was unjust and unfair and suggesting the court failed to consider
the purposes and principles of misdemeanor sentencing. Although her sentence was
suspended and community control was imposed, she argues the court was not warranted
in sentencing her to a maximum jail term before suspending it. Relying on R.C.
2929.22(C), she claims this was not one of the “worst forms of the offense” or a case
involving an offender “whose conduct and response to prior sanctions for prior offenses
demonstrate that the imposition of the longest jail term is necessary to deter the offender
from committing a future criminal offense.”
{¶45} Initially, the state suggests Appellant’s argument on a maximum sentence
is “meaningless” due to the suspended nature of the sentence. It is noted R.C.
2929.24(H) states a court sentencing an offender to jail “retains jurisdiction over the
offender and the jail term.” The state emphasizes the imposition of a maximum
suspended jail term is the standard means of giving a community control sentence “teeth”
in case of a violation, pointing out the court would not be obligated to impose a maximum
term or any jail term for a future violation. Appellant analogizes the situation to the right
Case No. 22 MA 0071
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to counsel attaching in misdemeanor cases where actual imprisonment is imposed and
points out the right applies even to a suspended sentence. See Alabama v. Shelton, 535
U.S. 654, 661,
122 S.Ct. 1764,
152 L.Ed.2d 888 (2002); City of Garfield Hts. v. Williams,
8th Dist. Cuyahoga No. 102279,
2016-Ohio-381, ¶ 16-18 (community control with a
suspended jail sentence is “the functional equivalent of the suspended sentence in
Shelton”).
{¶46} In any event, the state concludes the court did not abuse its discretion.
Regarding the purposes and principles of misdemeanor sentencing, the state points out
the court need not discuss the statutes or make findings regarding them on the record; it
is presumed the court considered the sentencing statute absent an affirmative showing
to the contrary. Youngstown v. Cohen, 7th Dist. Mahoning No. 07-MA-16, 2008-Ohio-
1191, ¶ 83-85, citing State v. Crable, 7th Dist. No. 04 BE 17, 2004-Ohio-6812, ¶ 24. The
trial court’s sentencing entry cited R.C. 2929.21 and 2929.22 and said the court
considered the purposes and principles of sentencing. At the sentencing hearing, the
court explained its concerns about Appellant’s continued obsession with the property.
There is no affirmative showing the trial court failed to consider the purposes and
principles of misdemeanor sentencing.
{¶47} Likewise, the maximum sentence provision does not require findings. R.C.
2929.22(C). In fact, “[t]his court and others have ruled the misdemeanor sentencing court
is not bound by this provision to the extent it requires judicial fact-finding for a maximum
sentence ….” State v. Faiola, 7th Dist. Mahoning No. 21 MA 0094, 2022-Ohio-1126, fn.
3, citing State v. Burley,
2017-Ohio-378,
83 N.E.3d 322, ¶ 9 (7th Dist.). See also State v.
Brooks, 7th Dist. No. 05 MA 31,
2006-Ohio-4610 (severing the maximum sentence criteria
in division (C) of R.C. 2929.22), extending State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-
856,
845 N.E.2d 470.
{¶48} At any rate, the evidence presented at the bench trial could reasonably be
viewed as qualifying as one of the worst forms of criminal trespass.4 Appellant broke into
a house by falsely telling a locksmith she locked herself out of her house. She moved
4 Her conduct showed a maximum term was necessary to deter her from reoffending; as to a poor response
to “prior sanctions for prior offenses,” we note the Rules of Evidence do not apply to sentencing and the
state’s pretrial motion contained evidence of one prior misdemeanor with two probation violations.
Case No. 22 MA 0071
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herself and her children into the house from which she had been removed seven months
earlier. At that time, she acknowledged to the deputy executing the writ that she would
be subject to arrest if she returned. She was subsequently informed of this by law
enforcement as she continued to make complaints about her situation. It is extremely
concerning when a person who disapproves of the results of a civil proceeding takes
criminal steps to attempt to undo court actions. This is especially true where the entire
situation appeared manufactured by Appellant (from visiting the treasurer’s attorney
without mentioning any tenancy to the post-foreclosure-complaint lease she gave to the
water department). As the imposition of a suspended thirty-day sentence (with two years
of community control) was not an abuse of discretion, this assignment of error is
overruled.
{¶49} For the foregoing reasons, Appellant’s sentence is affirmed.
Waite, J., concurs.
Hanni, J., concurs.
Case No. 22 MA 0071
[Cite as State v. Hammonds, 2023-Ohio-2985.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are 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 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.
