[Cite as State v. Levesque,
2025-Ohio-2834.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
RAKIA D. LEVESQUE,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 25 MA 0025
Criminal Appeal from the
Mahoning County Court No. 5 of Mahoning County, Ohio
Case No. 2024 CR B 00198 CNF
BEFORE:
Katelyn Dickey, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. Lynn Maro, Mahoning County Prosecutor, Atty. Ralph M. Rivera and Atty. Kristie
M. Weibling, Assistant Prosecuting Attorneys, for Plaintiff-Appellee and
Atty. Martin E. Yavorcik, for Defendant-Appellant.
Dated: August 11, 2025
–2–
DICKEY, J.
{¶1} Appellant, Rakia D. Levesque, appeals from the February 18, 2025
judgment of the Mahoning County Court No. 5 sentencing her to serve 30 days in jail for
a community control violation. Appellant takes issue with her sentence which was stayed
pending this appeal. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶2} On June 18, 2024, Appellant posted a compromising video of L.H. (“the
victim”) on X (formerly Twitter). In the video, the victim is depicted dancing in the nude
with a string hanging from her vaginal area. As a result of her conduct, on July 18, 2024,
Appellant was charged with one count of telecommunications harassment, a
misdemeanor of the first degree in violation of R.C. 2917.21(B)(2). Five days later,
Appellant pled not guilty and waived her right to a speedy trial.
{¶3} On October 8, 2024, Appellant was represented by counsel and entered
into a Crim.R. 11 agreement with Appellee, the State of Ohio. Appellant pled guilty to the
telecommunications harassment charge, waived her nonconstitutional and constitutional
rights, and was sentenced to the following jointly recommended sentence: 180 days in
jail, with 180 days suspended; 24 months of reporting community control; a $100 fine;
and court costs. As a condition of her community control, the trial court prohibited
Appellant from having any contact with the victim. Specifically, Appellant was ordered to
“[r]efrain from having any verbal, physical, written, direct or indirect contact with [the
victim] [and] shall further refrain from conveying any messages through third parties with
the [victim].” (Exhibit 2). Appellant was also required to complete a mental health
assessment and comply with any treatment recommendations. Appellant did not object
to the imposition of any part of the no contact order.
{¶4} On January 3, 2025, Appellant appeared in court and was served with a
community control violation notice. The trial court informed Appellant of the substance of
the violation, specifically that she violated the terms of the no contact order. The court
also informed Appellant of the possible penalty it could impose if she were found guilty.
Appellant pled not guilty. The court set a recognizance bond and scheduled a community
control violation hearing on January 14, 2025.
Case No. 25 MA 0025
–3–
{¶5} At the consolidated preliminary and evidentiary hearing on the community
control violation, the State presented testimony from two witnesses: (1) the victim; and
(2) probation officer Beth Dunkle. The victim testified that after Appellant pled guilty to
the underlying charge, she felt further harassed by Appellant’s additional social media
posts. The victim sent screenshots of the posts to Dunkle via email on various occasions.
The victim further testified that these social media posts were posted after October 8,
2024, the date that the trial court’s no contact order was imposed. The victim is objectively
older than Appellant. The victim is also of African American descent. The victim believed
that Appellant’s X page was open to the public and not private. The victim further
indicated that she and Appellant had numerous mutual acquaintances, including but not
limited to the victim’s ex-boyfriend and current boyfriend. The victim finally testified she
was made aware of Appellant’s social media posts by these mutual acquaintances on
numerous occasions.
{¶6} Dunkle testified that she printed the screenshots and handwrote the date
she received the victim’s corresponding emails on the printouts. Dunkle determined the
social media posts were in violation of the no contact order. Appellant made the posts
between October 17, 2024 and January 2, 2025.
{¶7} The social media posts admitted into evidence (State’s Exhibits 1-5)
include:
“When you speak falsely on my name just know that your family, kids,
and whatever else is subject to WHATEVER SMOKE I WANT! [smoke
emoji]. #RESPECTFULLY” “I’m sorry but anyone that records themselves
with a tampon string hanging out of their ssa [sic] and have the audacity to
send it to multiple ppl will never make me mad! NEVER [pinching hand
emoji and various face emojis]. BECAUSE HOW or WHY?
#randomthoughts” “I’m C[racking] T[he] F U[p] why everybody think that
bum going to court for me [emoji].” “[B]*itch got a protection order and
restraining order on me. Even the judge was confused [emojis]
#OldAssBUM.” . . . “Let’s be clear I’ve NEVER been a police ssa [sic]
character. So when you see me in court initially it’s usually because a BUM
Case No. 25 MA 0025
–4–
can’t take the heat they thought they were giving out!!! NOW LET’S PLAY!!
[emojis] and I come with ALL TRUTH & EVIDENCE.”
(1/24/2025 Judgment Entry, p. 3-4).
{¶8} The defense cross-examined the State’s witnesses but elected not to call
any additional witnesses or introduce any evidence. Appellant did not object to the State’s
introduction of Exhibits 1-5.
{¶9} The trial court first found that Appellant did not object to a consolidated
preliminary and evidentiary hearing and, in fact, agreed to proceed with the full hearing.
The court found Appellant was not prejudiced by the combined hearing. The court further
found Appellant violated the terms of the no contact order by: (1) having indirect and thirdparty contact with the victim via social media; (2) purposefully using social media to
harass the victim; and (3) abusing the victim via social media. Because Appellant failed
to comply with the terms of the no contact order, the court found she violated her
community control.
{¶10} A sentencing hearing was held on February 18, 2025. The victim and her
counsel were afforded the opportunity to speak. A representative from the probation
department filled in for Dunkle. The representative testified that Appellant violated her
community control by failing to comply with the no contact order and recommended she
serve 30 days in jail. The representative notified the court that Appellant did not obtain a
mental health assessment until January 2025, despite being placed on community control
in October 2024. Regarding Appellant’s apparent failure to timely obtain a mental health
assessment, the trial court acknowledged that Appellant was not arraigned on the mental
health assessment issue and refused to consider this information in determining
Appellant’s sentence. Appellant and her counsel presented mitigation testimony and
argument including that Appellant completed psychological and psychiatric evaluations
and was compliant with her treatment plans. Upon consideration, the court imposed a
30-day jail sentence upon Appellant.
{¶11} Appellant filed a timely appeal and the trial court stayed her sentence
pending this appeal. Appellant raises a single assignment of error for our review.
Case No. 25 MA 0025
–5–
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY CONSIDERING UNCHARGED
PROBATION VIOLATIONS AND IRRELEVANT CONDUCT DURING
SENTENCING, THEREBY DEPRIVING APPELLANT OF DUE PROCESS
AND RESULTING IN AN ABUSE OF DISCRETION.
{¶12} “A misdemeanor sentence is reviewed for an abuse of discretion.” State v.
Hole, 2024-Ohio-1811, ¶ 11 (7th Dist.), citing State v. Nuby,
2016-Ohio-8157, ¶ 10 (7th
Dist.), citing State v. Reynolds,
2009-Ohio-935, ¶ 9 (7th Dist.). An abuse of discretion
occurs when a court exercises its judgment “in an unwarranted way, in regard to a matter
over which it has discretionary authority.” Johnson v. Abdullah,
2021-Ohio-3304, ¶ 35.
“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). . . .
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.
Case No. 25 MA 0025
–6–
2929.22(B)(1). The court may also consider other factors relevant to
sentencing. R.C. 2929.22(B)(2). . . .
...
A trial court must consider the criteria of R.C. 2929.22 and the
principles of R.C. 2929.21 before imposing a misdemeanor sentence. State
v. Crable, 7th Dist. Belmont No. 04 BE 17, 2004-Ohio-6812,
2004 WL
2913280, ¶ 24. Nevertheless, a court sentencing for a misdemeanor is not
required to state on the record its consideration of the sentencing factors.
State v. Wallace, 7th Dist. Mahoning No. 12 MA 180, 2013-Ohio-2871, ¶
16, 18;
Crable, supra, at ¶ 24.
A reviewing court must presume the trial judge made the required
considerations absent an affirmative showing to the contrary. State v. Best,
7th Dist. Mahoning No. 08 MA 260, 2009-Ohio-6806, ¶ 14;
Crable, supra,
at ¶ 24. In other words, a silent record creates a rebuttable presumption that
the sentencing court considered the statutory misdemeanor sentencing
criteria. Wallace, supra, at ¶ 16; Best, supra, at ¶ 14;
Crable, supra, at ¶
24–25.
Hole, 2024-Ohio-1811, at ¶ 9-10, 12-13 (7th Dist.).
{¶13} Appellant believes her due process rights were violated because, at the
sentencing hearing, the probation representative testified that she failed to timely obtain
a mental health assessment, which was not part of the community control violation.
In order to comport with due process, a trial court must adhere to the
following conditions when ruling on a defendant’s guilt in relation to a
community control violation: “(a) written notice of the claimed violations; (b)
disclosure of evidence against the defendant; (c) the opportunity to be heard
in person and to present witnesses and documentary evidence; (d) the right
to confront and cross-examine adverse witnesses; (e) a neutral and
Case No. 25 MA 0025
–7–
detached hearing body; and (f) a written statement by the fact finders as to
the evidence relied on and reasons for revocation.”
(Citations omitted) State v. Backus, 2023-Ohio-3222, ¶ 23 (5th Dist.).
{¶14} Appellant did not object to the notice of the community control violation
provided by the trial court at the initial hearing or at the community control revocation
hearing. Appellant also did not object to the probation representative’s testimony
regarding the untimeliness of her mental health assessment at the sentencing hearing.
{¶15} Generally, a defendant’s failure to raise an objection to a due process
violation with respect to a community control violation waives all but plain error. State v.
Campbell, 2023-Ohio-2815, ¶ 15 (12th Dist.).
A three-part test is employed to determine whether plain error exists.
State v. Billman, 7th Dist. Monroe Nos. 12 MO 3, 12 MO 5, 2013-Ohio-5774,
¶ 25, citing State v. Barnes,
94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002).
First, there must be an error, i.e. a deviation from a legal rule.
Second, the error must be plain. To be “plain” within the meaning of Crim.R.
52(B), an error must be an “obvious” defect in the trial proceedings. Third,
the error must have affected “substantial rights.”
Billman at ¶ 25. In order to demonstrate that a defendant’s substantial rights
have been affected he must show that, but for the error, the trial outcome
would have been different. State v. Issa, 93 Ohio St.3d 49, 56,
752 N.E.2d
904 (2001).
Plain error “is a wholly discretionary doctrine whereby the appellate
court may, but need not, take notice of errors which are obvious and which
affect substantial rights that are outcome determinative. . . . This elective
tool is to be used with the utmost of care by the appellate court in only the
most exceptional circumstances where it is necessary to avoid a manifest
miscarriage of justice.” (Internal citations omitted.) State v. Jones, 7th Dist.
No. 06 MA 109, 2008-Ohio-1541, ¶ 65.
Case No. 25 MA 0025
–8–
State v. Williamson, 2021-Ohio-3328, ¶ 37-38 (7th Dist.).
{¶16} The probation representative requested that the trial court consider the
length of time it took Appellant to complete a mental health assessment for purposes of
sentencing. However, Appellant’s assertion that the court considered this information in
determining her sentence is incorrect. Rather, the record reveals the court indicated it
would not consider the untimely mental health assessment as a factor in determining
Appellant’s sentence for the community control violation. Specifically, the court stated:
THE COURT: Okay. So I’m looking at the actual probation violation
arraignment paperwork. And it looks like the only thing that is marked by the
court - - I will take responsibility for this - - is fines, costs and fees, and the
violation of the no-contact order, with 180 days in jail time suspended. I don’t
know that we technically advised her that she was in violation of that.
And I think I am mixing cases. Who was it that was just here that
stipulated to a - - anyways, it doesn’t matter.
Okay. So I appreciate that, knowing that Sidney. But she wasn’t
arraigned on it. So I’m not going to - - I’m not going to factor that in with
respect - - with respect to sentencing.
(Emphasis added) (2/18/2025 Sentencing Tr., p. 6-7).
{¶17} In addition, as stated, Appellant and her counsel presented mitigation
testimony and argument including that Appellant completed psychological and psychiatric
evaluations and was compliant with her treatment plans.
{¶18} Upon consideration, because Appellant failed to comply with the terms of
the no contact order, as evidenced by State’s Exhibits 1-5 as well as the testimony and
arguments presented, the trial court properly found Appellant violated her community
control and imposed a 30-day jail sentence. See R.C. 2929.25(D)(2)(c), “Misdemeanor
community control sanctions”: (“[I]f an offender violates any condition of a community
control sanction, the sentencing court may impose upon the violator . . . [a] combination
of community control sanctions, including a jail term.”)
Case No. 25 MA 0025
–9–
{¶19} Contrary to Appellant’s assertion, the record does not establish that the trial
court’s decision was improperly influenced by irrelevant or prejudicial testimony about
other alleged conduct. Also, the court did not consider an uncharged community control
violation in sentencing Appellant. In fact, the court indicated on the record that it would
not consider the untimely mental health assessment as a factor in determining Appellant’s
sentence. There was no due process violation in this case.
{¶20} Accordingly, the trial court complied with the R.C. 2929.21 and 2929.22
statutory mandates and did not commit plain error or abuse its discretion in imposing a
30-day jail sentence upon Appellant for violating her community control.
CONCLUSION
{¶21} For the foregoing reasons, Appellant’s sole assignment of error is not welltaken. The February 18, 2025 judgment of the Mahoning County Court No. 5 sentencing
Appellant to serve 30 days in jail for a community control violation is affirmed.
Waite, J., concurs.
Robb, P.J., concurs.
Case No. 25 MA 0025
[Cite as State v. Levesque, 2025-Ohio-2834.]
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
Mahoning County Court No. 5 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.
