[Cite as State v. George , 2021-Ohio-476.]

IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2020-T-0025 - vs - : MATTHEW DAVID GEORGE, : Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2019 CR 00776. Jud g ment: Affirmed.

Dennis Watkins , Trumbull County Prosecutor, and Michael J. Fredericka , Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Str eet, N.W., Warren, Ohio 44481-1092 ( For Plaintiff-Appellee )

. Sean C. Buchanan , Slater & Zurz LLP, One Cascade Plaza, Suite 2200, Akron, Ohio 44308 ( For Defendant-Appellant )

.

MARY JANE TRAPP, P.J. {¶1} Appellant, Matthew David George (“Mr. George”), appeals from th e judgment entry of the Trumbull County Court of Common Pleas sen tencing him to community control and a suspended jail term following his guilt y pleas to possession of criminal tools and resisting arrest. {¶2} In his sole assignment of error, Mr. George contends that the t rial court’s requirement that he write a letter of apology to the victim as a condition of community2 control constitutes compelled speech in violation of his rights under the First Amendment to the United States Constitution. {¶3} After a careful review of the record and pertinent law, we decl ine to exercise our discretion to address Mr. George’s constitutional challenge for the first time on appeal. Mr. George has not asserted a plain error argument. Further, i t appears that Mr. George’s constitutional challenge would be a matter of first impression in Ohio. {¶4} Thus, we affirm the judgment of the Trumbull County Court of Co mmon Pleas. Substantive and Pr ocedural History {¶5} In October 2019, the Trumbull County Grand Jury indicted Mr. Ge orge on the following four counts: attempted burglary, a felony of the third degree, in violation of R.C. 2923.02(A) and R.C. 2911.12(A)(2) and (D) (count 1); posse ssing criminal tools, a felony of the fifth degree, in violation of R.C. 2923.24(A) and (C) (count 2); aggravated menacing, a misdemeanor of the first degree, in violation of R. C. 2903.21(A) and (B) (count 3); and resisting arrest, a misdemeanor of the second de gree, in violation of R.C. 2921.33(A) and (D) (count 4). Mr. George entered not guilty pl eas to all counts. {¶6} At a subsequent plea hearing, Mr. George entered oral and writt en pleas of guilty to possessing criminal tools (count 2) and resisting arr est (count 4). The state’s factual basis for Mr. George’s guilty pleas was that on or abou t September 11, 2019, Mr. George possessed a tire iron with purpose to gain entry into a personal residence located in Bazetta Township where an identified woman was present. The police were called and arrested Mr. George a short distance away, at which time he phy sically resisted the arrest.3 {¶7} At the sentencing hearing, Mr. George spoke on his own behalf a nd indicated he wanted to “apologize to this courtroom.” In a colloquy with the trial court, he indicated he had been drinking and let his emotions get the bet ter of him. He explained that his girlfriend had “dumped” him, and he used a tire iron t o break the window of a house where she and her new boyfriend were present. Mr. George stated that he did so with “bad intentions,” and when the police arrived, he ran. {¶8} On count 2 (possessing criminal tools), the felony offense, the trial court sentenced Mr. George to five years of community control, subjec t to the general supervision of the Adult Probation Department, with several con ditions, including ten days in jail. Another condition was that Mr. George must “write a l etter of apology to the victim under the supervision of the Adult Probation Department.” On c ount 4 (resisting arrest), the misdemeanor offense, the trial court sentenced Mr. George t o a suspended jail term of 90 days, concurrent to count 2. Mr. George did not raise an y objections to his
sentences. {¶9} The trial court subsequently issued a judgment entry memorializ ing Mr. George’s sentences. {¶10} Mr. George appealed and assigns the following error for our rev iew: {¶11} “The court erred by ordering an apology letter, which is compel led speech prohibited by the First Amendment to the United States Constitu tion.” Constitutional Challenge {¶12} As indicated, Mr. George did not object to the constitutionalit y of the apology letter condition during the sentencing hearing when the trial c ourt imposed it.4 {¶13} It is a well-established rule that “‘an appellate court will no t consider any error which counsel for a party complaining of the trial court’ s judgment could have called but did not call to the trial court’s attention at a time when such error could have been avoided or corrected by the trial court.’” State v. Awan , 22 Ohio St.3d 120, 122 (1986), quoting State v. Childs , 14 Ohio St.2d 56 (1968), paragraph three of the syllabus. {¶14} The waiver doctrine set forth in Awan , however, is discretionary. In re M.D. , 38 Ohio St.3d 149 (1988), syllabus. Even where waiver is clear , constitutional challenges may be heard for the first time on appeal if the court exercise s its discretion to do so “in specific cases of plain error or where the rights and interests involved may warrant it.” Id

. {¶15} As this court has noted, several appellate districts have revie wed constitutionality issues under a plain error standard despite a clear waiver of constitutional issues below. State v. Weaver , 11th Dist. Trumbull No. 2013-T-0066, 2014-Ohio-1371, ¶ 12. However, the Supreme Court of Ohio has held that “[n]oti ce of plain error * * * is to be taken with the utmost caution, under exceptional circumstanc es and only to prevent a manifest miscarriage of justice.” State v. Long , 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. {¶16} In this case, Mr. George has not argued that the trial court’s imposition of the apology letter condition constitutes plain error. See In re J.A. , 9th Dist. Lorain No. 15CA010794, 2016-Ohio-871, ¶ 5 (declining to advance a plain-er ror argument on behalf of an appellant challenging a constitutional issue for the firs t time on appeal). Instead, Mr. George asserts that our standard of review is “de novo” bec ause the trial court’s sentence is “contrary to basic constitutional law on the most p rimary of enumerated rights.” However, Mr. George has not cited any authority in su pport of this proposition.5 See App.R. 16(A)(7) (requiring the appellant’s brief to include “[ a]n argument containing the contentions of the appellant with respect to each assignmen t of error * * * with citations to the authorities * * * on which appellant relies”). {¶17} Further, it appears that the constitutionality of an apology le tter as a condition of community control would be a matter of first impre ssion in Ohio. See State v. Rose , 12th Dist. Clermont No. CA96-11-106, 1997 WL 570695, *1 (Sept . 15, 1997), fn. 1 (declining to address a constitutional question on an issue o f first impression). {¶18} Accordingly, for the foregoing reasons, we decline to exercise our discretion to address Mr. George’s constitutional challenge for the first time on appeal. {¶19} Mr. George’s sole assignment of error is without merit. {¶20} The judgment of the Trumbull Coun ty Court of Common Pleas is af firmed.

THOMAS R. WRIGHT, J., MATT LYNCH, J.,

concur.