State v. Johnson

[Cite as State v. Johnson, 

.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
VS.                                              )           CASE NO. 09-MA-94
                                                 )
MELVIN JOHNSON,                                  )                OPINION
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Youngstown
                                                 Municipal Court of Mahoning County,
                                                 Ohio
                                                 Case No. 03TRD6612

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Attorney Joseph Macejko
                                                 City Prosecutor
                                                 26 S. Phelps St., 4th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Attorney Douglas A. King
                                                 Hartford, Dickey & King Co., LPA
                                                 91 West Taggart St., P.O. Box 85
                                                 East Palestine, Ohio 44413




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                 Dated: June 3, 2010
[Cite as State v. Johnson, 

.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Melvin Johnson, appeals from a Youngstown
Municipal Court judgment finding that he violated the terms of his community control
and extending his community control for two years.
        {¶2}     Appellant was convicted of one count of driving under suspension, a
first-degree misdemeanor, following a no contest plea on September 20, 2004. The
trial court sentenced him to two years of community control and ordered him to pay a
$100 fine, plus costs.
        {¶3}     On April 26, 2006, appellant’s probation officer filed a notification of
probation violation asserting that appellant had violated the terms of his probation by
failing to report and failing to pay fines and costs.
        {¶4}     The court held a probation violation hearing on May 21, 2009, after
several continuances and problems securing appellant’s attendance in court. At the
hearing, appellant’s probation officer testified. She stated that as of the date of the
hearing, appellant’s fines and costs were paid in full. She also testified that appellant
failed to report for his October 20, 2004, scheduled probation meeting.
        {¶5}     The trial court found appellant guilty of violating his probation because
he failed to report as ordered and failed to timely pay fines, costs, or fees or do
community service. Consequently, the court extended appellant’s community control
for two years.
        {¶6}     Appellant filed a timely notice of appeal on May 27, 2009.
        {¶7}     Plaintiff-appellee, the State of Ohio, chose not to file a brief in this
matter. Therefore, we may consider appellant's statement of the facts and issues as
correct and reverse the judgment if appellant's brief reasonably appears to sustain
such action. App.R. 18(C).
        {¶8}     Appellant raises two assignments of error, the first of which states:
        {¶9}     “THERE WAS NO ADEQUATE BASIS ON THE RECORD BEFORE
THE      YOUNGSTOWN              MUNICIPAL    COURT      FOR     THE     FINDING     THAT
DEFENDANT/APPELLANT HAD VIOLATED THE TERMS AND CONDITIONS OF
HIS COMMUNITY CONTROL SANCTION AND THEREFORE THE SAME SHOULD
                                                                              -2-


NOT HAVE BEEN REVOKED.”
       {¶10} The decision whether to revoke probation is within the trial court’s
discretion. State v. Ritenour, 5th Dist. No. 2006AP010002, 

.
Thus, a reviewing court will not reverse a trial court’s decision absent an abuse of
discretion. State v. Dinger, 7th Dist. No. 04CA814, 

. Abuse
of discretion connotes more than an error in law or judgment; it implies that the
court's attitude is arbitrary, unreasonable, or unconscionable.      State v. Maurer
(1984), 

.
       {¶11} In determining whether there was a probation violation, the trial court
need not find the probation violation established beyond a reasonable doubt. State
v. Wallace, 7th Dist. No. 05-MA-172, 

. Instead, the court
must only find substantial evidence the defendant breached a term or condition of
probation. 

       {¶12} Appellant first argues that at the probation violation hearing it was
brought out that the only date he was instructed to report to his probation officer was
October 20, 2004, and he was incarcerated on an unrelated charge that day.
Because the circumstances under which appellant failed to report were beyond his
control, he argues that his failure to report cannot be the basis for finding that he
violated his probation.
       {¶13} Appellant relies on State v. Bleasdale (1990), 

, for
the proposition that where a probation violation is the result of circumstances beyond
the probationer’s control, the violation should not result in revocation.    Appellant
contends that in his case, because he was in jail on the day he was scheduled to
report, he obviously could not report to his probation officer. Appellant contends that
like the probationer in Bleasdale, the circumstances that prevented him from meeting
the condition of his probation were beyond his control.
       {¶14} In Bleasdale, the appellant was ordered to complete a specific drug
treatment program as a condition of his probation. He enrolled in and cooperated
with the program but was terminated from it because the program could not provide
                                                                               -3-


for his mental health issues. The trial court subsequently found that the appellant
failed to comply with the terms of his probation. The Eleventh District disagreed. It
reasoned that there was no willful or intentional violation of the conditions of
appellant's probation.     

. It further reasoned that the appellant was
cooperating with the program and that the termination of the appellant was due to the
program's inability to properly handle his case. 

       {¶15} Appellant’s case, however, is distinguishable from Bleasdale. In this
case, appellant’s failure to report was a result of his own actions. It appears that
appellant was in jail on the day he was scheduled to report.           Karen Thigpen,
appellant’s probation officer, testified that appellant had an appointment to report on
October 20, 2004, for which he never appeared. (Tr. 6-7). Appellant’s counsel and
the court then had a discussion where they seemed to agree that appellant was in jail
on that day. (Tr. 7). But as the trial court pointed out, appellant never called his
probation officer to reschedule his appointment and never reported once he was
released from jail. (Tr. 7). The court observed that appellant could just not miss his
appointment and then expect it to go away. (Tr. 7). Thus, unlike the appellant in
Bleasdale who was dismissed from his court-ordered treatment for reasons beyond
his control, it was within appellant’s control here to make the necessary
arrangements to report to his probation officer at some time.
       {¶16} The fact that appellant failed to report to his probation officer, as was
required by his community control conditions, sufficiently justifies the court’s finding
that appellant violated his probation.
       {¶17} Additionally, the court also found that appellant violated his probation by
failing to timely pay fines and costs.
       {¶18} Appellant argues that the finding that he failed to timely pay his fines
and costs is unsupported by the record. He points out that the representative from
the probation department testified that his fine and costs were paid but that she was
unsure when they were actually paid.
       {¶19} Appellant’s original judgment entry and sentence indicate that his $100
                                                                               -4-


fine and costs were to be paid by October 20, 2004. (September 20, 2004 Judgment
Entry). The notification of probation violation indicating that appellant had failed to
timely pay his fine and costs was filed on April 26, 2006. Thus, it seems appellant
had yet to pay his fines and costs by April 26, 2006.           At the beginning of the
probation violation hearing, however, the court mentioned that appellant was given
until November 23, 2007, to pay his outstanding fine, cost, and capias fees. (Tr. 3).
This is the only place the information appears in the record.
      {¶20} Testimony on the issue came from Thigpen.                She testified that
appellant’s last capias fee was paid that day, May 21, 2009. (Tr. 5). She also stated
that appellant had paid two other capias fees that arose after the probation violation
was filed, however, she did not know the dates on which they were paid. (Tr. 5).
And Thigpen testified that appellant’s other fines and court costs were paid, but she
did not know when they were paid. (Tr. 5).
      {¶21} The record indicates several payments by appellant. There is a receipt
and an entry on the docket reflecting that appellant paid his fines and costs on
August 25, 2007, one year and four months after his probation officer filed the notice
of probation violation. There is a receipt indicating that appellant’s bond was applied
toward his outstanding capias fees on August 8, 2008. And there is another receipt
and docket entry that appellant paid the balance of his capias fees on May 21, 2009.
      {¶22} So if appellant was required to pay his fine and court costs by the
original October 20, 2004 deadline, he was clearly delinquent. But if he had until
November 23, 2007, it appears that he paid his fine and costs by then. However,
under either scenario he was late in paying his capias fees.
      {¶23} Regardless of whether we deem appellant’s payments to have been
timely made, as noted above, the trial court had ample evidence on which to
conclude that appellant violated the terms of his probation by failing to report as
required. Consequently, the trial court did not abuse its discretion in finding that
appellant breached the terms of his probation.
      {¶24} Accordingly, appellant’s first assignment of error is without merit.
                                                                                -5-


       {¶25} Appellant’s second assignment of error states:
       {¶26} “THE          MAY        21,       2009,       EXTENSION      OF     THE
DEFENDANT/APPELLANT’S              COMMUNITY CONTROL                 SANCTION FOR AN
ADDITIONAL TWO (2) YEARS IS CONTRARY TO LAW.”
       {¶27} Here appellant points out that his original community control sanction
was imposed on September 20, 2004. He argues that because a community control
sanction for a misdemeanor cannot exceed five years, the court lost jurisdiction to
extend his probation on September 20, 2009. Thus, appellant argues that the court
could not extend his probation for two years effective May 21, 2009, because the
extension would exceed the five-year limit.
       {¶28} R.C. 2929.25 deals with misdemeanor community control sanctions.
Pursuant to R.C. 2929.25(A)(2), “[t]he duration of all community control sanctions
imposed upon an offender and in effect for an offender at any time shall not exceed
five years.”
       {¶29} R.C. 2929.25(C)(2) further provides, “[i]f an offender violates any
condition of a community control sanction, the sentencing court may impose upon the
violator a longer time under the same community control sanction if the total time
under all of the community control sanctions imposed on the violator does not exceed
the five-year limit specified in division (A)(2) of this section ….”
       {¶30} Pursuant to R.C. 2929.25(B)(1), the sentencing court retains jurisdiction
over any offender who it sentences for the duration of sanctions imposed. Further, a
court has jurisdiction to impose a sentence once the original period of community
control expires as long as action is taken to institute a violation hearing during the
community control period. State v. Shorter, 2d Dist. No. 22188, 

.
       {¶31} In this case, appellant’s two-year community control period began on
September 20, 2004. Thus, it expired on September 20, 2006. Appellant’s probation
officer filed the notice of probation violation on April 26, 2006, before appellant’s
community control period expired. Because appellant’s probation officer began the
                                                                                   -6-


probation violation proceedings before appellant’s community control period expired,
the trial court retained jurisdiction over appellant. See State v. Yates (1991), 

 (“[B]ecause the state failed to initiate probation violation proceedings
during the original probation period, we conclude that the trial court lost its jurisdiction
to impose the suspended sentences once the term of probation expired.”); State v.
Adkins, 2d Dist. No. 21810, 

 (“[W]here the original period of
community control expires before a motion seeking termination of community control
is filed, the court does not have jurisdiction over the matter to impose a sentence.”);
State v. Fairbank, 6th Dist. Nos. WD-06-015, WD-06-016, 

(where state fails to initiate community control violation proceedings during the
original community control period, the trial court loses jurisdiction to extend the
sanction).
       {¶32} “When an offender violates the terms of her community control, the trial
court may ‘impose a longer time under the same community control sanction [not to
exceed five years]’; ‘impose a more restrictive community control’; or ‘impose a
definite jail term.’” State v. Whitaker, 2d Dist. Nos. 21003, 21034, 

, quoting R.C. 2929.25(C)(2). In this case, the trial court chose to impose a
longer time under the same community control sanction.                Appellant’s original
community control ran from September 20, 2004 until September 20, 2006, a two-year period. His two-year extension of community control did not start to run until
May 21, 2009. Thus, he was not subject to more than five years of community
control as he alleges. “The duration of all community-control sanctions imposed
upon an offender and in effect for an offender at any time shall not exceed five
years.” (Emphasis sic.) State v. Geiger, 3d Dist. No. 1-06-45, 

. Appellant’s total duration of community control sanctions was four years.
       {¶33} Furthermore, in this case, the trial court would have conducted
appellant’s probation violation hearing much sooner but for the fact that appellant
failed to appear for court on at least two occasions causing the court to issue capias
bonds for his arrest.
                                                                            -7-


      {¶34} Accordingly, appellant’s second assignment of error is without merit.
      {¶35} For the reasons stated above, the trial court’s judgment is hereby
affirmed.


Vukovich, P.J., concurs.

Waite, J., concurs.