[Cite as State v. Hower,
2016-Ohio-5053.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2015-CA-43
:
v. : Trial Court Case No. 2015-CR-151
:
JOSHUA D. HOWER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 22nd day of July, 2016.
...........
JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 400 Wayne Avenue, Dayton, Ohio
45410
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} In this case, Defendant-Appellant, Joshua Hower, appeals from his sentence
on two counts of Criminal Trespass, one count of Breaking and Entering, and one count
of Safecracking. After Hower pled guilty to these charges, the trial court sentenced him
to community control sanctions. As part of the sanctions, the trial court precluded Hower
from having contact with his co-defendants, including Cortney Hill, who was pregnant with
Hower’s child at the time of sentencing.
{¶ 2} In support of his appeal, Hower contends that the trial court abused its
discretion by preventing him from having contact with Hill for two years, except during the
birth of their child, emergency medical situations, bank holidays, and court proceedings
involving support, visitation, or custody. The court also ordered that visitation exchanges
with the child must be accomplished through a third party.
{¶ 3} We conclude that the trial court did not abuse its discretion in imposing a no-
contact order between Hower and his fiancée as part of Hower’s community control
sanctions. Hower and his fiancée were both involved in the crime to which Hower pled
guilty, and the no-contact order was reasonably related to rehabilitating Hower, had some
relationship to the crime of which Hower was convicted, related to conduct that was
criminal or reasonably related to future criminality, and served the statutory ends of
probation. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} In August 2015, Hower was indicted on 10 counts in the Champaign County
Common Pleas Court. These charges included several counts of Breaking and Entering,
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and involved crimes that occurred in June and July 2015 at various churches and a
business in Champaign County, Ohio. The most serious of the crimes occurred on July
26, 2015, when Hower, Andrew Baker, Bryce Whitt, and Cortney Hill were alleged to have
broken into the Renewed Strength Church, and to have removed various property
including a safe, saxophone, a lock box, cash, and various video game systems, games,
and controllers. The total damage from this particular incident was $3,822.45.
{¶ 5} During the time the case was pending, the court imposed a no-contact order
among Hower, Baker, and Whitt, but did not impose such an order regarding Hower and
Hill. In October 2015, Hower and the State entered into a plea agreement, pursuant to
which the first two counts of the indictment would be amended from Breaking and Entering
to Criminal Trespass, causing the crimes to be reduced from fifth-degree felonies to
fourth-degree misdemeanors. Hower agreed to plead guilty to these charges, and also
agreed to plead guilty to Counts Three (Breaking and Entering) and Nine (Safecracking),
which were fifth and fourth-degree felonies, respectively. The remaining counts in the
indictment were dismissed, and a presentence investigation (“PSI”) was to be conducted.
{¶ 6} The plea hearing was held on October 8, 2015. At the time of the hearing,
Hower had already pled to Breaking and Entering and Vandalism charges in Clark
County, and was to be sentenced on October 14, 2015. He also had two fifth-degree
felony charges pending in Shelby County that had not yet been resolved. The charges
in Champaign, Shelby, and Clark Counties all occurred during the same time frame.
{¶ 7} After accepting Hower’s plea and finding him guilty, the trial court ordered a
PSI and set a sentencing date for November 5, 2015. The court then asked Hower who
was with him in the courtroom, and Hower responded that Cortney Hill was there with
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him. When the court asked why, Hower stated that they lived together and only had one
vehicle.
{¶ 8} The court had recognized Hill from prior hearings on her own charges, and
wondered why a no-contact order had not been imposed. The prosecutor explained that
she had conducted the initial arraignments for all the co-defendants and had decided to
allow contact because Hill was pregnant with Hower’s child.
{¶ 9} Following this discussion, the trial court informed Hower that he needed to
have a discussion with Hill before sentencing regarding what could happen if the court
ordered them to be separated. The court said it understood that Hill and Hower might
desire to stay together because of the child. In this regard, the court stated: “But it was
demonstrated today, through your conduct in June and your conduct in other counties,
that you can’t even take care of yourself much less take care of each other. And the fact
that you have a baby on the way won’t sway the Court’s opinion as to what will happen
to you. So you need to have some preparations made.” Transcript of October 8, 2015
Plea Hearing, p. 23. Hower indicated that he understood.
{¶ 10} At the November 5, 2015 sentencing hearing, the prosecutor noted that he
had read the PSI report, and was recommending community control. However, the
prosecutor also asked the court to impose a no-contact order between Hower and the
other co-defendants, including Hill.
{¶ 11} In response, defense counsel commented that the trial court had already
imposed a no-contact order between Hower and Hill at Hill’s sentencing. Defense
counsel asked the court to reconsider that ruling. In addition, defense counsel stated
that Hill had played a very minor part in the crimes, and stressed that it would be better
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for the child (who was due later that month) if both parents were together. Defense
counsel also did indicate that Hower (who had no prior record before his crime spree)
was suggestible.
{¶ 12} When the trial court asked Hower why he broke into the church, Hower
indicated that he got into a bad crowd and just followed what they did. After hearing
Hower’s statements, the court expressed concern over Hower’s failure to accept
responsibility. The court was also troubled because the woman Hower said he wanted
to be with could lead him into bad situations.
{¶ 13} After indicating that it had reviewed the PSI report and victim impact
statements, the court imposed community control for a period of two years, with the first
60 days to be spent in the regional jail. The court also imposed other conditions of
community control, including that Hower was not to have contact with the other co-
defendants, including Hill. The court made an exception for the child’s birth, emergency
medical situations, court hearings regarding custody, visitation, or support, and national
holidays when banks were closed in observance of the holiday. In this regard, the court
stated that “The goal is to have some opportunity for you to spend time with the child, as
you put it, quote as a family, close quote. The Court will strongly advise you that you
need to take care of yourself before you can reasonably expect to take care of a child.”
Transcript of November 5, 2015 Sentencing Hearing, p. 17.
{¶ 14} Hower now appeals from the judgment of the trial court.
II. Did the Court Abuse its Discretion in Imposing the No-Contact Order?
{¶ 15} Hower’s sole assignment of error states that:
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The Appellant’s Community Control Sanction Where He Was to
Have No Contact with His Fiancée and Mother of His Child, Except During
the Birth of their Child and Bank Holidays for the Duration of His Two-Year
Community Control Was an Abuse of Discretion.
{¶ 16} Under this assignment of error, Hower contends that the trial court’s no-
contact order is an abuse of discretion because it unnecessarily impinges on the
fundamental rights of marriage and to raise a child. Hower also contends that trial court
failed to apply the three-prong test set forth in State v. Jones, 49 Ohio St.3d 51,
550
N.E.2d 469 (1990).
{¶ 17} “The General Assembly has … granted broad discretion to trial courts in
imposing community-control sanctions. We review the trial court's imposition of
community-control sanctions under an abuse-of-discretion standard.” (Citation omitted.)
State v. Talty, 103 Ohio St.3d 177,
2004-Ohio-4888,
814 N.E.2d 1201, ¶ 10. Accord
State v. Anderson,
143 Ohio St.3d 173,
2015-Ohio-2089,
35 N.E.3d 512, ¶ 19 (noting that
“[a] ‘sentencing court has broad discretion to shape community control sanctions provided
that the sanctions are constitutionally and statutorily permitted.’ ”) (Citation omitted.)
{¶ 18} In Jones, the Supreme Court of Ohio held that:
In determining whether a condition of probation is related to the
“interests of doing justice, rehabilitating the offender, and insuring his good
behavior,” courts should consider whether the condition (1) is reasonably
related to rehabilitating the offender, (2) has some relationship to the crime
of which the offender was convicted, and (3) relates to conduct which is
criminal or reasonably related to future criminality and serves the statutory
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ends of probation.
(Citations omitted.) Jones at 53.
{¶ 19} Although community control was substituted for probation with the passage
of Am.Sub. S.B. No. 2 in 1995, the Supreme Court of Ohio indicated in Talty that “[t]he
community-control statute, despite changing the manner in which probation was
administered, did not change its underlying goals of rehabilitation, administering justice,
and ensuring good behavior ….” Talty at ¶ 16. Consequently, the court found “no
meaningful distinction between community control and probation for purposes of
reviewing the reasonableness of their conditions.” Id.
{¶ 20} We have noted that “generally, where infringement on marital rights has
been upheld, either the martial relationship has been abusive or the marital partner or
prospective marital partner was involved in crime, and most often the crime for which the
defendant was convicted.” State v. Thompson, 150 Ohio App.3d 641,
2002-Ohio-7098,
782 N.E.2d 688, ¶ 27 (2d Dist.). For example, in State v. Schwartz, 6th Dist. Wood No.
WD-12-060,
2013-Ohio-3958, the court upheld a no-contact order between spouses as
reasonable where the defendant had been originally charged with hitting his wife. Id. at
¶ 11.
{¶ 21} In State v. Dye, 9th Dist. Medina No. 06CA0101-M, 2007-Ohio-7040, the
court of appeals reversed the imposition of a no-contact provision that prevented the
defendant from having contact with his fiancée or her family. The court stressed that the
defendant had pled no contest to a theft charge, and that “[t]here is nothing in the record
to suggest that Dye's relationship with [his fiancée] contributed to his criminal behavior.”
Id. at ¶ 7. See also State v. Umphlettee, 5th Dist. Licking No. 10-CA-18, 2010-Ohio-
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5201, ¶ 35-36 (trial court did not abuse its discretion by adding community control
sanction precluding contact with fiancée, after defendant violated community control by
being in a home with weapons and being out after curfew, and fiancée lied to probation
officer about defendant’s presence); State v. Schroer, 5th Dist. Richland No. 2005-CA-
0084, 2005-CA-0085, 2006-Ohio-2952, ¶ 49 (trial court did not err in imposing no-contact
order between defendant and her boyfriend, where she was convicted of two separate
crimes that involved her boyfriend as a co-defendant).
{¶ 22} “A trial court abuses its discretion when it makes a decision that is
unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135
Ohio St.3d 343,
2013-Ohio-966,
986 N.E.2d 971, ¶ 34. “ ‘Abuse of discretion’ has been
described as including a ruling that lacks a ‘sound reasoning process.’ ” State v. Morris,
132 Ohio St.3d 337,
2012-Ohio-2407,
972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v.
River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161,
553
N.E.2d 597 (1990).
{¶ 23} Consistent with the above authority, we cannot say the trial court’s decision
was based on unsound reasoning. As a preliminary matter, Hower’s fiancée, Cortney
Hill, was directly involved in the crime for which Hower was being sentenced. Hower and
his attorney also both indicated that Hower was suggestible and had difficulty resisting
the influence and direction of his peers. Furthermore, as the trial court observed,
Hower’s explanation of the reason for his crimes was that he became involved with the
wrong crowd. However, Hill was part of that crowd. Under the circumstances, we
cannot find that the trial court’s decision was based on unsound reasoning.
{¶ 24} We have also reviewed the PSI report, and it supports the trial court’s
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decision. During a period of several weeks, Hower engaged in a series of escalating
crimes, and Hill was directly involved in the most serious incident at Renewed Strength
Church. She was not a passive or unwilling participant. In addition, the PSI report
indicates that Hill was in direct possession of stolen property (a lock box) after the break-
in at the Renewed Strength Church, and kept the key to the lock box on a lanyard that
she wore around her neck. Hill also told the police an unlikely story about multiple safes
and televisions that were present in the home she and Hower shared. Specifically, Hill
told officers that Hower found these items on the side of the road and brought them home.
{¶ 25} We note that in Umphlettee, the court of appeals stressed that the trial court
did not preclude the defendant from having contact with his child. Umphlettee, 5th Dist.
Licking No. 10-CA-18, 2010-Ohio-5201, at ¶ 37. Similarly, the trial court did not preclude
Hower from having contact with his child. The court did not impose barriers to Hower
obtaining visitation with the child after its birth. Instead, the court specifically allowed
Hower to be in the presence of his fiancée for court hearings on visitation and custody,
and only indicated that exchanges of the child be made through a third party.
{¶ 26} As an additional matter, R.C. 2929.15(C) provides that “[i]f 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.”
Thus, if Hower complies with the no-contact order, the trial court has the option of easing
the restriction.
{¶ 27} Hower’s second argument is that the trial court did not make express
findings under Jones, 49 Ohio St.3d 51,
550 N.E.2d 469. We reject this argument, as
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the trial court’s discussion was sufficient to convey the court’s reasoning.
{¶ 28} Finally, Hower contends that he was denied impartial sentencing because
the trial court indicated that it would impose a no-contact order despite the result of any
presentence investigation. Again, we disagree. The trial court was not aware prior to
the plea hearing of the lack of a no-contact order, and only became aware of this fact
after recognizing Hill in the courtroom. The trial court’s remarks simply alerted Hower to
the possibility that a no-contact order might be imposed as part of sentencing, so that
Hower could plan accordingly. There is no indication that the trial court had made up its
mind, no matter what the PSI report stated. Again, given that Hower and Hill were co-
defendants in one of the crimes for which Hower was being sentenced, the no-contact
order was reasonable.
{¶ 29} Accordingly, Hower’s sole assignment of error is overruled.
III. Conclusion
{¶ 30} Hower’s sole assignment of error having been overruled, the judgment of
the trial court is affirmed.
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FAIN, J. and FROELICH, J., concur.
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Copies mailed to:
Jane A. Napier
Christopher C. Green.
Hon. Nick A. Selvaggio
