[Cite as State v. Carr,
2021-Ohio-4556.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
J.C.,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0028
Criminal Appeal from the
Mahoning County Court No. 5 of Mahoning County, Ohio
Case No. 2019 CRB 278
BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed
Atty. Paul Gains, Mahoning County Prosecutor, Atty. Ralph Rivera, Assistant Prosecutor,
Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th Floor, Youngstown,
Ohio 44503, for Plaintiff-Appellee and
Atty. Michael J. McGee, Harrington, Hoppe & Mitchell, LTD., 108 Main Avenue, SW,
Suite 500, Warren, Ohio 44481 for Defendant-Appellant.
–2–
Dated:
December 22, 2021
Donofrio, J.
{¶1} Defendant-appellant, J.C., appeals from a Mahoning County Court Number
5 judgment determining that he had violated the terms of his probation, sentencing him
to three days in jail, and extending the term of his probation.
{¶2} On January 24, 2020, appellant pleaded guilty to one count of domestic
violence in violation of R.C. 2919.25, a first-degree misdemeanor. The trial court
sentenced him to 180 days in jail, with 177 days suspended, and gave him credit for three
days served. It issued a $100 fine. The court also placed appellant on 12 months of
reporting probation. A condition of his probation was that he have no contact with his
children and their mother.
{¶3} On November 25, 2020, appellant filed a motion for early termination of
probation. The trial court denied this motion stating that appellant was to satisfy the full
term of his probation, which would end on January 24, 2021.
{¶4} The trial court’s docket reflects that on January 22, 2021, the court
scheduled a probation violation hearing for January 26, 2021. On January 26, the court
held the hearing where appellant pleaded not guilty to the probation violation. The court
then set the matter for a February 23, 2021 hearing.
{¶5} Appellant filed a motion to dismiss the probation violation. He argued that
because the probation violation hearing was held two days after his probation ended, the
trial court was without jurisdiction to enforce a probation violation.
{¶6} Despite his motion to dismiss, appellant subsequently stipulated to the
probation violation. The trial court sentenced him to three days in jail and an extended
his term of probation to March 9, 2023.
{¶7} Appellant filed a timely notice of appeal on March 18, 2021. The next day,
the trial court granted appellant’s motion to stay his jail sentence pending this appeal. He
now raises a single assignment of error.
{¶8} Appellant’s sole assignment of error states:
Case No. 21 MA 0028
–3–
THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT
TO JAIL TIME AND AN EXTENDED PROBATIONARY PERIOD DUE TO
THE FACT THAT THE TRIAL COURT LACKED JURISDICTION TO
ENTER INTO ANY SENTENCE OVER APPELLANT.
{¶9} Appellant argues the trial court lacked jurisdiction to sentence him on the
probation violation. He acknowledges that a court can conduct probation violation
proceedings after the defendant’s term of probation has expired but stresses that notice
must be properly given to the defendant before the expiration of the probation term.
Appellant claims he was not given notice in this case of the probation violation
proceedings until January 26, 2021, which was three days after his probation term
expired.
{¶10} An appellate court applies a de novo review to matters involving both
subject-matter and personal jurisdiction. State v. DaRe, 7th Dist. Belmont No. 16 BE
0011, 2017-Ohio-7585, ¶ 12; State v. Castner, 9th Dist. Summit No. 29704, 2021-Ohio-
1048, ¶ 7.
{¶11} Subject-matter jurisdiction involves a court's power to hear a case, and as
such the issue can never be waived and may be raised at any time. State v. Mbodji, 129
Ohio St.3d 325,
2011-Ohio-2880,
951 N.E.2d 1025, ¶ 10. Lack of subject-matter
jurisdiction renders a judgment void. In re J.J.,
111 Ohio St.3d 205,
2006-Ohio-5484,
855
N.E.2d 851, ¶ 10.
{¶12} Contrary to subject-matter jurisdiction, personal jurisdiction can be waived.
Civ.R. 12(H). See also State Farm Fire & Cas. Co. v. Kupanoff Imports, Inc., 83 Ohio
App.3d 278, 281,
614 N.E.2d 1072 (3d Dist.1992). Personal jurisdiction may be acquired
either by service of process upon the defendant or the voluntary appearance and
submission of the defendant to the jurisdiction of the court. Maryhew v. Yova,
11 Ohio
St.3d 154, 156,
464 N.E.2d 538 (1984).
{¶13} Pursuant to R.C. 2929.25(B)(1), if a court sentences an offender to
community control sanctions, then “the sentencing court retains jurisdiction over the
offender and the period of community control for the duration of the period of community
control.” The 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
Case No. 21 MA 0028
–4–
the community control period. State v. Johnson, 7th Dist. Mahoning No. 09-MA-94, 2010-
Ohio-2533, ¶ 30, citing State v. Shorter, 2d Dist. Montgomery No. 22188, 2008-Ohio-
1986, at ¶ 10.
{¶14} In arguing the trial court lacked jurisdiction in this case, appellant relies
heavily on State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307,
2011-Ohio-226,
943
N.E.2d 1014. That case involved an appeal from the appellate court’s dismissal of a writ
of prohibition that sought to prevent the trial court judge from proceeding on alleged
violations of community control. Hemsley claimed the trial court lacked subject-matter
jurisdiction, arguing that his term of community control had expired.
{¶15} The Ohio Supreme Court found the judge did not lack jurisdiction to
conduct the community-control-violation hearing in Hemsley's case.
{¶16} First, the Court pointed out that the common pleas court has basic statutory
jurisdiction to proceed on the charged statutory violations. Id. at ¶ 11. The Court relied
on R.C. 2929.15(B)(1), which provides: “[i]f the conditions of a community control
sanction are violated or if the offender violates a law or leaves the state without the
permission of the court or the offender's probation officer, the sentencing court may
impose upon the violator one or more of the [specified] penalties[.]” Id. The Court noted
that the common pleas court was the sentencing court for Hemsley. Id.
{¶17} Next, the Court went on to find that the expiration of Hemsley’s five-year
period of community control did not divest the common pleas court of subject-matter
jurisdiction over the community-control-violation hearing. Id. at ¶ 12. It pointed out that
Hemsley relied on former R.C. 2951.09, which provided that at the termination of the
probation period, “‘the jurisdiction of the judge or magistrate to impose sentence ceases
and the defendant shall be discharged.’” Id., quoting 140 Ohio Laws, Part V, 7136, 7561.
The Court stated that it had held that this provision prevented a common pleas court from
revoking a criminal defendant's probation and sentencing him after his probationary
period had expired even if the revocation proceeding was initiated before the probationary
period expired. Id., citing Davis v. Wolfe, 92 Ohio St.3d 549,
751 N.E.2d 1051 (2001).
But the Court noted that former R.C. 2951.09 was repealed effective January 1, 2004. Id.
at ¶ 13. The Court determined, therefore, that former R.C. 2951.09 and Davis were
inapplicable to Hemsley. Id. The Court then concluded that because R.C. 2951.09 was
Case No. 21 MA 0028
–5–
not applicable, the common pleas court was authorized to conduct proceedings on the
alleged community-control violations even though the proceedings were conducted after
the expiration of the term of community control, provided that the notice of violations was
properly given and the revocation proceedings were commenced before the expiration.
Id. Notice was not an issue in Hemsley and the Court did not address what notice might
be required.
{¶18} Appellant asserts that Hemsley requires that the trial court must have
commenced the probation violation hearing before the expiration of the probation term.
{¶19} But this court relied on Hemsley in finding that “the trial court does not lose
jurisdiction to sentence a defendant for a violation of community control just because the
period of community control expires.” State v. Kubina, 7th Dist. Mahoning No. 17 MA
0005, 2017-Ohio-8031, ¶ 12. We held that “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.” (Emphasis added); Id. at ¶ 13.
{¶20} Moreover, as the Third District has observed: “It is illogical to contend that
if a court has initiated probation violation proceedings before the probation period has
expired, that it cannot continue to prosecute after the expiration of the period.” State v.
Harrington, 3d Dist. Union No. 14-03-34, 2004-Ohio-1046, ¶ 15.
{¶21} In this case, the trial court’s docket reflects that on January 22, 2021, the
court took action by scheduling a hearing for January 26, 2021, on the alleged probation
violation. Appellant claims he was not given notice of the probation violation until January
26, 2021, several days after his probation expired, at the hearing. But appellant appeared
at the January 26 hearing and entered a not guilty plea. So he must have had advance
notice of the hearing or else he would not have appeared. Thus, the trial court initiated
the probation violation proceedings before appellant’s probation term expired and
appellant waived any issue with personal jurisdiction by appearing at the hearing and
entering a not guilty plea. There is no indication on the record that appellant objected to
personal jurisdiction at the hearing. When a defendant appears before a court and enters
a not guilty plea, he waives any objections based on personal jurisdiction. State v.
Pizzuto, 5th Dist. Licking No. 17-CA-31, 2018-Ohio-146, ¶ 22.
Case No. 21 MA 0028
–6–
{¶22} Moreover, although appellant initially appeared and entered a not guilty
plea to the probation violation, at the next hearing he stipulated to the probation violation.
He not only stipulated to the violation, he also stipulated to the three-day jail term. The
stipulation is included in the court’s judgment entry, which appellant signed. A stipulation
made by the defendant during a criminal trial is binding. State v. Davis, 116 Ohio St.3d
404,
2008-Ohio-2,
880 N.E.2d 31, ¶ 147.
{¶23} In sum, the trial court had subject matter jurisdiction over this matter. The
court took action to institute a violation hearing during appellant’s community control
period. Moreover, appellant submitted to the court’s personal jurisdiction by appearing
before it and later stipulating to the violation and sentence. Accordingly, appellant’s sole
assignment of error is without merit and is overruled.
{¶24} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Waite, J., concurs.
Robb, J., concurs.
Case No. 21 MA 0028
[Cite as State v. Carr, 2021-Ohio-4556.]
For the reasons stated in the Opinion rendered herein, the sole 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 taxed
against the Appellant.
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.
