Defendant appeals decision revoking community control. Defendant argued that court erred by not considering his ability to pay child support obligation. Trial court did not revoke community control for failure to pay child support. Court did not err by failing to consider the defendant's ability to pay.
.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-03-023
: OPINION
- vs - 12/18/2023
:
ANDREW SCOTT CRANK, SR., :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2022-04-0523
Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant
Prosecuting Attorney, for appellee.
Ryan Agee Law, Ltd., and Ryan Agee, for appellant.
BYRNE, J.
{¶ 1} Andrew Scott Crank, Sr. appeals from the entry of the Butler County Court of
Common Pleas, which revoked Crank's community control and imposed prison terms. For
the reasons discussed below, we affirm.
Butler CA2023-03-023
I. Factual and Procedural Background
{¶ 2} In a plea agreement with the state, Crank entered guilty pleas to two counts
of nonsupport of dependents, both fifth-degree felonies. The court found Crank guilty and
sentenced him to five years of community control. The court advised Crank that any
violation of the conditions of his community control would result in the imposition of a 12-
month prison sentence on each count, to be served concurrently.
{¶ 3} Approximately one month after he was sentenced, the Butler County Adult
Probation Department alleged that Crank violated the conditions of community control by
being charged with new criminal offenses and by failing to report for a scheduled probation
department office visit. At a revocation hearing, Crank admitted to the violations. The court
accepted the admission but did not revoke community control. Instead, the court permitted
Crank to continue on community control with added conditions. Those conditions included
successfully completing "Community Correctional Center" for a period of no longer than six
months and successfully completing "Felony Non-Support Court." Again, the court advised
Crank that a violation of the conditions of his community control would result in imposition
of the aforementioned concurrent 12-month prison terms.
{¶ 4} Approximately one month later, the Butler County Adult Probation Department
alleged that Crank had violated the conditions of community control yet again. Specifically,
the probation department alleged that Crank violated the conditions of community control
because he was "unsuccessfully discharged from CCC."
{¶ 5} The court, through its magistrate, held a probable cause hearing, at which the
magistrate determined there was probable cause to find that Crank violated the conditions
of community control. At a subsequent revocation hearing, Crank did not dispute the
community control violation. Instead, in mitigation, Crank stated that,
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Butler CA2023-03-023
I realize that I haven't been compliant with my obligation to
support my children. I would like to ask the court for another
chance. I do have constant work out there at Bob Evans
(indiscernible). I have been suffering this affliction that I've had
for ten years, currently in remission right now, I have three
months clean. I had (Indiscernible) since my first violation, this
is the first time. That's all I have, ma'am.
{¶ 6} In announcing its sentence, the court stated,
The Court notes that this – as part of the sentence to enter into
this program, the sentencing judge ordered Mr. Crank to
successfully complete the CCC program and that was after the
sentencing Judge had the opportunity to review that initial
assessment from Sojourner.
The Court notes that unfortunately, Mr. Crank was
unsuccessfully discharged from the CCC program, and that is
what led us to our violation today. So I am going to find that this
is not a technical violation. I find that the violation consists of
the defendant's demonstrated refusal to participate in the
community control sanction imposed upon him, and that the
refusal demonstrates to the Court that he has abandoned the
objects of community control, and therefore going to find that
the Defendant is not amenable to community control sanctions.
{¶ 7} The court thereafter revoked Crank's community control and imposed two 12-
month prison sentences, run concurrently.
{¶ 8} Crank appealed, raising one assignment of error.
II. Law and Analysis
{¶ 9} Crank's sole assignment of error states:
THE TRIAL COURT ERRED IN NOT CONSIDERING
WHETHER MR. CRANK WHO WAS INDIGENT HAD THE
ABILITY TO PAY HIS SUPPORT OBLIGATIONS.
{¶ 10} Crank argues that the court did not "adequately consider his financial
circumstances" and "erroneously based its decision to revoke community control on his
failure to meet financial obligations." Based on his assignment of error, we presume that
Crank is referring to his failure to pay his child support obligations.
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Butler CA2023-03-023
{¶ 11} Crank cites case law from this court and another district for the proposition
that a trial court may not revoke community control based solely on a defendant's failure to
pay financial obligations unless the record shows that the failure to pay was willful and
intentional, rather than solely due to indigency. State v. Chambers, 12th Dist. Butler No.
CA2003-05-137,
, 2003-Ohio-
5129, ¶ 6 (3d Dist.).
{¶ 12} But the trial court in this case did not revoke Crank's community control based
either solely or in part on a failure to pay financial obligations. Instead, the record clearly
reflects that the sole basis advanced by the state for alleging that Crank violated community
control and the sole finding made by the court in revoking community control was Crank's
failure to complete the Community Correctional Center condition of his community control.
The state never alleged, and the court never found, that Crank violated the conditions of
community control by failing to pay any financial obligation. The only reference to any failure
to pay a financial obligation was Crank's own statement in mitigation that he was not current
on child support. But there is no support in the record for the assertion that the court based
its revocation on Crank's statement about child support or made any findings in that regard.
{¶ 13} Crank's assignment of error is therefore premised on an inaccurate
characterization of the record. The arguments Crank makes and the cases he cites are
irrelevant to the facts of this case. Accordingly, his assignment of error is meritless.
III. Conclusion
{¶ 14} The court did not err by failing to consider Crank's financial ability to pay child
support obligations before revoking his community control because the court revoked his
community control for a completely different reason—that is, his unsuccessful discharge
from the Community Correctional Center program. We overrule Crank's sole assignment
of error.
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Butler CA2023-03-023
{¶ 15} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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