[Cite as State v. Ice,
2024-Ohio-5341.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
NICOLE D. ICE,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 24 CO 0010
Criminal Appeal from the
Municipal Court of Columbiana County, Ohio
Case No. 23 TRC 1450
BEFORE:
Carol Ann Robb, Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Vito J. Abruzzino, Prosecuting Attorney, Atty. Shelley M. Pratt, Assistant Prosecuting
Attorney, Columbiana County Prosecutor’s Office, for Plaintiff-Appellee and
Atty. Frank L. Cassese, Betras, Kopp, LLC, for Defendant-Appellant.
Dated: November 6, 2024
–2–
Robb, P.J.
{¶1} Defendant-Appellant Nicole D. Ice appeals the judgment of the Columbiana
County Municipal Court sentencing her for the offense of operating a vehicle while under
the influence (OVI). She challenges the court’s exercise of discretion in imposing a
probation condition prohibiting her from entering premises serving alcohol. For the
following reasons, the trial court’s sentencing judgment is affirmed.
STATEMENT OF THE CASE
{¶2} On March 11, 2023 at 11:42 p.m., Appellant was stopped for a traffic
violation in the City of Columbiana. She was ticketed for failure to control, a minor
misdemeanor in violation of R.C. 4511.202. She was also cited with two counts of OVI in
violation of R.C. 4511.19(A)(1)(a) (under the influence) and (h) (prohibited breath
concentration).1 The citation contained a notation of no prior OVIs, making each OVI a
first-degree misdemeanor with a maximum jail time of six months.
{¶3} A year later, on March 12, 2024, Appellant pled no contest to failure to
control and OVI under (A)(1)(a); the other OVI charge was dismissed. The court
sentenced Appellant to 90 days in jail with 87 days suspended and 3 days in a driver
intervention program (DIP). She was fined $875 for OVI with $500 suspended and $50
for failure to control. A one-year license suspension was imposed (with eligibility for a
reinstated license that day due to credit for time served).
{¶4} Regarding the suspended jail term, the court imposed two years of
probation with conditions including a $400 probation fee, 20 hours of community service
within two months, reporting as directed by the probation officer, maintaining employment,
being evaluated and completing treatment for substance use at DIP, and using no drug
of abuse or non-prescribed narcotic. The final condition read, “Not consume or possess
alcohol nor enter any premises serving alcohol.”
1 The charged subsection (h) involves the higher “concentration of seventeen-hundredths of one gram or
more by weight of alcohol per two hundred ten liters of the person's breath” as opposed to subdivision (d)
applicable to cases involving a lower “concentration of eight-hundredths of one gram or more but less than
seventeen-hundredths of one gram by weight of alcohol per two hundred ten liters of the person's breath.”
Compare R.C. 4511.19(A)(1)(h) to (d).
Case No. 24 CO 0010
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{¶5} On March 20, 2024, Appellant filed a motion to modify the conditions of
probation, contesting the propriety of the aforequoted final condition. She argued she did
not have a substance abuse problem, and the condition would interfere with her ability to
attend business functions. The court denied the motion. (3/25/24 J.E.).
{¶6} Appellant then filed a notice of appeal on April 11, 2024 (attaching the
March 12, 2024 entry).
ASSIGNMENT OF ERROR
{¶7} Appellant’s sole assignment of error provides:
“THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN, AS
A CONDITION OF PROBATION, IT PROHIBITED APPELLANT FROM ENTERING ANY
PREMISES SERVING ALCOHOL.”
{¶8} Appellant argues the probation condition prohibiting her from “enter[ing] any
premises serving alcohol” is excessive under the facts of her case after applying the test
set forth in State v. Jones, 49 Ohio St.3d 51, 52 (1990) related to community control
provisions in R.C. 2929.25(C)(2). She also contends this condition is so overbroad that
it infringes on her liberty interest by barring entry into too many different locations, relying
on the analysis in Jones and two Eleventh District cases reviewed further below.2 The
conclusion of her brief claims a lesser alternative can readily fulfill the goals of the
probation condition, but she does not specifically propose an alternative. See State v.
Talty,
2004-Ohio-4888, ¶ 14 (in evaluating a probationer’s fundamental right to procreate,
the Supreme Court noted the availability of ready alternatives may be evidence tending
to show a condition is unreasonable).3
{¶9} The misdemeanor community control statute allows for imposition of a term
of community control of up to five years with a required condition “that the offender abide
by the law and not leave the state without the permission of the court or the offender's
2 We note this appeal challenges the probation condition prohibiting Appellant from “enter[ing] premises
serving alcohol” while her motion below contained a broader request to eliminate the entire phrase “Not
consume or possess alcohol nor enter any premises serving alcohol.” We also note her motion did not set
forth the legal arguments made on appeal involving the tests set forth in Jones.
3 “[C]ommunity control is the functional equivalent of probation . . . Consequently, we see no meaningful
distinction between community control and probation for purposes of reviewing the reasonableness of their
conditions.” Talty, 2004-Ohio-4888, at ¶ 16 (accordingly, the Supreme Court continues to apply Jones
after statutory amendments).
Case No.
24 CO 0010
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probation officer.” R.C. 2929.25(A)(2),(C)(2) (and referring to “community control
sanctions authorized under section 2929.26, 2929.27, or 2929.28 of the Revised Code”).
“In the interests of doing justice, rehabilitating the offender, and ensuring the offender's
good behavior, the court may impose additional requirements on the offender.” R.C.
2929.25(C)(2).
{¶10} “The offender's compliance with the additional requirements also shall be a
condition of the community control sanction imposed upon the offender.” Id.; see also
R.C. 4511.19(G)(1)(a)(i) (OVI statute allowing the court to impose additional conditions
of community control that it considers necessary), citing R.C. 2929.25; R.C. 2929.27(A)
(non-exhaustive list of nonresidential sanctions for misdemeanor sentencing, including
alcohol use monitoring), (C) (“any other sanction that is intended to discourage the
offender or other persons from committing a similar offense if the sanction is reasonably
related to the overriding purposes and principles of misdemeanor sentencing”).
{¶11} The trial court has broad, although not unlimited, discretion in setting the
conditions of probation or community control. Jones at 52 (applying statutory language
now contained in division (C)(2) of R.C. 2929.25). When evaluating whether a community
control condition is related to “the interests of doing justice, rehabilitating the offender,
and insuring his good behavior” as those terms are used in the statute, a court “should”
consider whether it: “(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 ends
of probation.”
Id. at 53.
{¶12} Moreover, the “conditions cannot be overly broad so as to unnecessarily
impinge upon the probationer's liberty.” Id. at 52. A condition that is too vague may raise
concerns the condition will be too broadly enforced. See
id. at 52-55. In evaluating such
claims, courts are to ask whether the condition appears capable of being readily
understood by the probationer or whether a “commonsense” reading of the condition
provides the defendant with fair notice of what conduct is prohibited.
Id. at 54-55.
{¶13} The defendant in Jones was convicted of contributing to the unruliness or
delinquency of minors for providing alcohol to children, and a condition of his probation
prohibited the association or communication with any minor who was not a member of his
Case No. 24 CO 0010
–5–
immediate family. Id. at 52. The appellate court rejected this condition of probation as
overbroad and/or unreasonably vague, but the Ohio Supreme Court reversed that holding
and upheld the condition. After finding the three considerations satisfied, the Court then
found the probation condition was not unreasonably broad by explaining:
Literal enforcement of any condition of probation, including the instant one,
could be found to be unreasonable under some suggested fact patterns.
For example, it might be unreasonable to find a violation of the probation
condition for the probationer to be in the presence of people under the age
of eighteen years while he was attending church services or programs or a
group therapy program, or in any normal work setting, among other
situations. Courts imposing conditions on probation are not expected to
define with specificity the probationer's behavior in all possible
circumstances. Rather, the conditions must be clear enough to notify the
probationer of the conduct expected of him, with the understanding that the
court will act reasonably at a revocation hearing, aware of the practicalities
and fundamental goals of probation. There has been no showing that the
condition imposed by the trial court in this case would be unreasonably
enforced against Jones. We find no abuse of discretion by the trial court in
imposing this condition of probation. Consequently, the court of appeals had
no basis for concluding that the condition was overbroad and unreasonable.
Jones, 49 Ohio St.3d at 55. The question is whether the court abused its discretion in
imposing the probation condition “as reasonably interpreted. . .”
Id. at 52.
{¶14} In addressing the first consideration set forth by the Supreme Court in
Jones, Appellant notes the citation said she had no prior OVI conviction and claims her
conduct was an isolated incident in a case with no indication she abused alcohol.
However, a probation condition prohibiting a probationer’s entry into premises where
alcohol is served would be reasonably related to rehabilitating an OVI defendant.
Rehabilitation here does not require evidence of a medical or psychological condition of
a probationer who happens to commit a substance related offense; rather, it is the
invocation of the general sentencing principle seeking to rehabilitate offenders through
the choice of sentence. See R.C. 2929.25(C)(2).
Case No. 24 CO 0010
–6–
{¶15} We also point out, although the prohibited breath concentration charge was
dismissed under the plea agreement, the breathalyzer reading (showing a blood alcohol
concentration of .213) was part of the background information in the file for the court’s
consideration in sentencing. It is well established that the sentencing court can consider
prior allegations or arrests even if no conviction resulted. State v. Hutton, 53 Ohio St.3d
36, 43 (1990); State v. Prieto,
2007-Ohio-7204, ¶ 55 (7th Dist.), citing State v. Burton,
52
Ohio St.2d 21, 23 (1977). Accordingly, a sentencing court may consider the
circumstances of other offenses in the charging instrument even if the negotiated plea
does not encompass (or is at odds with) the charged elements. State v. Martin, 2018-
Ohio-862, ¶ 7 (7th Dist.), citing State v. Starkey,
2007-Ohio-6702, ¶ 17 (7th Dist.).
{¶16} As to the second consideration set forth in Jones, Appellant concedes the
probation condition at issue has some relation to the crime of conviction. In fact, it has a
clear nexus to the offense of operating a motor vehicle while under the influence of
alcohol.
{¶17} Regarding the third consideration, Appellant urges the probation condition
barring entry into premises serving alcohol is unrelated to conduct that is criminal in
nature, citing Jones, 49 Ohio St.3d at 53 (where the third consideration begins, “relates
to conduct which is criminal”). However, this is not the sole option listed under the third
consideration, which continues “. . . or reasonably related to future criminality and serves
the statutory ends of probation.”
Id. In an OVI case, a temporary prohibition on entering
premises where alcohol is served (in conjunction with the uncontested prohibition on
using or possessing alcohol) is “reasonably related to future criminality and serves the
statutory ends of probation.”
Id. Contrary to Appellant’s argument, the trial court could
reasonably find the three considerations in Jones were satisfied.
{¶18} In then arguing the condition against “enter[ing] any premises serving
alcohol” was overbroad, Appellant relies on two 1999 Eleventh District cases rejecting a
probation condition related to the presence of alcohol, even though the condition was
found to satisfy the three conditions in Jones. In the first case, a condition of probation
prohibited the defendant “from entering or being at places that sell, distribute, serve, or
give away alcoholic beverages.” State v. Green, No. 98-L-023 (11th Dist. Mar. 29, 1999).
The appellate court found this condition to be vague and overbroad, saying a “common
Case No. 24 CO 0010
–7–
sense reading of the contested condition does not inform appellant of what conduct is
prohibited” and the condition “defeats the interests of the system by dooming the
probationer to failure from the beginning.” Id.
{¶19} Appellant reiterates the Eleventh District’s concern that a violation could be
unintentional because the sentencing court did not limit the condition to intentional entry,
and she emphasizes the concern that the condition could restrict a person from entering
a grocery store, drug store, or gas station. However, as the same district more recently
explained, the concern with a condition covering all locations where alcohol could be in
stock is distinguishable from a condition only applicable to premises serving alcohol.
State v. Weimer, 2005-Ohio-2361, ¶ 45 (11th Dist.).
{¶20} The district’s prior Green case was distinguished on this ground when the
Weimer court upheld a condition barring the defendant from being “found in any
establishment where alcohol is sold or consumed by the drink.” Id. at ¶ 41. Likewise, the
condition imposed upon Appellant (involving entry into premises where alcohol is served)
does not include stores where alcohol is merely sold or distributed without service for
consumption on site.
{¶21} In the second 1999 case relied upon by Appellant, the probation condition
prohibited the defendant from “attending places where alcohol is served or consumed.”
State v. Cottrell, No. 98-L-220 (11th Dist. Nov. 5, 1999). The appellate court ruled the
condition was overbroad, vague, and not capable of being readily understood. Id.
Appellant says the court was concerned the condition could be applied to prohibit the
defendant’s entry into private homes, weddings, sporting events, and restaurants. Id.
{¶22} However, the Eleventh District’s later Weimer case suggested Cottrell was
most concerned about private homes and distinguished the condition at issue in Cottrell
based on its use of the term “places” (where alcohol is served or consumed). Distinctly,
the condition in Weimer used the term “establishment” (where alcohol is consumed),
which the court said “[p]resumably” did not include private homes. Weimer at ¶ 46.
{¶23} In addressing the defendant’s concern about a restaurant that serves
alcohol or a major sporting event, the Eleventh District’s more recent case validated the
concern that a past OVI offender would be tempted to have a drink at such locations and
then drive home. Id. at ¶ 47. As mentioned above, the unchallenged portion of the
Case No. 24 CO 0010
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condition prohibited Appellant from consuming or possessing alcohol in general. We also
note a separate, unchallenged condition of Appellant’s probation was to not operate a
motor vehicle within 24 hours of consuming any alcohol. The existence of these
conditions tends to validate the court’s concern with an OVI probationer entering premises
serving alcohol.
{¶24} Lastly, in finding the condition (prohibiting entry into all establishments
where alcohol is consumed or sold by the drink) was not overbroad, the Eleventh District’s
2005 Weimer case made the following observation: “We must remember that probation
is an alternative to jail. The trial court had the discretion to order Weimer to serve the
entire jail sentence, rather than suspending it. If Weimer were in jail, he would not be able
to go to any restaurants or festivals.” Id. at ¶ 48 (although that defendant had prior
convictions, such a factor would seem more related to the three considerations for
applying the statutory test).
{¶25} We conclude the condition of probation at issue barring Appellant from
“enter[ing] any premises serving alcohol” was not so broad or vague as to require
invalidation under Jones. Contrary to Appellant’s argument that she “would effectively be
barred from entering any grocery store, drug store, or gas station,” the condition here
would clearly not encompass a typical grocery store, drug store, or gas station in this
area. As explained above, the condition is distinguishable from a probation condition
referring to any place where alcohol is served or sold. A plain reading of the condition at
issue here would not reasonably lead one to fear that premises are “serving alcohol” by
selling sealed packages to go.
{¶26} Furthermore, the phrase “enter any premises serving alcohol” would not
reasonably include a probationer’s visit to a private residence during which the resident
happens to pour a drink for a different friend. “Courts imposing conditions on probation
are not expected to define with specificity the probationer's behavior in all possible
circumstances.” Jones, 49 Ohio St.3d at 55. Contrary to Appellant’s contention, a
reviewing court is not to presume the future “[l]iteral enforcement” of every reading of a
word in a condition while envisioning every scenario a person may face as we scroll
through each synonym for the words used (such as “premises” or “served”).
Id.
Case No.
24 CO 0010
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{¶27} Rather, our review must be conducted “with the understanding that the court
will act reasonably at a revocation hearing, aware of the practicalities and fundamental
goals of probation.” Id. By way of example, as the state points out, after informing
Appellant a condition of her probation would be that she could not use alcohol, the
sentencing court also orally advised her, “You are not to enter into any bars or taverns.”
(Tr. 6-7). As in Jones, “There has been no showing that the condition imposed by the
trial court in this case would be unreasonably enforced against [Appellant].”
Jones at 55.
{¶28} For the foregoing reasons, Appellant’s assignment of error is overruled, and
the trial court’s sentencing judgment is affirmed.
Waite, J., concurs.
Hanni, J., concurs.
Case No. 24 CO 0010
[Cite as State v. Ice,
2024-Ohio-5341.]
For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the
Municipal Court of Columbiana 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.
