State v. Johnson , 2021 Ohio 1614 ( 2021 )

[Cite as State v. Johnson, 2021-Ohio-1614.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals Nos. L-20-1164
L-20-1165
Appellee
Trial Court Nos. CRB-17-08262
v. CRB 17-11859
Jamar J. Johnson DECISION AND JUDGMENT
Appellant Decided: May 7, 2021
*****
Autumn D. Adams, for appellant.
*****
ZMUDA, P.J.
I. Introduction
{¶ 1} This consolidated matter is before the court on appeal of the judgment of the
Toledo Municipal Court, finding probation violations and ordering sentence enforced,
with credit for time already served. For the reasons that follow, we affirm.
II. Background and Procedural History
{¶ 2} Appellant, Jamar Johnson, appeals his sentence in two cases, Toledo
Municipal Court case Nos. CRB-17-08262 and CRB-17-11859. On September 12, 2018,
in case No. CRB-17-08262, the trial court found appellant guilty of menacing in violation
of R.C. 2903.22(A), and sentenced appellant to 30 days in the Corrections Center of
Northwest Ohio (CCNO), with 30 days suspended, and placed appellant on active
probation for 18 months. Also on September 12, 2018, in case No. CRB-17-11859, the
trial court found appellant guilty of domestic violence in violation of R.C. 2919.25(C),
and sentenced appellant to 30 days in CCNO, with 30 days suspended, and placed
appellant on active probation for 18 months.
{¶ 3} As part of the terms of appellant’s probation for each case, the trial court
ordered him to complete an alcohol/drug assessment and follow through with any
treatment recommendations. Additionally, in case No. CRB-17-11859, the trial court
ordered appellant to complete a batterer’s intervention program. Appellant filed a timely
appeal of the judgment.
{¶ 4} In October 2018, while appellant was serving a sentence in CCNO on
another case, he was granted an emergency furlough as a result of admission to the
hospital and ordered to report back to the court and/or his probation officer after his
release.1 Appellant left the hospital and failed to check in with the court or report to his
1
Appellant was serving sentences in case Nos. TRD-17-03192 and TRD-17-18511.
2.
probation officer at any time in the next six months. Appellant, furthermore, did not
complete a batterer’s intervention program and did not complete a drug/alcohol
assessment and any recommended treatment.
{¶ 5} On February 13, 2019, summons issued in each case, advising appellant the
matters were scheduled for a probation violation hearing, requiring appellant to appear on
March 13, 2019. Appellant did not appear for hearing. On April 14, 2019, the court’s
warrant enforcement unit took appellant into custody, and appellant appeared before the
trial court the next day. The trial court continued the hearing on the probation violation,
pending resolution of his appeal of the underlying convictions.
{¶ 6} On November 8, 2019, we affirmed the underlying convictions in State v.
Johnson, 6th Dist. Lucas No. L-18-1214, 2019-Ohio-4613.2 The trial court rescheduled
the matter for a hearing on the probation violations on November 26, 2019, with that
hearing again continued and delayed after appellant was arrested and taken into custody
for new charges.
{¶ 7} On June 19, 2020, hearing was held via video from CCNO and appellant
was found to be in violation of the terms of his probation. Because appellant proceeded
2
Appellant’s plea agreement also encompassed case No. TRD-17-18511, and the trial
court imposed a jail term of 180 days for appellant’s conviction for operating a motor
vehicle without a valid license in violation of R.C. 4510.12, and ordered the time to run
consecutively.
3.
without counsel, the trial court vacated its judgment and reset the matter for a new, in-
person hearing with counsel.
{¶ 8} On July 16, 2020, appellant appeared for hearing with the public defender as
his appointed counsel. Appellant asked for another continuance, which the trial court
granted, rescheduling hearing for August 6, 2020. The trial court granted the public
defender’s motion to withdraw as counsel in the case, and appointed a new attorney to
represent appellant. Appellant then filed a pro se motion seeking recusal of the trial court
“pursuant to 28uscs445(a),” alleging bias, which the trial court denied.3
{¶ 9} On August 6, 2020, no hearing was held, apparently based on the trial
court’s failure to connect via video while appellant was in custody at CCNO. The trial
court rescheduled the hearing for September 23, 2020, and entered an order to transport
appellant so that he could appear in-person.
{¶ 10} On August 18, 2020, appellant filed “judicial notice,” indicating he would
call CCNO staff as witnesses for the probation violation hearing, and followed up with
subpoenas requiring testimony or documents of CCNO employees Dennis Sullivan, Beth
Miller, John Zimman, and Chris Kuckuck. The CCNO employees filed a motion to
quash or modify the subpoena, arguing in-person testimony would be duplicative,
considering the requested documentation of the medical furlough provided all
3
Appellant followed up with a request for findings of fact and conclusions of law, which
the trial court also denied, noting a lack of any evidence, demonstrating bias.
4.
information sought to be adduced by appellant. The trial court denied the motion to
quash, but permitted the CCNO employees to appear at the hearing by video.
{¶ 11} The trial court proceeded with the hearing on September 23, 2020.
Appellant appeared with his appointed counsel, but after learning his counsel had an
acquaintance with the trial court, he opted to represent himself.4 The trial court required
counsel to remain to answer any legal questions appellant might have.
{¶ 12} At hearing, the trial court summarized the probation violation allegations as
(1) failure to pay restitution, (2) failure to complete the batterer’s intervention program,
(3) failure to complete an assessment, and (4) failure to report on time to the probation
officer. In spite of this information providing the pertinent issues for the hearing,
appellant questioned his CCNO witnesses regarding whether he “escaped” from the jail
while he was out on a medical furlough. Specifically, he asked the witnesses if he had
been instructed to report back to CCNO after his medical issues were resolved, and the
witnesses referred to the document—placed in the record—in which appellant
acknowledged he “must contact attorney and report to supervising probation officer or
the court upon release from Bryan Hospital per Lucas County Common Pleas.”
4
Appellant argued at length with the trial court regarding a further continuance of
hearing, with the hope he could hire counsel. Appellant could provide no definitive
answer regarding how much time he needed, and after noting the numerous, prior
continuances and the length of time appellant sought to delay, the trial court denied the
continuance request. The trial court further noted that appointed counsel, who had
worked at the court years before, had no conflict that prevented him from representing
appellant.
5.
{¶ 13} The trial court noted this failure to report after release from the hospital,
stating:
On October 10th of 2018, there was an entry, not in either one of
these cases. But an entry on another case TRD-17-18511, which is a case
you’re serving time on. That said that you failed to report back after your
medical furlough and a bench warrant was issued for your arrest. We sent
the Warrant Enforcement Unit out to try to find you, at that time, and that –
***
And that warrant was not executed until April 14, 2019. So I am
going to make a finding that you did not report back, to the Court, from
October 10, 2018, until October 14, 2019 [sic.] So there was a total of six-
month time period where you did not report back, to the Court, as
instructed by that emergency medical furlough paperwork.
***
I have made the finding that you did not report back to the Court, in
person, like you were supposed to, from October of 2018, when you were
released on medical furlough, until our deputies brought you in to court, in
custody, on April 14, 2019. I do know that you contacted the Court many,
many, many, times during that time period. But you did not report back to
the Court. You were not here. That is not relevant to the two probation
violations that we’re here for today.
6.
{¶ 14} The trial court proceeded as to allegations that appellant violated his
probation by failing to complete a batterer’s intervention program and by failing to
complete his assessment/treatment. While making a clear record that he left CCNO in
October for medical treatment and did not return to CCNO, appellant argued that he was
unable to complete the program or an assessment due to his incarceration in CCNO,
which did not offer a batterer’s intervention program and could not fully facilitate his
assessment and treatment. At the hearing, appellant confirmed he failed to complete
either condition of his probation, and the trial court entered its finding of a violation as to
each condition, as follows:
The Court: Have you completed the Batterer’s Intervention
Program, and have you completed an assessment and followed through on
any treatment?
Appellant: I have had an assessment here at CCNO. They don’t
offer, due to the COVID or – I’m not sure of their programming. They
don’t offer Batterer’s Intervention or anything. I’ve been incarcerated, and
if not incarcerated, in the hospital to where it’s been almost impossible for
me to – like I said, the lady said that she sent you the – she faxed you or
your clerk the assessment paperwork that she done on me. So I’ve had the
assessment done, but they don’t offer those classes. I took the only thing
that they basically offer based on my assessment. They don’t offer that at
CCNO.
7.
The Court: Okay. That assessment was ordered on September 12th
of 2018. It has not been completed yet. Have you done any Batterer’s –
have you completed the Batterer’s Intervention Program?
Appellant: I haven’t been – there is – there’s none been available,
sir. There’s none at CCNO. How can I complete it?
The Court: Okay. Again, that was ordered on September 12th of
2018. You did not complete that.
* * * Okay. The Probation Violation is found.
The trial court also ordered the sentences to be served consecutively, noting appellant’s
failure to report to his probation officer in the present cases, and his history of failing to
appear for court dates. Appellant was given credit for time served, in each case, of 20
days.
{¶ 15} The trial court placed its finding in a judgment entry, as follows:
For CRB-17-08262 * * * [o]n September 23, 2020, this court found
a probation violation for failure to complete an assessment and treatment
and the defendant’s sentence was ordered enforced as to the days. The
defendant was sentenced to 30 days in [CCNO] and was given 20 days
credit. The ten days are to be served consecutive to CRB-17-11859 and all
other cases because defendant has a 16 page Toledo Municipal Court
record, over $9000 in outstanding fines and costs, 227 lifetime failures to
8.
appear in Toledo Municipal Court, failed to appear on this case 4 times and
has made no effort to cooperate with the Court or probation.
***
For CRB-17-11859 * * * [o]n September 23, 2020, this court found
a probation violation for failure to engage in and complete an assessment
and treatment, batterer’s intervention program and restitution and the
defendant’s sentence was ordered enforced as to days. The defendant was
sentenced to 30 days in [CCNO] and was given 20 days credit. The ten
days are to be served consecutive to CRB-17-08262 and all other cases
because defendant has a 16 page Toledo Municipal Court record, over
$9000 in outstanding fines and costs, 227 lifetime failures to appear in
Toledo Municipal Court, failed to appear on this case 4 times and has made
no effort to cooperate with the Court or probation.
{¶ 16} The trial court journalized its judgment entry on September 29, 2020.
Appellant filed a timely appeal of this judgment.
III. Assignments of Error
{¶ 17} In challenging the trial court’s judgment, appellant raises the following as
error on appeal:
I. The Trial Court abused its discretion in sentencing Appellant to
consecutive sentences after only finding a sole violation of his probation.
9.
II. The Trial Court’s sentence of incarceration for Appellant failing
to complete his batterer’s intervention classes was an abuse of discretion
because the Trial Court failed to take into consideration Appellant’s,
through no fault of his own, inability to complete the classes.
IV. Analysis
{¶ 18} Appellant’s first assignment of error is based on the faulty premise that the
trial court found only a single violation, and therefore could not sentence appellant to
two, consecutive sentences in each of his cases. As evident in the record, the trial court
found that appellant failed to complete his assessment and treatment, a condition of
probation in case No. CRB-17-08262 and case No. CRB-17-11859, and the trial court
found that appellant failed to complete the batterer’s intervention program, a condition of
probation in case No. CRB-17-11859.
{¶ 19} We review a trial court’s finding of a probation/community control
violation for an abuse of discretion. (Citation omitted.) State v. Pavlich, 6th Dist. Erie
No. E-10-011, 2011-Ohio-802, ¶ 24. Appellant’s challenge, however, misstates the
finding. His claim of a single violation is directly contradicted by the record.
Furthermore, appellant’s claim of hardship in completing his assessment, treatment, and
batterer’s intervention program was addressed by the trial court, and found to be
unpersuasive. Appellant failed to check in with his probation officer for six months, and
he only returned to court because the warrant enforcement officers took him into custody.
10.
{¶ 20} Upon review of the record, which included appellant’s admission of the
facts supporting each violation, we find appellant’s first assignment of error not well-
taken.
{¶ 21} In his second assignment of error, appellant argues that imposing the jail
terms, rather than a reserved jail sentence and community control, was contrary to the
purposes of misdemeanor sentencing and therefore an abuse of discretion. In support,
appellant reiterates argument regarding the difficulties in completing his batterer’s
intervention program due to his continuous incarceration and hospitalization.
{¶ 22} We review a misdemeanor sentence for an abuse of discretion. (Citations
omitted.) State v. Perz, 173 Ohio App.3d 99, 2007-Ohio-3962, 877 N.E.2d 702, ¶ 26 (6th
Dist.). “A finding of abuse of discretion implies that the trial court’s conduct was
unreasonable, arbitrary, or unconscionable.” Perz at ¶ 26, citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 23} Here, again, the record contradicts appellant’s argument. Appellant was
neither incarcerated nor in the hospital for the six-month period after he left the hospital
while on a medical furlough. The principles of misdemeanor sentencing, moreover, are
“to protect the public from future crime by the offender and others and to punish the
offender.” R.C. 2929.21(A). In imposing sentence, the court must consider factors that
include “the need for changing the offender's behavior” and “rehabilitating the offender.”
Id.
11.
{¶ 24} In revoking probation, the trial court noted—among other behaviors—
appellant’s failure to check in with the court or his probation officer for six months, his
new offenses, and his habitual failure to appear for court dates. Appellant does not
address these behaviors in arguing a jail sentence was improper, arguing—instead—the
impact of the COVID-19 restrictions, generally.
{¶ 25} Upon consideration of the record, we find no abuse of discretion in
imposing a jail sentence in each case. Appellant’s second assignment of error,
accordingly, is not well-taken.
{¶ 26} Conclusion
{¶ 27} For the forgoing reasons, we affirm the judgment of the Toledo Municipal
Court. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. _______________________________
JUDGE
Gene A. Zmuda, P.J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
12.