State v. Anderson , 2012 Ohio 957 ( 2012 )

[Cite as State v. Anderson, 2012-Ohio-957.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24657
vs. : T.C. CASE NO. 10CR1954
JACK ANDERSON : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 9th day of March, 2012.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros.
Attorney, Atty. Reg. No. 0020084, P.O. Box 972, Dayton, OH 45422
Attorney for Plaintiff-Appellee
Christopher B. Epley, Atty. Reg. No. 0070981, 124 East Third Street,
Suite 300, Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Jack Anderson, entered pleas of guilty to two counts of non-support
of his dependents in violation of R.C. 2919.21(B), which are felonies of the fourth degree.
The trial court sentenced Defendant to five years of community control sanctions, including
requirements that Defendant make regular child support payments and pay restitution on the
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accrued arrearage, attend the Seek Work Opportunities Program (SWOP) until employed,
attend Non-Support Court, and be placed on “No Breaks” status. Defendant was advised at
the time of sentencing that if he violated the terms of his community control he could be
sentenced to a prison term of eighteen months on each count, to be served consecutively.
{¶ 2} On February 4, 2011, a notice of community control revocation was filed
alleging that Defendant had violated the terms of his community control by failing to pay any
child support since being granted community control, by failing to attend Non-Support Court,
by failing to attend the SWOP program, and by absconding and failing to report to his
probation officer. Following a hearing on May 9, 2011, the trial court found that Defendant
violated the terms of his community control. The trial court revoked Defendant’s community
control and sentenced him to consecutive prison terms of eighteen months on each count, for a
total sentence of thirty-six months.
{¶ 3} Defendant timely appealed to this court from the trial court’s decision revoking
his community control and sentencing him to thirty-six months in prison. Defendant’s
appellate counsel has filed an Anders brief, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,
19 L.Ed.2d 493 (1967), stating that he could find no meritorious issues for appellate review.
We notified Defendant of his appellate counsel’s representations and afforded him ample time
to file a pro se brief. None has been received. This case is now before us for our
independent review of the record. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d
300 (1988).
{¶ 4} Defendant’s appellate counsel has identified two possible issues for appeal.
FIRST ASSIGNMENT OF ERROR
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{¶ 5} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REVOKED
APPELLANT’S PROBATION.”
{¶ 6} In State v. Lewis, 2d Dist. Montgomery No. 23505, 2010-Ohio-3652 at ¶11, 12,
15, 21, we stated:
“The right to continue on community control depends upon compliance
with community control conditions and is a matter resting within the sound
discretion of the court. Accordingly, we review the trial court's decision to
revoke a defendant's community control for an abuse of discretion.” State v.
Jackson, Montgomery App. No. 23458, 2010–Ohio–2836, ¶ 56, internal
citations omitted. “Abuse of discretion has been defined as an attitude that is
unreasonable, arbitrary, or unconscionable. It is to be expected that most
instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.” Id.,internal citations omitted.
“Because a community control violation hearing is not a criminal trial, the State need
not prove a violation beyond a reasonable doubt. State v. Cofer, Montgomery App. No. 22798,
2009–Ohio–890, ¶ 12. ‘The State need only present substantial evidence of a violation of the
terms of a defendant's community control.’ Id.” State v. Brandon, Montgomery App. No.
23336, 2010–Ohio–1902, ¶ 17.
* * *
“R.C. 2929.15(B) provides a trial court with three options if an offender
violates a condition or conditions of community control. State v. Belcher,
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Lawrence App. No. 06CA32, 2007–Ohio–4256, ¶ 20. These are: (1) extend the
terms of the community control sanction, (2) impose a prison term that does
not exceed that prison term specified by the court at the offender's sentencing
hearing; or (3) impose a stricter community control sanction. R.C.
2929.15(B).” State v. Palacio, Ottawa App. No. OT–07–015,
2008–Ohio–2374, ¶ 8. A trial court's choice of sanction under R.C.
2929.15(B), where the defendant has violated the conditions of community
control, is subject to review on appeal under an abuse of discretion standard.
Id.; State v. Wolfson, Lawrence App. No. 03CA25, 2004–Ohio–2750, ¶ 8.
* * *
The Supreme Court has recognized that R.C. 2929.15(B) affords a trial
court “a great deal of latitude in sentencing the offender” for violations of the
conditions of community control. State v. Brooks, 103 Ohio St.3d 134, 814
N.E.2d 837, 2004–Ohio–4746, ¶ 20. “R.C. 2929.15(B) requires the court to
consider both the seriousness of the original offense leading to the imposition
of community control and the gravity of the community control violation.” Id.{¶ 7} The testimony of Defendant’s probation officer, Donnie Anderson, and
Defendant’s own admissions at the revocation hearing, support the trial court’s findings that
the State proved that Defendant violated his community control by failing to attend the SWOP
program, failing to verify his employment, making only one fifty dollar payment toward his
child support since being put on community control, failing to report for Non-Support Court
on November 15, 2010, and thereafter failing to report to his probation officer until after he
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was arrested on an absconder warrant in February 2011. Defendant complained at the
revocation hearing that his probation officer did not adequately explain to him what he was
supposed to do on community control and that he has difficulty reading and writing. The
evidence demonstrates that Defendant graduated from Miamisburg High School and is a ASE
certified master auto mechanic. The trial court found that this is Defendant’s third or fourth
non-support case, and that his testimony “has no credibility whatsoever.”
{¶ 8} We find no arguable merit in a contention that the trial court abused its
discretion in finding that Defendant violated the terms of his community control.
SECOND ASSIGNMENT OF ERROR
{¶ 9} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED
APPELLANT TO 36 MONTHS AT THE CORRECTIONS RECEPTION CENTER.”
{¶ 10} Defendant argues that the trial court abused its discretion when it imposed as a
penalty for the violation of Defendant’s community control, consecutive prison terms, rather
than one of the other less severe sanctions available for community control violations, such as
extending the term of community control or imposing stricter community control sanctions.
R.C. 2929.15(B). The Ohio Supreme Court has recognized that R.C. 2929.15(B) affords a
trial court a great deal of latitude in sentencing the offender for violations of community
control, and requires the court to consider both the seriousness of the offense leading to
community control and the gravity of the community control violation. Brooks. In that
regard, the trial court noted that this is Defendant’s third or fourth felony non-support case,
and the court stated:
Your conduct is beyond egregious. For various periods of time I’ve
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been responsible for the non-support docket all told for about three years, and
this is the most egregious circumstance I have ever seen where someone who
has no excuse whatsoever makes a choice not to support his children and
apparently would prefer to be in prison rather than make the effort to support
his children.
{¶ 11} In State v. Jeffrey Barker, 2nd Dist. Montgomery No. 22779, 2009-Ohio-3511,
at ¶36-37, we wrote:
The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings
or give its reasons for imposing maximum, consecutive, or more than
minimum sentences. State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470,
2006-Ohio-856, at paragraph 7 of the syllabus. Nevertheless, in exercising its
discretion the trial court must consider the statutory policies that apply to every
felony offense, including those set out in R.C. 2929.11 and 2929.12. State v.
Mathis, 109 Ohio St.3d 54, 846 11 N.E.2d 1, 2006-Ohio-855, at ¶37.
When reviewing felony sentences, an appellate court must first
determine whether the sentencing court complied with all applicable rules and
statutes in imposing the sentence, including R.C. 2929.11 and 2929.12, in
order to find whether the sentence is contrary to law. State v. Kalish, 120
Ohio St.3d 23, 896 N.E.2d 124, 2008-Ohio-4912. If the sentence is not clearly
and convincingly contrary to law, the trial court's decision in imposing the term
of imprisonment must be reviewed under an abuse of discretion standard. Id.7
{¶ 12} The trial court stated that it had considered the purposes and principles of
sentencing, R.C. 2929.11, and the seriousness and recidivism factors, R.C. 2929.12. It is also
clear that the court reviewed Defendant’s presentence investigation report from this case.
The court heard oral statements from Defendant’s counsel, and informed Defendant about
post release control requirements. We further note that the eighteen month sentence the court
imposed on each offense is within the authorized range of available punishments for a felony
of the fourth degree, R.C. 2929.14(A)(4), and Defendant was told when the sanctions were
imposed that the terms could be served consecutively. Defendant’s sentence is not contrary
to law.
{¶ 13} With respect to the severity of the sentence, this was the third or fourth time
Defendant has been convicted of non-support of his children. Defendant has served time in
prison on those previous offenses. Defendant has job skills and is not incapable of being
employed. He offers no legitimate excuse for not supporting his children. Rather, he chooses
to go to prison rather than work and support his children. Defendant’s criminal history
suggests that he is likely to commit future crimes. R.C. 2929.12(D)(2), (3), and (5).
{¶ 14} The overriding purposes of felony sentencing are to protect the public from
future crime by the offender and to punish the offender. R.C. 2929.11(A). The trial court
has discretion to determine the most effective way to comply with the purposes and principles
of sentencing. R.C. 2929.12(A). We find no arguable merit in a contention that the trial
court abused its discretion in imposing consecutive eighteen month sentences in this case.
{¶ 15} In addition to reviewing the possible issues for appeal raised by Defendant’s
appellate counsel, we have conducted an independent review of the trial court’s proceedings
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and have found no error having arguable merit. Accordingly, Defendant’s appeal is without
merit and the judgment of the trial court will be affirmed.
DONOVAN, J., And HALL, J., concur.
Copies mailed to:
Carley J. Ingram, Esq.
Christopher B. Epley, Esq.
Jack Anderson
Hon. Mary Katharine Huffman