State v. Kelley , 2012 Ohio 3938 ( 2012 )

[Cite as State v. Kelley, 2012-Ohio-3938.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Patricia A. Delaney, P.J.
: W. Scott Gwin, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2011CA00271
:
:
KORVON KELLEY : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
2011CR0667
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 27, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO APRIL R. BIBLE
Prosecuting Attorney 200 W. Tuscarawas Street
Stark County, Ohio Suite 200
Canton, Ohio 44702
BY: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Kelley, 2012-Ohio-3938.]
Edwards, J.
{¶1} Defendant-appellant, Korvon Kelley, appeals from the November 9, 2011,
Judgment Entry of the Stark County Court of Common Pleas. Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 20, 2011, the Stark County Grand Jury indicted appellant on one
count of burglary in violation of R.C. 2911.12(A)(2), a felony of the second degree, and
one count of domestic violence in violation of R.C. 2919.25(A), a felony of the third
degree. The victim with respect to both counts was Ladonna Wilson. At his arraignment
on June 24, 2011, appellant entered a plea of not guilty to the charges.
{¶3} Subsequently, on September 19, 2011, appellant withdrew his former not
guilty plea and entered a plea of guilty to both charges. As memorialized in a Judgment
Entry filed on October 17, 2011, appellant was placed on community control for a period
of five (5) years under specified terms and conditions. One of the conditions forbade
appellant from having any direct or indirect contact with the victim.
{¶4} On October 27, 2011, a Motion to Revoke Probation or Modify Former
Order was filed by a Probation Officer. The motion alleged that appellant had violated
the terms and conditions of his community control by failing to have no direct or indirect
contact with the victim.
{¶5} An evidentiary hearing was held on November 2, 2011. At the hearing,
Rachel Carosello, appellant’s probation officer, testified that appellant had violated his
community control by contacting his victim from the jail. At the hearing, a detailed report
from the jail was admitted as an exhibit showing that appellant had attempted to make
Stark County App. Case No. 2011CA00271 3
18 telephone calls to the victim’s phone number between October 13, 2011, and
October 21, 2011. Three of the calls were completed. While one of the completed
telephone calls was on October 13, 2011, the other two were on October 15, 2011.
According to Carosello, appellant attempted to call the victim four times on October 17,
2011, and twice on October 21, 2011. A CD of the telephone calls was played to the
trial court.
{¶6} Carosello testified that she had an opportunity to listen to the first call,
which lasted approximately 15 minutes, and that during the call, the victim identified
appellant as Korvon Kelley and identified herself as the victim. During the telephone
call, the victim told appellant “at least three times don’t call me and you know you are
not supposed to be calling me…” Transcript at 17. The following is an excerpt from
Casorello’s testimony:
{¶7} “Q. After listening to the second call from October 15, 2011, were you able
to determine the parties on that call as well?
{¶8} “A. Yes.
{¶9} “Q. And how were you able to do so?
{¶10} “A. She - - they both identified the domestic violence and the burglary. He
states that he is sorry for what he did.
{¶11} “Q. Okay. And did she indicate she still did not want to have contact, that
she was going to deal with that?
{¶12} “A. Correct.
{¶13} “Q. And what did she indicate she was going to do, if you recall?
{¶14} “A. That she was going to call and tell.
Stark County App. Case No. 2011CA00271 4
{¶15} “Q. Okay. All right. And the person that has been identified and has been
given to you on probation is a Korvon Kelley, correct?
{¶16} “A. Correct.” Transcript at 18.
{¶17} On cross-examination, Casorello testified that she had never met with
appellant, that no one else from the Probation Department had met with appellant, and
that appellant was in jail waiting for a bed to go to Stark Regional Community Correction
Center [SRCCC]. She further testified that no one from probation went over the rules of
probation with appellant because the Probation Department does not go over the rules
until a defendant arrives at SRCCC. Casorello also testified that of the three telephone
calls that were completed before October 17, 2011, none were identified as having
come from appellant’s PIN.1 On redirect, she testified that people sometimes used other
people’s PIN numbers and that most of the calls were made from the same area in the
jail.
{¶18} At the hearing, appellant’s counsel argued that appellant was not on
probation at the time of the October 13, 2011, and October 15, 2011, completed
telephone calls because appellant had never signed the rules of probation and had
never met with a probation officer to go over the rules. Appellant’s counsel further noted
that the Journal Entry was not filed until October 17, 2011, and that the court should not
consider any evidence prior to such date. Appellant’s counsel also argued that there
were no completed telephone calls on October 17, 2011, and that the telephone call on
October 21, 2011, was not a completed call.
1
According to Casorello, if an inmate wants to make a call from the jail, he or she punches in his or her
PIN, which is generally his or her social security number.
Stark County App. Case No. 2011CA00271 5
{¶19} Pursuant to a Judgment Entry filed on November 9, 2011, the trial court
revoked appellant’s community control and sentenced appellant to an aggregate
sentence of eight (8) years in prison.
{¶20} Appellant now raises the following assignment of error on appeal:
{¶21} “DEFENDANT WAS DENIED DUE PROCESS OF LAW UNDER THE
FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND
SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION BY NOT BEING PROPERLY
NOTIFIED OF THE CONDITIONS OF HIS PROBATION.”
I
{¶22} Appellant, in his sole assignment of error, argues that his due process
rights were violated when his community control was revoked before he had been
properly notified of the terms and conditions of the same pursuant to R.C. 2301.30(A).
{¶23} R.C. 2301.30 states, in relevant part, as follows: “The court of common
pleas of a county in which a county department of probation is established under
division (A) of section 2301.27 of the Revised Code shall require the department, in the
rules through which the supervision of the department is exercised or otherwise, to do
all of the following:
{¶24} “(A) Furnish to each person under a community control sanction or post-
release control sanction or on parole under its supervision or in its custody, a written
statement of the conditions of the community control sanction, post-release control
sanction, or parole and instruct the person regarding the conditions; ...” (Emphasis
added).
Stark County App. Case No. 2011CA00271 6
{¶25} There is no dispute that appellant was not provided with a written
statement of the conditions of his community control or instructed regarding the same.
{¶26} In State v. Mynhier, 146 Ohio App.3d 217, 765 N.E.2d 917, (1st Dist.
2001) the appellant pleaded guilty to three counts of sexual battery and, as a condition
of his community control, was ordered to have no contact with his stepdaughter. After
he was found guilty, following a community control revocation hearing, of violating the
condition prohibiting him from having contact with his stepdaughter and after his
community control was revoked, the appellant appealed.
{¶27} On appeal, the appellant, in Mynhier, argued, in part, that the trial court
denied him due process of law under both the Ohio and United States Constitutions by
revoking his community control without requiring the probation department to comply
with R.C. 2301.30(A). The appellant had never received a copy of the written
supplemental rules of community control which contained the condition that he was to
have no contact with his stepdaughter.
{¶28} The First District Court of Appeals, in ruling on the appellant's argument,
held, in relevant part, as follows: “While it can technically be argued that the probation
department violated Ohio law by not providing Mynhier with a copy of the supplemental
rules prior to charging him with a violation, this did not give rise to a constitutional
violation. The touchstone of due process is fundamental fairness. In this case, fairness
required notice to Mynhier of the conditions of his community control prior to charging
him with a violation of one of those conditions.
{¶29} “A review of the record demonstrates that Mynhier, prior to September 7,
2000, had received notice of the condition that he was not to have any contact with his
Stark County App. Case No. 2011CA00271 7
stepdaughter. The trial court informed him of this condition at his sentencing hearing,
and it was also set forth in the judgment entry. On August 10, 2000, his probation
officer, Edward Tullius, reviewed and instructed Mynhier on the conditions of his
community control, including the condition that he not have contact with his
stepdaughter. That same day, Mynhier signed a written statement of the supplemental
rules, acknowledging that he had discussed the conditions with his probation officer.
Additionally, a copy of the general rules of community control, which included the
requirement that Mynhier abide by the supplemental conditions, was left with Mynhier.
Because the state complied with due process by providing notice to Mynhier of the
pertinent condition, there was no constitutional violation. While there may have been a
statutory violation, we hold that Mynhier suffered no prejudice from this error and, thus,
that it was harmless. Mynhier never argued at his revocation hearing that he had not
received notice of the condition that he not have contact with his stepdaughter. Further,
Tullius testified at the revocation hearing that when he spoke with Mynhier in early
September regarding the alleged violation, Mynhier admitted that he knew that he was
not to have had contact with his stepdaughter. Accordingly, Mynhier's first assignment
of error is overruled.” Id. at 221 (Citations omitted).
{¶30} In State v. Seefong, 5th Dist. No. 2005CA00293, 2006-Ohio-2723, the
appellant’s probation officer did not go over the terms and conditions of his community
control with him as required by R.C. 2301.30(A). The appellant’s counsel argued that
the appellant could not therefore, be found in violation of his community control. This
Court, however, cited to Mynhier, in holding that the trial court did not commit reversible
error in finding the appellant guilty of violating the terms and conditions of his
Stark County App. Case No. 2011CA00271 8
community control. This Court noted that there was no dispute that the appellant had
been advised on the record at the sentencing hearing on the terms and conditions. This
Court further noted that the appellant did not argue that he did not have actual notice of
knowledge of the condition of his community control prohibiting the possession of
pornography and that the condition was set forth in the trial court’s Judgment Entry. On
such basis, this Court found that any violation of R.C. 2301.30(A) was harmless and
that the trial court did not err in holding that the appellant had violated his community
control and in revoking the same.
{¶31} In the case sub judice, the trial court advised appellant at the sentencing
hearing on October 11, 2011, that he was “not to have any contact directly or indirectly
with the victim.” Transcript of October 11, 2011 hearing at 7. Appellant had, therefore,
actual notice of the no contact order and does not dispute that he was aware of the
same. We find any violation of R.C. 2301.30(A) was, therefore, harmless.
{¶32} Appellant maintains that he could not be found to have violated his
community control based on incidents that occurred before his sentencing entry was
filed. We disagree. In State v. Wetzel, 9th Dist. 16407, 1994 WL 45791 (Feb. 9, 1994),
the appellant was convicted of corruption of a minor and sentenced to two years in
prison. His sentence was suspended and he was placed on probation on June 23,
1993. However, the journal entry placing him on probation was not filed until July 8,
1993. The appellant had violated his probation on June 26, 1993.
{¶33} On July 16, 1993, the appellant’s probation was revoked due to the June
26, 1993, incident. The appellant’s counsel, in Wetzel, had argued to the trial court that
Stark County App. Case No. 2011CA00271 9
the appellant was not on probation at the time of such incident because the entry
ordering probation was not filed until after the date of the incident.
{¶34} On appeal, the appellant argued that the trial court erred in revoking his
probation “on grounds that he had violated probation by his conduct which predate, by
more than ten days, the fling of the judgment of conviction and sentencing”. In affirming
the judgment of the trial court, the court, in Wetzel, stated, in relevant part, as follows:
“In State v. Henderson (1989), 62 Ohio App.3d 848, 853, the court found that “‘[e]ven if
* * * defendant was not yet legally on probation at the time of his arrest [for a probation
violation], the trial judge had the option at any time before execution [of the sentence] to
modify the sentence by withdrawing the oral pronouncement of probation and
committing him to the penitentiary.’
{¶35} “In this case, Appellant's argument is self-defeating. The oral
pronouncement of probation was journalized after the alleged probation violation
occurred. Following Appellant's argument, he could not have begun to serve a sentence
which was not yet valid. As the sentence had not been executed, the trial court could
have amended the sentence, by withdrawing the granting of probation and sentencing
him to a term of imprisonment.
{¶36} “The net result of the trial court's finding that Appellant was in violation of
probation and reinstating the term of imprisonment is the same. While it may have been
error for the court to find a violation of the terms of probation when the order imposing
probation had not yet been journalized, we find that the error was harmless beyond a
reasonable doubt. Crim.R. 52(A); State v. Williams (1988), 38 Ohio St.3d 346, 349.” Id.
at 2.
Stark County App. Case No. 2011CA00271 10
{¶37} Based on the foregoing, appellant’s sole assignment of error is, overruled.
{¶38} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Edwards, J.
Delaney, P.J. and
Gwin, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d0618
[Cite as State v. Kelley, 2012-Ohio-3938.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
KORVON KELLEY :
:
Defendant-Appellant : CASE NO. 2011CA00271
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellant.
_________________________________
_________________________________
_________________________________
JUDGES