State v. Marlow , 2019 Ohio 3393 ( 2019 )

[Cite as State v. Marlow, 2019-Ohio-3393.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28216
:
v. : Trial Court Case No. 2016-CRB-281
:
JESSICA MARLOW : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 23rd day of August, 2019.
...........
GREGORY SPEARS, Atty. Reg. No. 0009002, 195 South Clayton Road, New Lebanon,
Ohio 45345
Attorney for Plaintiff-Appellee
DAWN S. GARRETT, Atty. Reg. No. 0055565, 70 Birch Alley, Suite 240-24005, Dayton,
Ohio 45440
Attorney for Defendant-Appellant
.............
HALL, J.
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{¶ 1} Jessica Marlow appeals from the judgment of the trial court that revoked her
misdemeanor community control supervision and imposed a net jail sentence of six days.
The court stayed the sentence pending this appeal. Marlow’s appointed appellate counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967), asserting the absence of non-frivolous issues for review, and she has
therefore filed a motion to withdraw. We notified Marlow of the Anders filing and gave her
an opportunity to submit a pro se brief and indicated the time for doing so. She did not.
Course of Proceedings
{¶ 2} On March 7, 2016, Marlow was charged with one count of possession of
drug paraphernalia, a fourth-degree misdemeanor. She pled guilty to an amended charge
of disorderly conduct, as a fourth-degree misdemeanor, on March 29, 2016. Her sentence
included a $100 fine, 30 days in jail, with one day of jail time credit and the remaining 29
days suspended, and she was placed on reporting community control sanctions for 2
years (730 days).
{¶ 3} On February 1, 2017, a notice of revocation and order for a hearing was filed
(Doc. #30), alleging that Marlow had violated her supervision by failing to get a drug
assessment and treatment, and by twice testing positive for multiple unprescribed drugs.
The Community Control Officer requested a warrant for her arrest. On the same date, the
court issued the warrant. (Doc. #29.)
{¶ 4} Marlow was not arrested on the warrant until November 2018. On November
6, 2018 an initial hearing was held and Marlow was released on bond. A revocation
hearing was scheduled for November 13, 2018. The transcript reveals Marlow appeared
with counsel. The court stated the noticed violations and said “[a]s a result of that and not
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seeing you, they went ahead and asked that a warrant be issued.” Tr. at 2. Counsel stated
“it doesn’t look like they ever filed a motion to extend the probation from the two years
she was given,” and therefore the case was “over.” Id. The trial court ruled “the warrant
covers that.” Id. at 3. When asked whether Marlow admitted or denied the violations,
counsel indicated “she admits she tested positive.” Id. And Marlow further stated “I am in
a methadone clinic.” Id. The trial court then revoked her community control supervision,
imposed a ten day jail sentence, gave her credit for an additional four days of jail time
credit, and indicated she was to serve six days. (Doc. #39.) The court stayed the jail
sentence pending an appeal.
Anders Brief
{¶ 5} In the Anders brief, Marlow’s appointed appellate counsel indicates that she
“cannot find any meritorious issues to pursue on appeal.” Nevertheless, counsel provided
an analysis of whether the trial court lost jurisdiction over Marlow due to the passage of
more than two years from the initiation of supervision and whether a successor to the
original sentencing judge can preside over revocation proceedings.
Analysis
{¶ 6} Upon review, we concur in counsel’s assessment that the foregoing issues
are without merit and frivolous. Under R.C. 2951.07, “[i]f the offender under community
control absconds or otherwise leaves the jurisdiction of the court without permission from
the probation officer, the probation agency, or the court to do so, or if the offender is
confined in any institution for the commission of any offense, the period of community
control ceases to run until the time that the offender is brought before the court for its
further action.” The Ohio Supreme Court, interpreting virtually identical language of that
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statute when it applied to “probation,” held that the issuance of a capias during the
probationary term tolled the running of the probationary period so that the trial court
retained jurisdiction to revoke supervision. Rash v. Anderson, 80 Ohio St.3d 349, 350-
351, 686 N.E.2d 505 (1997). The same notion applies to community control supervision.
A trial court has jurisdiction to proceed with “revocation proceedings held after expiration
of the stated term of community control” provided “that the notice of a violation and
revocation proceedings are commenced prior to the expiration.” State v. Semenchuk, 4th
Dist. Ross No. 10CA3140, 2010-Ohio-4864, ¶ 7. This court has recognized the same.
State v. Adkins, 2d Dist., Montgomery No. 21810, 2007-Ohio-4886, ¶ 6. “Timely initiation
of the [probation violation] complaint and warrant * * * was tantamount to an entry
declaring the woman an absconder.” State v. Wallace, 7 Ohio App.3d 262, 263, 454
N.E.2d 1356 (1st Dist. 1982).
{¶ 7} Here it is undisputed that both a revocation proceeding was initiated and a
warrant was issued before expiration of the period of supervision. In our opinion, given
statutory authority and over 20 years of consistent case precedent, we agree with counsel
that on this record an argument that the trial court did not have jurisdiction to proceed with
the revocation is without arguable merit and frivolous.
{¶ 8} Counsel’s brief further suggests that trial counsel “vaguely questioned”
whether the current trial judge could proceed to hear a revocation concerning the case of
the “original sentencing judge.” Initially we fail to see that a vague reference is an
objection to the authority of the successor judge to proceed with the revocation. At best,
trial counsel made an offhand remark that “this was previous judge’s case,” (Tr. at 2.) The
comment was not in the nature of an objection and was made without legal argument.
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Because the issue was not raised in the trial court and regards assignment of a judge
rather than jurisdiction of the court, it would be frivolous to argue it on appeal.
{¶ 9} In addition, we take notice that the appellant was originally sentenced by
then-judge Adele M. Riley (Doc. #30), who retired when her term expired on December
31, 2017. That judicial position was abolished. R.C. 1901.08. Judge James D. Piergies
became the judge assigned to the western division of the Montgomery County Municipal
Court where the appellant’s case was docketed. Judge Piergies conducted Marlow’s
revocation proceedings. We further note that a “sentencing court,” not a judge, “retains
jurisdiction over any offender whom it sentences for the duration of the sanction or
sanctions imposed.” R.C. 2929.25(C)(1). We find absolutely no legal authority, and no
logical argument, to support a contention that an offender’s community control would
expire upon retirement of the original judge or for a contention that a successor judge
cannot proceed to hear and determine revocation proceedings. We conclude such
contentions are frivolous.
Anders review
{¶ 10} Finally, we have conducted an independent review of the record and find
no non-frivolous issues for appeal. We therefore agree with appellate counsel that
Marlow’s appeal is frivolous. We grant counsel’s motion to withdraw from representation.
The judgment of the trial court is affirmed, and the matter is returned to the trial court for
further proceedings.
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FROELICH, J. and TUCKER, J., concur.
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Copies sent to:
Gregory Spears
Dawn S. Garrett
Jessica Marlow
Hon. James D. Piergies