State v. Evans , 2021 Ohio 590 ( 2021 )

[Cite as State v. Evans, 2021-Ohio-590.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Craig R. Baldwin, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2020CA00078
JAMIE EVANS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No.
19CR1022
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 3, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM HAYES TODD BARSTOW
Licking County Prosecutor 261 West Johnstown Road, Suite 204
By: PAULA M. SAWYERS Columbus, OH 43230
Assistant Prosecutor
20 S. Second Street, 4th Floor
Newark, OH 43055
[Cite as State v. Evans, 2021-Ohio-590.]
Gwin, J.,
{¶1} Defendant-appellant Jamie Evans [“Evans”] appeals the November 25,
2020 Judgment Entry of the Licking County Court of Common Pleas revoking her
community control and imposing sentence.
Facts and Procedural History
{¶2} The Licking County Grand Jury indicted Evans on December 19, 2019 on
one count of Possession of Drugs, a felony of the fifth degree, and one count of
Possessing Drug Abuse Instruments, a misdemeanor of the second degree.
{¶3} By Judgment Entry filed August 4, 2020, the trial court scheduled a Change
of Plea hearing for August 21, 2020. [Docket Entry No. 33]. On August 18, 2020 the
probation department filed an Application for a Capias on the basis that Evans failed to
report and efforts to contact her had been unsuccessful. [Docket Entry No. 34]. A capias
was issued by Judgment Entry filed August 18, 2020. [Docket Entry No. 35]. On August
20, 2020 the magistrate found that Evans had violated the terms of her bond. [Docket
Entry No. 37]. On August 21, 2020 the trial court found that Evans had tested positive for
marijuana and Benzodiazepines. The trial court revoked Evans’s bond and continued the
Change of Plea hearing until Evans tests negative for drugs. [Docket Entry No. 39].
{¶4} On September 21, 2020, Evans appeared with counsel and entered guilty
pleas to both counts of the Indictment. During the Change of Plea and Sentencing
hearing the trial court sentenced Evans to, in relevant part,
On that basis today, I will impose a term of three years of community
control here today.
Licking County, Case No. 2020CA00078 3
As terms of community control, I will order that you enter into and
successfully complete the Star Program, which is a community-based
correctional facility program, which is as good a drug treatment as I can
provide to you. You need to remain at the Justice Center until you can get
into the program.
Change of Plea and Sentencing Hearing, Sept. 21, 2020 at 19. See also, Judgment Entry,
Sept. 21, 2020 at 2. [Docket Entry No. 45].
{¶5} On October 20, 2020 the state filed a motion to revoke Evans’s community
control on the basis the Evans refused to enter the Star Program. [Docket Entry No. 53].
On October 23, 2020 the trial court found, after a hearing, that probable cause existed to
believe that Evans had violated the terms and conditions of her community control.
[Docket Entry No. 55]. On November 25th, Evans appeared in the trial court with counsel
and admitted the violations. After reviewing Evans’s criminal history, a report from the
probation department and the statement from Evans, the trial court ordered Evans to
serve a sentence of one year in the Licking County Jail as to count one, and a sentence
of sixty days as to count two. The trial court ordered concurrent service as to those
sentences. Judgment Entry, filed November 25, 2020 at 1-2. [Docket Entry No. 65].
Assignment of Error
{¶6} Evans raises one Assignment of Error,
{¶7} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
SENTENCING HER TO MORE THAN SIX MONTHS OF INCARCERATION IN THE
LICKING COUNTY JAIL AS A SANCTION FOR A VIOLATION OF HER COMMUNITY
CONTROL.”
Licking County, Case No. 2020CA00078 4
Law and Analysis
{¶8} In her sole assignment of error, Evans maintains the trial court could impose
no more than a six-month jail sentence pursuant to R.C. 2929.16(A)(6). Evans contends
that the twelve-month jail sentence imposed by the trial court exceeds the six-month
maximum limit set forth in R.C. 2929.16(A).
Standard of Appellate Review.
{¶9} Evans’s argument centers on an issue of law, not the discretion of the trial
court. “‘When a court’s judgment is based on an erroneous interpretation of the law, an
abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville Grace
Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6; Huntsman
v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL 2572598, ¶
50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d
1237, ¶ 13.” State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶6.
Because the assignment of error involves the interpretation of a statute, which is a
question of law, we review the trial court’s decision de novo. Med. Mut. of Ohio v.
Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13; Accord, State
v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9; Hurt v. Liberty
Township, Delaware County, OH, 5th Dist. Delaware No. 17 CAI 05 0031, 2017-Ohio-
7820, ¶ 31.
Issue for Appellate Review: Whether R.C. 2929.16(A)(6) limits the trial court’s
discretion when imposing a sentence for a community control violation to a six-month
jail sentence.
Licking County, Case No. 2020CA00078 5
{¶10} A “community control sanction” is defined by R.C. 2929.01(E) as a sanction
that is not a prison term and is described in R.C. 2929.15 (community control), 2929.16
(residential sanctions), 2929.17 (nonresidential sanctions), and 2929.18 (financial
sanctions). A residential sanction that may be imposed pursuant to R.C. 2929.16 includes
a term of up to six months in a community-based correctional facility or jail. R.C.
2929.16(A)(1), (2). The duration of all community control sanctions imposed upon an
offender shall not exceed five years. R.C. 2929.15(A)(1). State v. Farner, 5th Dist. Ashland
No. 2011-COA-025, 2012-Ohio-317, ¶12.
{¶11} If the conditions of community control are violated, R.C. 2929.15(B)
provides the trial court a great deal of latitude in sentencing the offender. 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. After
finding that a defendant has violated community control sanctions, the sentencing court
may: (1) extend the period of the same community control sanction, but not beyond the
five-year maximum; (2) impose a more restrictive community control sanction for any
remaining period of time up to the five-year maximum; or (3) cancel the community control
sanction and impose a definite sentence of imprisonment within the range allowed for the
offense under RC 2929.14(A). R.C. 2929.15(C). State v. Brooks, 103 Ohio St.3d 134,
2004-Ohio-4746, 814 N.E.2d 837, ¶22.
{¶12} Recently in State v. Castner, 2020-Ohio-4950, the Ohio Supreme Court
applied R.C. 2929.15(B) in a case where the defendant was convicted of aggravated
possession of drugs, a fifth-degree felony, in the Richland County Common Pleas Court.
He was placed on community control. He violated the terms of his community control by
Licking County, Case No. 2020CA00078 6
getting kicked out of his drug treatment program after program staff discovered he was
using the facility's computers to contact young girls via a “Hello Kitty” themed email
account. The Ohio Supreme Court held, “The conditions imposed by the court mandating
that Castner complete the Alvis House and Re-Entry Court programs were plainly
substantive rehabilitative requirements that were specifically tailored to address Castner's
drug use and were aimed at reducing his likelihood of recidivism. Indeed, substance-
abuse treatment was the central focus of Castner's community-control sanction.” Id. at
¶16. The Supreme Court held, “Thus, the sentencing cap in R.C. 2929.15(B)(1)(c)(i) does
not apply, and the trial court had the discretion to sentence Castner to a 12-month prison
term. Castner, 2020-Ohio-4950, ¶18. [Emphasis added]. Accord, State v. Breedlove, 5th
Dist. Richland No. 2020 CA 0036, 2020-Ohio-5285, ¶12 (“The instant case is similar to
Castner. Appellant was originally convicted of possession of heroin. The violations of his
community control, which he admitted, were all drug-related violations of substantive
rehabilitative requirements specifically tailored to address his drug use and reduce his
likelihood of recidivism. We find the trial court did not abuse its discretion in sentencing
Appellant to twelve months incarceration for violation of community control which was
non-technical in nature.”). Emphasis added.
{¶13} R.C. 2929.19(B)(5) states that when a sentencing court determines that a
community control sanction should be imposed, “[t]he court shall notify the offender that,
if the conditions of the sanction are violated, * * * the court * * * may impose a prison term
on the offender and shall indicate the specific prison term that may be imposed as a
sanction for the violation.” In the case at bar, Evans was notified during the original
sentencing hearing that the court could impose a one-year sentence for a violation of
Licking County, Case No. 2020CA00078 7
community control sanctions. Upon finding that Evans had violated the conditions of her
community control, the trial court in the case at bar did not impose a more restrictive
residential sanction or a jail term pursuant to R.C. 2929.15(B)(1)(b) or R.C. 2929.16(A)(6).
Rather, the trial court cancelled Evans’s community control and imposed the original one-
year sentence. The jail sentence imposed in the case at bar, was not imposed pursuant
to R.C. 2929.16(A)(6); rather, because this is a TCAP case, application of R.C.
2929.34(B)(3)(c) mandated that Evans’s one–year sentence be served at the Licking
County Jail as opposed to a state correctional institution.
{¶14} Accordingly, we find the trial court did not abuse its discretion in sentencing
Evans to twelve months incarceration in the Licking County Jail for violation of community
control which was non-technical in nature.
{¶15} Evans’s First Assignment of Error is overruled.
Licking County, Case No. 2020CA00078 8
{¶16} The judgment of the Licking County Court of Common Pleas is affirmed.
By Gwin, J.,
Baldwin, P.J., and
Delaney, J., concur