State v. Feliciano

2013 Ohio 5688

Opinion

[Cite as State v. Feliciano, 2013-Ohio-5688.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : -vs- : : JUAN G. FELICIANO : Case No. 13-COA-021 : : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 11-CRI-105

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 6, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RAMONA FRANCESCONI ROGERS THOMAS L. MASON Prosecuting Attorney Mason, Mason & Kearns P.O. Box 345 By: PAUL T. LANGE 153 West Main Street Assistant Prosecuting Attorney Ashland, OH 44805-0345 110 Cottage Street, Third Floor Ashland, OH 44805 Ashland County, Case No. 13-COA-021 2

Baldwin, J.

{¶1} Defendant-appellant Juan Feliciano appeals from the June 7, 2013

Judgment Entry of the Ashland County Court of Common Pleas. Plaintiff-appellee is the

State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On November 3, 2011, a Bill of Information was filed alleging that

appellant had committed the offenses of attempted abduction in violation of R.C.

2923.02(A) and 2905.02(A)(2), a felony of the fourth degree, and vandalism in violation

of R.C. 2909.05(B)(1)(d), a felony of the fifth degree. Appellant, on November 7, 2011,

entered a plea of guilty to both offenses and the trial court ordered that a pre-sentence

investigation be conducted.

{¶3} Pursuant to a Judgment Entry filed on January 4, 2012, appellant was

sentenced to a total of 270 days in jail. Appellant also was placed on community control

under specified terms and conditions upon his release from jail. He was ordered to

obtain and maintain employment.

{¶4} On April 29, 2013, an alleged community control violations complaint was

filed against appellant by a Probation Officer. The Officer, in the complaint, alleged that

appellant had violated the terms and conditions of his community control by acting in a

disorderly manner at a bar, by consuming alcoholic beverages, and by not abiding by

his curfew. The complaint alleged that, on April 26, 2013 at 1:46 a.m., appellant was

arrested outside of a bar and was charged with disorderly conduct. Appellant allegedly

was so drunk that he had to use a street sign to keep his balance and he was unable to Ashland County, Case No. 13-COA-021 3

tell a Sergeant his address. The complaint further asserted that appellant was

belligerent and uncooperative with law enforcement.

{¶5} At a hearing on May 13, 2013, appellant admitted that he had violated the

terms and conditions of his community control as alleged and the trial court found that

he had violated the same. A sanctioning hearing was scheduled for June 3, 2013.

Pursuant to a Judgment Entry filed on June 7, 2013, the trial court ordered, in part, that

appellant remain on community control, that he serve sixty (60) days in jail, and that,

upon his release from jail, he enter a halfway house in Mansfield, Ohio provided that he

was admitted to the same.

{¶6} Appellant now raises the following assignment of error on appeal:

{¶7} THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING AN

ORDER PURSUANT TO A COMMUNITY CONTROL VIOLATION THAT WOULD

CAUSE APPELLANT TO LOSE HIS JOB.

I

{¶8} Appellant, in his sole assignment of error, argues that the trial court

abused its discretion in ordering him, as a condition of community control, to enter a

halfway house in Mansfield, Ohio. Appellant contends that because his job as a

dishwasher is on the outskirts of Ashland, Ohio, “the forced move to Mansfield would

cost him his job.” We note that appellant does not argue that his sentence was contrary

to law.

{¶9} As an initial matter, we concur with appellee that appellant does not have

the right to pursue this issue on appeal. Appellant had not alleged that his sentence is Ashland County, Case No. 13-COA-021 4

contrary to law or any of the other grounds for an appeal as a matter of right which are

set forth in R.C. 2953.08.

{¶10} Moreover, we find that the trial court did not abuse its discretion in

ordering appellant to enter a halfway house. We note that an abuse of discretion is

more than an error of law or judgment; it implies that the lower court's attitude is

unreasonable, arbitrary or unconscionable. State v. Clark, 71 Ohio St.3d 466, 470, 1994

-Ohio- 43, 644 N.E.2d 331.

{¶11} In the case sub judice, the pres-sentence investigation report indicated

that appellant was intoxicated when he assaulted the victim in this case, who was

appellant’s girlfriend. As a result, the charges in this case were filed. Moreover, while he

was on community control, appellant, on April 26, 2013 at 1:46 a.m., was arrested for

disorderly conduct at a bar. Appellant was intoxicated, was belligerent and refused to

cooperate with law enforcement. Appellant admitted to the community control violation

charges that were filed as a result of such incident and pleaded no contest in the

disorderly conduct case that was filed. Furthermore, appellant had previous a

previous alcohol-related offense (DUI) in 2009 and reported that he needed help with

alcohol. He also had three disorderly conduct offenses since 2008.

{¶12} We concur with appellee that, by placing appellant in a halfway house, the

trial court “was attempting to add an additional level of supervision over the Appellant to

ensure that he does not continue to abuse substances and thereby continue to violate

the terms of his community control sanctions.” We find that the trial court’s decision

was not arbitrary, unconscionable or unreasonable.

{¶13} Appellant’s sole assignment of error is, therefore, overruled. Ashland County, Case No. 13-COA-021 5

{¶14} Accordingly, the judgment of the Ashland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.

HON. CRAIG R. BALDWIN

HON. WILLIAM B. HOFFMAN

HON. PATRICIA A. DELANEY

CRB/dr [Cite as State v. Feliciano, 2013-Ohio-5688.]

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff - Appellee : : -vs- : JUDGMENT ENTRY : JUAN G. FELICIANO : : Defendant - Appellant : CASE NO. 13-COA-021

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Ashland County, Ohio is affirmed. Costs

assessed to appellant.