State v. Foley

2021 Ohio 3263

• Court: Ohio Court of Appeals
• Decided: September 17, 2021
• Docket: Wd-21-005
• Status: Published

Opinion

[Cite as State v. Foley, 2021-Ohio-3263.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-21-005

Appellee Trial Court No. 2018CR0588

v.

Melissa Foley DECISION AND JUDGMENT

Appellant Decided: September 17, 2021

*****

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.

Jeffrey P. Nunnari, for appellant

MAYLE, J.

{¶ 1} Defendant-appellant, Melissa Foley, appeals the January 19, 2021 judgment

of the Wood County Court of Common Pleas, revoking her community control and imposing concurrent prison terms of 12 months and 36 months. For the following

reasons, we affirm the trial court judgment.

I. Background

{¶ 2} Melissa Foley was charged with possession of cocaine, a violation of R.C.

2925.11(A) and (C)(4)(a), a fifth degree felony (Count 1), and endangering children, a

violation of R.C. 2919.22(A) and (E)(2)(C), a third-degree felony (Count 2). On

March 29, 2019, Foley entered a plea of guilty to both charges. The trial court made a

finding of guilty, referred the matter for a presentence investigation, and continued the

matter for sentencing.

{¶ 3} Foley was permitted to withdraw her guilty plea after revealing during her

PSI interview that she had been intoxicated at the plea hearing and had no memory of it.

A new plea hearing took place at which she confirmed that she was not under the

influence, and she once again entered a plea of guilty. Again, the court made a finding of

guilty and continued the matter for sentencing.

{¶ 4} On May 17, 2019, the trial court imposed a sentence of community control,

subject to various conditions, including that Foley not consume alcoholic beverages and

that she attend Alcoholics Anonymous or other 12-step support meetings. It informed

Foley that a violation of community-control sanctions may lead to a more restrictive

sanction, including a sentence of 12 months’ imprisonment on Count 1 and 36 months on

Count 2. Foley’s sentence was memorialized in a judgment journalized on May 21,

2019.

2. {¶ 5} On July 28, 2020, the state filed a motion to revoke community control,

alleging that Foley violated community control by testing positive for the presence of

alcohol. Foley admitted to the violation and at a hearing on the state’s motion, the court

accepted Foley’s stipulation, found that she violated community control, and continued

the matter for disposition.

{¶ 6} Before the disposition hearing, on November 18, 2020, the state filed a

second motion to revoke community control. It alleged that Foley failed to attend sober

support meetings and instead submitted falsified proofs of attendance.

{¶ 7} On January 12, 2021, the trial court conducted a hearing on the state’s

second petition to revoke community control. At that hearing Foley admitted the

community-control violation. The matter proceeded to disposition on both violations.

{¶ 8} Defense counsel spoke on Foley’s behalf. Among other things, he pointed

out to the court that Foley had submitted “letters from organizations that show * * * [that

Foley] is engaged in substance abuse counseling, and treatment, and all forms of sort of

positive interaction[.]” The court responded that what had been missing from the case

“from day one” was honesty. “Ms. Foley hasn’t told a truth to this Court, as I could

attest, at any time throughout this.” Defense counsel acknowledged the importance of

honesty, but insisted that “the addict’s path usually * * * takes a long time to rebuild trust

* * *.” He again emphasized that his client had supplied letters of support.

{¶ 9} Foley addressed the court and conceded that she had made mistakes and had

lied to the court. She offered explanations for some of those mistakes and lies—mainly,

3. that her lies stemmed from fear. She told the court: “I’m not trying to fool you.” She

explained the difficulty she was having making it to in-person meetings, and told the

court she panicked and accepted fraudulent meeting slips from someone. Foley told the

court that she was “embarrassed and humiliated” that she lied. She listed for the court all

the things she had been doing to better herself and to recover, including working full-time

at Cherry Street Mission.

{¶ 10} The court once again focused on Foley’s lies over the course of the case

and told Foley that those lies had thwarted its attempts to keep her “on the right line.”

The court told Foley that it had come to the hearing planning on sending her to prison,

but ultimately, it decided to give Foley “the benefit of the doubt” because she had “done

a lot of things.” The trial court imposed 30 days in Wood County Jail and continued

community control. The court told Foley: “I’m still not convinced that probation will

completely work. I’m not convinced that you can be honest.”

{¶ 11} Before entering judgment memorializing the disposition of the community-

control violations, the court learned that Foley had been discharged from Cherry Street

Mission, she had forged a letter of support from A.J., an employee of Cherry Street

Mission, and she forged a letter of support from her brother. The court scheduled a

second hearing for January 15, 2021, at which it explained how it had learned of Foley’s

dishonesty.

{¶ 12} The court told the parties that on the morning of the January 12, 2021

hearing, it emailed A.J. to follow up on her letter of support for Foley. A.J. did not

4. immediately respond. The next morning, however, A.J. replied to the court’s email

message and informed it that she had not written the letter. “Then that led to some

conversations with [A.J.] and other individuals at Cherry Street Mission, where [the

court] learned that for other reasons Ms. Foley has been discharged from Cherry Street

Mission because of other actions unrelated to the letter that was submitted.” The court

contacted Ms. Foley’s brother and learned that he also had not written the letter of

support that Foley attributed to him.

{¶ 13} Because no judgment had yet been entered, the court explained, it felt it

could rehear the matter. Defense counsel indicated that he was “not going to lodge any

objection to this procedural effort—not that there would be a fair objection * * *.” The

state outlined the number of ways that Foley had broken the law by submitting the

falsified letters and attendance records. For her part, Foley admitted that she submitted

the fraudulent letters, explaining that she did so because she was “trying to get [herself]

out of trouble.”

{¶ 14} The court read correspondence it received from A.J. after they spoke

concerning Foley’s falsified letter. A.J. had positive things to say about Foley, said she

was saddened to hear that Foley submitted a falsified letter from her, and indicated that if

she had been asked, she would have been more than willing to send a letter on Foley’s

behalf.

{¶ 15} Again noting its frustration and disappointment with Foley’s deceit, the

trial court, after considering R.C. 2929.11, 2929.12, 2929.13, and 2929.15, terminated

5. community control and imposed the sentences of which Foley was informed at her

original sentencing hearing—12 months in the Ohio Department of Rehabilitation and

Corrections on Count 1 and 36 months on Count 2—and ordered those sentences to be

served concurrently. The sentence was memorialized in a judgment entered on

January 19, 2021.

{¶ 16} Foley appealed. She assigns the following error for our review:

WHETHER THE TRIAL COURT ERRED TO APPELLANT’S

PREJUDICE BY REVOKING HER COMMUNITY CONTROL AND

SENDING HER TO PRISON?

II. Law and Analysis

{¶ 17} In her sole assignment of error, Foley argues that the trial court erred by

revoking community control based on conduct that, while unlawful, did not violate any

term or condition of community control. She claims that no condition “prohibit[ed] her

from writing fake letters to the judge,” and her dishonesty was already taken into account

during the January 12, 2021 hearing. Foley complains that the court failed to explain

how the letters—which she describes as “further reflections of Foley’s known penchant

for dishonesty”—altered its disposition of her community-control violations “just three

days after determining that her dishonesty didn’t warrant termination of community

control.” Moreover, she contends, she was punished for this conduct “on the court’s own

initiative,” without a separate petition to revoke her community control, violating her

right to due process.

6. {¶ 18} The state responds that Foley was notified at her original sentencing

hearing that a violation of community-control sanctions could lead to more restrictive

sanctions, including a prison term of 12 months on Count 1 and 36 months on Count 2.

The state also points out that the court considered the relevant sentencing factors,

including R.C. 2929.11 and 2929.12, and expressed its rationale for imposing prison

terms. It emphasizes that an appellate court may not independently weigh the evidence

and substitute its judgment for that of the trial court concerning the sentence that best

reflects compliance with those statutes.

{¶ 19} Under R.C. 2929.15(B)(1) and (3), if an offender violates the conditions of

a community-control sanction or violates a law, the court may impose a longer period of

community control, a more restrictive community-control sanction, or a prison term

within the range available for the underlying offense up to the maximum term specified at

the original sentencing hearing. See also State v. Calhoun, 6th Dist. Wood No. WD-17-

067, 2019-Ohio-228, ¶ 18. We review a trial court’s decision to revoke a community

control sanction under an abuse-of-discretion standard. Calhoun at ¶ 17. An abuse of

discretion connotes that the trial court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). An unreasonable decision is one that lacks sound reasoning to support the

decision. Hageman v. Bryan City Schools, 10th Dist. Franklin No. 17AP-742, 2019-

Ohio-223, ¶ 13. “An arbitrary decision is one that lacks adequate determining principle

and is not governed by any fixed rules or standard.” Id., quoting Porter, Wright, Morris

7. & Arthur, LLP v. Frutta del Mondo, Ltd., 10th Dist. Franklin No. 08AP-69, 2008-Ohio-

3567, ¶ 11. And an unconscionable decision is one “that affronts the sense of justice,

decency, or reasonableness.” Id.

{¶ 20} First, to be clear, the trial court revoked community control based on

Foley’s conduct in failing to attend required sober-support meetings, instead submitting

fraudulent sober-support meeting attendance slips, and for consuming alcohol, resulting

in a positive alcohol test—both were stipulated violations of community control; it did

not terminate community control because Foley wrote “fake letters to the judge.” The

court, therefore, did not punish Foley’s conduct “on [its] own initiative” as Foley claims,

and her due process argument is without merit.

{¶ 21} Second, Foley is wrong that the court failed to describe how the letters

altered its disposition of her community-control violations. The trial judge explained at

the sentencing hearing that he had fully intended to send Foley to prison on January 12,

2021, because he did not feel that community control would work because he was “not

convinced that [she] could be honest.” But, the court noted, “you’ve done a lot of things,

and so I’m going to give you the benefit of the doubt.” Important to that decision was

Foley’s “successes as an employee at Cherry Street Mission” and the “letter sen[t] on her

behalf from an employee at Cherry Street Mission.” The very next day, the court learned

that Foley has been discharged from Cherry Street Mission and had forged the letter of

support from A.J. So while it is true that the court considered Foley’s “penchant for

8. dishonesty” when it sentenced her at the January 12, 2021 hearing, the court discovered,

before entering judgment, that Foley had not done the “things” that had persuaded it to

abandon its original plan to impose a prison sentence.

{¶ 22} The court explained in its January 19, 2021 judgment:

The Court also considered that the admitted allegation of a

community control violation was the presentation of false sober support

certificates and that at the hearing of this matter Defendant attempted to

present a falsified letter of support as an original document from a third

party advocating for the Defendant. Considering that Defendant has

presented previous misstatements to the Court, had a violation for

attempting to mislead a probation officer, presented a falsified letter to the

Court and the fact that community control is only effective—particularly

when addressing the needs of an addicted person—if the probationer is

truthful [sic].

{¶ 23} Here, it is undisputed that Foley tested positive for alcohol and failed to

attend required sober-support meetings, instead submitting falsified proofs of attendance,

violating her community-control sanctions. It was within the court’s discretion to impose

the prison terms of which it notified Foley at her original sentencing. And while the

court initially acted against its instincts when it decided to continue community control

on January 12, 2021, it learned of Foley’s deceptive conduct—her untruthful

9. representation that she was employed by Cherry Street Mission and her submission of

forged letters of support—before judgment was entered, in time to convene a new

disposition hearing. See State v. Thompson, 2017-Ohio-1001, 86 N.E.3d 608, ¶ 13 (11th

Dist.) (explaining that criminal sentence is not final until issuance of final order).

{¶ 24} We find no abuse of discretion in the trial court’s decision to terminate

community control and impose the prison sentences of which Foley was informed at her

original sentencing hearing. See, e.g., id. at ¶ 1 (finding no error where after outburst in

court following sentencing and before judgment was entered, trial judge went back on

record and increased defendant’s sentence). See also State v. Bryant, 11th Dist. Lake No.

2019-L-024, 2020-Ohio-438, ¶ 24, appeal allowed, 159 Ohio St.3d 1468, 2020-Ohio-3884,

150 N.E.3d 125, ¶ 24 (“[T]he trial court’s initial order was not final upon the court’s

pronouncement; the court, therefore, possessed the authority to revisit the order and

increase the same.”).

{¶ 25} We find Foley’s assignment of error not well-taken.

III. Conclusion

{¶ 26} The trial court did not abuse its discretion when it convened a new

disposition hearing to address false information and fraudulent letters of support

submitted by Foley in an attempt to avoid stricter sanctions following two admitted

community-control violations. The court had not yet entered judgment following its first-

scheduled disposition hearing when it learned of Foley’s deceit, so it possessed authority

to revisit the order and pronounce a new disposition.

10. {¶ 27} We affirm the January 19, 2021 judgment of the Wood County Court of

Common Pleas. Foley is ordered to pay the costs of this appeal under App.R 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Christine E. Mayle, J. ____________________________ JUDGE Gene A. Zmuda, P.J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

11.