State v. Kelley

2012 Ohio 3938

Opinion

[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.

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