State v. Kirk

2016 Ohio 2676

• Court: Ohio Court of Appeals
• Decided: April 21, 2016
• Docket: 2015 CA 00005
• Status: Published

Opinion

[Cite as State v. Kirk, 2016-Ohio-2676.]

COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P. J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. -vs- : : Case No. 2015 CA 0005 DAVID KIRK : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2012 CRB 4355

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 21, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHARLES S. HOWLAND KEVIN P. COLLINS PROSECUTING ATTORNEY 1241 East Center Street THOMAS J. SMITH Suite C ASSISTANT PROSECUTOR Marion, Ohio 43302 60 East High Street Mt. Gilead, Ohio 43308 [Cite as State v. Kirk, 2016-Ohio-2676.]

Wise, J.

{¶1} Defendant-Appellant David Kirk appeals the August 10, 2015, Judgment

Entry of the Morrow County Common Pleas Court entering his guilty plea and making a

finding of guilt following a revocation hearing.

{¶2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} On July 11, 2012, a criminal complaint was filed charging Appellant David

Kirk with one count of Domestic Violence, in violation of R.C. §2919.25(A).

{¶4} On May 9, 2013, Appellant entered a plea of "not guilty".

{¶5} On January 21, 2014, Appellant appeared with counsel and withdrew the

"not guilty plea" and entered a plea of "guilty." At that time, the trial court did not accept

the guilty plea. Instead it placed Appellant on Diversion for a period of one (1) year. By a

journal entry executed on that date, Appellant was ordered, as conditions of the diversion

program to: 1) obtain a domestic violence evaluation; 2) comply with any counseling

recommended by that evaluation; 3) commit no acts of violence while on Diversion; 4)

abide by the terms and conditions imposed by the Probation Department; 5) keep the

Court informed of his current address; and, 6) pay court costs. The Judgment Entry was

signed by Appellant, his counsel, the alleged victim, an assistant prosecutor and the

presiding judge. The trial court indicated that if Appellant complied with the above

conditions the case would be dismissed.

{¶6} On November 4, 2014, Appellant signed corrected special conditions of

probation, which ordered that Appellant not purchase, possess or use any alcohol or

intoxicating liquor. Morrow County, Case No. 2015 CA 0005 3

{¶7} On November 4, 2014, the State filed a motion to revoke Appellant’s

Diversion. A hearing was scheduled on the revocation motion for December 8, 2014.

{¶8} On December 8, 2014, the trial court sua sponte continued the hearing to

January 12, 2014.

{¶9} On January 12, 2015, a revocation hearing was held. By Judgment Entry

filed January 12, 2015, the Diversion program was extended by six (6) months.

{¶10} On June 22, 2015, the State filed a second motion to revoke Appellant’s

Diversion. A hearing date was set for July 13, 2015.

{¶11} On July 13, 2015, the trial court extended the Diversion for two months, and

rescheduled the diversion revocation hearing to August 10, 2015. The trial court

stated in its Entry that the court “had the wrong address” for Appellant “so he was

not getting notices”.

{¶12} On August 10, 2015, after hearing testimony and reviewing the record, the

trial court accepted Appellant’s previously entered plea of "guilty," and found Appellant

guilty of Domestic violence. The trial court then proceeded to sentence Appellant on the

domestic violence charge.

{¶13} Appellant now appeals, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶14} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT BY REVOKING HIS DIVERSION PROGRAM AFTER THE TERM OF

DIVERSION HAD EXPIRED.

{¶15} “II. INSUFFICIENT EVIDENCE SUPPORTED THE REVOCATION OF

DEFENDANT-APPELLANT'S DIVERSION PROGRAM.” Morrow County, Case No. 2015 CA 0005 4

I., II.

{¶16} Appellant, in his First and Second Assignments of Error, Appellant claims

that the trial court erred in revoking his diversion program. We disagree.

{¶17} More specifically, Appellant argues that the term of his Diversion had

expired prior to the trial court’s revocation, and therefore the court was without jurisdiction

to do so. Appellant also argues that there was insufficient evidence to support revocation

of his Diversion program.

{¶18} Initially, we find that the term of Appellant’s Diversion has not expired. The

record reflects that Appellant was first placed on Diversion on January 21, 2014, for a

twelve (12) month period which would have expired on January 21, 2015. However, at a

revocation hearing held on January 12, 2015, the trial court extended the term for six (6)

months, or July 21, 2015. Then on July 13, 2015, the trial again extended the term for two

(2) month, moving the expiration date to September 21, 2015. The hearing which resulted

in revocation was held on August 10, 2015, prior to the expiration of the extended

Diversion Program.

{¶19} We further find sufficient evidence of violation of the terms of Appellant’s

Diversion program was presented to support the revocation in this matter.

{¶20} In the January 21, 2014, Journal Entry placing Appellant into the Diversion

Program, the parties agreed “that in the event the State of Ohio proves by a

preponderance of the evidence that the Defendant violated the terms or conditions of the

Diversion Program, the Defendant’s plea of GUILTY may be accepted by this Court and

the Defendant will immediately be sentenced on the original charge of Domestic

Violence.” Morrow County, Case No. 2015 CA 0005 5

{¶21} At the hearing held on August 20, 2015, evidence and testimony was

presented by Appellant’s Probation Officer Victoria Duffee. Ms. Duffee testified that

pursuant to terms of his Diversion Program, Appellant had been ordered not to possess

or consume alcohol. (T. at 6-7). Testimony was then presented by Morrow County Sheriff

Deputy Christopher Smith that on June 12, 2015, he responded to a call involving

Appellant and his wife, and that Appellant appeared to be under the influence of alcohol,

had the odor of alcohol coming from his person, and admitting to consuming alcohol. (T.

at 10, 12-14).

{¶22} Based on the foregoing, we find Appellant’s Assignments of Error not well-

taken and overrule same.

{¶23} For the foregoing reasons, the judgment of the Court of Common Pleas,

Morrow County, Ohio, is affirmed.

By: Wise, J.

Farmer, P. J., and

Hoffman, J., concur.

JWW/d 0329