State v. Lescody

• Court: Ohio Court of Appeals
• Decided: May 28, 2026
• Docket: 25AP0003
• Status: Published

Opinion

[Cite as State v. Lescody, 2026-Ohio-2026.]

IN THE OHIO COURT OF APPEALS FIFTH APPELLATE DISTRICT MORGAN COUNTY, OHIO

STATE OF OHIO, Case No. 25AP0003

Plaintiff - Appellee Opinion And Judgment Entry

-vs- Appeal from the Morgan County Court of Common Pleas, Case No. 23CR0048 THEODORE LEWIS LESCODY, Judgment: Affirmed Defendant - Appellant Date of Judgment Entry: May 28, 2026

BEFORE: Andrew J. King; William B. Hoffman; Robert G. Montgomery, Judges

APPEARANCES: No Appearance, for Plaintiff-Appellee; THEODORE LEWIS LESCODY, Pro se, Defendant-Appellant.

Montgomery, J.

{¶1} Defendant-Appellant, Theodore Lescody (“Appellant”) appeals the

judgment from the Morgan County Court of Common Pleas revoking his community

control and imposing a 13-month prison term. For the reasons below, we AFFIRM.

STATEMENT OF FACTS AND CASE

{¶2} Appellant was originally indicted by a Morgan County grand jury on one

count of trespass in a habitation where a person is present or likely to be present, in

violation of R.C. 2911.12(B), a felony of the fourth degree. Appellant pled guilty. On

July 31, 2024, the court sentenced Appellant to 5 years of community control, with

standard conditions, and 480 hours of community service. At the initial sentencing hearing, the court informed Appellant that if he violated the terms of community control,

he would return to court for imposition of a prison term of up 18 months.

{¶3} Appellant initially reported to his probation officer as required, but in

January 2025, he failed to report for the entire month. Appellant’s probation officer

attempted to contact him multiple times, even driving to his listed address, but with no

success. In February 2025, local officers received reports regarding Appellant in the area

and demonstrating odd behavior, likely indicating drug use. Two specific incidents

included: (1) making threats to his niece and her property, and (2) standing in the niece’s

neighbor’s backyard one day. On February 25, 2025, Appellant’s probation officer located

Appellant and arrested him without incident. Appellant refused any drug tests.

{¶4} On or about March 10, 2025, the Morgan County Prosecutor's Office filed a

motion to revoke community control for failing to report, failing to follow specific

directions related to travel, and making threats to family members. On May 27, 2025, the

court ordered Appellant to return to community control with supervision and ordered

that he complete a residential treatment program. Appellant’s probation officer told him

that under no circumstances was he to enter Morgan County without contacting his

probation officer first.

{¶5} On July 13, 2025, Appellant again violated his community control. That day,

Appellant appeared at his niece’s residence on her front porch, the same niece to whom

Appellant made prior threats. The niece had a Ring doorbell that captured him on video

at her residence. Appellant later admitted to his probation officer that he went to the

residence but did nothing else wrong. Appellant was again arrested. On July 28, 2025,

the Prosecutor’s Office filed the present motion to revoke Appellant’s community control. {¶6} After a probable cause hearing, Appellant appeared via Zoom for the

violation hearing. At the outset, Appellant and his counsel admitted to the violation and

waived a full hearing. The trial court advised Appellant that by admitting the violation,

he faced a prison term of up to 18 months. Appellant understood. The court further

explained that if Appellant completed the residential treatment program, the court would

consider that fact favorably.

{¶7} On November 18, 2025, the resentencing hearing took place and Appellant

appeared with counsel. Appellant called Brandon Penix as a witness, a peer support

specialist from Appellant’s treatment program. Penix stated he takes the guys to the gym,

provides transportation, takes individuals to doctor’s appointments, and “things like

that.” Sent. Tr., at p. 9. Penix is not Appellant’s counselor; all of Appellant’s assignments

for the program run through his specific counselor. Penix stated that Appellant had

grown significantly during his time at the treatment center but still had areas to address.

Penix testified that there had been complaints about Appellant from his counselor, “stuff

about honesty and manipulation, but as far as me personally, I haven’t experienced that.”

Sent. Tr., at 9-10.

{¶8} A report from the treatment program indicated that Appellant was indeed

actively participating through attendance and participation. However, the report also

stated that Appellant was not progressing toward certain program treatment goals. The

report cited several concerns, including using profanity, taking a medication without

prior approval, and attempting to warn another resident who was about to be discovered

in possession of a contraband cellular phone.

{¶9} The State requested that the court impose a prison term. The State argued

that Appellant was being manipulative, did not take his treatment seriously, and did only the bare minimum in treatment to appease the court. Appellant argued in support of

community control and an opportunity to complete the treatment program. Appellant

addressed the court at length. Appellant stated that he took the treatment program

seriously, underwent daily urine screenings, and never failed a test.

{¶10} After hearing the testimony, arguments, and Appellant’s allocution, the trial

court imposed a 13-month prison sentence (less than the 18-month maximum) and

granted 229 days credit for time served. The trial court stated the principles of sentencing

and the required sentencing findings, including that the community control was not

required for trespass in a habitation, a fourth-degree felony, because Appellant has a prior

felony conviction and a prior misdemeanor offense of violence. Sent. Tr., at 21-22. The

trial court reiterated these findings in its sentencing Judgment Entry. Appellant filed a

timely appeal. The State did not submit a Brief in response.

TWO ASSIGNMENTS OF ERROR

{¶11} “I. THE APPELLANT'S SENTENCE IS CONTRARY TO LAW BECAUSE IT WAS BASED ON IMPERMISSIBLE CONSIDERATIONS.”

{¶12} “II. THE TRIAL COURT ERRED BY DEPARTING FROM THE SENTENCING EXPECTATIONS IT PREVIOUSLY ARTICULATED AT THE VIOLATION HEARING AFTER THE APPELLANT REASONABLY RELIED ON AND COMPLIED WITH THOSE EXPECTATIONS.”

LAW AND ANALYSIS

{¶13} Appellant’s two assignments of error are interrelated and will be addressed

together. Appellant claims that in sentencing him, the trial court considered

impermissible factors including: (1) the underlying criminal conduct leading to the

violation; (2) the court's frustration with the length of Lescody's allocution, and (3) trivial

matters stemming from Lescody's conduct while attending treatment. According to Appellant, the record reflects that the trial court's sentencing rationale extended beyond

the admitted violation itself, which is impermissible. We disagree.

Revocation of Community Control was Proper

{¶14} The right to continue on community control depends upon compliance with

the stated conditions and is a matter resting within the sound discretion of the court.

State v. Cunningham, 2015-Ohio-2554, ¶ 10 (2d Dist.). “A revocation of community

control punishes the failure to comply with the terms and conditions of community

control, not the specific conduct that led to the revocation.” See e.g. Cunningham, ¶ 12;

State v. Pinks, 2020-Ohio-537, ¶ 12 (3d Dist.), State v. Williams, 2025-Ohio-461, ¶ 10

(8th Dist.), State v. Watson, 2024-Ohio-504, ¶ 24 (11th Dist.), State v. Sullivan, 2025-

Ohio-4987, ¶ 13 (12th Dist.). Importantly, any violation of community control sanctions

may properly be used to revoke the privilege. State v. Graham, 2022-Ohio-1770, ¶ 39

(5th Dist.); Jones, ¶ 19; State v. Bell, 66 Ohio App.3d 52, 57 (5th Dist. 1990) (“Probation

rests upon the probationer's compliance with the probation conditions and any violation

of those conditions may properly be used to revoke the privilege.”)

{¶15} Once a court finds a violation of the terms of community control, an

appellate court reviews the trial court's decision to revoke a defendant's community

control for an abuse of discretion. Graham, ¶ 39; State v. Shuman, 2010-Ohio-3957, ¶ 27

(5th Dist.). Abuse of discretion implies more than an error in judgment; it is an attitude

that is unreasonable, arbitrary, or unconscionable. Id.; State v. Stricklett, 2025-Ohio-

1247, ¶ 7 (4th Dist.), citing State v. Mehl, 2022-Ohio-1154, ¶ 7 (4th Dist.) (The proper

standard when reviewing decisions revoking community control is an abuse of

discretion). {¶16} As stated, Appellant admitted to the present violation of community control

– traveling to Morgan County without permission and going to his niece’s residence, the

niece to whom he made prior threats. The present violation was not his first. As set forth

above, Appellant previously failed to report, failed to follow specific directions related to

travel, and made threats to family members. After those said violations, Appellant was

given another chance, remained under supervision, and was ordered to complete a

residential treatment program. Unfortunately, although Appellant was making progress

in the program, Appellant still exhibited unfavorable behavior. The trial court gave

Appellant the benefit of the doubt more than once. Thus, there is nothing to demonstrate

that the trial court’s revocation of community control was an arbitrary, unconscionable,

or unreasonable decision under the facts of this case.

{¶17} Upon revoking community control, the trial court may: (1) lengthen the

term of the community control sanction; (2) impose a more restrictive community control

sanction; or (3) impose a prison term on the offender, provided that the prison term is

within the range of prison terms available for the offense for which community control

had been imposed and the term does not exceed the prison term specified in the notice

provided to the offender at the original sentencing hearing. R.C. 2929.15(B). Here, the

trial court determined a 13-month prison term was necessary.

Imposition of a 13-month prison term is not contrary to law

{¶18} After revocation of community control, the subsequent resentencing

imposed involves a separate standard of review. State v. Wiggers, 2026-Ohio-1410, ¶ 51

(4th Dist.). “Once a court determines that community control should be revoked and a

prison term imposed, the trial court's sentencing decision is reviewed under the standard set forth in R.C. 2953.08(G)(2).” Stricklett, ¶ 8, citing Mehl, ¶ 15; State v. Marcum, 2016-

Ohio-1002, ¶ 10.

{¶19} As such, this Court's review is whether the entire record clearly and

convincingly demonstrates that the sentence is contrary to law. A sentence is contrary to

law when it is imposed in a manner inconsistent with the purposes and principles of

felony sentencing set forth in R.C. 2929.11 or when it is based on considerations not

authorized by R.C. 2929.12. Generally, trial courts may generally impose a prison

sentence within the statutory range. State v. Foster, 2006-Ohio-856, ¶ 100. Where a

sentencing court properly considers the purposes and principles of felony sentencing and

the applicable statutory factors, a sentence imposed within the authorized range is

presumptively valid. State v. Hale, 2024-Ohio-2056, ¶ 20 (5th Dist.).

{¶20} Appellant claims that in imposing sentence, the trial court expressly

criticized him for the manner of his allocution and that such frustration is not an

appropriate consideration under the sentencing statutes. Appellant further claims that

the court departed from prior sentencing “expectations.” However, after a review of the

record in its entirety, including the transcript of the resentencing hearing and the

sentencing judgment entry, we conclude that the trial court’s imposition of a 13-month

prison sentence was entirely proper and is not contrary to law.

{¶21} Importantly, when Appellant violated his community control for the second

time, the court gave him a chance to complete the residential treatment program. At that

time, the court clearly informed Appellant that he could receive up to 18 months in prison.

Appellant understood. Months later at the resentencing, the court noted several factors.

Regarding completion of the treatment program, the court referenced the program’s

report and that Appellant’s peers “expressed that he is very rude and cusses everyone at the house.” Id., at 22. Although the trial court commended Appellant for being “clean”

while at the treatment center, the court noted: (1) Appellant had two community control

violations within six months, (2) Appellant was not compliant with the treatment center's

medication rules, (3) Appellant had trouble following the rules at the treatment center,

(4) Appellant had trouble getting along with his peers, and (5) Appellant appeared to do

only the bare minimum. Id., at 23. The court noted that the most recent violation

involved Appellant going to the victim’s residence – the same victim to whom Appellant

made prior threats. In support of the prison term, the court stated:

I’m still dealing with his violation of community control, and he has violated

his community control two times in the past six months. That is, in my

opinion, the most important thing. And in fact, one of those violations had

him going to the home of the person who created his original violation.

So the court’s going to find that he is not amenable to community control.

He’s had two community control violations in the past calendar year, and

then he was - - just five days ago, he was placed on a loss of privileges at - -

by Cardinal Treatment Center for his angry outbursts and not following the

medication rules.

I commend you, Mr. Lescody, for - - for - - for dealing with your substance

abuse disorder. But sir, that’s only part of the issue here. I’m just going to

be blunt with you. You know, you mentioned you’re 61. * * * And I think I

made the comment [at a prior hearing] you should have aged out of all this,

and the problem is getting clean - - you don’t get a star for getting clean.

That’s what you’re expected to do. But the problem is your attitude. And may say you’re not manipulative, but

you - - you are. All right? You attempted to manipulate me during these

hearings by your comments. You just rambled on for like fifteen minutes

when you could have said it all in like three minutes.

And whether you knew it or not, in my opinion, you just keep looking for

the magic word to get -- get your way. And well, what you actually did was

you said the magic words to not get your way.

You - - five days before this hearing, you’re - - you’re getting yourself in

trouble with the people that are most likely to be in your corner which shows

to me you haven’t grown up.

Sent. Tr., at 23-25.

{¶22} Although the court commented on the length of Appellant's allocution,

stating that Appellant “should have been able to keep [his] mouth shut,” it is quite clear

the trial court considered the appropriate sentencing principles and factors aside from

Appellant’s lengthy allocution. Id., at 25. The court stated the principles of sentencing

and sentencing findings, including that community control was not required for trespass

in a habitation, a fourth-degree felony, because Appellant had a prior felony conviction

and a prior misdemeanor offense of violence. Sent. Tr., at 21-22. The court reiterated

these findings in its sentencing Judgment Entry.

{¶23} The record clearly demonstrates the trial court in fact believed Appellant

was trying to manipulate the court. The court’s frustration was with his manipulation,

not the allocution itself. Considering the record in its entirety, Appellant’s violations of

community control, the fact that the court warned Appellant that an 18-month prison

term could be imposed, and the court’s consideration of the sentencing principles and factors, there is significant evidence to support the imposition of the prison term. Thus,

the entire record does not clearly and convincingly demonstrate that the sentence is

contrary to law. Accordingly, Appellant’s first and second assignments of error

are overruled in their entirety.

CONCLUSION

{¶24} Appellant’s first and second assignments of error are overruled in their

entirety. For the reasons stated in our accompanying Opinion, the judgment of the

Morgan County Court of Common Pleas is Affirmed.

{¶25} Costs to Appellant.

By: Montgomery, J.

King, P.J. and

Hoffman, J. concur.