State v. Nethers

2014 Ohio 1579

• Court: Ohio Court of Appeals
• Decided: April 7, 2014
• Docket: 13-CA-67
• Status: Published

Opinion

[Cite as State v. Nethers, 2014-Ohio-1579.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13-CA-67 : WILLIAM J. NETHERS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 12 CR 00213

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: April 7, 2014

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

KENNETH W. OSWALT WILLIAM T. CRAMER LICKING CO. PROSECUTOR 470 Olde Worthington Road, Ste. 200 JUSTIN T. RADIC Westerville, OH 43082 20 S. Second St., Fourth Floor Newark, OH 43055 Licking County, Case No. 13-CA-67 2

Delaney, J.

{¶1} Appellant William J. Nethers appeals from the July 2, 2013 judgment entry

of the Licking County Court of Common Pleas revoking his community control sanction

and imposing a term of six months. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose when appellant accepted $5,952 from a victim to install a

furnace and air conditioning unit and then failed to do any of the work. Appellant was

charged with one count of theft pursuant to R.C. 2913.02(A)(1) and/or (A)(2), a felony of

the fifth degree. On October 30, 2012, appellant appeared before the trial court and

changed his plea to guilty, was found guilty, and sentenced to a term of one year of

community control. Appellant was given 30 days to pay the balance of the restitution; if

he failed to pay the restitution, the trial court would impose a prison term of six months.

{¶3} On May 15, 2013, appellant was back before the trial court on the first

stage of a motion to revoke community control. The probation department alleged

appellant failed to report to probation after sentencing and the trial court found probable

cause existed.

{¶4} At the second-stage hearing on July 21, 2013, appellant argued the only

terms and conditions of his probation were those related to him by the trial court during

sentencing, to wit, payment of the balance of restitution.

{¶5} Appellee called one witness, appellant’s supervising probation officer, who

testified appellant received a copy of the terms and conditions of his probation and

signed same on the day he was sentenced, October 30, 2012. He was ordered to pay

restitution in addition to standard court costs, supervision fees, and attorney fees. He Licking County, Case No. 13-CA-67 3

was also given an appointment card stating the date and time of his next appointment

with the probation department. Appellant signed the terms and conditions

acknowledging receipt.

{¶6} Appellant never showed up for any probation appointments after the date

of sentencing. He did pay the balance of restitution. He made two $25 payments

toward court costs in October and November, but made no subsequent payments. The

probation department deemed appellant to be in violation for failure to appear for

appointments and failure to pay costs.

{¶7} On cross examination, the probation officer stated she would not have told

appellant his probation period would be extinguished by payment of restitution because

the probation period, by its terms, lasted for one year.

{¶8} The trial court found appellant to be in violation of the terms of his

community control sanction and therefore revoked community control and imposed a

term of six months which appellant was permitted to serve in the county jail.

{¶9} Appellant now appeals from the judgment entry of revocation and

imposition of sentence.

{¶10} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶11} “I. THE TRIAL COURT VIOLATED DUE PROCESS AND R.C.

2929.19(B)(5) BY IMPOSING A PRISON TERM FOR VIOLATING COMMUNITY

CONTROL CONDITIONS ON REPORTING AND PAYMENT OF COSTS AND FEES

AFTER THE TRIAL COURT ADVISED APPELLANT AT SENTENCING THAT HE Licking County, Case No. 13-CA-67 4

WOULD BE SUBJECT TO A PERIOD OF INCARCERATION ONLY IF HE FAILED TO

PAY RESTITUTION WITHIN 30 DAYS.”

ANALYSIS

{¶12} Appellant argues the trial court erred in revoking his community control

sanction because his community control was premised solely upon payment of the

balance of restitution, not upon compliance with any other terms and conditions of

probation.

{¶13} R.C. 2929.19(B)(4) states:

If the sentencing court determines at the sentencing hearing that a

community control sanction should be imposed and the court is not

prohibited from imposing a community control sanction, the court

shall impose a community control sanction. The court shall notify

the offender that, if the conditions of the sanction are violated, if

the offender commits a violation of any law, or if the offender leaves

this state without the permission of the court or the offender's

probation officer, the court may impose a longer time under the

same sanction, may impose a more restrictive sanction, or may

impose a prison term on the offender and shall indicate the specific

prison term that may be imposed as a sanction for the violation, as

selected by the court from the range of prison terms for the offense

pursuant to section 2929.14 of the Revised Code. (Emphasis

added.) Licking County, Case No. 13-CA-67 5

{¶14} Appellant argues the trial court erred, not in failing to advise appellant of

the specific term that might be imposed, but in failing to advise him of the terms and

conditions with which he must comply. Appellant contends the trial court stated he was

only required to pay the balance of restitution, and for the trial court to revoke

community control and impose a prison term for violations of any other terms or

conditions violates the Ohio Supreme Court’s holding in State v. Brooks, 103 Ohio St.3d

134, 136, 2004-Ohio-4746, 814 N.E.2d 837. We disagree.

{¶15} In Brooks, supra, the Ohio Supreme Court held, pursuant to R.C.

2929.19(B)(5) [now R.C. 2929.19(B)(4)], supra, a trial court sentencing an offender to a

community control sanction must notify the offender, at the time of the sentencing, of

the specific prison term that may be imposed for a violation of the conditions of the

sanction as a prerequisite to imposing a prison term on the offender for a subsequent

violation. 2004-Ohio-4746 at ¶ 13. To comply with the term “specific” the sentencing

court “should not simply notify the offender that in the event of a violation he will receive

‘the maximum’ or another indefinite term such as ‘up to 12 months,” 'but should inform

the defendant, in straightforward and affirmative language, of the fixed number of

months or years the trial court can impose. Id. at ¶ 19.

{¶16} In the instant case, we find the trial court complied with R.C. 2929.19(B)(4)

and advised appellant he was subject to a one-year period of community control subject

to following through with the terms and conditions of probation; otherwise he was

subject to a prison term of 6 months. Appellant met with the probation officer, signed

and acknowledged the terms and conditions of probation, and made two payments Licking County, Case No. 13-CA-67 6

toward court costs before he stopped paying, belying his argument he was unaware of

any terms and conditions beyond restitution.

{¶17} We find the trial court complied with R.C. 2929.14(B)(4) and are unwilling

to extend the holding of Brooks to imply the trial court must, at sentencing, advise the

appellant of each and every term and condition of probation when that is the role of

court services personnel. Nothing in Brooks or R.C. 2929.14(B)(4) requires such a

finding, particularly when the evidence establishes appellant signed and acknowledged

the terms and conditions of his community control sanction.

{¶18} Appellant’s sole assignment of error is overruled.

CONCLUSION

{¶19} The sole assignment of error is overruled and the judgment of the Licking

County Court of Common Pleas is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Farmer, J., concur.