[Cite as State v. Shipman, 2016-Ohio-3295.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P. J. : Hon. William B. Hoffman Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : Case No. 2016 AP 01 0002 : : CHELITA L. SHIPMAN : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2014 CR 09 0207
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 3, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
RYAN STYER GERALD A. LATANICH PROSECUTING ATTORNEY Public Defender AMANDA K. MILLER 153 North Broadway ASSISTANT PROSECUTOR New Philadelphia, Ohio 44663 125 East High Avenue New Philadelphia, Ohio 44663 [Cite as State v. Shipman, 2016-Ohio-3295.]
Wise, J.,
{¶1} Defendant-Appellant Chelita L. Shipman appeals the decision of the
Tuscarawas County Common Pleas Court imposing a prison sentence following a
violation of community control sanctions.
{¶2} Plaintiff-Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On July 15, 2015, Appellant Chelita L. Shipman was placed on Community
Control Sanctions for 3 years, following a guilty plea on one count of Felony Theft, a
felony of the 5th Degree. As a term of her Community Control Sanction, Appellant was
ordered to successfully complete the SRCCC program. The sentencing entry also
notified Appellant “[t]he Court will impose a twelve (12) month sentence in the
appropriate State Penal Institution of the Ohio Department of Rehabilitation and
Correction if the Community Control Sanctions imposed above are violated.”
{¶4} On December 22, 2015, a Motion to Revoke the Community Control
Sanctions was filed alleging Appellant had been terminated from the Stark Regional
Community Corrections Center.
{¶5} On January 4, 2016, the trial court held a hearing on the motion to revoke.
At the hearing, Appellant admitted she had been terminated but disputed the
underlying reasons for the termination.
{¶6} The trial court revoked the Community Control Sanctions and ordered
Appellant to serve the remainder of her prison sentence: twelve (12) months with one
hundred fifty-two (152) days credit.
{¶7} Appellant now appeals, assigning the following error for review: Tuscarawas County Case No. 2016 AP 01 0002 3
ASSIGNMENT OF ERROR
{¶8} “I. A COURT ERRS IN IMPOSING A PRISON SENTENCE ON A
MOTION TO REVOKE COMMUNITY CONTROL SANCTIONS WHEN IT BASES THE
DECISION ON THE APPELLANTS STATUS AT THE TIME OF THE ORIGINAL
SENTENCING NOT FOR THE COMMUNITY CONTROL SANCTION.”
I.
{¶9} In her sole Assignment of Error, Appellant contends the trial court erred in
ordering her to serve the remainder of her prison sentence following a revocation of her
community control sanction. We disagree.
{¶10} As explained by this Court in State v. Gullet, 5th Dist. Muskingum No.
CT2006–0010, 2006–Ohio–6564, ¶ 23, “[o]nce a court finds that a defendant violated
the terms of probation, the decision whether to revoke probation lies within the court's
sound discretion.” In order to find an abuse of discretion, we must determine the trial
court's decision was unreasonable, arbitrary or unconscionable and not merely an error
of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
{¶11} Pursuant to R.C. §2929.15(B), if an offender violates a condition of
community control, a trial court may impose:
(a) A longer time under the same sanction if the total time under the sanctions
does not exceed the five-year limit specified in division (A) of this section;
(b) A more restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the
Revised Code;
(c) A prison term on the offender pursuant to section 2929.14 of the Revised
Code. Tuscarawas County Case No. 2016 AP 01 0002 4
{¶12} Subsection (B)(2) provides:
The prison term, if any, imposed upon a violator pursuant to this division shall be
within the range of prison terms available for the offense for which the sanction
that was violated was imposed and shall not exceed the prison term specified in
the notice provided to the offender at the sentencing hearing pursuant to division
(B)(2) of section 2929.19 of the Revised Code. The court may reduce the longer
period of time that the offender is required to spend under the longer sanction,
the more restrictive sanction, or a prison term imposed pursuant to this division
by the time the offender successfully spent under the sanction that was initially
imposed.
{¶13} The gravamen of this assignment is what mechanics or “magic words”
must a trial court use in revoking community control sanctions. Appellant argues the
trial court's original findings during the 2015 sentencing hearing are insufficient and a
fait accompli. Appellant argues the trial court must evaluate the community control
violation and determine the appropriate punishment under R.C. §2929.11 and
§2929.12 again. See State v. Jamerson, 5th Dist. Tuscarawas No. 2014 AP 09 0034,
2015-Ohio-2284, ¶¶ 8-11
{¶14} In sentencing Appellant to three years of community control sanctions, the
trial court stated the following during the original sentencing hearing :
"The factors under R.C. 2929.12 for increasing and decreasing seriousness are
not present. The applicable factors under R.C. 2929.12 indicating that recidivism
is more likely outweigh those indicating that recidivism is less likely." The court
discussed in its sentencing entry the basis for its finding that recidivism was more Tuscarawas County Case No. 2016 AP 01 0002 5
likely including, "the offender has prior adjudications of delinquency," "the
offender has a prior history of criminal convictions," "the offender has not been
rehabilitated to a satisfactory degree," "the offender expresses no genuine
remorse," and "the offender's ORAS score is ... high risk." The trial court chose to
impose three years of community control sanctions with a relevant term being “4.
That the Defendant successfully complete the S.R.C.C.C. Program and any
recommended substance abuse treatment or counseling."
{¶15} The sentencing entry then notified Appellant that, "[t]he Court will impose
a twelve (12) month sentence in the appropriate State Penal Institution of the Ohio
Department of Rehabilitation and Correction, if the Community Control Sanctions
imposed above are violated."
{¶16} At the revocation hearing on January 4, 2016, the following exchange took
place:
COURT: And knowing that, do you admit that on December fourteen, two
thousand fifteen, you were unsatisfactorily terminated from the S-R-C-C-C
treatment program?
THE DEFENDANT: Yes.
THE COURT: Okay. Thank you, you can be seated. Will find that Ms. Shipman
knows and understands her rights, has voluntarily waived those rights. The
conduct does violate the terms and conditions of supervision imposed by the
Court on July thirteen, two thousand fifteen, as a term and condition of
supervision. (T. at 3).
{¶17} The trial court then imposed sentence as follows: Tuscarawas County Case No. 2016 AP 01 0002 6
THE COURT: Okay. Well, obviously if you snuck it in there, you knew it was the
wrong thing to do. The, when I look back at the sentencing entry in this case from
July, the, the opportunity to complete S-R-C-C-C was, was really your best
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[Cite as State v. Shipman, 2016-Ohio-3295.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P. J. : Hon. William B. Hoffman Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : Case No. 2016 AP 01 0002 : : CHELITA L. SHIPMAN : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2014 CR 09 0207
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 3, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
RYAN STYER GERALD A. LATANICH PROSECUTING ATTORNEY Public Defender AMANDA K. MILLER 153 North Broadway ASSISTANT PROSECUTOR New Philadelphia, Ohio 44663 125 East High Avenue New Philadelphia, Ohio 44663 [Cite as State v. Shipman, 2016-Ohio-3295.]
Wise, J.,
{¶1} Defendant-Appellant Chelita L. Shipman appeals the decision of the
Tuscarawas County Common Pleas Court imposing a prison sentence following a
violation of community control sanctions.
{¶2} Plaintiff-Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On July 15, 2015, Appellant Chelita L. Shipman was placed on Community
Control Sanctions for 3 years, following a guilty plea on one count of Felony Theft, a
felony of the 5th Degree. As a term of her Community Control Sanction, Appellant was
ordered to successfully complete the SRCCC program. The sentencing entry also
notified Appellant “[t]he Court will impose a twelve (12) month sentence in the
appropriate State Penal Institution of the Ohio Department of Rehabilitation and
Correction if the Community Control Sanctions imposed above are violated.”
{¶4} On December 22, 2015, a Motion to Revoke the Community Control
Sanctions was filed alleging Appellant had been terminated from the Stark Regional
Community Corrections Center.
{¶5} On January 4, 2016, the trial court held a hearing on the motion to revoke.
At the hearing, Appellant admitted she had been terminated but disputed the
underlying reasons for the termination.
{¶6} The trial court revoked the Community Control Sanctions and ordered
Appellant to serve the remainder of her prison sentence: twelve (12) months with one
hundred fifty-two (152) days credit.
{¶7} Appellant now appeals, assigning the following error for review: Tuscarawas County Case No. 2016 AP 01 0002 3
ASSIGNMENT OF ERROR
{¶8} “I. A COURT ERRS IN IMPOSING A PRISON SENTENCE ON A
MOTION TO REVOKE COMMUNITY CONTROL SANCTIONS WHEN IT BASES THE
DECISION ON THE APPELLANTS STATUS AT THE TIME OF THE ORIGINAL
SENTENCING NOT FOR THE COMMUNITY CONTROL SANCTION.”
I.
{¶9} In her sole Assignment of Error, Appellant contends the trial court erred in
ordering her to serve the remainder of her prison sentence following a revocation of her
community control sanction. We disagree.
{¶10} As explained by this Court in State v. Gullet, 5th Dist. Muskingum No.
CT2006–0010, 2006–Ohio–6564, ¶ 23, “[o]nce a court finds that a defendant violated
the terms of probation, the decision whether to revoke probation lies within the court's
sound discretion.” In order to find an abuse of discretion, we must determine the trial
court's decision was unreasonable, arbitrary or unconscionable and not merely an error
of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
{¶11} Pursuant to R.C. §2929.15(B), if an offender violates a condition of
community control, a trial court may impose:
(a) A longer time under the same sanction if the total time under the sanctions
does not exceed the five-year limit specified in division (A) of this section;
(b) A more restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the
Revised Code;
(c) A prison term on the offender pursuant to section 2929.14 of the Revised
Code. Tuscarawas County Case No. 2016 AP 01 0002 4
{¶12} Subsection (B)(2) provides:
The prison term, if any, imposed upon a violator pursuant to this division shall be
within the range of prison terms available for the offense for which the sanction
that was violated was imposed and shall not exceed the prison term specified in
the notice provided to the offender at the sentencing hearing pursuant to division
(B)(2) of section 2929.19 of the Revised Code. The court may reduce the longer
period of time that the offender is required to spend under the longer sanction,
the more restrictive sanction, or a prison term imposed pursuant to this division
by the time the offender successfully spent under the sanction that was initially
imposed.
{¶13} The gravamen of this assignment is what mechanics or “magic words”
must a trial court use in revoking community control sanctions. Appellant argues the
trial court's original findings during the 2015 sentencing hearing are insufficient and a
fait accompli. Appellant argues the trial court must evaluate the community control
violation and determine the appropriate punishment under R.C. §2929.11 and
§2929.12 again. See State v. Jamerson, 5th Dist. Tuscarawas No. 2014 AP 09 0034,
2015-Ohio-2284, ¶¶ 8-11
{¶14} In sentencing Appellant to three years of community control sanctions, the
trial court stated the following during the original sentencing hearing :
"The factors under R.C. 2929.12 for increasing and decreasing seriousness are
not present. The applicable factors under R.C. 2929.12 indicating that recidivism
is more likely outweigh those indicating that recidivism is less likely." The court
discussed in its sentencing entry the basis for its finding that recidivism was more Tuscarawas County Case No. 2016 AP 01 0002 5
likely including, "the offender has prior adjudications of delinquency," "the
offender has a prior history of criminal convictions," "the offender has not been
rehabilitated to a satisfactory degree," "the offender expresses no genuine
remorse," and "the offender's ORAS score is ... high risk." The trial court chose to
impose three years of community control sanctions with a relevant term being “4.
That the Defendant successfully complete the S.R.C.C.C. Program and any
recommended substance abuse treatment or counseling."
{¶15} The sentencing entry then notified Appellant that, "[t]he Court will impose
a twelve (12) month sentence in the appropriate State Penal Institution of the Ohio
Department of Rehabilitation and Correction, if the Community Control Sanctions
imposed above are violated."
{¶16} At the revocation hearing on January 4, 2016, the following exchange took
place:
COURT: And knowing that, do you admit that on December fourteen, two
thousand fifteen, you were unsatisfactorily terminated from the S-R-C-C-C
treatment program?
THE DEFENDANT: Yes.
THE COURT: Okay. Thank you, you can be seated. Will find that Ms. Shipman
knows and understands her rights, has voluntarily waived those rights. The
conduct does violate the terms and conditions of supervision imposed by the
Court on July thirteen, two thousand fifteen, as a term and condition of
supervision. (T. at 3).
{¶17} The trial court then imposed sentence as follows: Tuscarawas County Case No. 2016 AP 01 0002 6
THE COURT: Okay. Well, obviously if you snuck it in there, you knew it was the
wrong thing to do. The, when I look back at the sentencing entry in this case from
July, the, the opportunity to complete S-R-C-C-C was, was really your best
chance at community sanctions. I know that your criminal history started from
thirteen years old, you had even high level juvenile felonies, and a long history of
Court involvement, prior incarceration. The offense in this case, the theft offense,
was committed shortly after release from post-release control and you were, you
presented with a very high risk score of thirty-five. All of those things really would
have pointed to a prison term being imposed right out of the gate, and I gave you
the opportunity to successfully complete this program. I, I'm going to find that it is
appropriate to revoke the supervision and impose the twelve months with the one
hundred fifty-two days credit, plus the Court costs in this case. And would remind
you that post-release control is optional for up to three years. If you fail to follow
post-release control supervision requirements, they could, the parole board could
return you to prison for up to six additional months, or give you greater
restrictions to follow while under supervision. If you commit a new felony offense
while you're on post-release control, you risk having the additional time added to
your sentence for the new felony. And, so while you're at the prison, you might be
able to earn days of credit if you productively participate in their programming.
That is something you can make further inquiry about when you get there. Okay.
Thank you. (T. at 6-7).
{¶18} Appellant argues that the trial court’s sentence is a punishment for
violating the court’s “contract for leniency”. Tuscarawas County Case No. 2016 AP 01 0002 7
{¶19} Upon review, we find Appellant’s argument not well-taken. The trial court
made references to Appellant’s prior history, her ORAS score, and the short time
period between the current theft offense and her release from post-release control in
another case. Based on the foregoing, we find that the trial court clearly reviewed the
sentencing purposes and the factors set forth in R.C. §2929.11 and §2929.12.
{¶20} Appellant’s assignment of error is overruled.
{¶21} The judgment of the Court of Common Pleas, Tuscarawas County, Ohio is
affirmed.
By: Wise, J.
Gwin, P.J., and
Hoffman, J., concur.
JWW/d 0517