[Cite as State v. Tingler , 2011-Ohio-3802.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 10-CA-49 ROBERT S. TINGLER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Common Pleas Court, Case No. 08-CR-379
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 1, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX THOMAS R. ELWING Assistant Prosecuting Attorney 60 West Columbus Street Fairfield County, Ohio Pickerington, Ohio 43147 239 W. Main Street, Ste. 101 Lancaster, Ohio 43130 Fairfield County, Case No. 10-CA-49 2
Hoffman, J.
{¶1} Defendant-appellant Robert S. Tingler appeals his conviction entered by
the Fairfield County Court of Common Pleas for violating the terms of his community
control. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE
{¶2} On October 31, 2008, Appellant plead guilty to one count of escape, in
violation of R.C. 2921.34(A)(1) and (C)(2)(a), and was sentenced to two years of
suspended incarceration and three years of community control.
{¶3} On April 22, 2010, the State of Ohio filed a motion to revoke Appellant’s
community control in the Fairfield County Court of Common Pleas, alleging Appellant
violated the terms of his community control by failing to report and by committing
additional crimes while on community control. At the hearing on the motion to revoke,
the State introduced the testimony of a probation officer who did not supervise
Appellant’s probation, but testified Appellant failed to report.
{¶4} Via Judgment Entry of September 3, 2010, the trial court found Appellant
had violated the terms of his community control, and imposed the original two year
sentence of incarceration. Appellant now appeals, assigning as error:
{¶5} “I. THE TRIAL COURT ERRED IN FINDING APPELLANT VIOLATED HIS
COMMUNITY CONTROL BY FAILING TO REPORT TO HIS PROBATION OFFICER,
BECAUSE THIS FINDING WAS BASED ON EVIDENCE PRESENTED IN VIOLATION
OF APPELLANT’S DUE PROCESS RIGHT TO CONFRONT AND CROSS-EXAMINE
ADVERSE WITNESSES AS GUARANTEED BY THE FOURTEENTH AMENDMENT Fairfield County, Case No. 10-CA-49 3
TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE
OHIO CONSTITUTION.
{¶6} “II. THE TRIAL COURT ERRED IN FINDING APPELLANT VIOLATED
HIS COMMUNITY CONTROL BY COMMITTING ADDITIONAL CRIMINAL OFFENSES,
AS THIS FINDING WAS NOT SUPPORTED BY EVIDENCE PROVING THE
ADDITIONAL OFFENSES WERE COMMITTED DURING THE TERM OF
APPELLANT’S COMMUNITY CONTROL, THUS APPELLANT WAS DENIED DUE
PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO
CONSTITUTION.”
II.
{¶7} We will address Appellant’s second assignment of error first as we find it
relevant in our analysis of Appellant’s first assigned error.
{¶8} Appellant argues the trial court erred in allowing the State to present
evidence Appellant was convicted of additional criminal offenses in another county while
on community control, because the State did not establish the crimes were committed
during the term of Appellant’s community of control.
{¶9} At the revocation hearing, the State presented two certified copies of
judgment entries from the Franklin County Common Pleas Court stating Appellant had
been convicted of obstructing justice and attempted burglary on February 23, 2010.
Appellant argues the State did not establish the two offenses were actually committed
by Appellant during the term of Appellant’s community control for the case herein in
Fairfield County. Fairfield County, Case No. 10-CA-49 4
{¶10} At the revocation hearing, the trial court stated on the record,
{¶11} “The Court finds, based on the evidence presented, that there is
substantial evidence of violation of community control and they would be a violation of
Term No. 5 alleging that Mr. Tingler failed to maintain good behavior and/or obey the
laws of the State of Ohio.
{¶12} “The Court finds from the evidence that there is substantial evidence that
there were two convictions out of Franklin County, two felony convictions occurring on
February 23rd of 2010, and that those charges and convictions arose and were
concluded while Mr. Tingler was on community control for this case.”
{¶13} Tr. at 39-40.
{¶14} Additionally, at the revocation hearing, Appellant himself testified to his
incarceration in Franklin County and his failure to report pursuant to the terms of his
community control as a result thereof,
{¶15} “Q. And let’s go back in time. How long have you been incarcerated all
together?
{¶16} “A. Eight months.
{¶17} “Q. Eight months. When were you - - this last time, when did you go into
jail?
{¶18} “A. I went in January 1st.
{¶19} “Q. January 1st, January 2nd?
{¶20} “A. January 2nd, I’m sorry.
{¶21} “Q. And what jail did you go to?
{¶22} “A. Franklin County Jail. Fairfield County, Case No. 10-CA-49 5
{¶23} “Q. The Franklin County Jail?
{¶24} “A. Yes, sir.
{¶25} “Q. And why did you go to the Franklin County Jail?
{¶26} “A. For the charges in front of us today.
{¶27} “Q. Okay. So you’ve been continuously incarcerated since that date?
{¶28} “A. Yes, sir.
{¶29} “Q. Okay. Do you know the last date you reported to your Adult Probation
Authority officer in Columbus?
{¶30} “A. Yes, sir.
{¶31} “Q. What date was that?
{¶32} “A. It was - - exact day, I’m not sure, but it was roughly five or six months
prior to January of 2010.
{¶33} “Q. Were you given terms and conditions for supervision in Franklin
County?
{¶34} “A. Yes sir.
{¶35} “Q. How many times did you meet with the Probation Department here in
Fairfield County?
{¶36} “A. Two times.
{¶37} “Q. Two times? And when was that?
{¶38} “A. That was the day I was released from Fairfield County Jail and one
week later.
{¶39} “Q. And when were you released from the Fairfield County Jail, do you
know? Fairfield County, Case No. 10-CA-49 6
{¶40} “A. I believe it was November 20th. I believe that was the day I was
released. I believe that was the day I was placed on probation here.
{¶41} “Q. Okay. And you met with them one time after that as well?
{¶42} “A. Yes, a week later.”
{¶43} Tr. at 33-34.
{¶44} Also, on cross-examination, Appellant testified,
{¶45} “Q. Okay. And that’s when you were incarcerated in Franklin County?
{¶46} “A. Yes, ma’am.
{¶47} “Q. Okay. And you were convicted of a fifth-degree felony, obstructing
justice; a third-degree felony, attempted burglary; and a fifth-degree felony, illegal
processing of drug documents?
{¶48} “A. Yeah. It was the felony-five, obstruction, and they dropped the felony-
three, burglary, to a felony-four, attempted burglary. And they threw the illegal drug
documents out all together. So I pled out - - -
{¶49} “Q. Not according to the court entries.
{¶50} “But you have been convicted of two felonies. And what dates were you
convicted of those?
{¶51} “A. I was convicted February 23rd.
{¶52} “Q. Okay. And you were - - -
{¶53} “A. The Court: What year?
{¶54} “The Defendant: 2010.
{¶55} “The Court: Okay.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Tingler , 2011-Ohio-3802.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 10-CA-49 ROBERT S. TINGLER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Common Pleas Court, Case No. 08-CR-379
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 1, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX THOMAS R. ELWING Assistant Prosecuting Attorney 60 West Columbus Street Fairfield County, Ohio Pickerington, Ohio 43147 239 W. Main Street, Ste. 101 Lancaster, Ohio 43130 Fairfield County, Case No. 10-CA-49 2
Hoffman, J.
{¶1} Defendant-appellant Robert S. Tingler appeals his conviction entered by
the Fairfield County Court of Common Pleas for violating the terms of his community
control. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE
{¶2} On October 31, 2008, Appellant plead guilty to one count of escape, in
violation of R.C. 2921.34(A)(1) and (C)(2)(a), and was sentenced to two years of
suspended incarceration and three years of community control.
{¶3} On April 22, 2010, the State of Ohio filed a motion to revoke Appellant’s
community control in the Fairfield County Court of Common Pleas, alleging Appellant
violated the terms of his community control by failing to report and by committing
additional crimes while on community control. At the hearing on the motion to revoke,
the State introduced the testimony of a probation officer who did not supervise
Appellant’s probation, but testified Appellant failed to report.
{¶4} Via Judgment Entry of September 3, 2010, the trial court found Appellant
had violated the terms of his community control, and imposed the original two year
sentence of incarceration. Appellant now appeals, assigning as error:
{¶5} “I. THE TRIAL COURT ERRED IN FINDING APPELLANT VIOLATED HIS
COMMUNITY CONTROL BY FAILING TO REPORT TO HIS PROBATION OFFICER,
BECAUSE THIS FINDING WAS BASED ON EVIDENCE PRESENTED IN VIOLATION
OF APPELLANT’S DUE PROCESS RIGHT TO CONFRONT AND CROSS-EXAMINE
ADVERSE WITNESSES AS GUARANTEED BY THE FOURTEENTH AMENDMENT Fairfield County, Case No. 10-CA-49 3
TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE
OHIO CONSTITUTION.
{¶6} “II. THE TRIAL COURT ERRED IN FINDING APPELLANT VIOLATED
HIS COMMUNITY CONTROL BY COMMITTING ADDITIONAL CRIMINAL OFFENSES,
AS THIS FINDING WAS NOT SUPPORTED BY EVIDENCE PROVING THE
ADDITIONAL OFFENSES WERE COMMITTED DURING THE TERM OF
APPELLANT’S COMMUNITY CONTROL, THUS APPELLANT WAS DENIED DUE
PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO
CONSTITUTION.”
II.
{¶7} We will address Appellant’s second assignment of error first as we find it
relevant in our analysis of Appellant’s first assigned error.
{¶8} Appellant argues the trial court erred in allowing the State to present
evidence Appellant was convicted of additional criminal offenses in another county while
on community control, because the State did not establish the crimes were committed
during the term of Appellant’s community of control.
{¶9} At the revocation hearing, the State presented two certified copies of
judgment entries from the Franklin County Common Pleas Court stating Appellant had
been convicted of obstructing justice and attempted burglary on February 23, 2010.
Appellant argues the State did not establish the two offenses were actually committed
by Appellant during the term of Appellant’s community control for the case herein in
Fairfield County. Fairfield County, Case No. 10-CA-49 4
{¶10} At the revocation hearing, the trial court stated on the record,
{¶11} “The Court finds, based on the evidence presented, that there is
substantial evidence of violation of community control and they would be a violation of
Term No. 5 alleging that Mr. Tingler failed to maintain good behavior and/or obey the
laws of the State of Ohio.
{¶12} “The Court finds from the evidence that there is substantial evidence that
there were two convictions out of Franklin County, two felony convictions occurring on
February 23rd of 2010, and that those charges and convictions arose and were
concluded while Mr. Tingler was on community control for this case.”
{¶13} Tr. at 39-40.
{¶14} Additionally, at the revocation hearing, Appellant himself testified to his
incarceration in Franklin County and his failure to report pursuant to the terms of his
community control as a result thereof,
{¶15} “Q. And let’s go back in time. How long have you been incarcerated all
together?
{¶16} “A. Eight months.
{¶17} “Q. Eight months. When were you - - this last time, when did you go into
jail?
{¶18} “A. I went in January 1st.
{¶19} “Q. January 1st, January 2nd?
{¶20} “A. January 2nd, I’m sorry.
{¶21} “Q. And what jail did you go to?
{¶22} “A. Franklin County Jail. Fairfield County, Case No. 10-CA-49 5
{¶23} “Q. The Franklin County Jail?
{¶24} “A. Yes, sir.
{¶25} “Q. And why did you go to the Franklin County Jail?
{¶26} “A. For the charges in front of us today.
{¶27} “Q. Okay. So you’ve been continuously incarcerated since that date?
{¶28} “A. Yes, sir.
{¶29} “Q. Okay. Do you know the last date you reported to your Adult Probation
Authority officer in Columbus?
{¶30} “A. Yes, sir.
{¶31} “Q. What date was that?
{¶32} “A. It was - - exact day, I’m not sure, but it was roughly five or six months
prior to January of 2010.
{¶33} “Q. Were you given terms and conditions for supervision in Franklin
County?
{¶34} “A. Yes sir.
{¶35} “Q. How many times did you meet with the Probation Department here in
Fairfield County?
{¶36} “A. Two times.
{¶37} “Q. Two times? And when was that?
{¶38} “A. That was the day I was released from Fairfield County Jail and one
week later.
{¶39} “Q. And when were you released from the Fairfield County Jail, do you
know? Fairfield County, Case No. 10-CA-49 6
{¶40} “A. I believe it was November 20th. I believe that was the day I was
released. I believe that was the day I was placed on probation here.
{¶41} “Q. Okay. And you met with them one time after that as well?
{¶42} “A. Yes, a week later.”
{¶43} Tr. at 33-34.
{¶44} Also, on cross-examination, Appellant testified,
{¶45} “Q. Okay. And that’s when you were incarcerated in Franklin County?
{¶46} “A. Yes, ma’am.
{¶47} “Q. Okay. And you were convicted of a fifth-degree felony, obstructing
justice; a third-degree felony, attempted burglary; and a fifth-degree felony, illegal
processing of drug documents?
{¶48} “A. Yeah. It was the felony-five, obstruction, and they dropped the felony-
three, burglary, to a felony-four, attempted burglary. And they threw the illegal drug
documents out all together. So I pled out - - -
{¶49} “Q. Not according to the court entries.
{¶50} “But you have been convicted of two felonies. And what dates were you
convicted of those?
{¶51} “A. I was convicted February 23rd.
{¶52} “Q. Okay. And you were - - -
{¶53} “A. The Court: What year?
{¶54} “The Defendant: 2010.
{¶55} “The Court: Okay. Fairfield County, Case No. 10-CA-49 7
{¶56} “Q. And you were on probation on this particular case in Fairfield County
in February of 2010; correct?
{¶57} “A. No, ma’am. I was under the impression that I was on probation in
Columbus, APA.
{¶58} “Q. Okay. You were reporting to them, but it was probation because of the
felony in this county; correct?
{¶59} “A. Yeah.”
{¶60} Tr. at 38-39.
{¶61} Upon review of the above, we find Appellant admitted to violating his
Fairfield County reporting requirement due to his incarceration in Franklin County.
Therefore, Appellant cannot demonstrate prejudice as a result of the alleged error. The
second assignment of error is overruled.
I.
{¶62} Based upon our analysis and disposition of Appellant’s second
assignment of error, we find Appellant’s first assignment of error moot under the two
issue rule. Fairfield County, Case No. 10-CA-49 8
{¶63} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN
s/ John W. Wise _____________________ HON. JOHN W. WISE Fairfield County, Case No. 10-CA-49 9
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ROBERT S. TINGLER : : Defendant-Appellant : Case No. 10-CA-49
For the reason stated in our accompanying Opinion, the judgment of the Fairfield
County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________ HON. JOHN W. WISE