STATE OF OHIO, Plаintiff-Appellee, v. J.C., Defendant-Appellant.
Case No. 21 MA 0028
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY
December 22, 2021
[Cite as State v. Carr, 2021-Ohio-4556.]
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
Criminal Appeal from the Mahoning County Court No. 5 of Mahoning County, Ohio Case No. 2019 CRB 278
BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT: Affirmed
Atty. Paul Gains, Mahoning County Proseсutor, Atty. Ralph Rivera, Assistant Prosecutor, Mahoning County Prosecutor‘s Office, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee and
Atty. Michael J. McGee, Harrington, Hoppe & Mitchell, LTD., 108 Main Avenue, SW, Suite 500, Warren, Ohio 44481 for Defendant-Appellant.
Donofrio, J.
{¶1} Defendant-appellant, J.C., appeals from a Mahoning County Court Number 5 judgment determining that he had violated the terms of his probation, sentencing him to three days in jail, and extending the tеrm of his probation.
{¶2} On January 24, 2020, appellant pleaded guilty to one count of domestic violence in violation of
{¶3} On November 25, 2020, appellant filed a motion for early termination of probation. The trial court denied this motion stating that appellant was to satisfy the full term of his probation, which would end on January 24, 2021.
{¶4} The trial court‘s docket reflects that on January 22, 2021, the court scheduled a probation violation hearing for January 26, 2021. On January 26, thе court held the hearing where appellant pleaded not guilty to the probation violation. The court then set the matter for a February 23, 2021 hearing.
{¶5} Appellant filed a motion to dismiss the probation violation. He argued that because the probation violation hearing was held two days after his probation ended, the trial court was without jurisdiction to enforce a prоbation violation.
{¶6} Despite his motion to dismiss, appellant subsequently stipulated to the probation violation. The trial court sentenced him to three days in jail and an extended his term of probation to March 9, 2023.
{¶7} Appellant filed a timely notice of appeal on March 18, 2021. The next day, the trial court granted appellant‘s motion to stay his jail sentence pending this apрeal. He now raises a single assignment of error.
{¶8} Appellant‘s sole assignment of error states:
{¶9} Appellant argues the trial court lacked jurisdiction to sentence him on the probation violation. He acknowledges that a court can conduct probation violation proceedings after the defendant‘s term of probation has expired but stresses that notice must be properly given to the defendant befоre the expiration of the probation term. Appellant claims he was not given notice in this case of the probation violation proceedings until January 26, 2021, which was three days after his probation term expired.
{¶10} An appellate court applies a de novo review to matters involving both subject-matter and personal jurisdiction. State v. DaRe, 7th Dist. Belmont No. 16 BE 0011, 2017-Ohio-7585, ¶ 12; State v. Castner, 9th Dist. Summit No. 29704, 2021-Ohio-1048, ¶ 7.
{¶11} Subject-matter jurisdiction involves a сourt‘s power to hear a case, and as such the issue can never be waived and may be raised at any time. State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 10. Lack of subject-matter jurisdiction renders a judgment void. In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, ¶ 10.
{¶12} Contrary to subject-mattеr jurisdiction, personal jurisdiction can be waived.
{¶13} Pursuant to
{¶14} In arguing the trial court lacked jurisdiction in this case, appellant relies heavily on State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, 943 N.E.2d 1014. That case involved an appeal from the appellate court‘s dismissal of a writ of prohibition that sought to prevent the trial court judge from proceeding on alleged violations of community control. Hemsley claimed the trial court lacked subject-matter jurisdiction, arguing that his term of community control had expired.
{¶15} The Ohio Supreme Court found the judge did not lack jurisdiction to conduct the cоmmunity-control-violation hearing in Hemsley‘s case.
{¶16} First, the Court pointed out that the common pleas court has basic statutory jurisdiction to proceed on the charged statutory violatiоns. Id. at ¶ 11. The Court relied on
{¶17} Next, the Court went on to find that the expiration of Hemsley‘s five-year period of community control did not divest the common pleas court of subjеct-matter jurisdiction over the community-control-violation hearing. Id. at ¶ 12. It pointed out that Hemsley relied on former
{¶18} Appellant asserts that Hemsley requires that the trial court must have commenced the probation violation hearing before the expiration of the probation term.
{¶19} But this court relied on Hemsley in finding that “the trial court does not lose jurisdiction to sentence a defendant for a violation of community control just because the period of community control expires.” State v. Kubina, 7th Dist. Mahoning No. 17 MA 0005, 2017-Ohio-8031, ¶ 12. We held that “a court has jurisdiction to impose a sentence once the original period of community control expires as long as action is taken to institute a violation hearing during the community control period.” (Emphasis added); Id. at ¶ 13.
{¶20} Moreover, as the Third District has observed: “It is illogical to contend that if a court has initiated probatiоn violation proceedings before the probation period has expired, that it cannot continue to prosecute after the expiration of the period.” State v. Harrington, 3d Dist. Union No. 14-03-34, 2004-Ohio-1046, ¶ 15.
{¶21} In this case, the trial court‘s docket reflects that on January 22, 2021, the court took action by scheduling a hearing for January 26, 2021, on the alleged probation violation. Appellant claims he was not given notice of the probation violation until January 26, 2021, several days after his probation expired, at the hearing. But appellant appeared at the January 26 hearing and entered a not guilty plea. So he must have had advance notice of the hearing or else he would not have appeared. Thus, the trial court initiated the probation violation proceedings before appellant‘s probation term expired and appellant waived any issue with personal jurisdiction by appearing at the hearing and entering a not guilty plea. There is no indication on the record that appellant objected to personal jurisdiction at the hearing. When a defendant appears before a court and enters a not guilty plea, he waives any objections based on personal jurisdiction. State v. Pizzuto, 5th Dist. Licking No. 17-CA-31, 2018-Ohio-146, ¶ 22.
{¶23} In sum, the trial court had subject matter jurisdiction over this matter. The court took action to institute a violаtion hearing during appellant‘s community control period. Moreover, appellant submitted to the court‘s personal jurisdiction by appearing before it and later stipulating to the viоlation and sentence. Accordingly, appellant‘s sole assignment of error is without merit and is overruled.
{¶24} For the reasons stated above, the trial court‘s judgment is hereby affirmed.
Waite, J., concurs.
Robb, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to
NOTICE TO COUNSEL
This document constitutes a final judgment entry.