State v. ClarkState v. Clark
Drew A. Hanna, for appellant.
* * * * *
I. Introduction
{¶ 1} Appellant, Justin Clark, appeals the judgment of the Wood County Court of Common Pleas, which found that he violated the terms of his community control, and sentenced him to four years in prison. We affirm.
{¶ 2} In December 2009, appellant pleaded guilty to importuning in violation of
{¶ 3} On September 13, 2012, appellant was unsuccessfully terminated from the Sexual Offenders Treatment Program at Behavioral Connections. Consequently, the state filed a petition for revocation of community control. At the hearing on the community control violation, the state called five witnesses.
{¶ 4} Appellant’s probation officer, Brian Laux, testified that appellant was married, but living alone because under the terms of his probation he was not allowed to have contact with his wife’s daughter. Laux testified that appellant was having issues with Behavioral Corrections since he felt he should be able to have contact with his stepdaughter. Laux further testified that appellant had previously violated the terms of his community control by allowing a registered sex offender, convicted of gross sexual
{¶ 5} Clancy Yeager testified next. Yeager is the forensic program manager at Behavioral Connections. He testified that appellant had been receiving services from Behavioral Connections for approximately five years. Appellant started in the Sexual Behavior Intervention Program, but when that did not adequately address appellant’s issues, he was referred to the Sexual Offenders Treatment Program. Yeager stated that the issues he addressed with appellant included, “[h]is management of risk around deviant sexual arousal, establishing a stable lifestyle, working on attitudes, rule breaking, criminal attitudes, working to identify those and change those, [and] emotion management.” Yeager testified that appellant would sometimes be receptive to treatment, but other times would change and reject it. However, Yeager did confirm that appellant’s attendance was “very good.”
{¶ 6} The state then called Jeffrey Bischoff, a mental health therapist at Behavioral Connections. Bischoff testified that he did appellant’s initial assessment, and has remained involved in appellant’s treatment throughout the remainder of his time at Behavioral Connections. Bischoff testified that appellant was originally referred to the agency in 2007 because he had developed an inappropriate love relationship with the
{¶ 7} Bischoff testified that he ultimately discharged appellant from the program because “[appellant] was showing a lack of progress and we had tried everything we knew to try at that point, and he started to have a negative affect [sic] on the group. We were concerned that overtreating would have a negative affect [sic] on him.” After being certified by the court as an expert, Bischoff testified that the risk assessment he completed shortly after appellant was discharged indicated that appellant had a “very high” risk for re-offense. He further concluded based on his training, experience, and interaction with appellant that appellant was not “amenable to continue treatment in the Sex Offender Treatment Program.”
{¶ 9} Finally, the stated called Samantha Jesse who testified that she participated in administering the risk assessment test and that appellant fell in the high-risk quadrant. In addition, Jesse testified that during the time she was involved in appellant’s treatment, she did not notice any improvement in his behaviors.
{¶ 10} Following the state’s presentation, appellant took the stand and testified that he had attended all of his sessions at Behavioral Connections, and had completed all of the assignments they had given to him. He further testified that since leaving the Sexual Offenders Treatment Program he has sought out additional individual counseling from another doctor at Behavioral Connections, and has met with that doctor or her associate three times so far. Appellant also stated that he uses his escape and avoidance strategies as much as he can to avoid re-offending, and that he goes to two different churches that provide him support. He testified that more than anything he wants to put his past behind him and move forward and have a family.
{¶ 12} After the presentation of evidence and closing arguments, the trial court took the matter under advisement, stating, “This is a difficult issue that I need to think through a little further. Again, he is required to successfully complete his sexual offender treatment, however his failure to do so is through no fault of his own as best I can tell, so I need to sort through whether or not that does indeed constitute a violation.” Ultimately, the trial court found that appellant had violated the community control condition despite his best efforts. Thereafter, the trial court sentenced appellant to a four-year prison term.
B. Assignments of Error
{¶ 13} Appellant has timely appealed and now raises two assignments of error:
- The trial court erred and abused its discretion in finding that appellant/defendant violated community control sanctions.
- In the alternative, the trial court erred in sentencing appellant/defendant to a four year prison term which was not commensurate with the seriousness of the violation of community control.
{¶ 14} In support of his first assignment of error, appellant argues that the trial court abused its discretion when it found that he violated the terms of his community control because the evidence against him consisted of vague statements that he “was showing a lack of progress,” and “treatment doesn’t seem to be helping him.” Appellant notes that the witnesses failed to cite specific examples of his attitude, thoughts, or actions that led them to these conclusions. Appellant also contends that the program failed him, not the other way around, as evidenced by his near perfect attendance and the fact that he participated in the program “as best he could.”
{¶ 15} In a community control revocation proceeding, the state must present substantial evidence that the defendant violated the conditions of his community control. State v. Miller, 6th Dist. Fulton No. F-05-016, 2006-Ohio-4810, ¶ 13, citing State v. Hylton, 75 Ohio App.3d 778, 782, 600 N.E.2d 821 (4th Dist.1991). “Substantial evidence is considered to consist of more than a mere scintilla of evidence, but somewhat less than a preponderance.” State v. Ohly, 166 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d 675, ¶ 18 (6th Dist.). Further, a trial court’s decision revoking community control will not be reversed absent a showing of abuse of discretion. Id. at ¶ 19. An abuse of discretion connotes that the trial court’s attitude was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 17} What makes this case more difficult is that appellant attended all of the sessions, and completed all of the assignments. This is not a situation where appellant did not participate. Instead, appellant was unsuccessfully discharged because, despite his efforts, he was unable to satisfactorily remedy the issues that necessitated sexual offender treatment in the first place.
{¶ 18} In State v. Bleasdale, 69 Ohio App.3d 68, 590 N.E.2d 43 (11th Dist.1990), the Eleventh District reversed the trial court’s decision to revoke the defendant’s probation where the defendant did not willfully or intentionally violate the conditions of his probation. In that case, the defendant’s probation was conditioned upon his “being accepted by, and successfully completing, appropriate programs of the CompDrug Programs.” Id. at 69. A few months into his probation, appellant was terminated from the program. A summary of the program indicated that appellant suffered from “chronic depression, dependence and an intact delusional system which may take the form of a
{¶ 19} In reversing the trial court, the Eleventh District reasoned that there was no willful or intentional violation of the conditions of the defendant’s probation. Instead, the evidence showed that the defendant was cooperating with the program and that the termination was due to the program’s inability to properly minister the defendant’s case. Id. at 72. The court concluded,
The court initially “misdiagnosed” appellant as being drug dependent. Based upon that “finding” the court ordered drug counseling. However, after the determination that appellant suffers mentally and emotionally, the court revoked his probation. “In short, there [is] no evidence of a substantial nature in order to find the revocation [is] justified.” * * * Such action in light of the court’s initial response seems to be “unreasonable, arbitrary or unconscionable,” and an abuse of discretion. (Internal citations omitted.) Id.
{¶ 20} However, we find the present situation to be distinguishable from that in Bleasdale. There, the defendant was ordered to complete a drug program, but the program discharged him because it determined he really had a mental problem that it was
{¶ 21} Accordingly, appellant’s first assignment of error is not well-taken.
{¶ 22} In his second assignment, appellant argues that the trial court erred by sentencing him to four years in prison. In particular, he contends that because he fully participated in the Sexual Offenders Treatment Program, complied with the other conditions of his community control, and committed no harm to the public, imposing a prison term was an excessive and disproportionate penalty for his violation.
{¶ 23}
{¶ 24} The Ohio Supreme Court has recognized that “
{¶ 25} Here, after considering the principles and purposes of sentencing in
{¶ 26} Accordingly, appellant’s second assignment of error is not well-taken.
{¶ 27} For the foregoing reasons, the judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, P.J. _______________________________
JUDGE
Stephen A. Yarbrough, J. _______________________________
James D. Jensen, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.