STATE OF OHIO v. JAMES LESTER CUNNINGHAM
C.A. CASE NOS. 2014-CA-99, 2014-CA-100; T.C. NOS. 13CR392, 13CR694A
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
June 26, 2015
[Cite as State v. Cunningham, 2015-Ohio-2554.]
(Criminal Appeal from Common Pleas Court)
Rendered on the 26th day of June, 2015.
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
BRIAN A. MUENCHENBACH, Atty. Reg. No. 0088722, 130 W. Second Street, Suite 2103, Dayton, Ohio 45402
Attorney for Defendant-Appellant
JAMES LESTER CUNNINGHAM, Inmate #708429, Madison Correctional Institute, P. O. Box 740, London, Ohio 43140
Defendant-Appellant
FROELICH, P.J.
{¶ 1} James Cunningham appeals from the revocation of his community control
{¶ 2} Cunningham‘s counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining the record and the law, he found no potentially meritorious issues for appeal. Counsel identified one potential assignment of error, namely that Cunningham‘s admissions to the community control violations were not made knowingly, intelligently, and voluntarily. By entry, we informed Cunningham that his attorney had filed an Anders brief on his behalf and granted him 60 days from that date to file a pro se brief. No pro se brief was filed. The case is now before us for our independent review of the record. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
{¶ 3} On June 3, 2013, Cunningham was indicted on one count of possession of cocaine in an amount less than five grams. State v. Cunningham, Clark C.P. No. 13 CR 392. On October 7, 2013, while that case was pending, Cunningham was indicted on two counts of having weapons while under disability and one count of improper handling of a firearm in a motor vehicle. State v. Cunningham, Clark C.P. No. 13 CR 694A. Cunningham subsequently pled guilty to the possession charge in Case No. 13 CR 392 and to improper handling of a firearm in Case No. 13 CR 694A; the two additional charges were dismissed.
{¶ 4} On January 27, 2014, the trial court held a combined sentencing hearing on both cases, during which the court ordered three years of community control with intensive supervision in both cases. As part of his community control in Case No. 13 CR 694A, Cunningham was required to successfully complete the West Central Community
{¶ 5} On April 24, 2014, Cunningham‘s probation officer notified the trial court that Cunningham was unsuccessfully discharged from the West Central Community Correctional Facility program on April 20. Cunningham appeared before the trial court on April 29 and was released on a personal recognizance bond. A probation violation hearing for both cases was set for June 16, 2014.
{¶ 6} On June 16, Cunningham admitted the violation in both cases and waived a hearing on the merits. The court found that Cunningham‘s admission was made knowingly, intelligently, and voluntarily, and the matter was set for disposition on July 10, 2014. At that hearing, the trial court gave Cunningham 30 days to demonstrate that he was employed and complying with a drug program. The court ordered that Cunningham be placed on electronic monitoring during this time and that he take weekly drug tests. Disposition on the violation was rescheduled for August 12, 2014.
{¶ 7} On July 21, 2014, Cunningham‘s probation officer filed an amended affidavit, stating that Cunningham violated his community control sanctions in three additional respects: (1) he failed to report police contact on May 27 and July 17, (2) he violated the terms of his electronic monitoring schedule on July 18, and (3) he associated
{¶ 8} On August 12, 2014, Cunningham admitted the violations alleged in the amended affidavit, and the trial court found that Cunningham made those admissions knowingly, intelligently, and voluntarily. The trial court revoked Cunningham‘s community control in both cases and imposed the previously-stated prison terms. The court ordered the prison term in Case No. 13 CR 694A to be served consecutively to the sentence imposed in Case No. 13 CR 392, for a total of 30 months in prison. The court orally ordered Cunningham to pay the balance of his fines, which were $975 and $2,475, and court costs. The court also orally notified Cunningham of his post-release control obligation and the consequences if he failed to comply with post-release control.
{¶ 9} Cunningham appeals from the revocation of his community control.
{¶ 10} “The right to continue on community control depends upon compliance with community control conditions and is a matter resting within the sound discretion of the court. Accordingly, we review the trial court‘s decision to revoke a defendant‘s community control for an abuse of discretion. Abuse of discretion has been defined as an attitude that is unreasonable, arbitrary, or unconscionable.” (Internal citations omitted.) State v. Lewis, 2d Dist. Montgomery No. 23505, 2010-Ohio-3652, ¶ 11.
{¶ 11} A defendant is entitled to due process when his community control is revoked as the result of a violation of a condition imposed on that control. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The due process rights which must be observed in a community control revocation hearing are: (1) written notice of the claimed violations of community control; (2) disclosure of evidence against
{¶ 12} “[C]ommunity control revocation proceedings are not the same as a criminal trial, and a revocation of community control punishes the failure to comply with the terms and conditions of community control, not the specific conduct that led to the revocation.” State v. Black, 2d Dist. Montgomery No. 24005, 2011-Ohio-1273, ¶ 17. Upon revoking community control, the trial court may (1) lengthen the term of the community control sanction; (2) impose a more restrictive community control sanction; or (3) impose a prison term on the offender, provided that the prison term is within the range of prison terms available for the offense for which community control had been imposed and the term does not exceed the prison term specified in the notice provided to the offender at the original sentencing hearing.
{¶ 13} Prior to asking Cunningham if he admitted the community control violations, the trial court asked Cunningham a series of questions akin to a
{¶ 14} A trial court need not comply with the requirements of
{¶ 15} Here, the trial court conducted thorough hearings prior to accepting Cunningham‘s admissions. The court asked Cunningham about his level of education, whether he was under the influence of alcohol, drugs, or medications that affected his ability to understand the procedures, whether he was offered any promises or threatened to induce the admissions, and whether he understood that he could be sentenced to consecutive sentences of 12 months and 18 months in prison if he were found to have violated his community control. The court notified Cunningham that the State had the burden to prove by the preponderance of the evidence that he had violated his community control, that Cunningham had the right to confront witnesses and to subpoena witnesses on his behalf, and that he had the right to testify on his own behalf, but was not required to. Cunningham stated that he wanted to waive those rights and admit to the violations. At the August 12 hearing, Cunningham was asked if he was happy with his attorney‘s representation. Based on Cunningham‘s answers, the court found that Cunningham‘s admissions were knowingly, intelligently, and voluntarily made. We find no arguably meritorious claim that the trial court‘s hearing was inadequate or that Cunningham‘s
{¶ 16} After revoking Cunningham‘s community control, the trial court imposed consecutive sentences. Cunningham had been notified that, if he violated the conditions of his community control, his prison sentences in his two cases could be run consecutively. We need not address whether
{¶ 17} Upon review of the entire record, we find no non-frivolous arguments regarding the trial court‘s revocation of Cunningham‘s community control in Case Nos. 13 CR 392 and 13 CR 694A. Accordingly, the trial court‘s judgments will be affirmed.
FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Ryan A. Saunders
Brian A. Muenchenbach
James Lester Cunningham
Hon. Richard J. O‘Neill