STATE OF OHIO, Plаintiff-Appellee -vs- MELINDA GIBBY, Defendant-Appellant
Case No. 13-CA-81
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 30, 2014
2014-Ohio-2921
Hon. William B. Hoffman, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Casе No. 05CR145; JUDGMENT: Affirmed
For Plaintiff-Appellee
GREGG MARX Prosecuting Attorney By: JOCELYN S. KELLY Chief Assistant Prosecuting Attorney, Appellate Division 239 W. Main Street, Ste. 101 Lancaster, OH 43130
For Defendant-Appellant
ANDREW T. SANDERSON Burkett & Sanderson, Inc. 118 West Chestnut Street, Suite B Lanсaster, OH 43130
{¶1} Appellant Melinda Gibby appeals a judgment of the Fairfield County Common Pleas Court revoking her community control. Appellee is thе State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On January 14, 2005, appellant was indicted by the Fairfield County grand jury on one count of possession of crack cocaine in Cаse No. 05CR12. On April 22, 2005, appellant was indicted on two counts of possession of crack cocaine and three counts of trafficking in cоcaine in Case No. 05CR145. The court consolidated the cases on May 11, 2005.
{¶3} Appellant pled guilty to all counts on June 9, 2005. In Case No. 05CR145, she was sentenced to 12 months incarceration on counts one and five, to run concurrent with each other and concurrent with the sentences impоsed on counts two, three and four. On counts two, three and four she was sentenced to 16 months incarceration on each count, to be served consecutively. In case number 05CR12, she was sentenced to 11 months incarceration, to be served consecutively to the 48 month aggregate sentence imposed in Case No. 05CR145.
{¶4} The court granted appellant‘s motion for judicial release on December 5, 2005, and plaсed her on community control for five years. On February 27, 2009, modified community control stipulations and agreements were filed, stating her remaining community control period to be 30 months.
{¶5} Appellant was incarcerated on unrelated charges from August 12, 2010, to July 1, 2012.
{¶7} The court held a hearing on the motion to revoke on September 30, 2013. Appellant‘s community control was thereafter revoked and she was sentenced tо the 17 months of incarceration remaining on her prison sentence.
{¶8} Appellant assigns a single error on appeal:
{¶9} “THE TRIAL COURT COMMITTED HARMFUL ERROR IN FAILING TO DISMISS THE PROBATION VIOLATION PROCEEDINGS HEREIN.”
{¶10} The trial court found that appellant was placed on a 30-month рeriod of community control beginning February 27, 2009. Appellant argues that because no hearing took place and she was not present bеfore the court when her probationary period was extended, this extension is invalid.
{¶11} The docket reflects that courtroom proceedings were recorded on February 26, 2009, for a re-entry court review hearing.1 The docket notation of this hearing indicates that appellаnt spoke on the record at 9:09:10 a.m. The next day the community control stipulations and agreements were filed by the court, and signed by appеllant and the judge. The record before this Court on appeal does not include a transcript of this hearing. In the absence of a transсript, we must presume regularity in
{¶12} The court found that appellant‘s 30-month supervision time ran from February 27, 2009 to June 17, 2010, or 475 days. The court found time was then tollеd from June 17, 2010 until June 21, 2010 due to the issuance of a capias for appellant‘s arrest. The court found time ran again from June 21, 2010 to August 12, 2010, or 52 days, and time wаs tolled again from August 12, 2010 to July 2, 2012 because appellant was incarcerated. The court found that 246 days ran from July 2, 2012 to March 5, 2013, when a second capias was issued for appellant‘s arrest. Time was tolled from March 5 until March 27, 2013, and ran uninterrupted thereafter. The court found that as of Mаrch 27, 2013, 127 days remained of appellant‘s community control period, and the motion to revoke that was filed on March 5, 2013, was therefore timely.
{¶13} Appellant concedes that time was tolled during her incarceration from August 12, 2010, until July 2, 2012. However, she argues that time was not tolled on the two oсcasions a capias was issued for her arrest because she was not found to be an “absconder.”
{¶14}
{¶15} “A community control sanction cоntinues for the period that the judge or magistrate determines and, subject to the five-year limit specified in section
{¶16} In Rash v. Anderson, 80 Ohio St. 3d 349, 350, 686 N.E.2d 505 (1997), the Ohio Supremе Court found that the issuance of a capias tolls the running of the probationary period.
{¶17} Appellant lastly argues that irrespective of whether the motion was filed before her periоd of community control expired, the revocation hearing was not held before her community control expired on August 1, 2013 pursuant to the cоurt‘s calculation, and therefore the revocation was improper.
{¶18} Appellant cites this Court to our decision in State v. McKinney, 5th Dist. Fairfield No. 03CA083, 2004-Ohio-4035, in which we held that the trial court was not authorized to conduct rеvocation proceedings on a community control violation after the period of community control had expired, even if the proceedings began before the period of community control expired. We relied on
{¶19} The assignment of error is overruled. The judgment of the Fairfield County Common Pleas Court is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Hoffman, P.J. and
Wise, J. concur.