STATE OF OHIO v. KEVIN JACKSON
CASE NO. 14 MA 108
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
September 28, 2015
2015-Ohio-3959
Hоn. Mary DeGenaro, Hon. Cheryl L. Waite, Hon. Carol Ann Robb
Criminal Appeal from Court of Common Pleas of Mahoning County, Ohio, Case No. 2011 CR 1191
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee Attorney Ralph Rivera, Assistant County Prosecutor, Mahoning County Prosecutor‘s Office, 21 W. Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant Attorney Timothy J. Cunning, Scullin & Cunning, 940 Windham Court, Suite 4, Boardman, Ohio 44512
{¶1} Defendant-Appellant, Kevin Jackson, appeals the judgment of the Mahoning County Court of Common Pleas finding he violated the terms of his community control sanctions and sentence of eighteen months. Jackson asserts that there was no basis for the trial court to find he violated community control, and alternativеly, that a prison sentence could not be imposed for a community control violation because he was not advised of the potential prison term he faced for a violation at his original sentencing.
{¶2} Jackson‘s assignments of error are meritless. There was uncontested evidence that Jackson failed to report to his APA supervising officer in violation of his community control conditions. Further, the prison sanction imposed was proper because he was advised of the length of a potentiаl prison term in the event that he violated his community control terms. Accordingly, the judgment of the trial court is affirmed.
{¶3} On January 18, 2012, Jackson pled guilty to Intimidation,
{¶4} On January 29, 2014, the trial court issued a warrant for Jackson‘s arrest based upon a report filed by the APA alleging that Jackson was instructed to report to the Youngstown APA on January 15, 2014 at 11:00 a.m. and he failed to do so. Jackson stipulated to a finding of probable cause. On July 14, 2014, the trial court found that Jacksоn violated the terms and conditions of his community control
{¶5} In his first of two assignments of error, Jackson asserts:
The trial court erred in finding that Appellant violated the conditions of his community control.
{¶6} A cоmmunity control revocation hearing is not a criminal trial and as such the State is not required to prove a violation beyond a reasonable doubt. State v. Payne, 12th Dist. No. CA2001-09-081, 2002-Ohio-1916, *3. Instead, the State need only present substantial evidence of a violation. State v. McKeithen, 3rd Dist. No. 09-08-29, 2009-Ohio-84, ¶ 6. Nonetheless, “[a] defendant is entitled to certain due process protections before a court may revoke community control sanctions, although the full panoply of rights due a defendant in a criminal prosecution does not apply to the revocation of community control.” Morrissey v. Brewer, 408 U.S. 471, 480, 93 S.Ct. 2593, 33 L.Ed.2d 484 (1972). A defendant is entitled to a preliminary hearing to determine whether there is probable cause to believe that the defendant has violated the terms оf the community control. Gagnon v. Scarpelli, 411 U.S. 778, 92 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Due process requires a final hearing to determine whether community control should be revoked and gives the defendant an opportunity to be heard. Id.
{¶7} “The right to continue on community control depends on compliance with community control conditions and ‘is a matter resting within the sound discretion of the court.‘” State v. Schlecht, 2d Dist. No. 2003-CA-3, 2003-Ohio-5336, ¶ 7, quoting State v. Johnson, 2d Dist. No. 17420, 2001 WL 561312, *4 (May 25, 2001). As such, we review the trial court‘s decision to revoke a defendant‘s community control for an abuse of discretion. “Abuse of discretion means an error in judgment involving a decision that is unrеasonable based upon the record; that the appellate court merely may have reached a different result is not enough.” State v. Dixon, 7th Dist. No. 10 MA 185, 2013-Ohio-2951, ¶ 21. Finally, “[t]he judgment of a trial court
{¶8} The State provided sufficient evidence at the revocation hearing to justify the trial court‘s decision to revoke Jackson‘s community control sanctions for failing to report. Brigitte Lincoln, testified that she worked for the APA Youngstown office and was Jackson‘s supervising officer. Jackson was under a duty to “obey all rules and regulations of thе Adult Parole Authority.” Jackson called Lincoln on January 7, 2014, to request additional time to report to her and she gave him until January 15, 2014, at 11:00 am. On that day and time Jackson did not repоrt, nor did he make any additional contact. The defense presented no testimony or evidence to the contrary; in fact, Jackson stipulated to probable cause. Accordingly, Jackson‘s first assignment of error is meritless.
{¶9} In his last of two assignments of error, Jackson asserts:
The Trial Court did not comply with
R.C. 2929.19(B)(4) and therefore could not sentence Appellant to a tеrm of imprisonment.
{¶10}
If the sentencing court determines at the sentencing hearing that a community control sanction should be imposed and the court is not prohibited from imposing a community control sanction, the court shall impose a community control sanction. The court shall notify the offender that, if the conditions of the sanction are violаted, * * * the court may impose a longer time under the same sanction, may impose a more restrictive sanction, or may impose a prison term on the offender and shall indicate the specific prison term that may be imposed as a sanction for the violation, as selected by the court from the range of
prison terms for the offense pursuant to section 2929.14 of the Revised Code.
{¶11} This court is currently split as to the standard of review to apply in felony sentencing cases. See State v. Hill, 7th Dist. No. 13 MA 1, 2014-Ohio-919 (Vukovich, J., Donofrio, J., majority with DeGenaro, J., concurring in judgment only with concurring in judgment only opinion); State v. Wellington, 7th Dist. No. 14 MA 115, 2015-Ohio-1359 (Robb, J., DеGenaro, J., majority with Donofrio, J. concurring in judgment only with concurring in judgment only opinion). The issue of which felony sentencing standard of review to apply is currently pending before thе Ohio Supreme Court. The Court has accepted the certified question: “[D]oes the test outlined by the [c]ourt in State v. Kalish apply in reviewing felony sentences after the passage of
{¶12} Jackson argues that the trial court could not impose a prison sentence because the oral advisement at his original sentencing did not adequately specify the term of incarceration that he faced. Jackson contends that the trial court‘s statement that he would be put “in the penitentiary for three and three on these charges” falls short of what
{¶13} During the original sentencing colloquy with Jackson the trial cоurt stated “you are charged with a Felony 3 intimidation and a Felony 3 retaliation . . . [s]o I can give you six years in the penitentiary[.]” This was later followed by the following exchange bеtween the trial court and Jackson:
THE COURT: If you fail to comply with [community control conditions] and you come back here and are found to be guilty of a violation, then I
will put yоu in the penitentiary for three and three on these charges that you pled to. JACKSON: I don‘t want to see the pen no more, Your Honor.
THE COURT: I know you don‘t, but please understand that that‘s what I got to do if you get in trouble.
{¶14} The judgment entry stated that if Jackson violated his community control then he would receive “a longer or more restrictive sanction including a sentence to the Department of Rehabilitatiоn and Corrections for seventy-two months.” The record demonstrates that Jackson was notified that he could face six years if he violated the terms of his community control. Thе trial court imposed consecutive nine month terms for an aggregate 18 month sentence. Accordingly, Jackson‘s second assignment of error is meritless.
{¶15} In sum, there was uncontеsted evidence that Jackson failed to report to his supervising officer in violation of his community control conditions. Further, the imposed sentence was proper because the trial court‘s notification of the length of a potential prison term was clear. Accordingly, the judgment of the trial court is affirmed.
Waite, J., concurs
Robb, J., concurs