STATE OF OHIO v. ERNEST J. JENKINS
C.A. CASE NO. 27173
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
March 24, 2017
2017-Ohio-1073
T.C. NO. 15-CR-1155 (Criminal Appeal from Common Pleas Court)
Rendered on the 24th day of March, 2017.
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 2541 Shiloh Springs Road, Dayton, Ohio 45426 Attоrney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Counsel for Ernest J. Jenkins has submitted a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which counsel asserts that “after a careful and thorough review of the record and case law, [counsel] was unable to locate any meritorious issues for appellate review.” This Court notified Jenkins of his
{¶ 2} Appellate counsel‘s brief is addressed to the trial court‘s June 24, 2016 revocation of Jenkins’ community control sanctions and imposition of an eleven-month sentence. The community control sanctions were granted on October 9, 2015, after Jenkins pled no contest to one count of harassment with bodily substance, in violation of
{¶ 3} Jenkins was indicted on May 12, 2015 on one count of harassment with bodily substance; one count of obstruction of official business, in violation of
- Defendant‘s compliance with the General Conditions of this court for probationers;
- A term of Intensive Probation Supervision with a Chemical Abuse/Mental Health Specialist not to exceed five (5) years
- A requirement that the offender provides verification of VA Medicаl benefits income;
- A requirement that the offender completes mental health treatment at the Dayton VA Medical Center and complies with any further
treatmеnt recommended by that agency, the Court, or the Division of Criminal Justice Services; - A requirement that the offender takes all medications as prescribed;
- A requiremеnt that the offender verifies all prescription medications;
- A requirement that the offender appears for a 90 day Status Hearing at which time the Court will review a probation status report provided by his probation officer;
- A requirement that the offender signs necessary releases of information;
- A requirement that the offender not be in any building, structure, room, vehicle or place when you know or have reasonable cause to know that illegal drugs, stolen property or any firearms are present;
- A requirement that the offender abstains from use of illegal drugs, drugs of abuse, and alcohol.
{¶ 4} On May 16, 2016, the court found Jenkins to be an absconder and issued a warrant for his arrest after his Community Control Officer reported to the court on May 11, 2016 that Jenkins’ whereabouts were unknown since April 14, 2016. Jenkins was arrested on May 22, 2016.
{¶ 5} On May 24, 2016, the court issued a “Notice of CCS Revocation Hearing and Order.” The Notice provides that Jenkins violated his community control sanctions when he failed to rеport to the probation department for a scheduled appointment on April 21,
{¶ 6} A revocation hearing was held on June 22, 2016. Alisha Williams testified that she is employed at the Montgomery County Adult Probation Department, and that she supervises Jenkins, having done so since March 2016. Williams stated that Jenkins met with her weekly, and that he failed to appear at a scheduled appointment with her on April 21, 2016. Williams stated that she provided Jenkins with an appointment card with the date and time for the meeting in advance, and that Jenkins did not contact her befоre or after the scheduled time to explain his absence. Williams stated that a warrant was issued for his arrest on May 16, 2016, and that after he was arrested, she met with Jenkins in the jail on May 22, 2016. Williams stated that Jenkins advised her then that he had used cocaine. Williams further testified that she called the VA after Jenkins’ arrest and learned that he had stоpped attending treatment there, and that she did not have verification of his prescribed medications.
{¶ 7} On cross-examination, Williams stated that she attempted to contact Jenkins by phone and in person at his home when he did not appear for his appointment, without success. She stated that Jenkins indicated to hеr at the jail that he received the “blue card” she left at his residence. Williams stated that when she met with him in the jail, Jenkins never indicated to her that he had been recently hospitalized. In response to a question from the court, Williams indicated that Jenkins is not amenable to continued community control sanctions, based upon his conduct after April 21, 2016. She stated that he had been generally compliant with his community control sanctions prior to April
{¶ 8} Jenkins testified that he provided verificаtion of his medications to his previous probation officer. Jenkins stated that Williams does not answer her phone when he calls her, and that he leaves her mеssages. He stated that he has not used drugs in two years. Jenkins stated that he is enrolled in a program located off of Edward C. Moses Boulevard, that “Federal Judge Newmаn has me going to that program,” and that “it would suffice” for the VA program. Jenkins stated that he was hospitalized on April 21, 2016, and that he is “a very sick man.” He stated that he advisеd Williams that he had been hospitalized.
{¶ 9} At the conclusion of the hearing, the court indicated as follows:
THE COURT: Mr. Jenkins, it looks like this actually started before April 21st, back whеn you missed status hearing on March 9th. That sort of was bypassed and you were given an opportunity. And if you were in the hospital on April 21st, and I‘m not denying that you were, you had several weeks thereafter that you could have gotten ahold of your probation officer to let them know that. But there‘s no indication that you provided any documentation to them of your hospitalization o[r] the reason why you couldn‘t appear.
You also readily admitted yourself that you were using cocаine, which is a direct violation of the - -
THE DEFENDANT: No, I didn‘t Your Honor.
THE COURT: *** Also, the testimony - - the credible testimony from the probation officer that you failed to provide verification of your
рrescription medications. And one of the orders about the VA, just so the record is clear, one of the things I ordered you to do was the mental health treatment. And it doesn‘t appear that that is – been taking place, nor was there - - that you completed that treatment. So it was all of those issues and admissions from yoursеlf and the testimony before the Court. I am going to find that you did violate the terms and conditions of your community control sanctions. ***
{¶ 10}
A community control revocation heаring is not a criminal trial. State v. Hylton (1991), 75 Ohio App.3d 778, 781, 600 N.E.2d 821. Thus, the State does not have to demonstrate a violation with proof beyond a reasonable doubt. Id. at 782, 600 N.E.2d 821. The State need only present substаntial evidence of a violation of the terms of a defendant‘s community control. Id.
“The right to continue on community control depends on compliancе with community control conditions and is a matter resting within the sound discretion of the court.” State v. Brown, Montgomery App. No. 22467, 2008-Ohio-4920, ¶ 9, quoting State v. Schlect, Champaign App. No. 2003-CA-3, 2003-Ohio-5336, at ¶ 7. Thus, we review the trial court‘s decision revoking community control sanctions on an abuse-of-discretion standard.
State v. Cofer, 2d Dist. Montgomery No. 22798, 2009-Ohio-890, ¶ 12-13.
{¶ 11} Pursuant to our responsibilities under Anders, we have conducted a thorough and independent review of the trial court‘s proceedings and have found no error having arguable merit. Accordingly, the judgment of the trial court is affirmed.
WELBAUM, J. and TUCKER, J., concur.
Copies mailed to:
Andrew T. French
Christopher A. Deal
Ernest J. Jenkins
Hon. Dennis J. Adkins