STATE OF OHIO, Plaintiff-Appellee, v. PATRICIA MARCUM, and JAMES MARCUM Defendants-Appellants.
Case No. 11CA8 11CA10
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
RELEASED 01/30/12
[Cite as State v. Marcum, 2012-Ohio-572.]
Harsha, J.
DECISION AND JUDGMENT ENTRY
Kyle C. Henderson, Logan, Ohio, for appellants.
Laina Fetherolf, Hocking County Prosecutor, and Jonah M. Saving, Hocking County Assistant Prosecutor, Logan, Ohio, for appellee.
Harsha, J.
{1} James Marcum and his wife, Patricia Marcum, appeal their misdemeanor sentences for one count each of obstructing official business and misuse of 911. They contend that the trial court abused its discretion when it imposed a no contact order between them as a condition of their community control. However, because there are no entries that resolve all the charges brought against James Marcum, there is no final appealable order in his case. Consequently, we lack jurisdiction to consider his appeal and must dismiss it.
{2} The sentencing entry in Patricia Marcum‘s case, however, is a final appealable order because it does address the resolution of all charges pending against her in this case. Therefore we address the merits of her appeal. Because the no
I. FACTS
{3} Mr. and Ms. Marcum were both charged with one count each of obstructing official business, in violation of
II. ASSIGNMENT OF ERROR
{4} Mr. and Ms. Marcum present the same assignment of error:
{5} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED, AS A CONDITION OF PROBATION OR COMMUNITY-CONTROL SANCTION, AN ORDER REQUIRING THAT DEFENDANT-APPELLANT HAVE NO CONTACT WITH [HIS OR HER SPOUSE] FOR * * * DURATION OF [HIS OR HER] PROBATION IN VIOLATION OF [HIS OR HER] FUNDAMENTAL CONSTITUTIONAL RIGHTS.”
{6} As a threshold matter, we must first discuss our jurisdiction to hear the appellants’ case. The
{7} Conversely, the sentencing entry from which Ms. Marcum appeals does note that in addition to being convicted of obstructing official business and misuse of 911, the prosecution dismissed her charge of disorderly conduct. Therefore, all the charges brought against her were properly terminated and it is a final appealable order.
IV. STANDARD OF REVIEW
{8} Trial courts have broad discretion in imposing community control sanctions. State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, at ¶ 10.
V. ANALYSIS
{9} In State v. Jones (1990), 49 Ohio St.3d 51, 550 N.E.2d 469, the Supreme Court set forth a three-part test by which courts determine whether a trial court has abused its discretion when presented with a nonconstitutional challenge to the conditions of community control.1 See also Talty, supra, at ¶ 12.
{10} ”Jones stands for the proposition that probation conditions must be reasonably related to the statutory ends of probation and must not be overbroad.” Id. at ¶ 16. The three probationary goals are “rehabilitation, administering justice, and ensuring good behavior.” Id. As a result, courts must “consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation.” Jones, supra, 49 Ohio St.3d at 53, 550 N.E.2d 469. Recognizing that “no meaningful distinction between community control and probation,” the court also adopted this three-part test for reviewing the reasonableness of community control conditions. State v. Talty, supra, at ¶ 16.
{11} Generally, where a no contact order between spouses has been upheld as a condition of community control, the martial relationship was abusive and the defendant was convicted of domestic violence, which is distinguishable from the present case. See City of Garfield Heights v. Tvergyak, Cuyahoga App. No. 84825, 2005-Ohio-2445;
{12} In this case, Ms. Marcum was convicted of misuse of 911 and obstructing official business. She contends that the condition of community control ordering her to have no contact with her husband is invalid because it does not meet the three-part Jones test and thus is not reasonably related to the statutory goals of community control. The state concedes that current precedent does not support the imposition of a no contact order between Ms. Marcum and her husband as a condition of her community control. We agree.
{13} First, the condition is not reasonably related to rehabilitating Ms. Marcum because it does nothing to ensure that she only uses 911 for legitimate purposes or does not obstruct official business. The record shows that on September 19, 2010, the Hocking County 911 system received three separate phone calls from the same address. These all started at 12:12 a.m. and ended at 8:25 a.m. with the sheriff‘s office responding to two of the calls. According to the deputy‘s statement of facts, the first call was apparently placed by a child. In the second call Ms. Marcum described some arguing. And in the third call Ms. Marcum said she was not sure what was going on, but it amounted to nothing.
{14} At sentencing, Ms. Marcum admitted that the incident started because of “the lie that [Mr. Marcum] said he took a bunch of pills and so then I actually worked in a nursing home for twenty-three years so I called the sheriff. Then I found them in his
{15} The no contact order does, however meet the second prong of the Jones test because it bears a relationship to the crimes for which Ms. Marcum was convicted. Because Ms. Marcum stated she called 911 due to her husband‘s conduct, the no contact order with her husband relates to her convictions.
{16} Finally, contact with her husband is not related to conduct that is criminal or reasonably related to future criminality. The record in this case does not show that there is a pattern of conduct between Mr. and Ms. Marcum that has led to criminal activity. Although the parties may have a history of domestic problems that the trial court was aware of, there is nothing in our record to establish that pattern. In the absence of this evidence, we fail to see how prohibiting contact with her husband is reasonably related to preventing future criminal behavior by Ms. Marcum. Because the no contact order with her husband prohibits conduct that is not reasonably related to the risk of future criminality or to conduct that is by itself criminal, the community control condition also fails to meet the third prong of the Jones test.
{17} Consequently, we sustain Ms. Marcum‘s sole assignment of error. The trial court abused its discretion when it imposed a no contact order with her husband as a condition of her community control. Therefore, we reverse the judgment of the
JUDGMENT REVERSED AND REMANDED.
{18} We also dismiss case No. 11CA10, Mr. Marcum‘s appeal, for lack of a final appealable order.
APPEAL DISMISSED.
{19} I respectfully dissent as to James Marcum‘s appeal. Here, I believe that a sentencing entry is final and appealable “[s]o long as the record reveals that all of a defendant‘s counts have been resolved[.]” State v. McClanahan, 9th Dist. No. 25284, 2010-Ohio-5825, ¶ 7. And after reviewing the record, I would find that the trial court dismissed the disorderly-conduct charge against James Marcum. Therefore, I would find that James Marcum‘s sentencing entry is a final appealable order, and I would review his appeal.
{20} Furthermore, I respectfully disagree with the following proposition of law: “[U]nless the charges that are not the basis of the conviction have been properly terminated by a journal entry, they remain technically unresolved.” I cannot agree because, in many circumstances, dismissed or acquitted charges can be resolved even though they have not been terminated by a journal entry. For example, I believe that dismissed or acquitted charges can be resolved by (1) a valid not-guilty verdict form, (2) the oral grant of a Crim.R. 29 motion, (3) the state agreeing, on the record, to dismiss a charge with prejudice, or (4) other evidence within the record.
{21} Accordingly, I respectfully dissent as to James Marcum‘s appeal. I concur in judgment and opinion as to Patricia Marcum‘s appeal.
It is ordered that the JUDGMENT IS REVERSED AND REMANDED in Case No. 11CA8 and that Appellee shall pay the costs. It is ordered that the APPEAL IS DISMISSED in Case No. 11CA10 and Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
McFarland, J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment and Opinion as to Case No. 11CA8; Dissents with Opinion as to Case No. 11CA10.
For the Court
BY: _________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.