State v. MehlState v. Mehl
APPEARANCES:
Kathryn Cornelius-Blume, Dagger, Johnston, Miller, Ogilvie & Hampson, LLP, Lancaster, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Assistant Athens County Prosecuting Attorney, Athens, Ohio, for Appellee.
Smith, P.J.
{¶1} Appellant, David E. Mehl, appeals the trial court‘s judgment revoking his community control in two cases and sentencing him to four years in prison. Mehl raises a single assignment of error on appeal, contending that the trial court abused its discretion when it revoked his community control and imposed prison time. For the reasons that follow, Mehl‘s sole assignment is overruled and the judgment of the trial court is affirmed.
{¶2} Appellant, David Mehl, pleaded guilty to one count of burglary, a second-degree felony in violation of
{¶3} Another notice of violation was filed on December 4, 2018, alleging two violations, one of which was Mehl‘s unsuccessful termination from the “Star/SEPTA Correctional Facility Program.” Mehl again admitted to the violations and the trial court once again continued his community control, but it added a new condition requiring him to complete the “Athens County Prosecutor‘s Office Vivitrol Program,”3 as well participate in the detox program at “Clem House.”4 The State filed yet another notice of violation on January 27, 2020, alleging three violations, one of which was an allegation that Mehl failed to successfully complete the vivitrol program. This notice of violation was followed by a supplemental notice of violation on January 30, 2020, a second supplemental notice of violation on February 10, 2020, a third supplemental notice of violation on February 12, 2020, a fourth supplemental notice of violation on March 9, 2020, and a fifth supplemental notice of violation on March 10, 2020. In all, the
{¶4} Another notice of violation was filed on July 15, 2020, alleging that Mehl had been terminated from the “River City CBCF” program. This notice was followed by an amended supplemental notice on July 17, 2020, and a second supplemental notice of violation on July 30, 2020. The amended and supplemental notice included a total of seven community control violations, which included allegations that Mehl, on two different occasions, created a safety risk to officers at the Southeastern Ohio Regional Jail, failed to follow orders while in jail, and caused damage to his jail cell by flooding the toilet two different times. Mehl admitted to these violations and the trial court again continued his community control, giving him 65 days credit for time served and ordering him to enter and
{¶5} Finally, the State filed a notice of violation on December 2, 2020, alleging Mehl had failed to complete the “STAR program” as ordered. This violation constituted a violation of his community control in his 2016 burglary case, as well as his 2020 aggravated possession of drugs case. Mehl once again admitted to the violation. This time, however, the trial court revoked Mehl‘s community control and imposed a prison term of four years in case no. 16CR0452 and one year in case no. 20CR0037, to be served concurrently. It is from the trial court‘s December 23, 2020, judgment entry that Mehl now brings his appeal, setting forth a single assignment of error for our review.
ASSIGNMENT OF ERROR
I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REVOKED APPELLANT‘S COMMUNITY CONTROL AND IMPOSED PRISON TIME.
{¶7} This Court has explained that the proper standard to be applied when reviewing decisions revoking community control is one of abuse of discretion. State v. Newsome, 4th Dist. Hocking No. 17CA2, 2017-Ohio-7488, ¶ 7, citing State v. Johnson, 4th Dist. Meigs No. 14CA10, 2015-Ohio-1373, ¶ 13. In both Newsome and Johnson, we noted that this Court has previously applied a two-part standard in such cases, as follows:
“Because a community control revocation hearing is not a criminal trial, the State does not have to establish a violation with proof beyond a reasonable doubt. State v. Wolfson, Lawrence App. No. 03CA25, 2004-Ohio-2750, ¶ 7, citing State v. Payne, Warren App. No. CA2001-09-081, 2002-Ohio-1916, in turn citing State v. Hylton (1991), 75 Ohio App.3d 778, 782, 600 N.E.2d 821. Instead, the prosecution must present “substantial” proof that a defendant violated the terms of his community control sanctions. Wolfson, citing Hylton at 782. Accordingly, we apply the “some competent, credible evidence” standard set forth in C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, to determine whether a court‘s finding that a defendant violated the terms of his community control sanction is supported by the evidence. Wolfson at ¶ 7, citing State v. Umphries (July 9, 1998), Pickaway App. No. 97CA45; State v. Puckett (Nov. 12, 1996), Athens App. No. 96CA1712. This highly deferential standard is akin to a preponderance of the evidence burden of proof. Wolfson, citing State v. Kehoe (May 18, 1994), Medina App. No. 2284-M. * * * Thus, we conclude the appropriate review in this matter is twofold. First, we review the record to determine whether there is substantial evidence to support the court‘s finding that C.M.C. violated the terms of probation or community control. If it does, then we review the court‘s ultimate decision to revoke probation,
i.e., the sanction, under the more deferential abuse of discretion standard.‘”
Newsome at ¶ 7, quoting Johnson at ¶ 13, in turn quoting In the Matter of C.M.C., 4th Dist. Washington No. 09CA15, 2009-Ohio-4223, ¶ 17.
{¶8} Here, Mehl admitted to the violation that ultimately resulted in the revocation of his community control. Thus, our review focuses on the trial court‘s ultimate decision to revoke community control, as well as its decision to impose prison time, which will be discussed in more detail below.
Legal Analysis
{¶9} As set forth above, Mehl‘s sole assignment of error primarily argues that the trial court improperly relied on alleged prior misconduct and/or prior bad acts and therefore abused its discretion when it sentenced him to prison. For instance, Mehl argues that when sentencing him for the community control violations, the trial court “contemplated and relied upon inappropriate conduct from [his] previous probation violation when sentencing [him] to the maximum amount of time in his two cases.” Mehl contends that the trial court “relied upon various prior bad acts to rationalize imposition of his sentence[,]” as evidenced by the trial court‘s statement on the record referencing the fact that Mehl had “been in and out of the system,” and had not taken advantage of the opportunities he had been given “along the way[.]” More specifically, Mehl argues that while his most recent community control violation was based upon his failure to complete the
{¶10}
(B)(1) If the conditions of a community control sanction imposed for a felony are violated or if the offender violates a law or leaves the state without the permission of the court or the offender‘s probation officer, the sentencing court may impose on the violator one or more of the following penalties:
* * *
(c) A prison term on the offender pursuant to
section 2929.14 of the Revised Code and division (B)(3) of this section, provided that a prison term imposed under this division is subject to the following limitations and rules, as applicable:(i) If the prison term is imposed for any technical violation of the conditions of a community control sanction imposed for a felony
of the fifth degree, the prison term shall not exceed ninety days, provided that if the remaining period of community control at the time of the violation or the remaining period of the reserved prison sentence at that time is less than ninety days, the prison term shall not exceed the length of the remaining period of community control or the remaining period of the reserved prison sentence. If the court imposes a prison term as described in this division, division (B)(2)(b) of this section applies.
(ii) If the prison term is imposed for any technical violation of the conditions of a community control sanction imposed for a felony of the fourth degree that is not an offense of violence and is not a sexually oriented offense, the prison term shall not exceed one hundred eighty days, provided that if the remaining period of the community control at the time of the violation or the remaining period of the reserved prison sentence at that time is less than one hundred eighty days, the prison term shall not exceed the length of the remaining period of community control or the remaining period of the reserved prison sentence. If the court imposes a prison term as described in this division, division (B)(2)(b) of this section applies.
(3) The prison term, if any, imposed on a violator pursuant to this division and division (B)(1) of this section shall be within the range of prison terms described in this division and shall not exceed a prison term from the range of terms specified in the notice provided to the offender at the sentencing hearing pursuant to division (B)(4) of
section 2929.19 of the Revised Code . The court may reduce the longer period of time that the offender is required to spend under the longer sanction, the more restrictive sanction, or a prison term imposed pursuant to division (B)(1) of this section by the time the offender successfully spent under the sanction that was initially imposed. Except as otherwise specified in this division, the prison term imposed
under this division and division (B)(1) of this section shall be within the range of prison terms available as a definite term for the offense for which the sanction that was violated was imposed.
* * *
{¶11} Here, Mehl does not argue that the community control violations at issue were technical in nature. Furthermore, the Supreme Court of Ohio recently discussed the difference between technical and substantive violations of community control, explaining that “when a violation ‘concerns a condition of community control that was “specifically tailored to address” matters related to the defendant‘s misconduct or if it can be deemed a “substantive rehabilitative requirement which addressed a significant factor contributing to” the defendant‘s misconduct,’ the violation does not amount to a technical violation.”7 State v. Castner, 163 Ohio St.3d 19, 2020-Ohio-4950, 167 N.E.3d 939, ¶ 14, quoting State v. Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, 165 N.E.3d 1110, ¶ 26, in turn quoting State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-Ohio-2672, ¶ 18.
{¶12} Moreover, the Castner Court explained that although
[A] trial court should “engage in a practical assessment of the case before it” by considering “the nature of the community-control condition at issue and the manner in which it was violated, as well as any other relevant circumstances in the case.”
(Emphasis added.) Castner at ¶ 15, quoting Nelson at ¶ 26.
{¶13} The Castner Court went on to determine that the conditions at issue (i.e., the completion of two drug treatment programs), “were plainly substantive rehabilitative requirements that were specifically tailored to address Castner‘s drug use and were aimed at reducing his likelihood of recidivism.” Castner at ¶ 16. As such, the Court held that “the trial court had the discretion to sentence Castner to a 12-month prison term[,]” which was the prison term specified on the record during Castner‘s original sentencing hearing. Id. at ¶ 18.
{¶14} Relying on State v. Nelson, this Court recently stated that “a trial court on a case-by-case basis should consider ‘the nature of the community-control condition at issue and the manner in which it was violated, as well as any other relevant circumstances in the case.‘” State v. Duckett, 4th Dist. Scioto No. 20CA3924, 2021-Ohio-3110, ¶ 18, quoting State v. Nelson at ¶ 26. See also State v. Motz, 2020-Ohio-4356, 158 N.E.3d. 641, ¶ 28, citing State v. Smith, 12th Dist.
{¶15} In Motz, supra, the court essentially explained that once a trial court determines that community control should be revoked and a prison term should be imposed, the trial court‘s sentencing decision for a community control violation is reviewed under the standard set forth in
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of
section 2929.13 , division (B)(2)(e) or (C)(4) ofsection 2929.14 , or division (I) ofsection 2929.20 of the Revised Code , whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
[C]lear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus (1954). Thus, an appellate court may vacate or modify a sentence if the court concludes, by clear and convincing evidence, the record does not support the sentence. State v. Bowling, 4th Dist. Jackson No. 19CA2, 2020-Ohio-813, ¶ 6.
{¶17} In Motz, supra, the court observed that “[n]umerous other appellate districts that have * * * analyzed a prison sentence imposed upon the revocation of community control have noted the trial court‘s proper consideration of
When imposing a prison sentence on a violation, the supreme court has stated that the trial court must ‘consider both the seriousness of the original offense leading to the imposition of community control and the gravity of the community control violation.’
Motz at ¶ 40, quoting Brooks at ¶ 20. See also State v. Evans, 5th Dist. Licking No. 2020CA00078, 2021-Ohio-590, ¶ 11 (“If the conditions of community control are violated,
{¶18} Thus, in summary, a trial court‘s decision to revoke community control is reviewed for an abuse of discretion, and in making its determination, a
{¶19} Here, Mehl admitted to violating what was clearly a substantive rehabilitative requirement of his community control and thus the trial court was within its discretion to revoke Mehl‘s community control. Although Mehl argues that the revocation of community control punishes the failure to comply with the terms and conditions of community control and not the specific conduct that led to the revocation, it is clear that trial courts must take into consideration a multitude
{¶20} In this case, there is no dispute that Mehl‘s sentences were within the statutory range for his underlying convictions. Mehl‘s underlying convictions consisted of burglary, a second-degree felony in violation of
{¶21} A review of the record further indicates that during the sentencing hearing, Mehl informed the trial court that he had never been convicted of trespassing onto Thomas McKee‘s property or receiving stolen property, despite those offenses being alleged as previous community control violations. The trial court acknowledged that the State had alleged such conduct in a prior notice of violation that was filed, but that Mehl had not been convicted of those offenses, explaining as follows:
So I take that for what it‘s worth. I don‘t take those as convictions. Just mirrors allegations that you are failing to abide by the law and getting into trouble is all. So your [sic] not going because of that, they are just indications.
{¶22} Thus, it appears that the trial court considered these allegations in the proper light, noting that Mehl had not actually been convicted of those offenses. Further, as set forth above, community control revocation hearings are not criminal
{¶23} Additionally, as set forth above, aside from the two specific allegations that Mehl pointed out did not result in convictions, in case no. 16CR0452 alone the State filed six notices of violation and seven amended notices of violation that alleged 33 separate community control violations. The record indicates that Mehl admitted to 28 of those alleged violations. Moreover, the violations that were admitted by Mehl included failure to enter and successfully complete the “Clearview Detox Program,” failure to enter and successfully complete the “Star/SEPTA CF program,” failure to enter and successfully complete the “Athens County Prosecutor‘s Vivitrol Program,” failure to enter and complete the “River City CBCF” program and failure to enter and complete the “STAR Community Justice Center” program. The trial court could have revoked Mehl‘s community control for any single one of these prior violations.
{¶24} Moreover, while on community control for case no. 16CR0452, Mehl was convicted of aggravated possession of drugs in case no. 20CR0037 and was ordered to enter and complete the “STAR Community Justice Center” program. Mehl also admitted to the sole notice of violation filed in that case as well, which alleged he failed to successfully complete the STAR program. Thus, in both of his cases, Mehl admitted that he failed to comply with substantive conditions of his
{¶25} Thus, although Mehl contends that the revocation of community control punishes the failure to comply with the terms and conditions of community control, and not the specific conduct that led to the revocation, as we have explained, in determining whether to revoke community control and in determining the appropriate sentence after revoking community control, the trial court was permitted to consider the nature of the community control violations at issue, the manner in which they were violated, as well as any other relevant circumstances in the cases. State v. Duckett, supra, at ¶ 18-19 (affirming the trial court‘s revocation of community control which considered, in part, Duckett‘s previous community control violations which did not result in revocation), citing State v. Nelson, supra, at ¶ 26. See also State v. Castner, supra, at ¶ 15. See also State v. Eischen, 6th Dist. Lucas No. L-18-1263, 2021-Ohio-23, ¶ 13 (characterizing the defendant‘s repeated community control violations as a “pattern of willful violation of court orders to avoid the requirements imposed upon him by the court“). Further, the trial court was permitted to consider Mehl‘s numerous community control
{¶26} Based upon the record before us, we can find no abuse of discretion on the part of the trial court in either its decision to revoke Mehl‘s community control nor any error in the trial court‘s imposition of an aggregate four-year prison term. Accordingly, Mehl‘s sole assignment of error is overruled and the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas 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 60 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 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-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 60 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.
Hess, J. and Abele, J. concur in Judgment and Opinion.
For the Court,
Jason P. Smith
Presiding 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.