Case Information
*1
[Cite as
State v. Solomon
,
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hоn. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. 2012-CA-7 WILLIAM SOLOMON, III :
:
Defendant-Appellant : O P I N I O N CHARACTER OF PROCEEDING: Criminal appeal from the Morrow County
Court of Common Pleas, Case No. 2008CR-0132
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 18, 2012 APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant CHARLES S. HOWLAND DENNIS PUSATERI JOCELYN STEFANCIN 250 East Broad Street, Ste. 1400 60 East High Street Columbus, OH 43215 Mt. Gilead, OH 43338
[Cite as
State v. Solomon
,
Gwin, J.
{¶1} Defendant-appellant, William R. Solomon, III [“Solomon”] appeals the revocation of his community control and imposition of a five-year prison term following an evidentiary hearing in the Morrow County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY Solomon was indicted by the Morrow County Grand Jury for one count of Domestic Violence. Because of prior convictions for domestic violence, the crime was a felony of the third degree. On May 9, 2008, Solomon pled guilty to the indictment. He was placed on community control sanctions for a period of five years. The terms and conditions of supervision included standard conditions and 11 special conditions of' supervision. A motion to revoke community control sanctions was filed on December
10, 2010. The motion alleged that Solomon violated community control by (1) committing a new crime (Solomon was indicted for Domestic Violence on August 26, 2010), (2) failing to report to his probation officer, and (3) consuming alcohol. On December 23, 2010, the court held a probable cause hearing. The court found Solomon to be indigent, continued the matter, and ordered that an attorney be appointed to represent Solomon. On May 3, 2011, Solomon acting pro se filed a motion to withdraw his
former plea. The state filed a response to the motion on May 19, 2011. The motion was denied by Judgment Entry filed May 27, 2011.
{¶6} On September 30, 2011, Solomon with counsel waived his right to a probable cause hearing. The trial court set October 21, 2011 for an evidentiary hearing on the motion to revoke Solomon’s community control sanctions. On October 21, 2011, the trial court granted Solomon’s motion for a continuance and rescheduled the evidentiary hearing for November 16, 2011. On that date, the trial court re-scheduled the hearing because Solomon’s attorney was ill. The court scheduled the matter for a hearing on November 22, 2011. At the hearing evidence was presented that Solomon complied with all 28
terms and conditions of community control between the time of his placement on May 8, 2009 and his failure to report to his probation officer on August 9, 2010. Solomon testified that his failure to report was during a time when his
medical card had expired, he was trying to ration his psychotropic medications by taking one-third of his daily dosage. He claimed he was bedridden and incapacitated with anxiety that resulted in a hospitalization. Solomon testified that he and his wife called in to his probation officer
when he was unable to make post-August 9 meetings. He also testified that on two previous occasions he was permitted to call in rather than report becаuse of health issues. One was when he was recovering from eye surgery, the other when he was suffering with what was apparently H1N1 viral influenza. Solomon's probation officer was a career deputy sheriff and police officer.
He testified that call-ins were never permitted because all his probationers are required to report in person, and essentially took the position that "the rules are the rules." He did not know “off the top of his head” the frequency with which he made Solomon provide *4 urine screens for drugs and alcohol. The probatiоn officer further testified that Solomon did not notify him that he was charged with a new offense. Solomon, acting as his own attorney, was acquitted after a jury trial of the new charge. As to the charge of consumption of alcohol, the probation officer testified
that at some prior court proceeding Solomon had told him he had relapsed and been drinking. Solomon testified that he told the probation officer he had “was self- medicating” and was drinking non-alcoholic beer. At the conclusion of the hearing, the court found that Solomon had
violаted the terms and conditions of his community control. The court imposed the previously suspended sentence of five years in prison.
ASSIGNMENTS OF ERROR Solomon raises one assignment of error, “I. THE TRIAL COURT ERRED BY REVOKING DEFENDANT- APPELLANT'S COMMUNITY CONTROL, BY HOLDING A PROBATIONER WITH MULTIPLE AND SERIOUS MENTAL ILLNESSES TO THE SAME STANDARDS OF UNDERSTANDING, CAPABILITY AND COMPLIANCE THAT WOULD REASONABLY APPLY TO A MENTALLY HEALTHY PERSON, BY EXPECTING SUCH PERSON TO RESPOND TO THE SAME SUPERVISION METHODS AND STANDARDS AS WOULD A MENTALLY HEALTHY PERSON, AND BY FAILING TO CONDUCT REASONABLE INQUIRY INTO WHETHER ANY VIOLATIONS OF COMMUNITY CONTROL WERE WILLFUL, ALL IN VIOLATION OF THE DUE PROCESS AND EQUAL PROTECTION PROVISIONS OF THE UNITED STATES AND OHIO CONSTITUTIONS.”
Analysis Community control sanctions essentially replace the concept of “probation” in Ohiо's criminal justice system. See generally Griffin & Katz, Ohio Felony Sentencing Law 394-396, §§ S.2-T5.4 (1988 Ed.). Although similar in their operational effect, community control sanctions differ a great deal from probation in many ways including the manner by which violations of those controls are handled. Judge Griffin and Professor Katz еxplain this difference in their treatise as follows:
“Prior to 1995 Senate Bill 2, it was quite appropriate for a judge to treat probation as a contract for leniency. The judge imposed but suspended a prison sentence-the presumed proper punishment for the crimе of conviction. Probation was conditioned on good behavior. Violation of that probation was a breach of contract with the sentencing judge. For the breach, the judge could properly impose the suspended prison sentence-even for the most trivial violation of probation.
“Under Senate Bill 2, a sentence to a community control sanction is not a contract for good behavior that automatically is punishable by prison if it is violated. The community control sanction that is imposed is the appropriate sentenсe for the crime of conviction. That sanction was the one that should have adequately punished the offender for his misconduct and should have adequately protected the public from future crime by the offender. The sentence should have been reasonably calculated to achieve those overriding purposes. Just as the Parole Board can no *6 longer extend a sentence as a revised punishment for the felony which sent the offender to the penitentiary, so the court which imposes punishment for a violation of a cоmmunity control sanction cannot punish the offender again for the crime that gave rise to the community control sanction. The sanction for the violation of the community control sanction should be the sanction that is commensurate with the seriousness of the violation and аdequately protects the public from future crime by the offender and others.” Id. at 426-427, § T5.36 (Emphasis added.) (Footnotes deleted.).
State v. Gilliam (June 10, 1999), 4th Dist. No. 98CA30,
White, 5th Dist. No.2009–CA–00111, 2009–Ohio–6447. The state therefore need not
establish a community control violation by proof beyond a reasonable doubt. White, supra at ¶ 13; State v. Ritenour, 5th Dist. No.2006AP010002, 2006–Ohio–4744 at ¶ 36;
State v. Spencer, 5th Dist. No. 2005–CA–15, 2006–Ohio–5543 at ¶ 12; State v. Henry, 5th Dist.. No. 2007–CA–0047, 2008–Ohio–2474. The Supreme Court of Ohio has
recently confirmed that when reviewing the manifest weight of the evidence, an
appellate cоurt conducts the same analysis in both criminal and civil cases. Eastley v.
Volkman ,
community control conditions and “is a matter resting within the sound discretion of the
court.” State v. Garrett, 5th Dist. No. 2010 CA 00210, 2011–Ohio–691 at ¶ 13; State v.
*7
Schlecht, 2nd Dist. No. 2003–CA–3, 2003–Ohio–5336, citing State v. Johnson , 2nd
Dist. No. 17420,
decision whether to revoke probation lies within the court's sound discretion. State v.
White, supra at ¶ 14. (Citing State v. Ritenour, supra at ¶ 37). (Internal Citations
omitted). Thus, a reviewing court will not reverse a trial court's decision absent an abuse
of discretion. State v. Sheets , 112 Ohio App.3d 1, 677 N.E.2d 818(1996); State v.
Ritenour, supra at ¶ 37. An abuse of discretion connotes more than an error in law or
judgment;
it
implies
that
the court's attitude
is unreasonable, arbitrary or
unconscionable. State v. Maurеr ,
mitigating factor. See, State v. Wolfe, Stark App. No. 2008–CA–00064, 2009–Ohio– 830. In State v. Bleasdale , 69 Ohio App.3d 68, 590 N.E.2d 43(1990) the
defendant was given a suspended sentence, was placed on probation on the condition that he is accepted by, and successfully complete a specific drug program. The *8 defendant was ultimately terminated from the prоgram after he was diagnosed as suffering from several mental disorders and the staff determined that it was not equipped to deal with the mental problems that the defendant exhibited. After a probable cause hearing, the trial court revoked the defendant's probation and reinstated his sentence of confinement. On appeal, the Eleventh District Court of Appeals determined that the trial court had abused its discretion in revoking the defendant's probation because the defendant had not willfully or intentionally violated the conditions of his probation. Rather, the court stated, the defendant had been cooperating with the program but was terminated “due to the program's inability to properly minister his case.” Id. at 72. Crim. R. 32.3 does not require that a probation violation be willful. As the
Eleventh District stated in State v. Stockdale (Sept. 26, 1997), 11th Dist. No. 96–L–172,
“there is nothing in Crim. R. 32.3 ... that mandates that the state must introduce
evidence that the probation violation was willful.” Accord , State v. Miller , 6th Dist. No. F-
05-016,
community control sanctions are clearly distinguishable from those in Bleasdale. In this *9 case, the court revoked Solomon’s community control solely based on his voluntary conduct, not based on conditions over which he had nо control. The only evidence that Solomon could not report to his probation officer
due to his mental illness came from Solomon; no medical or other testimony was
submitted to corroborate or substantiate the nature and extent of any disability.
Ultimately, “the reviewing сourt must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the
fact-finder lost its way.’” State v. Pallai , 7th Dist. No. 07 MA 198, 2008–Ohio–6635, ¶
31, quoting Stаte v. Woullard ,
evidence offered by the parties and assess the witness's credibility. “While the [judge]
may take note of the inconsistencies and resolve or discount them accordingly * * * such
*10
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence”. State v. Craig, 10th Dist. No. 99AP–739,
Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis fоr
resolving disputed facts. The degree of proof required is determined by
the impression which the testimony of the witnesses makes upon the trier
of facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, thе disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
including physical and mental examinations, in the reevaluation and reassessment of
the correctness of the sentence upon a revocation of community control. See State v.
Qualls ,
as a factor before imposing sentence. Solomon’s sole assignment of error is overruled and the judgment of the
Morrow County Court of Common Pleas is affirmed.
By Gwin, J.,
Delaney, P.J., and
Hoffman, J., concur
_________________________________ HON. W. SCOTT GWIN _________________________________ HON. PATRICIA A. DELANEY _________________________________ HON. WILLIAM B. HOFFMAN WSG:clw 0926
[Cite as
State v. Solomon
,
IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
: -vs- : JUDGMENT ENTRY
:
WILLIAM SOLOMON III. :
:
: Defendant-Appellant : CASE NO. 2012-CA-7 For the reasons stated in our accompanying Memorandum-Opinion, Solomon’s sole assignment of error is overruled and the judgment of the Morrow County Court of Common Pleas is affirmed.
_________________________________ HON. W. SCOTT GWIN _________________________________ HON. PATRICIA A. DELANEY _________________________________ HON. WILLIAM B. HOFFMAN