State v. SturgillState v. Sturgill
Charles Conliff, 5145 Pleasant Avenue, Suite 18, P.O. Box 18424, Fairfield, Ohio 45018-0424, for defendant-appellant
O P I N I O N
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Anthony Sturgill, appeals the decision of the Butler County Court of Common Pleas revoking his community control and imposing a prison term. We affirm the decision of the trial court.
{¶ 2} On June 1, 2007, appellant pled guilty to two counts of nonsupport of dependents, felonies of the fifth degree, in violation of
{¶ 3} A few months later, on September 5, 2007, appellant was indicted on one count of domestic violence, a felony of the fourth degree, in violation of
{¶ 4} In June of 2011, the state filed a notice of community control violation in both the nonsupport and domestic violence cases. Specifically, the state alleged that appellant had violated rules six, seven, and twelve of his community control conditions. Rule six states:
I will not purchase, possess, own, use or have under my control any firearms, ammunition, dangerous ordnance or weapons, including chemical agents, electronic devices used to immobilize, pyrotechnics and/or explosive devices.
Rule seven states:
I will not possess, use, purchase, or have under my control any narcotic drug or other controlled substance or illegal drugs, including any instrument, device or other object used to administer drugs or to prepare them for administration, unless it is lawfully prescribed for me by a licensed physician.
Rule twelve states:
I agree to pay or comply with all financial obligations, including timely full payment of child support, as ordered by any court.
{¶ 5} The allegations of the state were that, during a search of offender‘s residence, probation officers found ammunition and drug paraphernalia in appellant‘s bedroom. The state further alleged that defendant had failed to pay his child support as ordered.
{¶ 6} A violation hearing was held on July 12, 2011, addressing all three alleged violations. As to the violations of rules six and seven, testimony revealed that two probation officers had visited appellant‘s residence in the evening hours of March 25, 2011. During a sweep of the residence, the officers discovered a box of 9mm ammunition sitting on a shelf in appellant‘s bedroom and three crack pipes in an open safe on the floor of appellant‘s bedroom closet.
{¶ 7} As to the violation of rule twelve, appellant testified that he had been current on his child support payments until suffering a medical condition which required back surgery in March 2010. After the surgery, appellant gave his probation officer at the time, Jeanna Jacobs, a note from his doctor which stated that appellant would be unable to work for as long as nine months after the surgery. At the time of the violation hearing, appellant testified that he would never be able to return to work. Additional testimony at the hearing revealed that appellant‘s last child support payment was paid in February 2011 and that, between March 2010 and February 2011, no child support payments were paid.
{¶ 8} At the conclusion of the hearing, the trial court determined that appellant had violated all three rules of his community control conditions. Thus, the trial court revoked appellant‘s community control and imposed a prison term of 12 months for both counts in the nonsupport conviction, to be served consecutively, and a prison term of 18 months for the sole count in the domestic violence conviction, to be served consecutively to the nonsupport conviction, for a total of 42 months in prison. In written entries summarizing the trial court‘s
{¶ 9} Appellant now appeals the trial court‘s judgments, raising two assignments of error.
{¶ 10} Assignment of Error No. 1:
{¶ 11} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY REVOKING HIS COMMUNITY CONTROL SANCTION ON THE GROUNDS THAT HE DIDN‘T PAY CHILD SUPPORT.
{¶ 12} In this first assignment of error, appellant contends that the trial court erred in revoking appellant‘s community control by finding that he failed to pay his child support. Specifically, appellant argues that he had been paying his child support regularly until he suffered a disabling medical condition that prevented him from working. In making this argument, appellant “concedes that sufficient grounds existed” to find that he violated rules six and seven of his community control conditions. Thus, he only argues that the trial court should not have found a violation of rule twelve of his community control conditions.
{¶ 13} “The privilege of [community control] rests upon the probationer‘s compliance with the [community control] conditions and any violation of those conditions may properly be used to revoke the privilege.” State v. Simpson, 12th Dist. No. CA2000-12-251, 2002-Ohio-1909, ¶ 23; State v. Bell, 66 Ohio App.3d 52, 57 (5th Dist.1990). “An appellate court cannot reverse a trial court‘s decision to revoke [community control] absent an abuse of discretion.” Simpson at ¶ 18, citing State v. Theisin, 167 Ohio St. 119, 124-25 (1957). “An abuse of discretion connotes that the trial court‘s attitude in reaching its decision was unreasonable, arbitrary, or unconscionable.” Id.
{¶ 14} In support of his argument, appellant cites the United States Supreme Court‘s decision in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064 (1983), for the proposition that a trial court may not revoke community control solely because a probationer is unable to pay his fines or restitution.
{¶ 15} Bearden addressed the case of a probationer who was imprisoned solely because he could not pay a fine and restitution. Id. at 663. The probationer had borrowed money from his parents to make his first two payments. Id. at 662. However, with no income or assets, and having been unable to find work, the probationer was unsuccessful in making his additional payments and, consequently, was imprisoned. Id. at 673. The Supreme Court remanded the case to the lower court, finding that a probationer could not be imprisoned for failing to pay a fine when the lower court had failed to inquire into the reasons for the failure to pay. Id. at 674. In so finding, the Supreme Court held:
[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment.
{¶ 16} We find the case at hand distinguishable from Bearden. First, appellant‘s community control was not revoked solely because he failed to make his child support payments, but also because appellant violated rules six and seven of his community control conditions by having ammunition and drug paraphernalia in his residence. These violations are uncontested by appellant and have no relation to appellant‘s financial status. The trial court could have imposed the same prison term upon appellant for only the violations of rules
{¶ 17} Second, the trial court did make an inquiry into the reasons for appellant‘s failure to pay his support. Appellant and his probation officer, Kristie Taylor, testified as to appellant‘s back injury and the necessary surgery which prevented him from working. Taylor testified that appellant had informed her and his former probation officer, Jeanna Jacobs, that the back surgery would prevent him from working and that he was worried about his finances. Taylor also testified regarding a note from appellant‘s doctor indicating that he would be unable to work for as long as nine months after the surgery. Thus, the trial court satisfied the first requirement of Bearden to inquire into the reasons why appellant failed to pay his child support.
{¶ 18} Finally, this case is distinguishable from Bearden because the trial court determined that appellant failed to make sufficient bona fide efforts legally to acquire the resources to pay his child support. Although not explicitly stated, the trial court found that appellant failed to “go back to the juvenile court to attempt in any way to revise his child support order.” In addition, appellant presented no evidence at the hearing that he made any effort, bona fide or otherwise, to pay his child support. Instead, appellant only informed his probation officers that he would not be able to pay his support due to his back injury. Merely providing a reason why one will not pay his child support is not akin to making a bona fide effort to pay said support.
{¶ 19} Furthermore, even if the doctor‘s note was evidence that appellant did not willfully refuse to pay his child support, the note only indicates that appellant would not be
{¶ 20} Based upon the evidence presented at the hearing, the trial court‘s statement regarding appellant‘s failure to contact the juvenile court to discuss his child support can reasonably be interpreted as a finding that appellant failed to make bona fide efforts to acquire the resources to pay his support. Thus, the trial court‘s ruling satisfied the second requirement of Bearden.
{¶ 21} As the trial court‘s decision is distinguishable from Bearden, we cannot say that the trial court acted unreasonably, arbitrarily, or unconscionably in finding that appellant had violated rule twelve of his community control conditions by failing to pay child support. Therefore, appellant‘s first assignment of error is overruled.
{¶ 22} Assignment of Error No. 2:
{¶ 23} THE TRIAL COURT ERRED TO APPELLANT‘S PREJUDICE BY IMPOSING A PRISON TERM.
{¶ 24} In his second assignment of error, appellant contends that the trial court erred in not considering the felony sentencing guidelines set forth in
{¶ 25} In determining what sentence to impose after the violation of community control sanctions, the trial court “must consider all relevant facts when sanctioning the violation and must select sanctions which are commensurate with the seriousness of the violation and which adequately protect the public from future crime by the offender.” State v. Catron, 12th Dist. No. CA2001-03-040, 2001 WL 1567238, *1 (Dec. 10, 2001), citing
{¶ 26} With regard to the first prong of the Kasich test, appellant concedes that his sentence was within the statutory range. Instead, appellant essentially argues that the trial court failed to consider the factors set forth in
{¶ 27} With regard to the second prong of the Kasich test, we find that the trial court did not abuse its discretion in revoking appellant‘s community control and imposing a prison
{¶ 28} Accordingly, appellant‘s second assignment of error is overruled.
{¶ 29} Judgment affirmed.
RINGLAND and YOUNG, JJ., concur.
Young, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.