State ex rel. Hemsley v. Burnham Unruh , 128 Ohio St. 3d 307 ( 2011 )

[Cite as State ex rel. Hemsley v. Burnham Unruh, 128 Ohio St. 3d 307, 2011-Ohio-226.]
THE STATE EX REL. HEMSLEY, APPELLANT, v. BURNHAM UNRUH,
JUDGE, APPELLEE.
[Cite as State ex rel. Hemsley v. Burnham Unruh,
128 Ohio St. 3d 307, 2011-Ohio-226.]
Prohibition — Writ sought to prevent common pleas court judge from proceeding
on violations of community control — Judge did not patently and
unambiguously lack jurisdiction to act — Court of appeals’ dismissal of
complaint for writ affirmed.
(No. 2010-1482 — Submitted January 19, 2011 — Decided January 25, 2011.)
APPEAL from the Court of Appeals for Summit County, No. 25445.
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Per Curiam.
{¶ 1} This is an appeal from a judgment entered by the court of appeals
dismissing a complaint for a writ of prohibition to prevent appellee, Summit
County Court of Common Pleas Judge Brenda Burnham Unruh, from proceeding
on alleged violations of community control. Because Judge Burnham Unruh does
not patently and unambiguously lack jurisdiction to proceed, we affirm the
judgment of the court of appeals.
{¶ 2} In 1998, appellant, Greg H. Hemsley, pleaded guilty to felony
offenses of grand theft, theft, and misuse of credit cards, and the common pleas
court accepted the plea. Judge Burnham Unruh sentenced Hemsley to an
aggregate term of 18 months in prison.
{¶ 3} In March 2005, Judge Burnham Unruh granted Hemsley’s motion
for judicial release, suspended the remainder of his prison sentence, and placed
him on community control for three years upon certain terms and conditions,
including that the court would “consider transfer of supervision to North Carolina,
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with a plan of supervision and treatment, regular monthly payments made toward
restitution, regular reporting to the Summit County Adult Probation Department,
and verification of regular employment provided.” Hemsley moved to North
Carolina with the permission of the court and the Summit County Probation
Department.
{¶ 4} On March 4, 2008, Judge Burnham Unruh extended the period of
Hemsley’s community control by an additional two years. By letter dated January
13, 2010, the common pleas court notified Hemsley that he would be arraigned on
January 28, 2010, for alleged violations of community control, including traveling
to Mexico in 2010 without the permission of the sentencing judge or his Summit
County or North Carolina probation officers. Hemsley pleaded not guilty to the
charges, and Judge Unruh continued the hearing on the alleged violations to April
22.
{¶ 5} At the April 22, 2010 hearing, Hemsley was served with an
amended charge alleging new violations of his community control, including
leaving the country and traveling to Mexico around January 6, 2010, without his
North Carolina supervising probation officer’s approval. Hemsley moved to
dismiss the charges for lack of subject-matter jurisdiction, arguing that the term of
community control had expired. Judge Burnham Unruh denied the motion and
rescheduled the hearing.
{¶ 6} Hemsley filed a complaint in the Court of Appeals for Summit
County for a writ of prohibition to prevent Judge Burnham Unruh from
conducting a community-control-violation hearing and taking any further action
in the case. The judge filed a motion to dismiss the complaint, which the court of
appeals granted.
{¶ 7} This cause is now before the court on Hemsley’s appeal as of right.
{¶ 8} Hemsley asserts that the court of appeals erred in dismissing his
prohibition complaint and failing to grant the writ. Dismissal of the prohibition
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January Term, 2011
complaint for failure to state a claim upon which relief can be granted is
appropriate if, after presuming the truth of all factual allegations of the complaint
and making all reasonable inferences in Hemsley’s favor, it appears beyond doubt
that he can prove no set of facts entitling him to the requested extraordinary writ
of prohibition. Rosen v. Celebrezze, 117 Ohio St. 3d 241, 2008-Ohio-853, 883
N.E.2d 420, ¶ 13.
{¶ 9} Prohibition will not issue if the party seeking extraordinary relief
has an adequate remedy in the ordinary course of law. State ex rel. Mosier v.
Fornof, 126 Ohio St. 3d 47, 2010-Ohio-2516, 930 N.E.2d 305, ¶ 2. “In the
absence of a patent and unambiguous lack of jurisdiction, a court having general
subject-matter jurisdiction can determine its own jurisdiction, and a party
contesting that jurisdiction has an adequate remedy by appeal.” State ex rel. Plant
v. Cosgrove, 119 Ohio St. 3d 264, 2008-Ohio-3838, 893 N.E.2d 485, ¶ 5.
{¶ 10} For the following reasons, the judge does not patently and
unambiguously lack jurisdiction to conduct the community-control-violation
hearing in Hemsley’s criminal case.
{¶ 11} First, the common pleas court has basic statutory jurisdiction to
proceed on the charged statutory violations. “If the court imposing sentence upon
an offender sentences the offender to any community control sanction * * *, and
if the offender violates any condition of the sanctions, any condition of release
under a community control sanction imposed by the court, violates any law, or
departs the state without the permission of the court or the offender’s probation
officer, the public or private person or entity that operates or administers the
sanction or the program or activity that comprises the sanction shall report the
violation or departure directly to the sentencing court * * *.” R.C.
2929.15(A)(2)(b). Under R.C. 2929.15(B)(1), “[i]f the conditions of a community
control sanction 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
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sentencing court may impose upon the violator one or more of the [specified]
penalties,” including a prison term. The common pleas court was the sentencing
court for Hemsley, and the Summit County Probation Department charged him
with violating the conditions of his community-control sanction and with leaving
North Carolina without the permission of either the court or his probation officer.
{¶ 12} Second, the expiration in March 2010 of the five-year period of
community control for Hemsley did not divest the common pleas court and Judge
Burnham Unruh of subject-matter jurisdiction over the community-control-
violation hearing. Hemsley relies on former R.C. 2951.09, which provided that at
the termination of the probation period, “the jurisdiction of the judge or
magistrate to impose sentence ceases and the defendant shall be discharged.” 140
Ohio Laws, Part V, 7136, 7561. In Davis v. Wolfe (2001), 92 Ohio St. 3d 549, 751
N.E.2d 1051, we held that this provision prevented a common pleas court from
revoking a criminal defendant’s probation and sentencing him after his
probationary period had expired even if the revocation proceeding was initiated
before the probationary period expired. “Discharge is required [under this
provision] even if the alleged probation violation occurred during the
probationary period and could have resulted in a valid probation revocation and
imposition of sentence if it had been timely prosecuted.” Id. at 551, citing Kaine
v. Marion Prison Warden (2000), 88 Ohio St. 3d 454, 455, 727 N.E.2d 907.
{¶ 13} Former R.C. 2951.09, however, was repealed effective January 1,
2004, before Hemsley was placed on community control. 149 Ohio Laws, Part V,
9484, 9485. And although under R.C. 2951.011, former R.C. 2951.09 would
apply to “a person upon whom a court imposed a sentence for a misdemeanor
offense prior to January 1, 2004, and a person upon whom a court, on or after
January 1, 2004, and in accordance with law existing prior to January 1, 2004,
imposed a sentence for a misdemeanor offense that was committed prior to
January 1, 2004,” the underlying offenses for Hemsley were felony offenses.
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January Term, 2011
Therefore, former R.C. 2951.09 and Davis are inapplicable to Hemsley. Cf. State
v. Young, Montgomery App. No. 23679, 2010-Ohio-4145 (applying former R.C.
2951.09 to a misdemeanant who was sentenced on an underlying offense of petty
theft before the statute was repealed). Because R.C. 2951.09 was not applicable,
the court was authorized to conduct proceedings on the alleged community-
control violations even though they were conducted after the expiration of the
term of community control, provided that the notice of violations was properly
given and the revocation proceedings were commenced before the expiration. See
State v. Breckenridge, Franklin App. No. 09AP-95, 2009-Ohio-3620, ¶ 7; State v.
Semenchuk, Ross App. No. 10CA3140, 2010-Ohio-4864, ¶ 6-7. Here, the charge
of violating community control was filed and the proceeding on the charges
commenced before Hemsley’s community control expired in March 2010.
{¶ 14} Finally, it is unclear whether Hemsley’s community control was
tolled pursuant to R.C. 2951.07, which provides that “[i]f the offender under
community control absconds or otherwise leaves the jurisdiction of the court
without permission from the probation officer, the probation agency, or the court
to do so, or if the offender is confined in any institution for the commission of any
offense, the period of community control ceases to run until the time that the
offender is brought before the court for its further action.”
{¶ 15} Based on the foregoing, Judge Burnham Unruh does not patently
and unambiguously lack jurisdiction to proceed on the charges that Hemsley
violated his community control, and Hemsley has an adequate remedy by way of
appeal and motion for stay of the court’s judgment pending appeal to raise his
jurisdictional claim. Consequently, we affirm the judgment of the court of
appeals dismissing Hemsley’s complaint for extraordinary relief in prohibition.
We also deny Hemsley’s request for oral argument.
Judgment affirmed.
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O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
CUPP, and MCGEE BROWN, JJ., concur.
PFEIFER, J., dissents and would reverse the judgment of the court of
appeals.
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Bartek Law Office, Dennis J. Bartek, and Natalie M. Niese, for appellant.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard
S. Kasay, Assistant Prosecuting Attorney, for appellee.
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