State v. Foley , 2021 Ohio 3263 ( 2021 )

[Cite as State v. Foley, 2021-Ohio-3263.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-21-005
Appellee Trial Court No. 2018CR0588
v.
Melissa Foley DECISION AND JUDGMENT
Appellant Decided: September 17, 2021
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Jeffrey P. Nunnari, for appellant
*****
MAYLE, J.
{¶ 1} Defendant-appellant, Melissa Foley, appeals the January 19, 2021 judgment
of the Wood County Court of Common Pleas, revoking her community control and
imposing concurrent prison terms of 12 months and 36 months. For the following
reasons, we affirm the trial court judgment.
I. Background
{¶ 2} Melissa Foley was charged with possession of cocaine, a violation of R.C.
2925.11(A) and (C)(4)(a), a fifth degree felony (Count 1), and endangering children, a
violation of R.C. 2919.22(A) and (E)(2)(C), a third-degree felony (Count 2). On
March 29, 2019, Foley entered a plea of guilty to both charges. The trial court made a
finding of guilty, referred the matter for a presentence investigation, and continued the
matter for sentencing.
{¶ 3} Foley was permitted to withdraw her guilty plea after revealing during her
PSI interview that she had been intoxicated at the plea hearing and had no memory of it.
A new plea hearing took place at which she confirmed that she was not under the
influence, and she once again entered a plea of guilty. Again, the court made a finding of
guilty and continued the matter for sentencing.
{¶ 4} On May 17, 2019, the trial court imposed a sentence of community control,
subject to various conditions, including that Foley not consume alcoholic beverages and
that she attend Alcoholics Anonymous or other 12-step support meetings. It informed
Foley that a violation of community-control sanctions may lead to a more restrictive
sanction, including a sentence of 12 months’ imprisonment on Count 1 and 36 months on
Count 2. Foley’s sentence was memorialized in a judgment journalized on May 21,
2019.
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{¶ 5} On July 28, 2020, the state filed a motion to revoke community control,
alleging that Foley violated community control by testing positive for the presence of
alcohol. Foley admitted to the violation and at a hearing on the state’s motion, the court
accepted Foley’s stipulation, found that she violated community control, and continued
the matter for disposition.
{¶ 6} Before the disposition hearing, on November 18, 2020, the state filed a
second motion to revoke community control. It alleged that Foley failed to attend sober
support meetings and instead submitted falsified proofs of attendance.
{¶ 7} On January 12, 2021, the trial court conducted a hearing on the state’s
second petition to revoke community control. At that hearing Foley admitted the
community-control violation. The matter proceeded to disposition on both violations.
{¶ 8} Defense counsel spoke on Foley’s behalf. Among other things, he pointed
out to the court that Foley had submitted “letters from organizations that show * * * [that
Foley] is engaged in substance abuse counseling, and treatment, and all forms of sort of
positive interaction[.]” The court responded that what had been missing from the case
“from day one” was honesty. “Ms. Foley hasn’t told a truth to this Court, as I could
attest, at any time throughout this.” Defense counsel acknowledged the importance of
honesty, but insisted that “the addict’s path usually * * * takes a long time to rebuild trust
* * *.” He again emphasized that his client had supplied letters of support.
{¶ 9} Foley addressed the court and conceded that she had made mistakes and had
lied to the court. She offered explanations for some of those mistakes and lies—mainly,
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that her lies stemmed from fear. She told the court: “I’m not trying to fool you.” She
explained the difficulty she was having making it to in-person meetings, and told the
court she panicked and accepted fraudulent meeting slips from someone. Foley told the
court that she was “embarrassed and humiliated” that she lied. She listed for the court all
the things she had been doing to better herself and to recover, including working full-time
at Cherry Street Mission.
{¶ 10} The court once again focused on Foley’s lies over the course of the case
and told Foley that those lies had thwarted its attempts to keep her “on the right line.”
The court told Foley that it had come to the hearing planning on sending her to prison,
but ultimately, it decided to give Foley “the benefit of the doubt” because she had “done
a lot of things.” The trial court imposed 30 days in Wood County Jail and continued
community control. The court told Foley: “I’m still not convinced that probation will
completely work. I’m not convinced that you can be honest.”
{¶ 11} Before entering judgment memorializing the disposition of the community-
control violations, the court learned that Foley had been discharged from Cherry Street
Mission, she had forged a letter of support from A.J., an employee of Cherry Street
Mission, and she forged a letter of support from her brother. The court scheduled a
second hearing for January 15, 2021, at which it explained how it had learned of Foley’s
dishonesty.
{¶ 12} The court told the parties that on the morning of the January 12, 2021
hearing, it emailed A.J. to follow up on her letter of support for Foley. A.J. did not
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immediately respond. The next morning, however, A.J. replied to the court’s email
message and informed it that she had not written the letter. “Then that led to some
conversations with [A.J.] and other individuals at Cherry Street Mission, where [the
court] learned that for other reasons Ms. Foley has been discharged from Cherry Street
Mission because of other actions unrelated to the letter that was submitted.” The court
contacted Ms. Foley’s brother and learned that he also had not written the letter of
support that Foley attributed to him.
{¶ 13} Because no judgment had yet been entered, the court explained, it felt it
could rehear the matter. Defense counsel indicated that he was “not going to lodge any
objection to this procedural effort—not that there would be a fair objection * * *.” The
state outlined the number of ways that Foley had broken the law by submitting the
falsified letters and attendance records. For her part, Foley admitted that she submitted
the fraudulent letters, explaining that she did so because she was “trying to get [herself]
out of trouble.”
{¶ 14} The court read correspondence it received from A.J. after they spoke
concerning Foley’s falsified letter. A.J. had positive things to say about Foley, said she
was saddened to hear that Foley submitted a falsified letter from her, and indicated that if
she had been asked, she would have been more than willing to send a letter on Foley’s
behalf.
{¶ 15} Again noting its frustration and disappointment with Foley’s deceit, the
trial court, after considering R.C. 2929.11, 2929.12, 2929.13, and 2929.15, terminated
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community control and imposed the sentences of which Foley was informed at her
original sentencing hearing—12 months in the Ohio Department of Rehabilitation and
Corrections on Count 1 and 36 months on Count 2—and ordered those sentences to be
served concurrently. The sentence was memorialized in a judgment entered on
January 19, 2021.
{¶ 16} Foley appealed. She assigns the following error for our review:
WHETHER THE TRIAL COURT ERRED TO APPELLANT’S
PREJUDICE BY REVOKING HER COMMUNITY CONTROL AND
SENDING HER TO PRISON?
II. Law and Analysis
{¶ 17} In her sole assignment of error, Foley argues that the trial court erred by
revoking community control based on conduct that, while unlawful, did not violate any
term or condition of community control. She claims that no condition “prohibit[ed] her
from writing fake letters to the judge,” and her dishonesty was already taken into account
during the January 12, 2021 hearing. Foley complains that the court failed to explain
how the letters—which she describes as “further reflections of Foley’s known penchant
for dishonesty”—altered its disposition of her community-control violations “just three
days after determining that her dishonesty didn’t warrant termination of community
control.” Moreover, she contends, she was punished for this conduct “on the court’s own
initiative,” without a separate petition to revoke her community control, violating her
right to due process.
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{¶ 18} The state responds that Foley was notified at her original sentencing
hearing that a violation of community-control sanctions could lead to more restrictive
sanctions, including a prison term of 12 months on Count 1 and 36 months on Count 2.
The state also points out that the court considered the relevant sentencing factors,
including R.C. 2929.11 and 2929.12, and expressed its rationale for imposing prison
terms. It emphasizes that an appellate court may not independently weigh the evidence
and substitute its judgment for that of the trial court concerning the sentence that best
reflects compliance with those statutes.
{¶ 19} Under R.C. 2929.15(B)(1) and (3), if an offender violates the conditions of
a community-control sanction or violates a law, the court may impose a longer period of
community control, a more restrictive community-control sanction, or a prison term
within the range available for the underlying offense up to the maximum term specified at
the original sentencing hearing. See also State v. Calhoun, 6th Dist. Wood No. WD-17-
067, 2019-Ohio-228, ¶ 18. We review a trial court’s decision to revoke a community
control sanction under an abuse-of-discretion standard. Calhoun at ¶ 17. An abuse of
discretion connotes that the trial court’s attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). An unreasonable decision is one that lacks sound reasoning to support the
decision. Hageman v. Bryan City Schools, 10th Dist. Franklin No. 17AP-742, 2019-
Ohio-223, ¶ 13. “An arbitrary decision is one that lacks adequate determining principle
and is not governed by any fixed rules or standard.” Id., quoting Porter, Wright, Morris
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& Arthur, LLP v. Frutta del Mondo, Ltd., 10th Dist. Franklin No. 08AP-69, 2008-Ohio-
3567, ¶ 11. And an unconscionable decision is one “that affronts the sense of justice,
decency, or reasonableness.” Id.{¶ 20} First, to be clear, the trial court revoked community control based on
Foley’s conduct in failing to attend required sober-support meetings, instead submitting
fraudulent sober-support meeting attendance slips, and for consuming alcohol, resulting
in a positive alcohol test—both were stipulated violations of community control; it did
not terminate community control because Foley wrote “fake letters to the judge.” The
court, therefore, did not punish Foley’s conduct “on [its] own initiative” as Foley claims,
and her due process argument is without merit.
{¶ 21} Second, Foley is wrong that the court failed to describe how the letters
altered its disposition of her community-control violations. The trial judge explained at
the sentencing hearing that he had fully intended to send Foley to prison on January 12,
2021, because he did not feel that community control would work because he was “not
convinced that [she] could be honest.” But, the court noted, “you’ve done a lot of things,
and so I’m going to give you the benefit of the doubt.” Important to that decision was
Foley’s “successes as an employee at Cherry Street Mission” and the “letter sen[t] on her
behalf from an employee at Cherry Street Mission.” The very next day, the court learned
that Foley has been discharged from Cherry Street Mission and had forged the letter of
support from A.J. So while it is true that the court considered Foley’s “penchant for
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dishonesty” when it sentenced her at the January 12, 2021 hearing, the court discovered,
before entering judgment, that Foley had not done the “things” that had persuaded it to
abandon its original plan to impose a prison sentence.
{¶ 22} The court explained in its January 19, 2021 judgment:
The Court also considered that the admitted allegation of a
community control violation was the presentation of false sober support
certificates and that at the hearing of this matter Defendant attempted to
present a falsified letter of support as an original document from a third
party advocating for the Defendant. Considering that Defendant has
presented previous misstatements to the Court, had a violation for
attempting to mislead a probation officer, presented a falsified letter to the
Court and the fact that community control is only effective—particularly
when addressing the needs of an addicted person—if the probationer is
truthful [sic].
{¶ 23} Here, it is undisputed that Foley tested positive for alcohol and failed to
attend required sober-support meetings, instead submitting falsified proofs of attendance,
violating her community-control sanctions. It was within the court’s discretion to impose
the prison terms of which it notified Foley at her original sentencing. And while the
court initially acted against its instincts when it decided to continue community control
on January 12, 2021, it learned of Foley’s deceptive conduct—her untruthful
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representation that she was employed by Cherry Street Mission and her submission of
forged letters of support—before judgment was entered, in time to convene a new
disposition hearing. See State v. Thompson, 2017-Ohio-1001, 86 N.E.3d 608, ¶ 13 (11th
Dist.) (explaining that criminal sentence is not final until issuance of final order).
{¶ 24} We find no abuse of discretion in the trial court’s decision to terminate
community control and impose the prison sentences of which Foley was informed at her
original sentencing hearing. See, e.g., id. at ¶ 1 (finding no error where after outburst in
court following sentencing and before judgment was entered, trial judge went back on
record and increased defendant’s sentence). See also State v. Bryant, 11th Dist. Lake No.
2019-L-024, 2020-Ohio-438, ¶ 24, appeal allowed, 159 Ohio St.3d 1468, 2020-Ohio-3884,
150 N.E.3d 125, ¶ 24 (“[T]he trial court’s initial order was not final upon the court’s
pronouncement; the court, therefore, possessed the authority to revisit the order and
increase the same.”).
{¶ 25} We find Foley’s assignment of error not well-taken.
III. Conclusion
{¶ 26} The trial court did not abuse its discretion when it convened a new
disposition hearing to address false information and fraudulent letters of support
submitted by Foley in an attempt to avoid stricter sanctions following two admitted
community-control violations. The court had not yet entered judgment following its first-
scheduled disposition hearing when it learned of Foley’s deceit, so it possessed authority
to revisit the order and pronounce a new disposition.
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{¶ 27} We affirm the January 19, 2021 judgment of the Wood County Court of
Common Pleas. Foley is ordered to pay the costs of this appeal under App.R 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, P.J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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