State v. Meyer , 2014 Ohio 3705 ( 2014 )

[Cite as State v. Meyer, 2014-Ohio-3705.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26999
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TONYA MEYER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 02 0397 (B)
DECISION AND JOURNAL ENTRY
Dated: August 27, 2014
CARR, Judge.
{¶1} Appellant Tonya Meyer appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} After pleading guilty to one count of illegal assembly or possession of chemicals
for the manufacture of drugs, Meyer was sentenced to community control for a period of two
years. The sentencing entry was time-stamped and entered upon the journal on April 4, 2011.
The sentencing entry further stated that “community control is to commence on March 23,
2011.”
{¶3} In the morning of March 26, 2013, the trial court issued a journal entry stating
that, on March 13, 2013, it appeared that Meyer had failed to comply with conditions of
community control, and that upon request of the Adult Probation Department, the trial court
ordered that a capias be issued for Meyer’s appearance. During the afternoon of March 26,
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2013, the capias was issued. According to a journal entry issued on April 29, 2013, the parties
appeared in court regarding a community control violation charge against Meyer. Meyer pleaded
not guilty at that time, and the trial court remanded her to the county jail (without the possibility
of release due to emergency jail overcrowding) to await a later community control violation
status conference.
{¶4} The parties appeared in court on April 30, 2013, for the status conference. The
trial court lifted the community control violation holder on the conditions that Meyer enter into
the Day Reporting Program and submit to random drug screening. The court further remanded
her to the jail to await the community control violation hearing. At the violation hearing, Meyer
pleaded guilty. Although the trial court scheduled the sentencing hearing for the following week,
it nevertheless ordered that Meyer’s community control be extended for one additional year until
March 22, 2014.
{¶5} Prior to sentencing hearing, Meyer filed a motion to withdraw her guilty plea and
further raised the issue of whether the trial court had subject matter jurisdiction to address the
community control violation. Specifically, Meyer moved the court to dismiss the violation for
lack of jurisdiction. The trial court scheduled a hearing and directed the parties to be prepared to
address the issues of whether Meyer had absconded during the period of her community control;
if so, for what duration; and whether her period of community control was tolled. After the
hearing, the trial court determined that Meyer had absconded for approximately 200 days during
her period of community control, that her period of community control was tolled during that
time, and that the trial court therefore had subject matter jurisdiction to address the violation.
{¶6} The trial court allowed Meyer to withdraw her guilty plea. She then pleaded no
contest to the violation. The trial court sentenced her, extending her period of community
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control through December 31, 2014. Meyer filed a timely appeal in which she raises one
assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW BY REVOKING
APPELLANT’S PROBATION AND SANCTIONING APPELLANT WHEN
THE COURT NO LONGER HAD JURISDICTION.
{¶7} Meyer argues that the trial court lost jurisdiction to sanction her for a violation of
community control because her term of community control had expired. This Court disagrees.
{¶8} This Court reviews de novo a trial court’s refusal to dismiss a violation of
community control for lack of subject matter jurisdiction. State v. McQuade, 9th Dist. Medina
No. 08CA0081-M, 2009-Ohio-4795, ¶ 6.
{¶9} Meyer argues that the capias for her arrest was issued on March 26, 2013, after
her two-year period of community control had expired. Although the issuance of a capias tolls
the period of community control until the defendant can be brought before the court regarding a
violation, McQuade at ¶ 7, it is axiomatic that there must be time remaining in the period of
community control which may be tolled at the time of the issuance of the capias. Nevertheless,
there are other events besides the issuance of a capias which may toll the period of community
control.
{¶10} R.C. 2951.07 states, in pertinent part: “If the offender under community control
absconds * * *, the period of community control ceases to run until the time that the offender is
brought before the court for its further action.” In concluding that it retained jurisdiction to
address the community control violation and sanction Meyer, the trial court relied on In re
Townsend, 51 Ohio St.3d 136 (1990). The Townsend court held that a probationer need not
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leave the jurisdiction to abscond; rather, he need only voluntarily absent himself from the
supervision of the probation authority. Id. at 137. Reviewing the evidence adduced at the
hearing, the trial court found that Meyer had failed to report to her probation officer for an
extended period of time. Moreover, the court believed the probation officer’s testimony that she
had been unable to locate Meyer despite efforts to do so. Accordingly, the trial court found that
the two-year period of Meyer’s community control was tolled from October 1, 2012, until the
date of her arrest on April 15, 2013, so that the capias was issued and violation proceedings were
initiated during the period of community control. The trial court concluded, therefore, that it
maintained subject matter jurisdiction to sanction Meyer for a community control violation.
{¶11} In her appellate brief, Meyer relies on a Fifth District case for the proposition that
the trial court loses jurisdiction to sanction a defendant for a violation after the period of
probation has expired. State v. Justice, 5th Dist. No. 08 CA 47, 2009-Ohio-2064. Relying on
R.C. 2951.09 and Kaine v. Marion Prison Warden, 88 Ohio St.3d 454 (2000), the Justice court
wrote:
At the end or termination of the period of probation, the jurisdiction of the judge
or magistrate to impose sentence ceases and the defendant shall be discharged.
Discharge is required 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 ¶ 14.
{¶12} The Ohio Supreme Court, however, more recently discussed the issue of subject
matter jurisdiction within the context of community control violations. In State ex rel. Hemsley
v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, the high court recognized that a judge may
conduct a community control violation hearing where the court does not “patently and
unambiguously lack jurisdiction.” See id. at ¶ 10. It presented three reasons in support.
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{¶13} First, the high court recognized the basic statutory jurisdiction accorded to the
common pleas court by the legislature to address charged community control violations pursuant
to R.C. 2929.15(B)(1). Hemsley at ¶ 11. That provision expressly confers authority on the
sentencing court to impose one or more enumerated penalties for a violation of a condition of
community control. R.C. 2929.15(B)(1)(a)-(c).
{¶14} Second, the Supreme Court emphasized that R.C. 2951.09 on which the Kaine
court relied had been repealed. Hemsley at ¶ 13. Former R.C. 2951.09 was specific to probation
and provided, “At the end or termination of the period of probation, the jurisdiction of the judge
or magistrate to impose sentence ceases and the defendant shall be discharged.” Case law
interpreting this provision held that “[i]t matters not that the alleged violation of probation
occurred during the period of probation and could have resulted, if timely prosecuted, in a
revocation of probation and imposition of sentence.” State v. Jackson, 106 Ohio App.3d 345,
348 (8th Dist.1995), quoting State v. Jackson, 56 Ohio App.3d 141, 142 (5th Dist.1988) (further
holding that “even where a probationer absconds during the period of probation, the court is
deprived of jurisdiction to act after the original probation period, having failed to extend the
period of probation prior to its expiration because of the disappearance of the defendant.”) As
the Supreme Court recognized in Hemsley at ¶ 13, however, R.C. 2951.09 was repealed on
January 1, 2004, and the legislature has not enacted an analogous statute relevant to community
control.
{¶15} The reason from Hemsley that is most applicable to the instant case before this
Court is the third. The high court concluded that it was unclear whether the defendant’s period
of community control was tolled pursuant to R.C. 2951.07 due to the defendant’s possibly
having absconded during his community control. Hemsley at ¶ 14. It would necessarily then be
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reasonable for the trial court to determine whether the defendant had absconded during the
period of community control to determine whether the court retained jurisdiction to proceed on
the community control violation, where that issue was “not patently and unambiguously” clear.
See id. at ¶ 15. That is precisely what the trial court did in this case.
{¶16} The dissent takes issue with our reliance on the guidance promulgated in
Hemsley. While we acknowledge the procedural posture of that case as a disposition of a writ of
prohibition, it is clear that the high court recognized the trial court’s authority to determine
whether it retained jurisdiction over the defendant with respect to the filing of a community
control violation. Where there exists a question as to whether or not the period of community
control has expired, the trial court does not patently and unambiguously lack jurisdiction to
address the issue of whether a tolling event occurred which might have extended the termination
date of the period. It is axiomatic that whether the period of community control has been tolled
will not be relevant during the original time frame. Tolling only becomes relevant if the court or
probation department attempts to impose sanctions or ongoing supervision beyond the originally
anticipated termination date. At that time, the trial court reasonably may hold a hearing to
determine whether a tolling event, such as the defendant’s absconding, has occurred during the
original period. This has been recognized in practice even prior to the Supreme Court’s opinion
in Hemsley. See, e.g., State v. Hardy, 8th Dist. Cuyahoga No. 93677, 2010-Ohio-3419, ¶ 7, 18
(concluding that the trial court properly found that the defendant’s period of community control
tolled during a period of prison confinement so that the court retained jurisdiction to address an
alleged violation).
{¶17} This Court further acknowledges the limitation on the trial court’s jurisdiction to
proceed on a community control violation beyond the period of community control. If a tolling
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event has occurred, however, the period of community control necessarily would not have
expired on the originally ordered date. Accordingly, we read the Supreme Court’s recognition
that “the [trial] 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[,]” Hemsley at ¶ 13, in context with its first and third
reasons for determining that there was no patent and unambiguous lack of jurisdiction. In other
words, notice must be given and proceedings commenced before the expiration of the term of
community control in consideration of tolling events. Specifically, a trial court maintains
jurisdiction to proceed on alleged community control violations based on statutory jurisdiction
accorded by the legislature and during the extant period of community control which may extend
beyond the original termination date based on some tolling event. Id. at ¶ 11, 14; see also State
v. Gibby, 5th Dist. Fairfield No. 13-CA-81, 2014-Ohio-2921, ¶ 18 (applying the third ground in
Hemsley and concluding that the trial court retained jurisdiction to address a community control
violation where notice was given and proceedings were commenced at a time beyond the original
expiration date, but during a period of continuing community control due to tolling events). In
fact, the second reason cited above and emphasized by the dissent reasonably expanded the
sentencing court’s jurisdiction to address community control violations beyond the expiration
date so long as the defendant properly received notice of the violation and the revocation
proceedings were commenced, not concluded, prior to the expiration of the community control
period.
{¶18} Based on the evidence adduced at the hearing on the issue of whether Meyer had
absconded during her period of community control, a determination necessary for the trial court
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to determine whether it retained jurisdiction to address the community control violation, the trial
court found that Meyer had absconded for nearly 200 days. Meyer does not challenge that
finding on appeal. Her community control was, therefore, tolled for that amount of time.
Because the trial court sentenced Meyer on the violation well within the period of her
community control due to the tolling of time, it retained subject matter jurisdiction in this matter.
Meyer’s assignment of error is overruled.
III.
{¶19} Meyer’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, J.
CONCURS.
BELFANCE, P. J.
DISSENTING.
{¶20} I respectfully dissent from the judgment of the majority, as I would conclude that
the trial court lacked jurisdiction to conduct the community control violation hearing.
{¶21} Pursuant to the trial court’s April 4, 2011 journal entry, Ms. Meyer’s two-year
community control sanction began on March 23, 2011, and, therefore, ended on March 23, 2013.
Thus, in order to have subject matter jurisdiction to conduct community control violation
proceedings, the notice of community control violations had to be properly given and the
revocation proceedings had to be commenced before the expiration of the community control
period. See State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, ¶ 13. That did
not occur in this case. Although the State has argued that tolling occurred to extend the trial
court’s authority to conduct proceedings, the State could argue about tolling events only if the
trial court had jurisdiction in the first place. In this case, because notice of the violations was not
properly given and the revocation proceedings were not commenced prior to the expiration of
Ms. Meyer’s community control period, the trial court did not have jurisdiction over the matter,
including the issue of whether any absconding-related tolling events took place. See id.; see also
Bowling v. Holland, N.D.Ohio No. 1:11 CV 492, 2011 WL 5024171, *2 (Aug. 23, 2011), fn. 2.
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{¶22} While I agree that there is important language in Hemsley that is helpful in
resolving this appeal, the manner in which the majority relies on Hemsley is troubling. Hemsley
was a prohibition case in which the Supreme Court had to determine whether to grant an
extraordinary remedy, namely a writ of prohibition. See Hemsley at ¶ 1. As such, the Hemsley
court was not deciding the ultimate propriety of any legal actions the trial court may have taken
in the underlying case. Rather, its focus was to determine whether the relator had demonstrated
grounds for the issuance of the writ. Ultimately, it declined to grant the writ given that the
relator had an adequate remedy at law and it did not appear that the trial court patently lacked
jurisdiction. See id. at ¶ 15. In other words, the relator could challenge any errors of the trial
court through the ordinary appeal process. Thus, the Supreme Court’s use of the phrase “does
not patently and unambiguously lack jurisdiction” relates to the standard which is to be applied
in determining whether the writ should be granted and should not be considered as a standard by
which this Court should decide the jurisdictional issue presented in Ms. Meyer’s appeal. Id.
{¶23} It is additionally troubling that, in its reliance on Hemsley, the majority has not
acknowledged the following critical language from the opinion, which provides a vital caveat in
evaluating the subject matter jurisdiction of the trial court in these matters:
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.
(Emphasis added.) Hemsley at ¶ 13. From this language, it is clear that the Supreme Court
concluded that a writ of prohibition was not warranted in Hemsley, at least in part, because, “the
charge of violating community control was filed and the proceeding on the charges commenced
before Hemsley’s community control expired in March 2010.” Id. This would also lead to the
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inference that the trial court would lack jurisdiction if the notice of violation was not given and
the revocation proceedings were not commenced before the expiration of the period of
community control.
{¶24} In the instant matter, the record supports the conclusion that neither of those
conditions was met in this case prior to the expiration of the stated community control period.
Accordingly, I would conclude that the trial court lacked jurisdiction to hold the proceedings at
all and, thus, did not have jurisdiction to have the hearing to determine whether any tolling took
place. In doing so, I note that, if proper monitoring is occurring, when a defendant fails to report
or otherwise violates a provision of community control, it is not an undue burden for the
supervising authority to file a notice of violation such that proceedings can be commenced within
the stated community control period. This is so even if the defendant has absconded.1 If timely
notice and commencement occurs, then tolling would ensue. See Hemsley, 128 Ohio St.3d 307,
2011-Ohio-226, at ¶ 13-14. However, the majority seems to endorse a form of automatic tolling
that would essentially dispense with any requirement of timely filing of a notice of violation and
commencement of proceedings within the stated community control period.2 Thus, I respectfully
dissent.
1
Upon the filing of the notice, the court may commence the proceedings by simply
scheduling the hearing and sending notice in accordance with the procedural requirements. If the
defendant fails to appear, then tolling would occur.
2
For example, if a defendant has absconded, the majority essentially allows the State to
sit back and take no action. Thus, even if the State did not file a notice of violation and
commence the proceedings prior to the expiration of community control, it could proceed to file
a notice of violation and commence the proceedings 20 years after the expiration of the
community control period. Clearly, such would violate basic tenants of due process that are
foundational to our system of justice.
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APPEARANCES:
RHONDA KOTNIK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.