State v. Jenkins , 2017 Ohio 1073 ( 2017 )


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  • [Cite as State v. Jenkins, 2017-Ohio-1073.]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    MONTGOMERY COUNTY
    STATE OF OHIO                                      :
    :
    Plaintiff-Appellee                         :   C.A. CASE NO. 27173
    :
    v.                                                 :   T.C. NO. 15-CR-1155
    :
    ERNEST J. JENKINS                                  :   (Criminal Appeal from
    :    Common Pleas Court)
    Defendant-Appellant                        :
    :
    ...........
    OPINION
    Rendered on the ____24th ___ day of _____March_____, 2017.
    ...........
    ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
    Third Street, 5th Floor, Dayton, Ohio 45422
    Attorney for Plaintiff-Appellee
    CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 2541 Shiloh Springs Road, Dayton,
    Ohio 45426
    Attorney for Defendant-Appellant
    .............
    DONOVAN, J.
    {¶ 1} Counsel for Ernest J. Jenkins has submitted a brief pursuant to Anders v.
    California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967), in which counsel asserts
    that “after a careful and thorough review of the record and case law, [counsel] was unable
    to locate any meritorious issues for appellate review.” This Court notified Jenkins of his
    -2-
    counsel’s submission and provided him an opportunity to file a pro se brief. None has
    been received. We hereby affirm the judgment of the trial court.
    {¶ 2} Appellate counsel’s brief is addressed to the trial court’s June 24, 2016
    revocation of Jenkins’ community control sanctions and imposition of an eleven-month
    sentence. The community control sanctions were granted on October 9, 2015, after
    Jenkins pled no contest to one count of harassment with bodily substance, in violation of
    R.C. 2921.38(B), a felony of the fifth degree.
    {¶ 3} Jenkins was indicted on May 12, 2015 on one count of harassment with
    bodily substance; one count of obstruction of official business, in violation of R.C.
    2921.31(A), a misdemeanor of the second degree; one count of disorderly conduct, in
    violation of R.C. 2917.11(A)(1), a misdemeanor of the fourth degree; and one count of
    resisting arrest, in violation of R.C. 2921.33(A), a misdemeanor of the second degree.
    Jenkins pled not guilty on May 27, 2015. On September 10, 2015, Jenkins entered his
    no contest plea in exchange for the dismissal of the remaining charges. The trial court
    sentenced Jenkins to the following community control sanctions:
    1. Defendant’s compliance with the General Conditions of this court
    for probationers;
    2.   A term of Intensive Probation Supervision with a Chemical
    Abuse/Mental Health Specialist not to exceed five (5) years
    3.   A requirement that the offender provides verification of VA
    Medical benefits income;
    4.   A requirement that the offender completes mental health
    treatment at the Dayton VA Medical Center and complies with any further
    -3-
    treatment recommended by that agency, the Court, or the Division of
    Criminal Justice Services;
    5.     A requirement that the offender takes all medications as
    prescribed;
    6.      A requirement that the offender verifies all prescription
    medications;
    7. A requirement that the offender appears for a 90 day Status
    Hearing at which time the Court will review a probation status report
    provided by his probation officer;
    8.   A requirement that the offender signs necessary releases of
    information;
    9. A requirement that the offender not be in any building, structure,
    room, vehicle or place when you know or have reasonable cause to know
    that illegal drugs, stolen property or any firearms are present;
    10. A requirement that the offender abstains from use of illegal
    drugs, drugs of abuse, and alcohol.
    {¶ 4} On May 16, 2016, the court found Jenkins to be an absconder and issued a
    warrant for his arrest after his Community Control Officer reported to the court on May 11,
    2016 that Jenkins’ whereabouts were unknown since April 14, 2016.            Jenkins was
    arrested on May 22, 2016.
    {¶ 5} On May 24, 2016, the court issued a “Notice of CCS Revocation Hearing and
    Order.” The Notice provides that Jenkins violated his community control sanctions when
    he failed to report to the probation department for a scheduled appointment on April 21,
    -4-
    2016, when he failed to abstain from the use of illegal drugs, when he failed to provide
    verification of prescribed medications, when he failed to attend the VA Medical Center for
    treatment, and when he failed to appear for a status hearing scheduled for March 9, 2016.
    {¶ 6} A revocation hearing was held on June 22, 2016. Alisha Williams testified
    that she is employed at the Montgomery County Adult Probation Department, and that
    she supervises Jenkins, having done so since March 2016. Williams stated that Jenkins
    met with her weekly, and that he failed to appear at a scheduled appointment with her on
    April 21, 2016. Williams stated that she provided Jenkins with an appointment card with
    the date and time for the meeting in advance, and that Jenkins did not contact her before
    or after the scheduled time to explain his absence. Williams stated that a warrant was
    issued for his arrest on May 16, 2016, and that after he was arrested, she met with Jenkins
    in the jail on May 22, 2016. Williams stated that Jenkins advised her then that he had
    used cocaine. Williams further testified that she called the VA after Jenkins’ arrest and
    learned that he had stopped attending treatment there, and that she did not have
    verification of his prescribed medications.
    {¶ 7} On cross-examination, Williams stated that she attempted to contact Jenkins
    by phone and in person at his home when he did not appear for his appointment, without
    success. She stated that Jenkins indicated to her at the jail that he received the “blue
    card” she left at his residence. Williams stated that when she met with him in the jail,
    Jenkins never indicated to her that he had been recently hospitalized. In response to a
    question from the court, Williams indicated that Jenkins is not amenable to continued
    community control sanctions, based upon his conduct after April 21, 2016. She stated
    that he had been generally compliant with his community control sanctions prior to April
    -5-
    21, 2016.
    {¶ 8} Jenkins testified that he provided verification of his medications to his
    previous probation officer. Jenkins stated that Williams does not answer her phone
    when he calls her, and that he leaves her messages. He stated that he has not used
    drugs in two years. Jenkins stated that he is enrolled in a program located off of Edward
    C. Moses Boulevard, that “Federal Judge Newman has me going to that program,” and
    that “it would suffice” for the VA program. Jenkins stated that he was hospitalized on
    April 21, 2016, and that he is “a very sick man.” He stated that he advised Williams that
    he had been hospitalized.
    {¶ 9} At the conclusion of the hearing, the court indicated as follows:
    THE COURT: Mr. Jenkins, it looks like this actually started before
    April 21st, back when you missed status hearing on March 9th. That sort
    of was bypassed and you were given an opportunity. And if you were in
    the hospital on April 21st, and I’m not denying that you were, you had
    several weeks thereafter that you could have gotten ahold of your probation
    officer to let them know that. But there’s no indication that you provided
    any documentation to them of your hospitalization o[r] the reason why you
    couldn’t appear.
    You also readily admitted yourself that you were using cocaine,
    which is a direct violation of the - -
    THE DEFENDANT: No, I didn’t Your Honor.
    THE COURT: * * * Also, the testimony - - the credible testimony from
    the probation officer that you failed to provide verification of your
    -6-
    prescription medications. And one of the orders about the VA, just so the
    record is clear, one of the things I ordered you to do was the mental health
    treatment. And it doesn’t appear that that is – been taking place, nor was
    there - - that you completed that treatment.
    So it was all of those issues and admissions from yourself and the
    testimony before the Court. I am going to find that you did violate the terms
    and conditions of your community control sanctions. * * *
    {¶ 10} Crim. R. 32.3(A) provides: “The court shall not impose a prison term for
    violation of the conditions of a community control sanction or revoke probation except
    after a hearing at which the defendant shall be present and apprised of the ground on
    which action is proposed.” As this Court has previously noted:
    A community control revocation hearing is not a criminal trial. State
    v. Hylton (1991), 
    75 Ohio App. 3d 778
    , 781, 
    600 N.E.2d 821
    . Thus, the
    State does not have to demonstrate a violation with proof beyond a
    reasonable doubt.    
    Id. at 782,
    600 N.E.2d 821
    .      The State need only
    present substantial evidence of a violation of the terms of a defendant’s
    community control. 
    Id. “The right
    to continue on community control depends on compliance
    with community control conditions and is a matter resting within the sound
    discretion of the court.” State v. Brown, Montgomery App. No. 22467,
    2008-Ohio-4920, ¶ 9, quoting State v. Schlect, Champaign App. No. 2003-
    CA-3, 2003-Ohio-5336, at ¶ 7. Thus, we review the trial court’s decision
    revoking community control sanctions on an abuse-of-discretion standard.
    -7-
    
    Id. An abuse
    of discretion occurs when the trial court’s decision is
    unreasonable, arbitrary, or unconscionable. 
    Id. State v.
    Cofer, 2d Dist. Montgomery No. 22798, 2009-Ohio-890, ¶ 12-13.
    {¶ 11} Pursuant to our responsibilities under Anders, we have conducted a
    thorough and independent review of the trial court’s proceedings and have found no error
    having arguable merit. Accordingly, the judgment of the trial court is affirmed.
    .............
    WELBAUM, J. and TUCKER, J., concur.
    Copies mailed to:
    Andrew T. French
    Christopher A. Deal
    Ernest J. Jenkins
    Hon. Dennis J. Adkins
    

Document Info

Docket Number: 27173

Citation Numbers: 2017 Ohio 1073

Judges: Donovan

Filed Date: 3/24/2017

Precedential Status: Precedential

Modified Date: 3/24/2017