State v. Ettenger , 2019 Ohio 2085 ( 2019 )

[Cite as State v. Ettenger, 2019-Ohio-2085.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 18AP-326
(C.P.C. No. 17CR-6724)
v. :
(REGULAR CALENDAR)
Jeffrey C. Ettenger, :
Defendant-Appellant. :
D E C I S I O N
Rendered on May 28, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee.
On brief: Yeura R. Venters, Public Defender, and Timothy E.
Pierce, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Jeffrey C. Ettenger, appeals from a judgment of the
Franklin County Court of Common Pleas sentencing him to a period of three years of
community control for his failure to verify address conviction. For the following reasons,
we affirm.
I. Facts and Procedural History
{¶ 2} In December 2017, plaintiff-appellee, State of Ohio, indicted Ettenger on one
count of failure to verify address in violation of R.C. 2950.06, a third-degree felony
(Count 1), and one count of failure to provide notice of change of address in violation of R.C.
2950.05, a third-degree felony (Count 2). Ettenger initially pleaded not guilty. In February
2018, however, he withdrew his not guilty plea and pleaded guilty to the stipulated lesser-
No. 18AP-326 2
included offense of Count 1, failure to verify address as a fourth-degree felony. A nolle
prosequi was entered as to Count 2.
{¶ 3} The trial court sentenced Ettenger in April 2018. At the sentencing hearing,
the parties discussed Ettenger's 2006 sexually oriented offense conviction that was based
on conduct in 2002. For that offense, Ettenger was placed on community control; however,
his supervision was revoked and he went to prison in 2009. He was released from prison
in 2010 and placed on post-release control. The post-release control ended in July 2016
and the case was terminated. At the April 2018 sentencing hearing, Ettenger represented
to the court that he had completed a mandatory sex offender treatment program during his
incarceration for the 2002 offense. The trial court sentenced Ettenger to 3 years of
community control, with a suspended 18-month prison sentence. It ordered Ettenger to
serve his community control sentence on the probation department's intensive supervision
sex offender caseload. The court also ordered him to "complete the sex offender program
if he has not already completed the program." (Apr. 10, 2018 Jgmt. Entry at 2.)
{¶ 4} Ettenger timely appeals.
II. Assignment of Error
{¶ 5} Ettenger assigns the following error for our review:
The lower court erred when it imposed as a condition of
community control for failure to verify address, a felony of the
fourth degree under R.C. 2950.06, that Appellant be placed on
the special sex offender probationary caseload and complete a
sex offender treatment program. The court's actions violated
Appellant's Right to Due Process of Law under the Fifth and
Fourteenth Amendments of the United States Constitution, the
Due Course of Law provisions of Article I, Sections 1 and 16 of
the Ohio Constitution, R.C. 2929.15, and R.C. 2929.17.
III. Discussion
{¶ 6} In his sole assignment of error, Ettenger asserts the trial court erred in
imposing, as a condition of community control, the requirements that he be placed on the
probation department's intensive supervision sex offender caseload and complete a sex
offender treatment program if he has not already completed the program. This assignment
of error lacks merit.
No. 18AP-326 3
{¶ 7} A court sentencing an offender for committing a felony "shall be guided by
the overriding purposes of felony sentencing." R.C. 2929.11(A). "The overriding purposes
of felony sentencing are to protect the public from future crime by the offender and others,
to punish the offender, and to promote the effective rehabilitation of the offender." R.C.
2929.11(A). "If in sentencing an offender for a felony the court is not required to impose a
prison term, a mandatory prison term, or a term of life imprisonment upon the offender,"
the trial court may impose one or more community control sanctions, including residential,
nonresidential, and financial sanctions, and any other conditions that it considers
"appropriate." R.C. 2929.15(A)(1); State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888,
¶ 10. In fashioning the appropriate sentence for an offense, the sentencing court may
consider facts beyond the offense itself, such as prior misconduct. State v. Bowser, 186
Ohio App.3d 162, 2010-Ohio-951, ¶ 15 (2d Dist.). In view of this broad discretion, we review
a trial court's imposition of community control sanctions under an abuse of discretion
standard. Id. An abuse of discretion connotes a decision that was unreasonable, arbitrary,
or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 8} While a trial court has broad discretion in imposing community control
sanctions, its discretion is not limitless. Talty at ¶ 11; State v. White, 10th Dist. No. 14AP-
1027, 2015-Ohio-3844, ¶ 5. Community control conditions, like probation conditions
previously, must reasonably relate to the goals of community control: rehabilitation,
administering justice, and ensuring good behavior. Talty at ¶ 16. To determine whether a
condition of community control serves those purposes, "courts should consider whether
the condition (1) is reasonably related to rehabilitating the offender, (2) has some
relationship to the crime of which the offender was convicted, and (3) relates to conduct
which is criminal or reasonably related to future criminality and serves the statutory ends
of probation [now community control]." State v. Jones, 49 Ohio St.3d 51, 53 (1990); Talty
at ¶ 16 (finding the Jones test applicable to community control sanctions); see Mansfield v.
Hatfield, 5th Dist. No. 10CA48, 2010-Ohio-5567, ¶ 15 (the appellant's probationary
conditions of completing "Domestic Violence Court" and "DOVE" domestic violence
counseling were not rationally related to the underlying facts of the appellant's traffic
offense). Further, these community control conditions "cannot be overly broad so as to
unnecessarily impinge upon the probationer's liberty." Jones at 52.
No. 18AP-326 4
{¶ 9} Ettenger asserts the community control conditions imposed in this case
requiring his placement on the sex offender caseload and his completion of a sex offender
treatment program are improper and violate his rights because his failure to verify address
conviction is not a sexually oriented offense. He therefore contends the challenged
conditions are not related to the offense in this case and they do not rehabilitate him for
this offense. He also argues the trial court abused its discretion in imposing the challenged
conditions due to the time lapse between when he committed the sexually oriented offense
and his sentencing in this matter and because those conditions are not designed to deter
future violations of the registration laws. These arguments are unpersuasive.
{¶ 10} Ettenger is correct that his failure to verify address conviction is not a sexually
oriented offense. See R.C. 2950.01(A) (defining "sexually oriented offense"). But his
obligation to verify his address arises from him committing a sexually oriented offense and
his status as a sex offender. See R.C. 2950.06(A) (requiring address verification for an
offender who is required to register a residence address pursuant to R.C. 2950.04 or
2950.041). "The General Assembly has seen fit to impose registration sanctions in cases
involving sex offenses to protect the public," as sex offenders pose an increased risk to
public safety due to the likelihood of recidivism among sex offenders. State v. Blankenship,
145 Ohio St.3d 221, 2015-Ohio-4624, ¶ 36; State v. Young, 4th Dist. No. 17CA11, 2018-
Ohio-4990, ¶ 13; In re D.D., 5th Dist. No. 2015CA0043, 2015-Ohio-3999, ¶ 20; see State v.
Ritchey, 3d. Dist. No. 1-15-80, 2016-Ohio-2878, ¶ 32 ("Having sex offenders register with
their local sheriff's office and having their information being of public record is related to
the overall goal of protecting the public by keeping the public informed of the whereabouts
of convicted sex offenders."); State v. Conley, 9th Dist. No. 27869, 2016-Ohio-5310, ¶ 14
(imposing registration requirements for sex offenders serves the "penological aim of
reducing recidivism among sex offenders").
{¶ 11} The sanctions imposed here support Ettenger's rehabilitation, the
administration of justice, and ensuring good behavior. In 2006, Ettenger was convicted of
attempted unlawful sexual conduct with a minor. He was sentenced to community control
and designated as a Tier I sex offender. Because he violated the terms of his supervision,
he went to prison in 2009. He was released from prison in 2010. In 2015, Ettenger was
convicted of attempted failure to provide notice of change of address. Then, in 2017, he
No. 18AP-326 5
again failed to comply with the registration laws and was convicted in this case for failure
to verify address. The community control conditions imposed as part of his sentence in this
case relate to his sexually oriented offense conviction because the registration requirement
that he violated arose due to him committing the sexually oriented offense. Ettenger's
placement on the sex offender caseload ensures he will be supervised by a probation officer
who specializes in supervising probationers who have been convicted of one or more sex
offenses. As part of that supervision, the specialized probation officer can monitor
Ettenger's compliance with registration requirements which he violated more than once
within the last few years. The trial court's order that Ettenger complete a sex offender
treatment program if he had not already completed the program also serves to protect the
public. The record indicates that Ettenger was unsuccessfully terminated from sex offender
treatment during his period of intensive supervision on the sex offender caseload for the
underlying sexually oriented offense conviction. Ettenger asserted at the sentencing in this
matter that he has completed a sex offender program. If his assertion is appropriately
verified, then that condition has been met. If, however, he has not completed such a
program, requiring him to complete the program is consistent with his rehabilitation and
the effort to reduce the likelihood of recidivism. Therefore, the imposed community control
conditions that Ettenger challenges reasonably support the goals of community control,
and they are not overly broad so as to unnecessarily impinge on his liberty.
{¶ 12} Accordingly, we overrule Ettenger's sole assignment of error.
IV. Disposition
{¶ 13} Having overruled Ettenger's sole assignment of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRUNNER and BEATTY BLUNT, JJ., concur.