State v. Acker ( 2023 )

[Cite as State v. Acker, 2023-Ohio-1880.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Andrew J. King, J.
-vs-
Case No. 22-COA-022
PAIGE ACKER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of
Common Pleas, Case No. 19-CRI-027
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 6, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL, ESQ. BRIAN A. SMITH
Ashland County Prosecuting Attorney Brian A. Smith Law Firm, LLC
123 South Miller Road – Suite #250
NADINE HAUPTMAN, ESQ. Fairlawn, Ohio 44333
Assistant Prosecuting Attorney
110 Cottage Street – 3rd Floor
Ashland, Ohio 44805
Ashland County, Case No. 22-COA-022 2
Hoffman, J.
{¶1} Defendant-appellant Paige Acker appeals the judgment entered by the
Ashland County Common Pleas Court revoking her community control and imposing an
aggregate sentence of thirty months incarceration. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On August 20, 2019, Appellant was placed on community control following
her convictions of complicity to aggravated trafficking in drugs, complicity to trafficking in
cocaine, and endangering children. On January 14, 2020, Appellant’s community control
was revoked because Appellant had contact with Trent Carey, in violation of the terms of
her community control. The trial court granted Appellant judicial release in November of
2020, and she was again placed on community control.
{¶3} When she was granted judicial release, Appellant’s supervising officer was
Paul Cieslinski of the Adult Parole Authority. Officer Cieslinski reviewed the terms of
supervision with Appellant, which included she not communicate with any prisoner without
the written permission of her supervising officer.
{¶4} In March of 2021, Officer Cieslinski learned Appellant was continuing to
have contact with Trent Carey, who was incarcerated. Officer Cieslinski spoke with
Appellant about these allegations. Appellant admitted she continued to have contact with
Carey. On March 29, 2021, Officer Cieslinski issued Appellant a written sanction which
required she not have any contact with Carey, and she not have contact with any inmate
in a prison or jail facility.
{¶5} In early 2022, while Carey was incarcerated in the Mansfield Correctional
Institution, prison officials began investigating Carey’s cellmate in conjunction with an
altercation which occurred in the prison. Christopher Hrytzik, an intelligence analyst for
Ashland County, Case No. 22-COA-022 3
a company which provides telephone services to inmates in Ohio, began reviewing calls.
During the investigation, Hrytzik determined over 150 calls were placed from the prison
to a particular phone number during the early months of 2022. Using a reverse search
program, Hrytzik determined the number belonged to Appellant. While reviewing the
calls, Hrytzik became concerned for the wellbeing of Appellant and contacted Officer
Daubenspack, who was Appellant’s supervising officer through the Adult Parole Authority
at the time.
{¶6} After reviewing the phone calls, Daubenspack believed Appellant was
communicating with Trent Carey while he was incarcerated. On March 25, 2022,
Daubenspack filed a complaint alleging Appellant violated the terms of her community
control by having contact with Carey from January, through March, of 2022.
{¶7} The complaint proceeded to an evidentiary hearing in the Ashland County
Common Pleas Court. Following the hearing, the trial court found Appellant had violated
the terms of her community control, and imposed the original aggregate sentence of thirty
months incarceration. It is from the June 23, 2022 judgment of the trial court Appellant
prosecutes her appeal, assigning as error:
THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING
APPELLANT IN VIOLATION OF HER COMMUNITY CONTROL
CONDITIONS AND RE-IMPOSING A PRISON SENTENCE.
Ashland County, Case No. 22-COA-022 4
{¶8} At the outset, the State has filed a motion to dismiss the appeal as moot
because Appellant has completed her prison sentence. Appellant argues the appeal is
not moot because there are collateral consequences associated with the finding she
violated the terms of community control. Appellant specifically argues pursuant to R.C.
2929.13(B)(1)(a)(ix), because she has now served a prison sentence, she would become
subject to a prison sentence for a future fourth of fifth degree felony offense which is not
an offense of violence or a qualifying assault offense.
{¶9} The Ohio Supreme Court has held a person convicted of a felony has a
substantial stake in the judgment of conviction which survives the completion of the
sentence, and therefore an appeal challenging a felony conviction is not moot even if the
entire sentence has been satisfied before the matter is heard on appeal. State v. Golston,
71 Ohio St.3d 224, 224–25, 643 N.E.2d 109, 110 (1994), syllabus. We find the same
reasoning applies in the instant case. Appellant is challenging the underlying finding she
violated her community control, not merely the sentence imposed. If this Court concluded
the trial court erred in revoking her community control, she would potentially not be subject
to the collateral consequences which flow from the revocation of her community control,
separate and apart from the prison sentence which she has already served. The State’s
motion to dismiss is overruled.
I.
{¶10} Appellant argues the trial court abused its discretion in revoking her
community control. Appellant argues the evidence was not sufficient to demonstrate she
had contact by telephone with Trent Carey. Appellant argues the address associated
with the phone number called by Carey is not her address. She also argues there are
Ashland County, Case No. 22-COA-022 5
alternative explanations for the phone calls, such as another inmate using the account
because inmates often trade PIN numbers, and Carey discussing the details of the
custody of their children with Appellant’s sister, who had custody of the children at the
time the calls were made.
{¶11} A community control revocation hearing is not a criminal trial; therefore, the
State is not required to establish a violation of the terms of community control “beyond a
reasonable doubt.” State v. Middlebrooks, 5th Dist. Tuscarawas No. 2010 AP 08 0026,
2011-Ohio-4534, ¶ 13. Instead, the State must show “substantial” proof the offender
violated the terms of his or her community control sanctions. Id. “Substantial evidence”
is akin to a preponderance-of-the-evidence burden of proof. Id. at ¶14. Once a trial court
finds a defendant violated the terms of a community control sanction, the trial court's
decision to revoke community control may be reversed on appeal only if the court abused
its discretion. State v. Shuman, 5th Dist. Stark No. 2009CA00271, 2010-Ohio-3957, ¶ 27,
citing Columbus v. Bickel, 77 Ohio App.3d 26, 38, 601 N.E.2d 61 (1991). An abuse of
discretion connotes more than an error in law or judgment; it implies the court's attitude
is unreasonable, arbitrary, or unconscionable. State v. Maurer, 15 Ohio St.3d 239, 253,
473 N.E.2d 768 (1984).
{¶12} In the instant case, Hrytzik testified at the evidentiary hearing while listening
to phone calls of Carey’s cellmate in conjunction into an investigation into an altercation
at the prison, he noted a voice which did not sound like Carey’s cellmate. He also noted
a specific cell phone number was called more than 150 times in the early months of 2022.
A reverse search revealed the number called from the prison belonged to Appellant.
Ashland County, Case No. 22-COA-022 6
Hrytzik testified while reviewing the calls, he heard the inmate refer to the person he called
as “Paige,” and heard the woman identified as “Paige” refer to the caller as “Trent.”
{¶13} Officer Daubenspack also reviewed the recorded calls. He was able to
identify Appellant’s voice on the recordings. Further, he determined the phone calls were
between Appellant and Carey based on use of names “Trent” and “Paige” to refer to each
during the phone calls, as well as discussion of children and a dog shared by Carey and
Appellant. We find there was substantial evidence Appellant violated the terms of her
community control by having contact with Carey while he was incarcerated at the
Mansfield Correctional Institution. We find the trial court did not abuse its discretion in
revoking Appellant’s community control.
{¶14} The assignment of error is overruled. The judgment of the Ashland County
Common Pleas Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
King, J. concur