State v. Amos , 2016 Ohio 917 ( 2016 )

[Cite as State v. Amos, 2016-Ohio-917.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
STATE OF OHIO, : Case No. 15CA5
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
SHASTA D. AMOS, :
RELEASED: 3/3/2016
Defendant-Appellant. :
APPEARANCES:
Timothy P. Gleeson, Logan, Ohio for appellant.1
Harsha, J.
{¶1} Sometime after Shasta D. Amos received a community control sanction on
a conviction for OVI, she subsequently pleaded no contest to a theft charge. Upon
finding her guilty of theft, the court also found Amos had violated the terms of her
community control by failing to provide a medical excuse for missing drug program
requirements. Accordingly, the trial court imposed a jail sentence for her violation of
community control. Amos appeals her termination of community control, but her counsel
advises us that he has reviewed the record and can discern no meritorious claim for
appeal. Counsel moved for leave to withdraw under Anders v. California, 386 U.S. 738,
87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). After independently reviewing the record, we
agree with counsel’s assessment. We find that this appeal is wholly frivolous, grant the
motion for leave to withdraw, and affirm the judgment of the trial court.
I. FACTS
1 Appellee State of Ohio has not filed a brief in this case.
Gallia App. No. 15CA5 2
{¶2} In 2014, the trial court convicted Amos of OVI and placed her on
community control for a year. Six months later, the community control department filed
notice that Amos had violated the terms of her probation because she had been
charged with theft and she had failed to complete the drug court program. The alleged
violations stated:
COUNT ONE: You shall refrain from violations of any law * * *, any infraction may
result in a community control violation wherein original jail time may be imposed.
* * * To-wit: on 11-15-2014 the defendant received a new theft charge.
COUNT TWO: You shall successfully complete and provide of [sic] completion of
any program to which you are ordered: To wit on 10-29-2014 during a home visit
to the defendant’s home the defendant was advised that she would need to
obtain a medical clearance so she can return to the drug court program or she
would need to obtain a medical statement from her physician stating that she is
unable to access the handicap accessibility of the court. The defendant has failed
to provide such documentation and has failed to return to probation for
appointments or to the drug court program.
{¶3} Ultimately, Amos pleaded no contest to a charge involving a theft at a
Walmart store in November 2014 and the trial court found her guilty. Then, the state
presented evidence of Amos’s failure to complete the drug court program. Probation
Officer Melissa Hall testified that Amos broke her leg in August 2014 and provided
documentation concerning her injuries. The documentation served to excuse Amos’s
participation in the program up through October 3, 2014. By both a telephone call and a
subsequent home visit in October 2014, Officer Hall informed Amos that her medical
excuse had expired and she would need additional medical documentation that either
she is medically cleared to return to the drug court appointments or that she cannot use
the handicap accessibilities provided by the drug court program. Amos failed to provide
this additional medical documentation. Instead, Officer Hall received two medical
statements. One from November 2014, stated that Amos cancelled a medical
Gallia App. No. 15CA5 3
appointment November 3, 2014 and was a no-show for the make-up appointment
scheduled a few days later. A second from December 2014 reported another no-show
appointment. The medical documentation did not indicate whether Amos was unable to
use the handicap accessibility or otherwise elaborate on the current state of her medical
condition.
{¶4} The trial court determined that Amos violated her “probation” 2 because
she did not have a justification excusing her from appearing for the drug court program
or meeting with her probation office after her initial medical excuse expired. The trial
court sentenced Amos to 15 days in the Gallia County Jail as a penalty for violation of
her probation.
II. MOTION TO WITHDRAW AND ANDERS BRIEF
{¶5} Although Amos appealed her community control termination, her appellate
counsel filed a motion for leave to withdraw and an Anders brief. In State v. Lester, 4th
Dist. Vinton No. 12CA689, 2013-Ohio-2485, ¶ 3, we discussed the pertinent Anders
requirements:
In Anders, the United States Supreme Court held that if counsel
determines after a conscientious examination of the record that the case is
wholly frivolous, counsel should so advise the court and request
permission to withdraw. Counsel must accompany the request with a brief
identifying anything in the record that could arguably support the appeal.
Anders at 744. The client should be furnished with a copy of the brief and
given time to raise any matters the client chooses. Id. Once these
requirements are met, we must fully examine the proceedings below to
determine if an arguably meritorious issue exists. Id. If so, we must
appoint new counsel and decide the merits of the appeal. Id. If we find the
appeal frivolous, we may grant the request to withdraw and dismiss the
appeal without violating federal constitutional requirements or may
proceed to a decision on the merits if state law so requires. Id.
2
The trial court used the term “probation” throughout the proceedings. Community control sanctions are
the current alternative to probation, and may include probation as community control sanction. Katz &
Giannelli, Criminal Law, Section 123:7 (3d Ed. 2009).
Gallia App. No. 15CA5 4
{¶6} Amos’s counsel complied with these requirements by filing a motion for
leave to withdraw and furnishing Amos with a copy of the brief. Amos had an additional
30 days to file pro se brief, but she chose not to.
III. POTENTIAL ASSIGNMENTS OF ERROR
{¶7} Amos raises the following potential assignment of error:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
TERMINATED DEFENDANT-APPELLANT’S COMMUNITY CONTROL
AND IMPOSED A JAIL SANCTION UPON EVIDENCE INSUFFICIENT
TO SUPPORT REVOCATION.
IV. LAW AND ANALYSIS
A. Sufficiency of Evidence to Support Revocation
{¶8} Amos’s counsel asserts that the trial court potentially erred in revoking her
community control because there was insufficient evidence to support the court's finding
that she violated the terms of her sanction as set forth in count two of the notice. Amos
argues that she was unable to comply due to her medical condition; therefore, the
violation was due to circumstances beyond her control. However, counsel also
concedes that the trial court determined that Amos had missed several medical
appointments and failed to provide sufficient medical documentation confirming the
status of her condition. Therefore, the conduct that violated her community control was
her failure to provide supplemental medical documentation and this was a matter within
her control. Additionally, counsel concedes that because count one of her community
control violation was based on the theft charge that she pled no contest to, any error the
trial court may have made regarding the second count was harmless.
Gallia App. No. 15CA5 5
{¶9} Because a community control revocation hearing is not a criminal trial, the
State does not have to establish a violation with proof beyond a reasonable doubt. State
v. Johnson, 4th Dist. Meigs No. 14CA10, 2015-Ohio-1373, ¶ 13; State v. Wolfson, 4th
Dist. Lawrence App. No. 03CA25, 2004–Ohio–2750, ¶ 7. Instead, the prosecution must
present proof of a “substantial nature” that a defendant violated the terms of his
community control sanctions. Johnson at ¶ 13. We equate this lower burden with the
preponderance of the evidence burden of proof. Accordingly, we have applied the
“some competent, credible evidence” standard set forth in C.E. Morris Co. v. Foley
Constr. Co., 54 Ohio St. 2d 279, 376 N.E .2d 578 (1978), to determine whether a court's
finding that a defendant violated the terms of his community control sanction is
supported by the evidence. Johnson at ¶ 13; Wolfson at ¶ 7. Thus, we conclude the
appropriate review in this matter is twofold. First, we review the record to determine
whether there is some competent credible evidence to support the court's finding that
Amos violated the terms of probation or community control. If so, then we review the
sanction under the more deferential abuse of discretion standard. Johnson at ¶ 13; In
the Matter of C.M.C., 4th Dist. Washington No. 09CA15, 2009–Ohio–4223, ¶ 17.
{¶10} In his Anders brief counsel argues that even though the state is not
required to prove that a defendant acted wilfully, courts have reversed revocation where
the violation was due to circumstances beyond the defendant’s control. Wolfson at ¶ 11.
For example, revocation was reversed where the defendant was diagnosed with various
psychological disorders making him unable to complete a drug rehabilitation program.
State v. Beasdale, 69 Ohio App. 3d 68, 590 N.E.2d 43 (11th Dist. 1990) He argues that
Amos’s broken leg was a condition outside of her control. Therefore, if the trial court’s
Gallia App. No. 15CA5 6
revocation arose out of the medical condition, then it was a condition outside her
control. However, he concedes that the evidence at the hearing was that she failed to
obtain sufficient medical documentation of her on-going medical status. And, the record
shows that Amos was given a medical excuse up through October 3, 2014, which the
probation officer honored. Count two of her violation was based on her failure to
provide a medical update of her condition after October 3, 2014 and whether she could
use the handicap accessibility provided by the drug court to attend appointments. This
was conduct within her control and formed the basis of the trial court’s revocation. Thus,
there was competent credible evidence to support the trial court’s finding that Amos
violated the terms of community control.
{¶11} Additionally, we agree with counsel that count one, involving the
misdemeanor theft offense, forms an independent basis for establishing a violation and
makes any potential error in the trial court’s decision on the second count harmless.
{¶12} Counsel makes no argument that the trial court abused its discretion when
it imposed a jail sentence for the violation and we have found no independent basis for
such a finding.
{¶13} We overrule Amos’s sole potential assignment of error.
V. CONCLUSION
{¶14} Because the potential assignment of error is meritless and having
independently discovered no arguably meritorious issues for appeal, we find this appeal
is wholly frivolous, grant counsel’s motion to withdraw, and affirm the judgment of the
trial court.
JUDGMENT AFFIRMED.
Gallia App. No. 15CA5 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallipolis
Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Hoover, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.