State v. Noonan , 2019 Ohio 2960 ( 2019 )

[Cite as State v. Noonan, 2019-Ohio-2960.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NOS. CA2018-10-203
CA2018-10-204
Appellee, :
OPINION
: 7/22/2019
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:
WHITNEY A. NOONAN, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case Nos. CR2018-01-0067 and CR2018-04-0683
Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for appellee
Engel & Martin, LLC, Mary K. Martin, 4660 Duke Drive, Suite 101, Mason, Ohio 45040, for
appellant
M. POWELL, J.
{¶ 1} Appellant, Whitney Noonan, appeals a decision of the Butler County Court of
Common Pleas revoking her community control and sentencing her to prison.
{¶ 2} In June 2018, appellant pled guilty to a fourth-degree felony count of theft from
a person in a protected class in Case No. CR2018-01-0067 ("Case No. 67") and to a fifth-
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degree felony count of attempted failure to appear in Case No. CR2018-04-0683 ("Case
No. 683"). On July 20, 2018, the trial court sentenced appellant to three years of community
control in both cases. The sentencing entries provided general conditions of supervision
and several court-ordered community control conditions. As relevant here, appellant was
required to successfully complete a substance abuse treatment program at Sojourner
Recovery Services, an inpatient residential alcohol, drug abuse, and mental health
treatment facility. Appellant was further required to "enter, comply with, and complete the
Court Directed Addiction Treatment (C.D.A.T.) Program" and "to comply with all the terms
and conditions of the Drug Court (C.D.A.T.) Participation Agreement." The terms of the
agreement included successful completion of the Sojourner treatment program.
{¶ 3} Appellant entered the Sojourner treatment program on August 2, 2018. On
August 24, 2018, appellant sought emergency medical treatment at Fort Hamilton Hospital
for chest pain and numbness in her left arm. She was treated and released that same day.
On September 4, 2018, appellant sought emergency medical treatment at the hospital for
chest pain. She was diagnosed with and hospitalized for chronic infective endocarditis and
pulmonary embolism. She was released from the hospital on September 10, 2018. The
next day, however, appellant once again sought emergency medical treatment at the
hospital for difficulty breathing. She was diagnosed with MRSA and hospitalized for several
days. On September 18, 2018, appellant was "medically discharged" from the Sojourner
treatment program due to the severity of her medical issues.
{¶ 4} On September 27, 2018, appellant's probation officer filed a violation of
community control affidavit in both cases. The affidavits alleged that appellant violated the
conditions of her community control by being unsuccessfully discharged from the Sojourner
treatment program. On October 26, 2018, the trial court held a hearing on appellant's
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community control violations. Mike Campbell, appellant's probation officer, and Casey Clay,
appellant's clinical dependency counselor at Sojourner, testified at the hearing. The parties'
exhibits were admitted into evidence, including appellant's discharge summary from
Sojourner prepared by Clay.
{¶ 5} Campbell and Clay both testified that appellant was discharged from the
Sojourner treatment program for medical reasons and that such discharge was not a
successful discharge. Campbell understood that appellant was "medically terminated" from
the Sojourner treatment program because it could not handle appellant's medical conditions
which included lung and heart problems and which resulted in several hospitalizations.
Campbell further testified that on September 7, 2018, appellant called him and informed
him that while she was hospitalized, a visitor injected her with heroin and then left, and that
she had to be revived with Narcan. Appellant's counsel objected to this testimony; the trial
court overruled the objection.
{¶ 6} Clay testified that other than one minor violation involving a cellphone, for
which appellant was not discharged, and some conflicts with peers, appellant did well in
group participation. Clay testified that it was not until appellant's medical issues became
worse that she no longer benefitted from the treatment program. Consequently, appellant
was medically discharged from Sojourner as her medical issues prevented her from
benefitting from or participating in the program. Clay testified that once appellant took care
of her medical issues, she would be welcome back into the program. Clay affirmed that
appellant was not discharged from the program for doing anything wrong.
{¶ 7} At the conclusion of the hearing, the trial court found that appellant had
violated her community control in both cases by being unsuccessfully discharged from the
Sojourner treatment program and by overdosing on heroin while hospitalized. The trial
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court further noted appellant's poor performance during the pretrial phase of the case and
in "Drug Court." The trial court then sentenced appellant. Noting that appellant's discharge
from treatment was not a technical violation and that appellant overdosing on heroin "would
constitute a new felony offense," the trial court sentenced appellant to 12 months in prison
in both cases, to be served concurrently. The sentencing entries terminating appellant's
community control in both cases and sentencing her to an aggregate 12-month prison term
were journalized on October 26, 2018. At the hearing and in both sentencing entries, the
trial court gave appellant 94 days of jail-time credit.
{¶ 8} Appellant now appeals, raising three assignments of error.
{¶ 9} Assignment of Error No. 1:
{¶ 10} APPELLANT'S CONSTITUTIONAL DUE PROCESS RIGHTS WERE
VIOLATED WHEN SHE WAS NOT GIVEN NOTICE OF AN ALLEGED COMMUNITY
CONTROL VIOLATION.
{¶ 11} Appellant asserts that the trial court revoked her community control in part for
overdosing on heroin. Appellant argues that the revocation of her community control for
overdosing on heroin violated her due process rights because the notice of community
control violation filed by Campbell only alleged she had been discharged from the Sojourner
treatment program, not that she had used or possessed heroin.
{¶ 12} Crim.R. 32.3(A) provides that a trial court "shall not impose a prison term for
violation of the conditions of a community control sanction * * * except after a hearing at
which the defendant shall be present and apprised of the grounds on which action is
proposed."
{¶ 13} A defendant is entitled to due process when his or her community control is
revoked as a result of a violation of a community control condition. Gagnon v. Scarpelli,
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411 U.S. 778, 786, 93 S. Ct. 1756 (1973). The due process rights which must be observed
in a community control revocation hearing are (1) written notice of the claimed violations of
community control, (2) disclosure of evidence against the offender, (3) an opportunity to be
heard in person and to present witnesses and documentary evidence, (4) the right to
confront and cross-examine adverse witnesses, (5) a neutral and detached hearing body,
and (6) a written statement by the fact finder as to the evidence relied upon and the reasons
for revoking community control. State v. Shumway, 2d Dist. Greene No. 2017-CA-51, 2018-
Ohio-1227, ¶ 11; Columbus v. Bickel, 77 Ohio App. 3d 26, 34 (10th Dist.1991). "[A]
revocation of community control punishes the failure to comply with the terms and
conditions of community control, not the specific conduct that led to the revocation."
Shumway at ¶ 12.
{¶ 14} We find that appellant's due process rights were not violated. The written
notice of community control violation only alleged that appellant had violated the terms and
conditions of her community control by being discharged from the Sojourner treatment
program. Appellant's probation officer testified he initiated the revocation of appellant's
community control based upon appellant's unsuccessful discharge from the Sojourner
treatment program. More importantly, and despite the trial court's remarks at the October
26, 2018 community control violation and sentencing hearings regarding appellant's heroin
overdose, both sentencing entries terminating appellant's community control plainly state
she had violated her community control by being discharged from the C.D.A.T. Program,
hence by being discharged from the Sojourner treatment program. It is well-established
that a court speaks only through its journal entries and not by oral pronouncement or
through decisions. State v. Starr, 12th Dist. Clermont Nos. CA2018-09-065 and CA2018-
09-066, 2019-Ohio-2081, ¶ 12; State v. Coyle, 12th Dist. Clermont No. CA97-02-014, 1997
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Ohio App. LEXIS 4582, *6 (Oct. 13, 1997).
{¶ 15} Appellant's first assignment of error is overruled.
{¶ 16} Assignment of Error No. 2:
{¶ 17} THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT
APPELLANT VIOLATED THE TERMS OF HER COMMUNITY CONTROL.
{¶ 18} Appellant argues the trial court abused its discretion in finding she violated
her community control and in revoking her community control based upon her discharge
from the Sojourner treatment program. Appellant asserts her failure to successfully
complete the Sojourner treatment program was due to circumstances beyond her control,
namely, her significant medical issues and her resulting inability to benefit from or
participate in the treatment program. In other words, appellant asserts she did not violate
the terms of her community control; rather, she was unable to comply with them.
{¶ 19} A trial court's decision revoking community control may only be reversed on
appeal if the trial court abused its discretion. State v. Bishop, 12th Dist. Clermont No.
CA2010-08-054, 2011-Ohio-3429, ¶ 11.1 An abuse of discretion occurs when the trial
court's attitude is unreasonable, arbitrary, or unconscionable. Id. "A trial court does not
abuse its discretion by revoking an offender's community control where the violation in
question was one over which the offender had control." State v. Tranter, 12th Dist. Clermont
No. CA2000-05-035, 2001 Ohio App. LEXIS 1413, *11 (Mar. 26, 2001).
1. In its brief, the state suggests that we should review the trial court's revocation of appellant's community
control pursuant to R.C. 2953.08(G)(2), and not under an abuse of discretion standard, as "this authority pre-
dates the enactment of R.C. 2953.08, applied by this Court to revocation proceedings * * * in State v. Bishop,
12th Dist. Clermont Nos. CA2018-05-031 [and] CA2018-05-036, 2019-Ohio-592, ¶ 8." Bishop, however,
challenged the imposition of a prison sentence following the revocation of community control, not the trial
court's finding that community control was violated. We therefore properly reviewed the felony sentence in
Bishop pursuant to the standard of review set forth in R.C. 2953.08(G)(2). By contrast, appellant's second
assignment of error solely relates to the trial court's finding that appellant violated her community control. The
decision of a trial court finding a violation of community control will not be disturbed absent an abuse of
discretion. State v. Kaimachiande, 3d Dist. Logan No. 8-18-57, 2019-Ohio-1939, ¶ 33.
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{¶ 20} "'The privilege of probation [or community control] rests upon the probationer's
compliance with the probation conditions and any violation of those conditions may properly
be used to revoke the privilege.'" State v. Russell, 11th Dist. Lake No. 2008-L-142, 2009-
Ohio-3147, ¶ 7, quoting State v. Bell, 66 Ohio App. 3d 52, 57 (5th Dist.1990). The state has
the burden to prove the offender violated the terms of community control. State v. Michael,
3d Dist. Henry No. 7-13-05, 2014-Ohio-754, ¶ 20. The state is only required to present
substantial evidence that the offender violated the terms of his community control. State v.
Miller, 6th Dist. Fulton No. F-05-016, 2006-Ohio-4810, ¶ 15.
{¶ 21} In a case similar to the case at bar, a defendant was sentenced to probation
on the condition that he successfully complete a specific drug rehabilitation program. State
v. Bleasdale, 69 Ohio App. 3d 68 (11th Dist.1990). The defendant was subsequently
terminated from the program after he was diagnosed with several mental disorders and the
rehabilitation center determined it was not equipped to deal with the defendant's mental
problems. The center recommended that the defendant be placed in a more intensive
treatment facility or be given more intensive outpatient treatment while still residing at the
center. As a result of his discharge from the program, the defendant's probation was
revoked and he was sentenced to a prison term.
{¶ 22} On appeal, the Eleventh Appellate District reversed the trial court's decision.
The appellate court held that the trial court had abused its discretion in revoking the
defendant's probation because the defendant had not intentionally violated the conditions
of his probation. Id. at 72. Rather, "[t]he evidence shows that [the defendant] was
cooperating with the program. The termination of the [defendant] was due to the program's
inability to properly minister his case." Id. The appellate court further stated, "after the
determination that [the defendant] suffers mentally and emotionally, the court revoked his
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probation. In short, there [is] no evidence of a substantial nature in order to find the
revocation [is] justified." Id.
{¶ 23} The Eleventh Appellate District subsequently clarified its Bleasdale ruling as
follows:
This court reversed the decision on the basis that the violation
was due to circumstances beyond the defendant's control. * * *
Thus, [this ruling] indicate[s] that an inability to comply can not
[sic] constitute grounds for revocation. That is not equivalent to
requiring an intent to violate a probation term.
(Emphasis added.) State v. Stockdale, 11th Dist. Lake No. 96-L-172, 1997 Ohio App. LEXIS
4363, *6 (Sep. 26, 1997).
{¶ 24} By contrast, community control violations were found to be due to
circumstances within a defendant's control where a defendant was unable to successfully
complete a sexual offender treatment because of his failure to recognize the seriousness
of his offense and his risk to reoffend, where a defendant refused to take his medications,
and where a defendant resisted a batterer's treatment program, claimed he did not need to
participate, and failed to participate from the beginning. See State v. Clark, 6th Dist. Wood
No. WD-12-073, 2013-Ohio-4831; State v. Wolfe, 5th Dist. Stark No. 2008-CA-00064, 2009-
Ohio-830; and Michael, 2014-Ohio-754.
{¶ 25} At the October 26, 2018 hearing, Campbell and Clay both testified that
appellant was discharged from the Sojourner treatment program because of her medical
issues and her resulting inability to benefit from or participate in the treatment program.
Evidence of appellant's medical issues and hospitalizations while she was in the Sojourner
treatment program was supported by five exhibits, including discharge summaries from Fort
Hamilton Hospital and appellant's discharge summary from the Sojourner treatment
program. See State v. Solomon, 5th Dist. Morrow No. 2012-CA-7, 2012-Ohio-4884;
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Michael. The exhibits show that between August 2, 2018, and September 18, 2018,
appellant sought emergency medical treatment three times, was diagnosed with chronic
infective endocarditis, pulmonary embolism, pneumonia, and MRSA, and was consequently
hospitalized.
{¶ 26} Appellant's discharge summary from the Sojourner treatment program plainly
states that "[d]ue to severity of medical needs, client is unable to participate in and benefit
from [the] treatment at this time. She is neutrally medically discharged * * * to manage her
physical health needs. When she is medically cleared to return, she is encouraged to seek
readmission." (Emphasis added.) The discharge summary further indicates that appellant
was already suffering from chronic endocarditis when she entered the Sojourner treatment
program and that while in the program, she was referred for heart surgery and informed she
would need constructive open surgery as soon as possible.
{¶ 27} We find that the trial court abused its discretion in finding that appellant
violated her community control because she failed to successfully complete the Sojourner
treatment program. Appellant's participation in the treatment program was dependent upon
Sojourner's ability to provide appellant with services which it was unable or unwilling to do
because of appellant's medical conditions. Appellant's discharge from the treatment
program was due solely to her medical issues. The violation in question was therefore not
one over which appellant had control but rather was due to Sojourner's inability to provide
services to appellant, thereby preventing her from complying with the terms of her
community control. "In short, there [is] no evidence of a substantial nature in order to find
[that] the revocation [is] justified." Bleasdale, 69 Ohio App. 3d at 72. The trial court's
revocation of appellant's community control is accordingly reversed and appellant's
community control is reinstated. Id.
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{¶ 28} Appellant's second assignment of error is sustained.
{¶ 29} Assignment of Error No. 3:
{¶ 30} THE TRIAL COURT ERRED AS TO APPELLANT'S JAIL TIME CREDIT.
{¶ 31} The trial court originally sentenced appellant to three years of community
control in both cases in July 2018. The sentencing entry in Case No. 67 notified appellant
that violation of her community control could result in a 12-month prison term "with credit
for 96 days as of this date." The sentencing entry in Case No. 683 provided no jail-time
credit. Subsequently, the trial court's October 26, 2018 entries revoking appellant's
community control and sentencing her to 12 months in prison in both cases reflected a jail-
time credit of only 94 days. Appellant argues that both jail-time credit figures cannot be
correct and requests that the matter be remanded for the trial court to issue a nunc pro tunc
entry with the correct jail-time credit. Appellant does not state which jail-time credit figure
is correct. We find we need not reach the merits of appellant's arguments.
{¶ 32} The term "jail-time credit" is used as shorthand for custody credit. State v.
White, 12th Dist. Clermont Nos. CA2015-12-102 and CA2015-12-103, 2016-Ohio-5878, ¶
1, fn. 1. "A prisoner receives credit for any time spent in confinement, including
'confinement in lieu of bail while awaiting trial, confinement for examination to determine
the prisoner's competence to stand trial or sanity, and confinement while awaiting
transportation to the place where the prisoner is to serve the prisoner's prison term.'" State
v. Fugate, 117 Ohio St. 3d 261, 2008-Ohio-856, ¶ 1, fn. 1, quoting R.C. 2967.191. Jail-time
credit relates only to the length of a sentence and not the underlying conviction. State v.
Burns, 12th Dist. Clermont No. CA2018-03-015, 2018-Ohio-4657, ¶ 21.
{¶ 33} Given our holding above reversing the trial court's revocation of appellant's
community control and reinstating such community control, we find that the issue is not
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presently "ripe" for review. Because appellant will once again serve a term of community
control, and not a term of imprisonment, pursuant to our remand, there is no issue
concerning jail-time credit that can be determined at this time either by the trial court or by
this court. See State v. Bradley, 2d Dist. Champaign No. 02CA35, 2003-Ohio-4707. "In
other words, the issue [appellant] raises in this appeal is not ripe for judicial review at this
time." Id. The appropriate time to raise the issue will be when, and if, appellant once again
violates her community control and the trial court reimposes a sentence of imprisonment
following such community control violation. Id.
{¶ 34} Appellant's third assignment of error is overruled.
{¶ 35} The trial court's revocation of appellant's community control is reversed and
appellant's community control is reinstated. The matter is remanded to the trial court to
determine whether and how the terms and conditions of appellant's community control can
be modified to allow appellant to undergo a substance abuse treatment program while
actively and affirmatively addressing her medical issues in a manner consistent with this
opinion.
{¶ 36} Judgment reversed and remanded.
HENDRICKSON, P.J., and S. POWELL, J., concur.
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