State v. Miller

[Cite as State v. Miller, 2017-Ohio-5801.]
MILLERCOURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case Nos. 16 CA 006 and 16 CA 009
PRESTON MILLER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case Nos. 10 CR 084 and 13 CR
003
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: July 10, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
F. CHRISTOPHER OEHL JEFFREY G. KELLOGG
ASSISTANT PROSECUTOR 5 South Washington Street
164 East Jackson Street Millersburg, Ohio 44654
Millersburg, Ohio 44654
Holmes County, Case Nos. 16 CA 006 and 16 CA 009 2
Wise, John, J.
{¶1} Appellant Preston Miller appeals his revocation of community control in the
Holmes County Court of Common Pleas. Appellee is the State of Ohio. The relevant facts
leading to this consolidated appeal are as follows.
Procedural Background - Common Pleas Case No. 10 CR 084
{¶2} On January 20, 2011, following his conviction on charges of attempted
burglary and attempted grand theft of a firearm (both felonies of the fourth degree), the
Holmes County Court of Common Pleas (hereinafter “trial court”) sentenced appellant to
three years of community control.
{¶3} On June 25, 2012, appellant’s chief probation officer, Roger M. Estill, filed
a motion to revoke appellant’s community control, alleging appellant had failed to comply
with counseling and curfew requirements. Appellant appeared in court on July 10, 2012
and entered a plea of admission. The trial court thereupon continued appellant on the
original terms and conditions of his community control.
{¶4} On January 22, 2013, Estill again filed a motion to revoke appellant’s
community control, this time alleging inter alia appellant had been charged with new
criminal charges under case number 13 CR 003, infra.
{¶5} Appellant again entered a plea of admission, and on April 29, 2013, the trial
court revoked his community control and ordered him to serve a prison term of eighteen
months.
{¶6} Appellant thereafter applied for judicial release. Via a judgment entry issued
July 30, 2013, appellant was granted judicial release and ordered to serve three years of
community control.
Holmes County, Case Nos. 16 CA 006 and 16 CA 009 3
Procedural Background - Common Pleas Case No. 13 CR 003
{¶7} On April 29, 2013, following convictions on one count of theft and one count
of forgery (both felonies of the fifth degree), the trial court sentenced appellant to nine
months in prison.
{¶8} Appellant thereafter applied for judicial release. On July 30, 2013, appellant
was granted judicial release and placed on community control for a period of three years.
2016 Arrest of Appellant
{¶9} On July 20, 2016, shortly before the expiration of appellant’s community
control period, Chief Probation Officer Estill filed with the Holmes County Clerk of Courts
an order to arrest appellant pursuant to R.C. 2951.08, setting forth both of the above trial
court case numbers, 10 CR 084 and 13 CR 003.
{¶10} On August 1, 2016, appellant was arrested under Estill's above order by law
enforcement officers.
{¶11} On August 4, 2016, the State, via the Holmes County Prosecutor’s Office,
filed a motion under both case numbers to revoke or modify appellant’s community control
sanctions. Attached therewith was a violation report alleging among other things that
appellant had failed to report to the probation office since May 2016 and had changed
residence to a location in Wayne County, Ohio.
{¶12} On August 17, 2016, appellant filed a joint motion to dismiss the aforesaid
motion to revoke, asserting a lack of court jurisdiction over him subsequent to the date
July 30, 2016. The State filed a memorandum in opposition on August 23, 2016.
Holmes County, Case Nos. 16 CA 006 and 16 CA 009 4
{¶13} On August 25, 2016, following a stipulation of evidence, the trial court
denied appellant’s motion to dismiss the State’s motion to revoke. Appellant thereupon
entered an admission to violating the terms of community control.
{¶14} The trial court issued a judgment entry under both case numbers on August
26, 2016 ordering inter alia that appellant’s community control would be extended by one
year and that he would serve the remainder of a 236-day jail sentence.
{¶15} On September 23, 2016, appellant filed a notice of appeal. He herein raises
the following sole Assignment of Error:
{¶16} “I. THE TRIAL COURT ERRED AND THE DEFENDANT/APPELLANT
WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DENIED HIS MOTION TO
DISMISS THE MOTION TO REVOKE COMMUNITY CONTROL.”
I.
{¶17} In his sole Assignment of Error, appellant contends the trial court deprived
him of due process of law by denying his motion to dismiss the State’s motion to revoke
his community control. We agree.
{¶18} An order that revokes community control and imposes a sentence is a final
appealable order. See, e.g., State v. Greenberg, 10th Dist. Franklin No. 12AP–602, 2013-
Ohio-1638, ¶ 12. Generally, an appellate court reviews a trial court's decision revoking
community control sanctions on an abuse-of-discretion standard. State v. Cofer, 2nd Dist.
Montgomery No. 22798, 2009-Ohio-890, ¶ 13. However, statutory interpretation is a
question of law that we review de novo. State v. Mullins, 10th Dist. Franklin Nos. 16AP–
236, 16AP–237, 2016-Ohio-8347, ¶ 19 (additional citations omitted).
Holmes County, Case Nos. 16 CA 006 and 16 CA 009 5
{¶19} R.C. 2951.08(A) states in pertinent part: “*** During a period of community
control, any peace officer may arrest the person under a community control sanction
without a warrant upon the written order of the chief probation officer of the probation
agency if the person under a community control sanction is under the supervision of that
probation agency or on the order of an officer of the adult parole authority created
pursuant to section 5149.02 of the Revised Code if the person under a community control
sanction is under the supervision of the authority. ***.”
{¶20} This Court has recognized that the issuance of a capias or a warrant is
sufficient to toll a probationary period until the probationer is brought before the pertinent
court. See State v. Hamilton, 5th Dist. Guernsey No. 03 CA 8, 2003-Ohio-5366, ¶ 13,
citing Rash v. Anderson, 9th Dist. Lorain No. 97 CA006728, 1997 WL 270553, affirmed
(1997), 80 Ohio St.3d 349, 686 N.E.2d 505. Similarly “*** Ohio courts have repeatedly
held that the tolling of the probationary period can only be accomplished by a timely filed
motion to terminate probation and a timely filed warrant, capias, or summons.” State v.
Jones, 123 Ohio App.3d 144, 148, 703 N.E.2d 833 (11th Dist.1997) (emphasis in original).
The Eleventh District Court went on to conclude: “*** [I]t is clear that the form filed by the
probation department is not a warrant but merely a statutorily created convenience to
avoid obtaining a judge's signature. No Ohio courts have allowed this form, in conjunction
with a motion to terminate probation, to extend a probationary period of a defendant. It
simply does not qualify as a warrant, capias, or summons.” Id.1
1 The Jones court relied upon an earlier version of R.C. 2951.08(A), but our research
leads us to conclude that the subsequent revisions have not substantially changed the
statute for purposes of the present issue.
Holmes County, Case Nos. 16 CA 006 and 16 CA 009 6
{¶21} In the General Assembly’s enactment of a statute, it is presumed that a just
and reasonable result is intended. R.C. 1.47(C). Ambiguities and reasonable doubts in
interpreting criminal statutes are to be resolved in favor of the accused. See City of
Bowling Green v. Kirby, 6th Dist. Wood Nos. 90WD100, 90WD101, 1992 WL 32100. See,
also, R.C. 2901.04(A). We note the General Assembly in R.C. 2951.08(A) has utilized the
phrase “written order of the chief probation officer” to authorize an arrest “without a
warrant,” and has thereby indicated that such an order is not meant to be elevated to the
full legal equivalent of a warrant or similar device emanating from a court. Therefore, we
find such an order from a chief probation officer does not toll a period of community control
pending a court appearance by the defendant.
{¶22} Accordingly, we find merit in appellant’s contention that the trial court lacked
jurisdiction to revoke his community control and issue additional sanctions after July 30,
2016 under the facts and circumstances presented. We thus hold the trial court erred in
failing to dismiss or deny the State’s motion to revoke.
{¶23} Appellant's sole Assignment of Error is sustained.
{¶24} For the reasons stated in the foregoing opinion, the judgments of the Court
of Common Pleas, Holmes County, Ohio, are hereby reversed and remanded.
By: Wise, John, J.
Gwin, P. J., and
Hoffman, J., concur.
JWW/d 0627