State v. Taylor

[Cite as State v. Taylor, 2016-Ohio-4948.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2016 AP 01 0005
MARLON TAYLOR
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court
of Common Pleas, Case No.
2015CR010001
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: July 8, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER GERALD A. LATANICH
Tuscarawas County Prosecutor 153 North Broadway
MICHAEL J. ERNEST New Philadelphia, Ohio 44663
Assistant County Prosecutor
For Tuscarawas County
125 East High Avenue
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2016 AP 01 0005 2
Hoffman, J.
{¶1} Defendant-appellant Marlon F. Taylor appeals the January 12, 2016
Judgment Entry entered by the Tuscarawas County Court of Common Pleas revoking his
community control sanctions and imposing a twelve month prison term. Plaintiff-appellee
is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On August 13, 2015, Appellant was sentenced following his plea of guilty to
one count of possession of cocaine, in violation of R.C. 2925.11, a fifth degree felony.
The trial court imposed a term of two years of community control sanctions subject to
general supervision and control of the Adult Parole Authority.
{¶3} On November 19, 2015, Appellant was arrested by the Newark Police
Department and charged with tampering with evidence, a felony of the third degree.
{¶4} On December 30, 2015, the state of Ohio filed a motion to revoke
Appellant’s community control. The matter proceeded to a Notice Hearing on January 4,
2016, and a Merits/Evidentiary Hearing on January 11, 2016.
{¶5} Officer Dale Jennings testified at the hearing. Jennings is Appellant’s
probation officer with the State of Ohio, working in Coshocton County. He was assigned
to supervise Appellant at all times relevant herein. Officer Jennings testified Appellant
failed to report as scheduled and failed to obtain a substance abuse assessment as
ordered. He further testified he had learned Appellant was arrested in Licking County a
new felony charge, which charge remained pending.
1 A rendition of the underlying facts is unnecessary for resolution of this appeal.
Tuscarawas County, Case No. 2016 AP 01 0005 3
{¶6} Via Judgment Entry of January 12, 2016, the trial court granted the state’s
motion to revoke.
{¶7} The trial court’s January 12, 2016 Judgment Entry states,
Based upon the testimony and the exhibits presented and admitted
into evidence of the Court, the Court FINDS that the State of Ohio has
proven by a preponderance of the evidence that the Defendant violated the
terms and conditions of supervision as follows:
1. On or about October 21, 2015, the defendant failed to report to his
Parole Officer as instructed;
2. On or about November 19, 2015, the Defendant was arrested by
Newark Police Department and charged with Tampering with Evidence (F-
3); and
3. The Defendant failed to obtain a substance abuse assessment.
The Court FINDS that the Defendant has violated the terms and
conditions of his community control sanctions.
It is therefore ORDERED that the Motion to Revoke shall be granted.
{¶8} The trial court’s Judgment Entry imposed a twelve month term of
incarceration in a state penal institution on Appellant’s conviction for possession of
cocaine and further imposed a term of post-release control.
{¶9} Appellant appeals, assigning as error,
{¶10} “I. MERELY BEING CHARGED WITH A CRIME CANNOT BE THE BASIS
FOR A COMMUNITY CONTROL SANCTION VIOLATION.
Tuscarawas County, Case No. 2016 AP 01 0005 4
{¶11} “II. THE COURT ABUSED ITS DISCRETION IN IMPOSING A PRISON
SENTENCE FOR MINOR COMMUNITY CONTROL SANCTION VIOLATIONS.”
I.
{¶12} In the first assignment of error, Appellant maintains the trial court erred in
revoking his community control based upon a consideration of his being arrested and
charged in Newark, Ohio, with tampering with evidence. We agree.
{¶13} A criminal charge, by itself, is not sufficient to prove, even by a
preponderance of the evidence, a criminal act was committed. State v. Wagner 179 Ohio
App.3d 165, 2008-Ohio-5765. Mere arrest does not constitute a violation of probation.
State v. Moine, 72 Ohio App. 3d 584 (1991).
{¶14} The Eighth District recently found in State v. Washington, Cuyahoga App.
Nos. 101157, 101170, 2015-Ohio-305,
Courts have repeatedly determined that merely being charged with
a crime is not sufficient to establish a probation violation. See, e.g., Toledo
v. Nova, 6th Dist. Lucas No. L–12–1229, 2013–Ohio–1094; State v.
Wagner, 179 Ohio App. 3d 165, 2008–Ohio–5765, 900 N.E.2d 1089, ¶ 42
(2d Dist.) (stating that the fact that a criminal charge was filed, by itself, is
not sufficient to prove that the defendant committed the criminal act); State
v. Craig, 130 Ohio App. 3d 639, 642, 720 N.E.2d 966 (1st Dist.1998) (stating
that the mere fact of an arrest cannot constitute a violation of community
control sanctions); State v. Kidwell, 10th Dist. Franklin No. 94APA06–883,
1995 Ohio App. LEXIS 564, 1995 WL 68164 (Feb. 16, 1995) (revocation of
probation predicated solely upon arrest, without additional evidence, is
Tuscarawas County, Case No. 2016 AP 01 0005 5
reversible error); State v. Moine, 72 Ohio App. 3d 584, 589, 595 N.E.2d 524
(9th Dist.1991) (stating that an arrest does not constitute a violation of
probation). Rather, the violation must be based on some inquiry into the
facts supporting the charge, or some examination into the evidence
underlying the offender's arrest. Toledo at ¶ 7, citing Craig at 642, 720
N.E.2d 966.
{¶15} We find the trial court erred in finding Appellant’s arrest and pending charge
in Licking County for tampering with evidence, constituted a violation of Appellant’s
community control sanction. However, we find the evidence supports the trial court
finding of violation on the other two specified grounds. Nevertheless, because the
pending Licking County charge was improperly considered by the trial court, we believe
justice is best served by vacating Appellant’s sentence and remanding the matter to the
trial court to resentence Appellant without consideration of his arrest and charge in
Newark on tampering with evidence.
{¶16} Appellant’s first assignment of error is sustained.
II.
{¶17} In the second assignment of error, Appellant argues the trial court abused
its discretion in imposing a prison sentence for Appellant’s violation of community control
sanctions.
{¶18} Based upon our analysis and disposition of Appellant’s first assigned error,
we find Appellant’s second assignment of error premature.
Tuscarawas County, Case No. 2016 AP 01 0005 6
{¶19} The January 12, 2016 Judgment Entry entered by the Tuscarawas County
Court of Common Pleas is reversed, and the matter remanded to the trial court for further
proceedings in accordance with the law and this opinion.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur