State v. Nethers

[Cite as State v. Nethers, 2014-Ohio-1579.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 13-CA-67
:
WILLIAM J. NETHERS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 12 CR 00213
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: April 7, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KENNETH W. OSWALT WILLIAM T. CRAMER
LICKING CO. PROSECUTOR 470 Olde Worthington Road, Ste. 200
JUSTIN T. RADIC Westerville, OH 43082
20 S. Second St., Fourth Floor
Newark, OH 43055
Licking County, Case No. 13-CA-67 2
Delaney, J.
{¶1} Appellant William J. Nethers appeals from the July 2, 2013 judgment entry
of the Licking County Court of Common Pleas revoking his community control sanction
and imposing a term of six months. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose when appellant accepted $5,952 from a victim to install a
furnace and air conditioning unit and then failed to do any of the work. Appellant was
charged with one count of theft pursuant to R.C. 2913.02(A)(1) and/or (A)(2), a felony of
the fifth degree. On October 30, 2012, appellant appeared before the trial court and
changed his plea to guilty, was found guilty, and sentenced to a term of one year of
community control. Appellant was given 30 days to pay the balance of the restitution; if
he failed to pay the restitution, the trial court would impose a prison term of six months.
{¶3} On May 15, 2013, appellant was back before the trial court on the first
stage of a motion to revoke community control. The probation department alleged
appellant failed to report to probation after sentencing and the trial court found probable
cause existed.
{¶4} At the second-stage hearing on July 21, 2013, appellant argued the only
terms and conditions of his probation were those related to him by the trial court during
sentencing, to wit, payment of the balance of restitution.
{¶5} Appellee called one witness, appellant’s supervising probation officer, who
testified appellant received a copy of the terms and conditions of his probation and
signed same on the day he was sentenced, October 30, 2012. He was ordered to pay
restitution in addition to standard court costs, supervision fees, and attorney fees. He
Licking County, Case No. 13-CA-67 3
was also given an appointment card stating the date and time of his next appointment
with the probation department. Appellant signed the terms and conditions
acknowledging receipt.
{¶6} Appellant never showed up for any probation appointments after the date
of sentencing. He did pay the balance of restitution. He made two $25 payments
toward court costs in October and November, but made no subsequent payments. The
probation department deemed appellant to be in violation for failure to appear for
appointments and failure to pay costs.
{¶7} On cross examination, the probation officer stated she would not have told
appellant his probation period would be extinguished by payment of restitution because
the probation period, by its terms, lasted for one year.
{¶8} The trial court found appellant to be in violation of the terms of his
community control sanction and therefore revoked community control and imposed a
term of six months which appellant was permitted to serve in the county jail.
{¶9} Appellant now appeals from the judgment entry of revocation and
imposition of sentence.
{¶10} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶11} “I. THE TRIAL COURT VIOLATED DUE PROCESS AND R.C.
2929.19(B)(5) BY IMPOSING A PRISON TERM FOR VIOLATING COMMUNITY
CONTROL CONDITIONS ON REPORTING AND PAYMENT OF COSTS AND FEES
AFTER THE TRIAL COURT ADVISED APPELLANT AT SENTENCING THAT HE
Licking County, Case No. 13-CA-67 4
WOULD BE SUBJECT TO A PERIOD OF INCARCERATION ONLY IF HE FAILED TO
PAY RESTITUTION WITHIN 30 DAYS.”
ANALYSIS
{¶12} Appellant argues the trial court erred in revoking his community control
sanction because his community control was premised solely upon payment of the
balance of restitution, not upon compliance with any other terms and conditions of
probation.
{¶13} R.C. 2929.19(B)(4) states:
If the sentencing court determines at the sentencing hearing that a
community control sanction should be imposed and the court is not
prohibited from imposing a community control sanction, the court
shall impose a community control sanction. The court shall notify
the offender that, if the conditions of the sanction are violated, if
the offender commits a violation of any law, or if the offender leaves
this state without the permission of the court or the offender's
probation officer, the court may impose a longer time under the
same sanction, may impose a more restrictive sanction, or may
impose a prison term on the offender and shall indicate the specific
prison term that may be imposed as a sanction for the violation, as
selected by the court from the range of prison terms for the offense
pursuant to section 2929.14 of the Revised Code. (Emphasis
added.)
Licking County, Case No. 13-CA-67 5
{¶14} Appellant argues the trial court erred, not in failing to advise appellant of
the specific term that might be imposed, but in failing to advise him of the terms and
conditions with which he must comply. Appellant contends the trial court stated he was
only required to pay the balance of restitution, and for the trial court to revoke
community control and impose a prison term for violations of any other terms or
conditions violates the Ohio Supreme Court’s holding in State v. Brooks, 103 Ohio St.3d
134, 136, 2004-Ohio-4746, 814 N.E.2d 837. We disagree.
{¶15} In Brooks, supra, the Ohio Supreme Court held, pursuant to R.C.
2929.19(B)(5) [now R.C. 2929.19(B)(4)], supra, a trial court sentencing an offender to a
community control sanction must notify the offender, at the time of the sentencing, of
the specific prison term that may be imposed for a violation of the conditions of the
sanction as a prerequisite to imposing a prison term on the offender for a subsequent
violation. 2004-Ohio-4746 at ¶ 13. To comply with the term “specific” the sentencing
court “should not simply notify the offender that in the event of a violation he will receive
‘the maximum’ or another indefinite term such as ‘up to 12 months,” 'but should inform
the defendant, in straightforward and affirmative language, of the fixed number of
months or years the trial court can impose. Id. at ¶ 19.
{¶16} In the instant case, we find the trial court complied with R.C. 2929.19(B)(4)
and advised appellant he was subject to a one-year period of community control subject
to following through with the terms and conditions of probation; otherwise he was
subject to a prison term of 6 months. Appellant met with the probation officer, signed
and acknowledged the terms and conditions of probation, and made two payments
Licking County, Case No. 13-CA-67 6
toward court costs before he stopped paying, belying his argument he was unaware of
any terms and conditions beyond restitution.
{¶17} We find the trial court complied with R.C. 2929.14(B)(4) and are unwilling
to extend the holding of Brooks to imply the trial court must, at sentencing, advise the
appellant of each and every term and condition of probation when that is the role of
court services personnel. Nothing in Brooks or R.C. 2929.14(B)(4) requires such a
finding, particularly when the evidence establishes appellant signed and acknowledged
the terms and conditions of his community control sanction.
{¶18} Appellant’s sole assignment of error is overruled.
CONCLUSION
{¶19} The sole assignment of error is overruled and the judgment of the Licking
County Court of Common Pleas is affirmed.
By: Delaney, J. and
Hoffman, P.J.
Farmer, J., concur.