State v. Eisele

[Cite as State v. Eisele, 2014-Ohio-662.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2013CA00037
:
DENNIS WAYNE EISELE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas 2012CR0438
JUDGMENT: AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED
DATE OF JUDGMENT ENTRY: February 18, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. KRISTINE W. BEARD
STARK CO. PROSECUTOR 4450 Belden Village St. NW
RONALD MARK CALDWELL Suite 703
110 Central Plaza South, Ste. 510 Canton, OH 44718
Canton, OH 44702-1413
Stark County, Case No. 2013CA00037 2
Delaney, J.
{¶1} Appellant Dennis Wayne Eisele appeals from the October 24, 2012
judgment entries of the Stark County Court of Common Pleas. Appellee is the state of
Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s criminal convictions is not
necessary to our resolution of this appeal. Appellant was charged by indictment with
one count each of inducing panic [R.C. 2917.31(A)(1)(C)(6), a felony of the fourth
degree], menacing by stalking [R.C. 2903.211(A)(1)(B)(2)(b), a felony of the fourth
degree], and telecommunications harassment [R.C. 2917.21(A)(2), a felony of the fifth
degree]. He ultimately entered pleas of guilty to the charges, although the count of
inducing panic was amended to a misdemeanor of the first degree [R.C. 2917.31(A)(1)].
{¶3} Upon completion of a pre-sentence investigation, on July 23, 2012, the
trial court sentenced appellant to a three-year term of community control. The terms
and conditions of appellant’s community control relevant to this appeal include the
following:
1. [Appellant] shall obey all federal, state, and local laws and
ordinances * * * including all orders, rules and regulations of Stark
County Common Pleas Court or the Department of Rehabilitation
and Correction. The conduct of [appellant] shall at all times be as a
responsible law abiding citizen. * * * *.
* * * *.
16. [Appellant] shall follow the following Special Conditions:
Stark County, Case No. 2013CA00037 3
b. That [appellant] shall comply with the Intensive Supervision
Probation Program as directed by his probation officer. * * * *.
f. That [appellant] shall have no contact directly or indirectly with
Robyn Music [appellant’s former roommate] or Julie McLaughlin
[the victim of the criminal offenses].
* * * *.
i. That [appellant] shall not have a pager, scanner, or cell phone.
j. That [appellant] shall not have access to any spoofing devices.
* * * *.
l. That [appellant] shall abstain from drugs and alcohol and shall
not frequent establishments where alcohol is served as a primary
source of business.
* * * *.
{¶4} On August 3, 2012, appellant filed a “Motion to Reconsider Sentence” in
which he asked the trial court to modify its order prohibiting him from having a cell
phone. Appellant’s motion states he requires a cell phone to enable him to contact
emergency services because he is blind, and further states in pertinent part:
* * * *. [Appellant] understands the nature of the charges he was
sentenced for and agrees that some restrictions are reasonably
related to the charges. For example, [appellant] does not contest
the prohibition against spoofing devices. Also, [appellant] would
not object to being limited to the number of cell phones and that he
Stark County, Case No. 2013CA00037 4
be required to keep his probation officer informed of any
telecommunication device that he uses. * * * *.
{¶5} Appellant’s motion was not ruled upon. On August 7, 2012, appellant’s
probation officer filed a Motion to Revoke Probation of Modify Former Order alleging
appellant violated Condition 1, supra, by possessing both a Utah state identification
card and an Ohio state identification card and having “made questionable statements, of
a criminal nature, which raised concerns in regards to his supervision in the community
and his current housing.” The motion further alleged a violation of Rule 16b, supra:
“[appellant] made statements to Probation Officers that he knew ways around our rules
of probation,” and Rule 16i, supra: he possessed a cell phone.
{¶6} The trial court held a revocation proceeding on October 17, 2012.
Appellee’s first witness was a Stark County Sheriff’s deputy who transported appellant
between court and the county jail. She testified she was transporting appellant on
October 10, 2012 when she overheard him say his roommate had “rolled” on him and
he was going to “get” her. The deputy knew appellant was the speaker because
another prisoner commented, “How are you going to do that? You’re blind.” Appellant
stated again “She doesn’t want me to come to Medina County because I’m going to get
her.”
{¶7} Appellant’s probation officer, Shelley Wolf, testified she met with appellant
on July 26, 2012 and read the rules of probation to him, which he acknowledged in
writing. Appellant was released to live with a “friend of a friend” in Alliance. Between
Stark County, Case No. 2013CA00037 5
August 3 and August 6, however, Wolf received numerous calls from the roommate1
asking that appellant be removed. The caller told Wolf appellant offered to buy alcohol
for the roommate’s 12-year-old son.
{¶8} On August 7, Wolf went to the house to talk to appellant. Wolf found a cell
phone and charger in the bedroom used by appellant, next to the air mattress he slept
on. Appellant said the phone didn’t belong to him but admitted someone gave it to him
to use until the judge allowed him to get his own. Wolf asked appellant about the
statement regarding buying alcohol for a 12-year-old, and appellant said it was
“misconstrued.” Appellant told Wolf he was smart enough to get around the rules of
probation and showed her state I.D. cards from both Utah and Ohio.
{¶9} On cross examination Wolf was asked why appellant was permitted to
have access to a land line but not a cell phone. She responded that the matter was up
to the court’s discretion but she believed it was more difficult to use “spoofing” devices
on a land line. Wolf knew appellant wanted a cell phone but told him he couldn’t have
one unless the trial court modified the rules of probation. Appellant told Wolf he needed
to keep the cell phone to maintain his employment as a part-time phone sex operator.
{¶10} Appellant testified on his own behalf at the revocation hearing. He said he
meant he would “get” his former roommate in a legal sense: he wanted her prosecuted
for the same crimes he was charged with. He was not aware he wasn’t allowed to have
two state I.D.s in his possession. He admitted he borrowed a cell phone because the
house he was staying at had no land line and he needs a phone for medical reasons
1
This roommate was referred to as “Kelly” at the hearing and is apparently a different
roommate than the object of appellant’s threats to “get” his former roommate, Robyn
Music.
Stark County, Case No. 2013CA00037 6
and to contact someone regarding employment. Finally, appellant claimed he merely
asked Kelly’s opinion about someone buying alcohol for her 12-year-old; he was not
actually offering to do so.
{¶11} On cross-examination, appellant acknowledged he recalled Wolf reviewing
the rules of probation with him; she told him he could not have a cell phone until the
judge ruled on his motion.
{¶12} At the conclusion of the hearing, the trial court revoked appellant’s
community control and sentenced him to a term of 18 months on the count of menacing
by stalking, 12 months on the count of telecommunications harassment, and 6 months
on the count of inducing panic, to be served concurrently for a total of 18 months.
{¶13} Appellant now appeals from the October 24, 2012 judgment entries of
sentencing and Community Control Sanctions Revoked and Sentence Imposed of the
Stark County Court of Common Pleas.
{¶14} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶15} “I. THE TRIAL COURT’S FINDING THAT THE APPELLANT VIOLATED
THE CONDITIONS OF COMMUNITY CONTROL AND THE REVOCATION OF
COMMUNITY CONTROL ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AND AN ABUSE OF DISCRETION BY THE TRIAL COURT.”
{¶16} “II. THE TRIAL COURT FAILED TO CONSIDER THE STATUTORY
FACTORS CONTAINED IN R.C. 2929.12 AT SENTENCING AND THEREFOR (sic)
THE SENTENCE IMPOSED IS CONTRARY TO LAW.”
Stark County, Case No. 2013CA00037 7
ANALYSIS
I.
{¶17} In his first assignment of error, appellant argues the trial court’s finding
that appellant violated the terms of community control is against the manifest weight of
the evidence and its revocation of community control is an abuse of discretion. We
disagree.
{¶18} Community control is comparable to probation, and those who are placed
on community control are monitored by the county probation department. R.C.
2951.021(A), Crim.R. 32.3(A). We therefore apply the standards for revocation of
probation.
{¶19} Although a revocation proceeding must comport with the requirements of
due process, it is not a criminal proceeding. State v. Ryan, 3rd Dist. Union No. 14-06-
55, 2007-Ohio-4743, citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36
L.Ed.2d 656 (1973). Therefore, the minimum due process requirements afforded a
defendant in a probation revocation proceeding differ from those in a criminal trial. The
minimum due process requirements for revocation hearings are as follows:
(a) Written notice of the claimed violations of [probation or] parole;
(b) disclosure to the [probationer or] parolee of evidence against
him; (c) opportunity to be heard in person and to present witnesses
and documentary evidence; (d) the right to confront and cross-
examine adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation); (e) a ‘neutral and
detached’ hearing body such as a traditional parole board,
Stark County, Case No. 2013CA00037 8
members of which need not be judicial officers or lawyers; and (f) a
written statement by the fact finders as to the evidence relied on
and reasons for revoking [probation or] parole.
State v. Miller, 42 Ohio St.2d 102, 104, 326 N.E.2d 259 (1975),
quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33
L.Ed.2d 484 (1972).
{¶20} Appellant does not contend he was denied any of the above. Instead, he
argues he had legitimate reasons to possess the cell phone and the trial court should
reasonably have extended his community control.
{¶21} A community control or probation revocation is not a criminal trial;
therefore, appellee is not required to establish a violation of the terms of community
control “beyond a reasonable doubt.” Ryan, supra, 2007–Ohio–4743, ¶ 7, citing State v.
Hylton, 75 Ohio App.3d 778, 600 N.E.2d 821 (4th Dist.1991). Instead, appellee must
show “substantial” proof appellant violated the terms of his community control sanctions.
Id. Substantial evidence is akin to a preponderance-of-the-evidence burden of proof.
State v. Ohly, 166 Ohio App.3d 808, 2006–Ohio–2353, 853 N.E.2d 675, at ¶ 18, citing
State v. Hayes, 6th Dist. No. WD–00–075,unreported, 2001 WL 909291 (Aug. 10,
2001). “Substantial evidence is considered to consist of more than a mere scintilla of
evidence, but somewhat less than a preponderance.” Id., citations omitted.
{¶22} A trial court's finding of a violation of community control will not be
disturbed on appeal absent an abuse of discretion. State v. Burdette, 5th Dist. Morrow
No. 10-CA-9, 2011-Ohio-4425, *4. An abuse of discretion implies more than an error of
law or judgment; instead, it connotes that the trial court's attitude is unreasonable,
Stark County, Case No. 2013CA00037 9
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983). When applying the abuse of discretion standard, an appellate court
may not simply substitute its judgment for that of the trial court. Id. Moreover, in terms
of credibility determinations, the weight of the evidence and the credibility of the
witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227,
231, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.
{¶23} We find appellee demonstrated substantial proof appellant was aware of
the prohibition against having a cell phone in his possession but admittedly did possess
a cell phone in violation of the terms of community control. Regardless of any
innocuous reason appellant wants a cell phone, the community control condition against
having one is directly related to the terms of the offenses for which he was convicted.
See, State v. Lacey, 5th Dist. Richland No. 2005-CA-119, 2006-Ohio-4290, ¶ 48, citing
State v. Talty, 103 Ohio St.3d 177, 814 N.E.2d 1201, 2004-Ohio-4888. He willfully and
admittedly violated this condition.
{¶24} Moreover, appellant’s threats against his former roommate, statements
about buying alcohol for minors, and statements about evading the rules of probation
may, taken individually, seem minor, but viewed as a whole they reflect upon appellant’s
credibility and his willingness to comply with the terms of community control. We note
“the privilege of probation 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. Bell, 66 Ohio App.3d 52, 57, 583 N.E.2d 414 (5th Dist.1990).
{¶25} The trial court’s finding that appellant committed multiple violations of his
community control terms and conditions is supported by substantial evidence, and the
Stark County, Case No. 2013CA00037 10
revocation of community control does not constitute an abuse of the court’s discretion.
Appellant’s first assignment of error is overruled.
II.
{¶26} In his second assignment of error, appellant argues his sentence is
contrary to law because the trial court failed to consider the requisite statutory factors.
We agree and remand this matter to the trial court for resentencing.
{¶27} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,
the Ohio Supreme Court set forth a two-step process for examining felony sentences.
The first step is to “examine the sentencing court's compliance with all applicable rules
and statutes in imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law.” Kalish at ¶ 4. If this first step “is satisfied,” the second step
requires the trial court's decision be “reviewed under an abuse-of-discretion standard.”
Id.{¶28} Appellant states the trial court made no findings pursuant to R.C. 2929.11
regarding the overriding principles of felony sentencing and R.C. 2929.12 regarding the
seriousness of the offender’s conduct. Following a community control violation, the trial
court conducts a second sentencing hearing. At this second hearing, the court
sentences the offender anew and must comply with the relevant sentencing statutes.
State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17, citing State
v. Martin, 8th Dist. Cuyahoga No. 82140, 2003-Ohio-3381, at ¶ 35. We have reviewed
the record of the revocation hearing and find the trial court did not make any reference
to its consideration of the factors in R.C. 2929.11 and R.C. 2929.12.
Stark County, Case No. 2013CA00037 11
{¶29} We find there was not adequate judicial fact-finding pursuant to the H.B.
86 amendments. See, State v. Green, 5th Dist. Licking No. 12-CA-17, 2012-Ohio-4362.
{¶30} Appellant’s second assignment of error is sustained and this matter is
remanded to the trial court for the limited purpose of resentencing.
CONCLUSION
{¶31} Appellant’s first assignment of error is overruled and his second assigned
of error is sustained. The judgment of the Stark County Court of Common Pleas is
therefore affirmed in part, reversed in part, and remanded.
By: Delaney, J. and
Hoffman, J. concurs;
Gwin, P.J., concurs, in part and dissents, in part
Stark County, Case No. 2013CA00037 12
Gwin, J., dissents,
{¶32} I respectfully dissent from that portion of the majorities opinion that finds
the trial court was required to reference R.C. 2929.11 and R.C. 2929.12 when
sentencing appellant for violating his community control sanctions.
{¶33} Appellant was original sentenced to community control sanctions pursuant
to R.C. 2929.13(B)(1)(a) for having plead guilty to fourth and fifth degree felonies.
Appellant was then found guilty of violating the previously imposed community control
sanctions. R.C. 2929.13(B)(1)(d) provides,
(d) A sentencing court may impose an additional penalty under
division (B) of section 2929.15 of the Revised Code upon an offender
sentenced to a community control sanction under division (B)(1)(a) of this
section if the offender violates the conditions of the community control
sanction, violates a law, or leaves the state without the permission of the
court or the offender’s probation officer.
R.C. 2929.15(B) gives the trial court discretion to determine the
most appropriate way to deal with each individual who violates community
control sanctions:
(B)(1) If the conditions of a community control sanction are violated
or if the offender violates a law or leaves the state without the permission
of the court or the offender’s probation officer, the sentencing court may
impose upon the violator one or more of the following penalties:
(a) A longer time under the same sanction if the total time under the
sanctions does not exceed the five-year limit specified in division (A) of
this section;
Stark County, Case No. 2013CA00037 13
(b) A more restrictive sanction under section 2929.16, 2929.17, or
2929.18 of the Revised Code;
(c) A prison term on the offender pursuant to section 2929.14 of the
Revised Code.
(2) The prison term, if any, imposed upon a violator pursuant to this
division shall be within the range of prison terms available for the offense
for which the sanction that was violated was imposed and shall not exceed
the prison term specified in the notice provided to the offender at the
sentencing hearing pursuant to division (B)(2) of section 2929.19 of the
Revised Code. The court may reduce the longer period of time that the
offender is required to spend under the longer sanction, the more
restrictive sanction, or a prison term imposed pursuant to this division by
the time the offender successfully spent under the sanction that was
initially imposed.
{¶34} R.C. 2929.14(A)(4) provides for a prison term of six, seven, eight, nine,
ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months
for a felony of the fourth degree. R.C. 292914(A)(5) provides for a prison term of six,
seven, eight, nine, ten, eleven, or twelve months for a felon of the fifth degree.
{¶35} R.C. 2929.15 does not require the trial court that sentences an offender
for violating the terms of previously imposed community control sanctions to make
findings pursuant to R.C. 2929.11 and R.C. 2929.12. This makes sense because the
trial court previously considered those factors when initially sentencing the offender to
community control sanctions. In the case at bar, appellant was informed that a violation
Stark County, Case No. 2013CA00037 14
of the community control sanctions could “lead to either a more restrictive sanction, a
longer sanction, or a prison term of eighteen months.” Judgment Entry Sentenced –
(Community Control Sanction) filed July 23, 2012 at 5-6.
{¶36} Indeed, even if the trial court is required to consider the R.C.
2929.11 and R.C. 2929.12 sentencing factors, R.C. 2929.12(D) mandates that a
court consider whether,
(1) At the time of committing the offense, the offender was under
release from confinement before trial or sentencing, under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or under post-release control pursuant to section 2967.28 or any
other provision of the Revised Code for an earlier offense or had been
unfavorably terminated from post-release control for a prior offense
pursuant to division (B) of section 2967.16 or section 2929.141 of the
Revised Code.
{¶37} In the case at bar, the trial judge who conducted the original sentencing
hearing heard the evidence that appellant had violated the terms of his community
control sanctions. That judge considered the testimony, including appellant’s, in
determining the most appropriate manner to address the violation. When it is clear from
the record that the trial court engaged in the appropriate analysis, little can be gained by
sending the case back for the trial court to, in essence, recite the “magic” or “talismanic”
words.
{¶38} The transcript and sentencing entries reveal that the trial court reviewed
appellant’s presentence investigation report during the original sentencing hearing.
Stark County, Case No. 2013CA00037 15
Further, the trial court heard the evidence presented during appellant’s revocation
hearing. Upon review of the sentencing entries and the pertinent transcripts, I would
find, even if the trial court is required to consider R.C. 2929.11 and R.C. 2929.12, the
trial court properly considered the purposes and principles of felony sentencing, the
factors of seriousness and recidivism and the R.C. 2929.14(C) factors when it
sentenced appellant for violating the court’s previously imposed community control
sanctions.
{¶39} I would affirm the judgment of the Stark County Court of Common Pleas.