State v. Lewis

[Cite as State v. Lewis, 2011-Ohio-4603.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 2011 AP 01 0001
RICHARD M. LEWIS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court of
New Philadelphia, Case No. TRD0605110A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 12, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. COLLINS MARK A. PERLAKY
ASSISTANT PROSECUTOR TUSC. COUNTY PUBLIC DEFENDER
150 East High Avenue, Suite 113 153 North Broadway Street
New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2011 AP 01 0001 2
Wise, J.
{¶1} Defendant-Appellant Richard M. Lewis appeals from the decision of the
New Philadelphia Municipal Court, Tuscarawas County, which imposed community
control sanctions following appellant’s arrest on an extradition warrant. The relevant
facts leading to this appeal are as follows.
{¶2} In August 2006, a vehicle driven by appellant collided with a motorcycle on
County Rd. 69 in Goshen Township, Tuscarawas County. Appellant was thereafter
cited with failure to yield on a left turn (R.C. 4511.42) and driving under a license
suspension (R.C. 4510.11(A)). On March 26, 2007, appellant pled no contest to both
charges and was thereupon found guilty. At a sentencing hearing on May 16, 2007, the
trial court sentenced appellant to 15 days in jail, with 165 days suspended for a two-
year term of probation supervision with conditions to pay restitution including any
outstanding medical bills incurred by the motorcycle rider in the collision, obtain an
alcohol abuse assessment, and maintain employment at all times.
{¶3} At the time of the accident, appellant was a resident of Williamsville, New
York. At the time of sentencing, appellant was living in La Mesa, California. He
apparently thereafter left Ohio after representing to probation officials that he had
steady employment in California.
{¶4} On or about September 17, 2008, a warrant was issued for appellant’s
arrest for failure to report to jail for 15 days as ordered.
{¶5} On November 4, 2010, appellant was arrested in the vicinity of San Diego,
California, on the charge of operating a vehicle while intoxicated. Appellant was
Tuscarawas County, Case No. 2011 AP 01 0001 3
subsequently transported to New Philadelphia via an extradition on the aforesaid
warrant.
{¶6} Appellant was returned to the trial court for a hearing on November 15,
2010. The Tuscarawas County Public Defender was appointed to represent him. On
December 14, 2010, appellant admitted to violating his probation by failing to pay court
costs as ordered, failing to complete an assessment for alcohol abuse and complete
recommended treatment, failing to maintain employment at all times, and failing to
serve his 15 days in 2008. Appellant was thus found in violation of his probation and
was ordered to serve 165 days in jail. He was also ordered to not leave the State of
Ohio without permission of the court and to maintain employment. He was also ordered
to complete an assessment at an approved alcohol counseling agency and pay no less
than $3,000.00 every four months on past due restitution. Appellant’s probation was
further extended until May 2012.
{¶7} Appellant timely filed a notice of appeal. He herein raises the following two
Assignments of Error:
{¶8} “I. THE TRIAL COURT ERRED IN FORBIDDING APPELLANT FROM
LEAVING THE STATE OF OHIO AS SUCH DECISION WAS UNREASONABLY
RESTRICTIVE AS IT WAS ARBITRARY AND COMPLETELY UNRELATED TO THE
GOALS OF COMMUNITY CONTROL SANCTIONS.
{¶9} “II. THE TRIAL COURT ERRED IN MANDATING THAT APPELLANT
LIVE AND WORK IN THE STATE OF OHIO, AS HE WAS NOT A RESIDENT OF
OHIO EITHER AT THE TIME OF THE OFFENSE OR AT THE TIME OF HIS
Tuscarawas County, Case No. 2011 AP 01 0001 4
PROBATION REVOCATION, AND THIS UNDULY INTERFERED WITH HIS
FUNDAMENTAL RIGHT TO TRAVEL.”
I., II.
{¶10} In his First and Second Assignments of Error, appellant contends the trial
court erred and violated his constitutional rights in forbidding him to leave the State of
Ohio without court permission as a condition of probation. We disagree.
{¶11} A trial court has broad discretion in imposing additional requirements on
an offender as part of community control sanctions. State v. Culbertson, Ashtabula
App.No. 2006-A-0043, 2007-Ohio-1380, ¶7. But it is well-established that probation
cannot be overly broad so as to unnecessarily impinge upon a defendant's liberty.
State v. Meldrum, Stark App.No. 2001 CA00289, 2002-Ohio-1859, citing State v.
Maynard (1988), 47 Ohio App.3d 76, 547 N.E.2d 409. Thus, “[w]hile a trial court has
broad discretion in imposing probation conditions, that discretion is not limitless. * * * In
determining whether probation conditions are reasonably related to the statutory
purpose of probation and overbroad, a reviewing court should consider ‘whether the
condition (1) is reasonably related to rehabilitating the offender, (2) has some
relationship to the crime of which the offender was convicted, and (3) relates to
conduct which is criminal or reasonably related to future criminality and serves the
statutory ends of probation.’ ” State v. Coleman, Scioto App.No. 05CA3037, 2006-
Ohio-3200, ¶ 22, citing State v. Jones (1990), 49 Ohio St.3d 51, 52-53 (additional
citations omitted).
{¶12} Among the fundamental rights under the United States Constitution is the
right to interstate travel. See Massachusetts Bd. of Retirement v. Murgia (1976), 427
Tuscarawas County, Case No. 2011 AP 01 0001 5
U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520, f.n. 3. At least one Ohio appellate court
has determined that it is unconstitutional to impose a five-year probation condition that
an out-of-state offender not return to Ohio. See Casdorph v. Kohl (1993), 90 Ohio
App.3d 294, 295, 629 N.E.2d 34. However, this is the opposite of what occurred in the
case sub judice. Specifically, R.C. 2929.25(B)(2) states: “The sentencing court shall
require as a condition of any community control sanction that the offender abide by the
law and not leave the state without the permission of the court or the offender's
probation officer. ***.”
{¶13} Appellant maintains that the trial court has provided no rationalization as
to why remaining and obtaining employment in Ohio for the duration of his probation
period is reasonably related to his rehabilitation or the traffic offenses for which he was
convicted. However, appellant’s view glosses over his actions upon his 2008
conviction. Appellant undisputedly went to California, where he failed to keep a job,
failed to follow up on an alcohol assessment, and paid nothing in restitution. It appears
that only extradition following an unrelated arrest in California compelled him to
seriously pay attention to his probation requirements in Ohio. Under these
circumstances, we are unable to find an abuse of discretion in the trial court’s ongoing
probation condition of remaining in Ohio. Furthermore, being mindful that enactments
of the Ohio General Assembly are presumed to be constitutional (see State v. Sinito
(1975), 43 Ohio St.2d 98, 101, 330 N.E.2d 8960), and having considered the
particulars of appellant’s probation under a case-by-case analysis, we find no merit in
appellant’s claim that his constitutional right to interstate travel has been violated in this
instance.
Tuscarawas County, Case No. 2011 AP 01 0001 6
{¶14} Appellant’s First and Second Assignments of Error are therefore
overruled.
{¶15} For the reasons stated in the foregoing opinion, the judgment of the New
Philadelphia Municipal Court, Tuscarawas County, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0823
Tuscarawas County, Case No. 2011 AP 01 0001 7
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RICHARD M. LEWIS :
:
Defendant-Appellant : Case No. 2011 AP 01 0001
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Municipal Court of New Philadelphia, Tuscarawas County, Ohio, is
affirmed.
Costs assessed to appellant.
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JUDGES