State v. Jenkins

[Cite as State v. Jenkins, 2017-Ohio-1073.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27173
:
v. : T.C. NO. 15-CR-1155
:
ERNEST J. JENKINS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ____24th ___ day of _____March_____, 2017.
...........
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 2541 Shiloh Springs Road, Dayton,
Ohio 45426
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} Counsel for Ernest J. Jenkins has submitted a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), in which counsel asserts
that “after a careful and thorough review of the record and case law, [counsel] was unable
to locate any meritorious issues for appellate review.” This Court notified Jenkins of his
-2-
counsel’s submission and provided him an opportunity to file a pro se brief. None has
been received. We hereby affirm the judgment of the trial court.
{¶ 2} Appellate counsel’s brief is addressed to the trial court’s June 24, 2016
revocation of Jenkins’ community control sanctions and imposition of an eleven-month
sentence. The community control sanctions were granted on October 9, 2015, after
Jenkins pled no contest to one count of harassment with bodily substance, in violation of
R.C. 2921.38(B), a felony of the fifth degree.
{¶ 3} Jenkins was indicted on May 12, 2015 on one count of harassment with
bodily substance; one count of obstruction of official business, in violation of R.C.
2921.31(A), a misdemeanor of the second degree; one count of disorderly conduct, in
violation of R.C. 2917.11(A)(1), a misdemeanor of the fourth degree; and one count of
resisting arrest, in violation of R.C. 2921.33(A), a misdemeanor of the second degree.
Jenkins pled not guilty on May 27, 2015. On September 10, 2015, Jenkins entered his
no contest plea in exchange for the dismissal of the remaining charges. The trial court
sentenced Jenkins to the following community control sanctions:
1. Defendant’s compliance with the General Conditions of this court
for probationers;
2. A term of Intensive Probation Supervision with a Chemical
Abuse/Mental Health Specialist not to exceed five (5) years
3. A requirement that the offender provides verification of VA
Medical benefits income;
4. A requirement that the offender completes mental health
treatment at the Dayton VA Medical Center and complies with any further
-3-
treatment recommended by that agency, the Court, or the Division of
Criminal Justice Services;
5. A requirement that the offender takes all medications as
prescribed;
6. A requirement that the offender verifies all prescription
medications;
7. A requirement that the offender appears for a 90 day Status
Hearing at which time the Court will review a probation status report
provided by his probation officer;
8. A requirement that the offender signs necessary releases of
information;
9. A requirement that the offender not be in any building, structure,
room, vehicle or place when you know or have reasonable cause to know
that illegal drugs, stolen property or any firearms are present;
10. A requirement that the offender abstains from use of illegal
drugs, drugs of abuse, and alcohol.
{¶ 4} On May 16, 2016, the court found Jenkins to be an absconder and issued a
warrant for his arrest after his Community Control Officer reported to the court on May 11,
2016 that Jenkins’ whereabouts were unknown since April 14, 2016. Jenkins was
arrested on May 22, 2016.
{¶ 5} On May 24, 2016, the court issued a “Notice of CCS Revocation Hearing and
Order.” The Notice provides that Jenkins violated his community control sanctions when
he failed to report to the probation department for a scheduled appointment on April 21,
-4-
2016, when he failed to abstain from the use of illegal drugs, when he failed to provide
verification of prescribed medications, when he failed to attend the VA Medical Center for
treatment, and when he failed to appear for a status hearing scheduled for March 9, 2016.
{¶ 6} A revocation hearing was held on June 22, 2016. Alisha Williams testified
that she is employed at the Montgomery County Adult Probation Department, and that
she supervises Jenkins, having done so since March 2016. Williams stated that Jenkins
met with her weekly, and that he failed to appear at a scheduled appointment with her on
April 21, 2016. Williams stated that she provided Jenkins with an appointment card with
the date and time for the meeting in advance, and that Jenkins did not contact her before
or after the scheduled time to explain his absence. Williams stated that a warrant was
issued for his arrest on May 16, 2016, and that after he was arrested, she met with Jenkins
in the jail on May 22, 2016. Williams stated that Jenkins advised her then that he had
used cocaine. Williams further testified that she called the VA after Jenkins’ arrest and
learned that he had stopped attending treatment there, and that she did not have
verification of his prescribed medications.
{¶ 7} On cross-examination, Williams stated that she attempted to contact Jenkins
by phone and in person at his home when he did not appear for his appointment, without
success. She stated that Jenkins indicated to her at the jail that he received the “blue
card” she left at his residence. Williams stated that when she met with him in the jail,
Jenkins never indicated to her that he had been recently hospitalized. In response to a
question from the court, Williams indicated that Jenkins is not amenable to continued
community control sanctions, based upon his conduct after April 21, 2016. She stated
that he had been generally compliant with his community control sanctions prior to April
-5-
21, 2016.
{¶ 8} Jenkins testified that he provided verification of his medications to his
previous probation officer. Jenkins stated that Williams does not answer her phone
when he calls her, and that he leaves her messages. He stated that he has not used
drugs in two years. Jenkins stated that he is enrolled in a program located off of Edward
C. Moses Boulevard, that “Federal Judge Newman has me going to that program,” and
that “it would suffice” for the VA program. Jenkins stated that he was hospitalized on
April 21, 2016, and that he is “a very sick man.” He stated that he advised Williams that
he had been hospitalized.
{¶ 9} At the conclusion of the hearing, the court indicated as follows:
THE COURT: Mr. Jenkins, it looks like this actually started before
April 21st, back when you missed status hearing on March 9th. That sort
of was bypassed and you were given an opportunity. And if you were in
the hospital on April 21st, and I’m not denying that you were, you had
several weeks thereafter that you could have gotten ahold of your probation
officer to let them know that. But there’s no indication that you provided
any documentation to them of your hospitalization o[r] the reason why you
couldn’t appear.
You also readily admitted yourself that you were using cocaine,
which is a direct violation of the - -
THE DEFENDANT: No, I didn’t Your Honor.
THE COURT: * * * Also, the testimony - - the credible testimony from
the probation officer that you failed to provide verification of your
-6-
prescription medications. And one of the orders about the VA, just so the
record is clear, one of the things I ordered you to do was the mental health
treatment. And it doesn’t appear that that is – been taking place, nor was
there - - that you completed that treatment.
So it was all of those issues and admissions from yourself and the
testimony before the Court. I am going to find that you did violate the terms
and conditions of your community control sanctions. * * *
{¶ 10} Crim. R. 32.3(A) provides: “The court shall not impose a prison term for
violation of the conditions of a community control sanction or revoke probation except
after a hearing at which the defendant shall be present and apprised of the ground on
which action is proposed.” As this Court has previously noted:
A community control revocation hearing is not a criminal trial. State
v. Hylton (1991), 75 Ohio App. 3d 778, 781, 600 N.E.2d 821. Thus, the
State does not have to demonstrate a violation with proof beyond a
reasonable doubt. Id. at 782, 600 N.E.2d 821. The State need only
present substantial evidence of a violation of the terms of a defendant’s
community control. Id.
“The right to continue on community control depends on compliance
with community control conditions and is a matter resting within the sound
discretion of the court.” State v. Brown, Montgomery App. No. 22467,
2008-Ohio-4920, ¶ 9, quoting State v. Schlect, Champaign App. No. 2003-
CA-3, 2003-Ohio-5336, at ¶ 7. Thus, we review the trial court’s decision
revoking community control sanctions on an abuse-of-discretion standard.
-7-
Id. An abuse of discretion occurs when the trial court’s decision is
unreasonable, arbitrary, or unconscionable. Id.
State v. Cofer, 2d Dist. Montgomery No. 22798, 2009-Ohio-890, ¶ 12-13.
{¶ 11} Pursuant to our responsibilities under Anders, we have conducted a
thorough and independent review of the trial court’s proceedings and have found no error
having arguable merit. Accordingly, the judgment of the trial court is affirmed.
.............
WELBAUM, J. and TUCKER, J., concur.
Copies mailed to:
Andrew T. French
Christopher A. Deal
Ernest J. Jenkins
Hon. Dennis J. Adkins