Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Clark

Court of Appeals of Ohio, Ninth District

July 10, 2013

STATE OF OHIO, Appellee
v.
GREGORY S. CLARK, Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 1112 3566

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

EVE V. BELFANCE, Presiding Judge.

{¶1} Defendant-Appellant appeals from the judgment of the Summit County Court of Common Pleas. For the reasons set forth below, we affirm in part and reverse in part.

I.

{¶2} In January 2012, Mr. Clark was indicted on one count of aggravated possession of drugs, one count of possessing criminal tools, one count of possessing drug abuse instruments, one count of obstructing official business, five counts of breaking and entering, and six counts of receiving stolen property. Later a supplemental indictment was filed charging Mr. Clark with two more counts of receiving stolen property. Ultimately, Mr. Clark pleaded guilty to aggravated possession of drugs, obstructing official business, one count of breaking and entering, and one count of receiving stolen property. The trial court sentenced Mr. Clark to an aggregate term of 30 months but suspended the sentence on the condition that Mr. Clark complete three years of community control, which included the condition that Mr. Clark successfully complete the Community Based Correctional Facility Program ("CBCFP") at Oriana House.

{¶3} Mr. Clark was subsequently discharged from the program at Oriana House without completing it. The trial court held a hearing on the violation and found Mr. Clark guilty of violating the terms of his community control and imposed the previously suspended sentence. Mr. Clark has appealed, raising six assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FOUND CLARK GUILTY OF THE COMMUNITY CONTROL VIOLATION BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT SUCH A FINDING.

{¶4} Mr. Clark asserts in his first assignment of error that there was insufficient evidence to support the trial court's finding that Mr. Clark violated the conditions of his community control. We do not agree.

{¶5} "[T]his Court has written that there are 'competing views as to whether the State's burden of proof in instances of community-control violations is "substantial evidence" or "preponderance of the evidence."'" State v. Tooley, 9th Dist. Medina Nos. 09CA0098-M, 09CA0099-M, 09CA0100-M, 2011-Ohio-2449, ¶ 2, quoting State v. Ricks, 9th Dist. Medina No. 09CA0094-M, 2010-Ohio-4659, 9, quoting State v. Walton, 9th Dist. Lorain No. 09CA009588, 2009-Ohio-6703, ¶ 14-16. We conclude we do not need to determine the correct burden at this time because Mr. Clark does not raise the issue, and the State maintains that the evidence presented would meet either burden. See Tooley at ¶ 2. We agree with the State's assertion.

{¶6} Mr. Clark acknowledges that one of the conditions of his community control was that he successfully complete the CBCFP. Additionally, he does not contest that he was terminated from the CBCFP without successfully completing it. Instead, his argument on appeal is essentially that there was insufficient evidence he violated the CBCFP rules, and thus, there was insufficient evidence that he violated a condition of his community control. Basically, Mr. Clark asserts that he should not have been terminated from the CBCFP and, thus, should not have been found guilty of a community control violation. It would seem that Mr. Clark is actually either asserting a defense to the violation (i.e. he technically violated community control by not completing the program but the failure to complete the program was not his fault) or a defense to the revocation upon the finding of a violation (i.e. he violated community control, but he should not be sent to prison because the termination was not justified because the contraband was not his). However, even assuming without deciding that Mr. Clark's argument would go to whether there was sufficient evidence to support a violation, we conclude Mr. Clark's argument is without merit.

{¶7} At the hearing, the State presented the testimony of Danielle Sampson, who was employed with Summit County Adult Probation Department as an adult probation officer; however, she was not Mr. Clark's probation officer. Nonetheless, Ms. Sampson discussed Mr. Clark's case with his probation officer. Ms. Sampson testified that it is typical for the probation officer to review the rules with the probationer when he or she is first assigned to the probation officer. The State presented as an exhibit a copy of the Summit County Adult Probation Department Rules which were signed by Mr. Clark and his probation officer and included that the rule that Mr. Clark "must complete CBCF successfully." The State also submitted as evidence Mr. Clark's journal entry of conviction which listed as condition five of Mr. Clark's community control that Mr. Clark enter "and successfully complete the [CBCFP] operated by the Oriana House and follow through with all aftercare counseling and treatment as directed." In addition, the State presented as an exhibit a letter to Mr. Clark, signed by Mr. Clark's probation officer indicating that Mr. Clark violated condition five of his community control when he was "terminated from the program on 9/20/12 for having K-2 in [his] possession." The letter was signed by Mr. Clark as having been received by him. It is arguable that the evidence discussed above would alone be sufficient to demonstrate that Mr. Clark violated his community control. The letter evidences that Mr. Clark was terminated from the CBCFP and that the termination was for cause and not for something outside of his control. See State v. Pullen-Morrow, 2d Dist. Montgomery No. 24862, 2012-Ohio-3605, ¶ 22. Moreover, the evidence supports the conclusion that Mr. Clark was aware of the conditions of his community control.

{¶8} However, for purposes of our sufficiency analysis, even assuming that it was necessary for the trial court to be presented with more evidence that Mr. Clark was terminated from the CBCFP for good cause, such testimony was presented. Clarence Allen, an employee of Oriana House, testified to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.