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State v. Schwartz

Court of Appeals of Ohio, Sixth District

September 13, 2013

State of Ohio, Appellee
v.
Russell Schwartz, Appellant

Trial Court Nos. 11 CR 205, 11 CR 316.

Paul Dobson, Wood County Prosecuting Attorney, and Heather Baker and Jacqueline M. Kirian, Assistant Prosecuting Attorneys, for appellee.

Joanna M. Orth, for appellant.

DECISION AND JUDGMENT

SINGER, P.J.

(¶ 1} Appellant, Russell Schwartz, appeals his sentence imposed for violating community control. For the reasons that follow, we affirm.

(¶ 2} On May 5, 2011, appellant was indicted on one count of domestic violence against his wife, a violation of R.C. 2919.25(A) and (D)(3) and, a felony of the fourth degree (case No. 11-CR-205). On July 7, 2011, appellant was again indicted for felony domestic violence against his wife. He was also indicted on one count of abduction in violation of R.C. 2905.02 and a felony of the third degree (case No. 11-CR-316).

(¶ 3} On September 14, 2011, in case No. 11-CR-205, appellant entered a guilty plea to the domestic violence charge. Also on September 14, 2011, in case No. 11-CR-316, appellant entered a guilty plea to one count of abduction. The domestic violence charge was dismissed. The court accepted his pleas, found him guilty and sentenced him to three years community control. Among the conditions of his community control sanction, he was ordered to have no contact, directly or indirectly, with his wife. The court reserved the right to sentence appellant to eighteen months in prison for case No. 11-CR-205 and five years in prison for case No. 11-CR-316, should he violate his community control.

(¶ 4} On June 5, 2012, the state filed a petition to revoke appellant's community control alleging that he had violated the no contact order by having contact with his wife. A hearing was held on June 25, 2012, wherein, appellant admitted to the violation. The court continued appellant's community control but ordered him to serve 30 days in jail.

(¶ 5} On September 5, 2012, the state once again filed a petition to revoke appellant's community control alleging that he had violated the no contact order by having contact with his wife. A hearing was held on October 29, 2012, wherein, appellant admitted to the violation. As a result, the court sentenced him to concurrent sentences of 12 months in prison for case No. 11-CR-205 and three years in prison for case No. 11-CR-316. Appellant now appeals setting forth the following assignments of error:

I. Defendant/appellant's sentence should be vacated as the court abused its discretion in revoking Defendant/appellant's Community Control.
II. Defendant/appellant's sentence should be vacated as the trial court erred by imposing conditions of community control that were overbroad.

(¶ 6} In his first assignment of error, appellant contends that the court abused its discretion in revoking his community control.

The privilege of community control rests upon the probationer's compliance with the community control conditions and any violation of those conditions may properly be used to revoke the privilege. State v. Sturgill, 12th Dist. Butler No. CA2011-08-166, 2012-Ohio-4102, 13, citing State v. Simpson, 12th Dist. Butler No. CA2000-12-251, 2002-Ohio-1909. An appellate court will not reverse a trial court's decision to revoke community control absent an abuse of discretion. Simpson, citing State v. Theisen, 167 Ohio St. 119, 124-25 (1957). More than an error of law, an abuse of discretion connotes that the trial court's attitude in reaching its decision was unreasonable, arbitrary, or unconscionable. Simpson. State v. Painter, 12th Dist. Clermont No. CA2012-04-031, 2013-Ohio-529, ¶ 20.

(¶ 7} At appellant's first community control revocation hearing, appellant told the court that it was "crystal clear" to him that he was to have no contact whatsoever with his wife. His second community control violation, the subject of this appeal, arose when he was found in a parked car with his wife at his place of employment. His wife had gotten him a job at the same place she worked. Appellant had notified his probation officer that he ...


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