Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court T.C. NO. 16-CR-56/2
T. FRENCH, Atty. Attorney for Plaintiff-Appellee
BRYAN, Atty.Attorney for Defendant-Appellant
1} Ralph Turner appeals from a judgment revoking his
community control and sentencing him to 12 months in prison.
For the following reasons, the trial court's judgment
will be affirmed.
2} Turner's counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967), stating that after examining the
record and the law, he found no potentially meritorious
issues for appeal. By entry, we informed Turner that his
attorney had filed an Anders brief on his behalf and
granted him 60 days from that date to file a pro se brief. No
pro se brief was filed. The case is now before us for our
independent review of the record. Penson v. Ohio,
488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
3} On July 21, 2016, Turner pled guilty to one count
of possession of heroin, in violation of R.C. 2925.11(A), a
felony of the fifth degree. On August 5, 2016, the trial
court sentenced Turner to community control for up to five
years. The conditions of community control included that
Turner attend and complete a drug intervention program and
pay court costs and certain other "financial
obligations, " including $130 "to the assigned
4} On November 1, 2016, the probation department
filed a notice of community control violation, which asserted
that Turner had violated the requirement that he attend and
complete a drug intervention program and further stated that
Turner was not complying with any of the terms of his
community control. At a hearing on November 10, 2016, Turner
admitted to violating "one or more of the terms and
conditions" of his community control. In a termination
entry filed on November 15, 2016, the trial court found that
Turner had violated the terms of his community control. The
court sentenced him to prison for 12 months, notified him of
the possibility of a three-year term of post- release control
and of the consequences of violating post-release control
sanctions, and ordered him to pay court costs. The court
disapproved Turner's placement in a program of shock
incarceration because of his "inability to be successful
on community control"; pursuant to the presentence
investigation, Turner had been "non-compliant" in
two previous cases while on community control, by failing to
complete treatment and by testing positive for drugs.
of Community Control
5} 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 grounds on which action is proposed." As this
Court has previously stated:
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. Schlecht,
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
Id. An abuse of discretion occurs when the trial
court's decision is unreasonable, arbitrary, or
unconscionable. Id. State v. Jenkins, 2d Dist.
Montgomery No. 27173, 2017-Ohio-1073, ¶ 10, quoting
State v. Cofer, 2d Dist. ...