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State v. Wilburn

Court of Appeals of Ohio, Tenth District

May 15, 2018

State of Ohio, Plaintiff-Appellee,
v.
Jonathan Wilburn, Defendant-Appellant.

          APPEAL from the Franklin County No. 13CR-4286 Court of Common Pleas

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee., Family First Law Offices, and Mark C. Eppley, for appellant.

          Argued:

          Mark C. Epple, Michael P. Walton..

          DECISION

          KLATT, J.

         {¶ 1} Defendant-appellant, Jonathan Wilburn, appeals from the July 28, 2017 decision of the Franklin County Court of Common Pleas revoking his community control sanction and sentencing him to prison. For the following reasons, we affirm.

         I. Factual and Procedural Background

         {¶ 2} On August 13, 2013, a Franklin County Grand Jury indicted Wilburn on one count of rape, in violation of R.C. 2907.02, and three counts of gross sexual imposition, in violation of R.C. 2907.05. Wilburn initially entered a not guilty plea. An agreement was reached with the state to amend counts two and three to endangering children, in violation of R.C. 2919.22. The parties also agreed to jointly recommend to the trial court that Wilburn receive community control sanctions. Wilburn withdrew his not guilty plea and entered a guilty plea to two counts of endangering children. The trial court accepted his guilty plea, found him guilty, and delayed sentencing for the preparation of a presentence investigation report.

         {¶ 3} At the sentencing hearing, the trial court followed the joint recommendation, placed Wilburn on community control for a period of three years, and entered a nolle prosequi on counts one and four. As part of the community control sanctions, the trial court ordered that Wilburn undergo a mental health examination and follow any recommended treatment. It also ordered that he undergo a sex offender assessment and complete any recommended treatment. The trial court informed Wilburn that if he violated the terms of his community control that he would receive a prison term of 36 months on each count and that the terms would be served consecutively for a total of 72 months.

         {¶ 4} In March 2017, a probation officer filed a request to revoke Wilburn's community control. The request alleged three violations of the terms and conditions of Wilburn's community control: (1) unsuccessful termination from sex offender treatment at "'STOP, Inc."; (2) admission of abusing prescribed Oxycodone to get high; and (3) admission of consumption of alcohol. Wilburn stipulated to probable cause and ultimately stipulated that he had violated the terms of his community control. The trial court found there was probable cause and an actual violation of community control. The trial court imposed a prison term of 30 months on each count and ordered that they be served consecutively.

         II. The Appeal

         {¶ 5} Wilburn appealed his sentence, asserting the following assignments of error:

[I.] THE TRIAL COURT FAILED TO PROPERLY CONSIDER THE ENTIRETY OF THE FACTORS ENUMERATED IN OHIO REVISED CODE SECTION 2929.12(C) AND OHIO REVISED CODE SECTION 2929.12(E) WHEN ...

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