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State v. Schreiber

Court of Appeals of Ohio, Twelfth District, Warren

July 22, 2019

STATE OF OHIO, Appellee,
v.
JOSHUA T. SCHREIBER, Appellant.

          CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 16CR32217

          David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, for appellee

          J.A. Kovach Law Co., LPA, for appellant

          OPINION

          HENDRICKSON, P.J.

         {¶ 1} Appellant, Joshua T. Schreiber, appeals a decision of the Warren County Court of Common Pleas revoking his community control and reimposing his original sentence.

         {¶ 2} In September 2016, appellant pled guilty to one count of burglary in violation of R.C. 2911.12(A)(3), a felony of the third degree, and two counts of menacing by stalking in violation of R.C. 2903.211(A)(1), felonies of the fourth degree. Appellant was sentenced to three years in prison for the burglary conviction, which was run consecutively to concurrent 12-month prison terms on the menacing by stalking convictions, for an aggregate prison term of four years.

         {¶ 3} In June 2017, appellant filed a motion for judicial release. On August 21, 2017, following a hearing on appellant's motion, the trial court granted appellant judicial release. The court modified appellant's sentence to place him on community control with the conditions that he serve six months at the Community Correctional Center ("CCC"), have no contact with the victim, and pay $2, 100 in restitution to the victim. The court noted that appellant had earned 386 days of jail-time credit and advised appellant that a violation of the rules of his supervision could lead to the remainder of his four-year prison term being imposed.

         {¶ 4} On October 12, 2017, appellant's probation officer reported that appellant had violated the terms of his community control by having "numerous contacts with his victim" and by being "unsuccessfully terminated from CCC on October 11, 2017." Appellant ultimately pled guilty to the violations on October 25, 2017. The trial court continued appellant on community control, noted that appellant had earned 450 days of jail-time credit, and ordered appellant to complete a community-based correctional facility ("CBCF") program and have no contact with the victim. Unlike the court's prior entry granting appellant judicial release, the court's October 26, 2017 entry finding a violation of community control did not set forth the prison term that could be imposed for any further violation of appellant's community control.

         {¶ 5} On January 31, 2018, appellant's probation officer again reported that appellant had violated the terms of his community control. The officer alleged appellant had violated Rule 13 of his community control terms by being "[unsuccessfully [t]erminated from the MonDay program on January 30, 2018."[1] A preliminary hearing was scheduled for February 5, 2018, at which time counsel was appointed and appellant was ordered to remain detained pending further proceedings. The final hearing on appellant's community control violation was held on February 28, 2018. At the hearing, the state presented testimony from appellant's probation officer and from a clinician from the MonDay program.

         {¶ 6} Appellant's probation officer testified that as a condition of appellant's community control, appellant was ordered to complete a CBCF program. The probation officer noted appellant had been unsuccessfully term inated from CCC after approximately 30 days for bullying other residents, rule infractions, and an overall lack of performance in the program. Appellant was subsequently unsuccessfully discharged from the MonDay program on January 30, 2018.

         {¶ 7} The clinician from the MonDay program testified that appellant was his resident while appellant was in the MonDay program. Appellant had entered the program on November 21, 2017 and was discharged for disciplinary reasons 72 days later, on January 30, 2018.

         {¶ 8} While in the MonDay program, appellant had 24 rule violations, including violations for wrestling, noncompliance with staff directives, improperly trading and loaning items to other residents, and failing to follow his treatment plan. To address these violations and appellant's behavioral issues, the clinician met directly with appellant and placed appellant on two behavior contracts. Appellant was also placed on a Prison Rape Elimination Act ("PREA") prepredator safety plan contract after N.M., a resident appellant had wrestled with, reported appellant had made sexual gestures and comments towards him. Appellant was advised by the clinician of the rules of that safety plan, which included having no contact with N.M. and remaining at least 15 feet away from N.M. at all times.

         {¶ 9} On January 29, 2018, appellant broke additional rules of the MonDay program by showering at a time that was not designated for his pod and by remaining in the shower area for more than 40 minutes when he was only permitted five minutes to shower. The clinician had viewed still photographs taken from surveillance footage, which showed appellant entering the bathroom at 9:01 p.m., entering the shower area at 9:42 p.m., and exiting the shower area at 10:24 p.m. During the time that appellant was showering, N.M. was also in the shower. The clinician believed that appellant was stalking N.M. However, on cross-examination, the clinician admitted that it was possible that appellant may not have known that N.M. was in the shower at the same time as him, as the shower stalls were private and N.M. did not enter the shower area until 10:18 p.m.

         {¶ 10} The clinician testified that in addition to appellant violating his behavior contracts and PREA prepredator safety plan, appellant had made minimal progress in the MonDay program. Although appellant had been in the program for more than two months, appellant had not progressed beyond the first stage of the five-stage program.

         {¶ 11} Appellant took the stand in his own defense, testifying that he had been making progress in the MonDay program and that he had not bullied or made sexual comments towards N.M. Appellant admitted to committing multiple rule violations, including wrestling with N.M., loaning personal items to N.M., showering at a time that was not designated for his pod, and being present in the shower area when N.M. was showering. However, appellant denied knowing that N.M. was showering at the same time as him, saying he did not see or hear N.M. at that time.

         {¶ 12} After considering the foregoing testimony, the trial court found appellant had violated his community control. The court revoked appellant's community control and reimposed its original sentence for the violation, ordering appellant to serve three years in prison on the burglary count consecutively to concurrent 12-month prison terms on the menacing by stalking counts, for an aggregate prison term of four years. The court awarded appellant 574 days of jail-time credit.

         {¶ 13} Appellant appealed, raising four assignments of error for our review. For ease of discussion, we will address appellant's assignments of error out of order.

         {¶ 14} ...


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