Court of Appeals of Ohio, Twelfth District, Butler
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case
Nos. CR2018-01-0067 and CR2018-04-0683
Michael T. Gmoser, Butler County Prosecuting Attorney, John
C. Heinkel, for appellee.
& Martin, LLC, Mary K. Martin, for appellant.
1} Appellant, Whitney Noonan, appeals a decision of
the Butler County Court of Common Pleas revoking her
community control and sentencing her to prison.
2} In June 2018, appellant pled guilty to a
fourth-degree felony count of theft from a person in a
protected class in Case No. CR2018-01-0067 ("Case No.
67") and to a fifth- degree felony count of attempted
failure to appear in Case No. CR2018-04-0683 ("Case No.
683"). On July 20, 2018, the trial court sentenced
appellant to three years of community control in both cases.
The sentencing entries provided general conditions of
supervision and several court-ordered community control
conditions. As relevant here, appellant was required to
successfully complete a substance abuse treatment program at
Sojourner Recovery Services, an inpatient residential
alcohol, drug abuse, and mental health treatment facility.
Appellant was further required to "enter, comply with,
and complete the Court Directed Addiction Treatment
(C.D.A.T.) Program" and "to comply with all the
terms and conditions of the Drug Court (C.D.A.T.)
Participation Agreement." The terms of the agreement
included successful completion of the Sojourner treatment
3} Appellant entered the Sojourner treatment program
on August 2, 2018. On August 24, 2018, appellant sought
emergency medical treatment at Fort Hamilton Hospital for
chest pain and numbness in her left arm. She was treated and
released that same day. On September 4, 2018, appellant
sought emergency medical treatment at the hospital for chest
pain. She was diagnosed with and hospitalized for chronic
infective endocarditis and pulmonary embolism. She was
released from the hospital on September 10, 2018. The next
day, however, appellant once again sought emergency medical
treatment at the hospital for difficulty breathing. She was
diagnosed with MRSA and hospitalized for several days. On
September 18, 2018, appellant was "medically
discharged" from the Sojourner treatment program due to
the severity of her medical issues.
4} On September 27, 2018, appellant's probation
officer filed a violation of community control affidavit in
both cases. The affidavits alleged that appellant violated
the conditions of her community control by being
unsuccessfully discharged from the Sojourner treatment
program. On October 26, 2018, the trial court held a hearing
on appellant's community control violations. Mike
Campbell, appellant's probation officer, and Casey Clay,
appellant's clinical dependency counselor at Sojourner,
testified at the hearing. The parties' exhibits were
admitted into evidence, including appellant's discharge
summary from Sojourner prepared by Clay.
5} Campbell and Clay both testified that appellant
was discharged from the Sojourner treatment program for
medical reasons and that such discharge was not a successful
discharge. Campbell understood that appellant was
"medically terminated" from the Sojourner treatment
program because it could not handle appellant's medical
conditions which included lung and heart problems and which
resulted in several hospitalizations. Campbell further
testified that on September 7, 2018, appellant called him and
informed him that while she was hospitalized, a visitor
injected her with heroin and then left, and that she had to
be revived with Narcan. Appellant's counsel objected to
this testimony; the trial court overruled the objection.
6} Clay testified that other than one minor
violation involving a cellphone, for which appellant was not
discharged, and some conflicts with peers, appellant did well
in group participation. Clay testified that it was not until
appellant's medical issues became worse that she no
longer benefitted from the treatment program. Consequently,
appellant was medically discharged from Sojourner as her
medical issues prevented her from benefitting from or
participating in the program. Clay testified that once
appellant took care of her medical issues, she would be
welcome back into the program. Clay affirmed that appellant
was not discharged from the program for doing anything wrong.
7} At the conclusion of the hearing, the trial court
found that appellant had violated her community control in
both cases by being unsuccessfully discharged from the
Sojourner treatment program and by overdosing on heroin while
hospitalized. The trial court further noted appellant's
poor performance during the pretrial phase of the case and in
"Drug Court." The trial court then sentenced
appellant. Noting that appellant's discharge from
treatment was not a technical violation and that appellant
overdosing on heroin "would constitute a new felony
offense," the trial court sentenced appellant to 12
months in prison in both cases, to be served concurrently.
The sentencing entries terminating appellant's community
control in both cases and sentencing her to an aggregate
12-month prison term were journalized on October 26, 2018. At
the hearing and in both sentencing entries, the trial court
gave appellant 94 days of jail-time credit.
8} Appellant now appeals, raising three assignments
9} Assignment of Error No. 1:
10} APPELLANT'S CONSTITUTIONAL DUE PROCESS
RIGHTS WERE VIOLATED WHEN SHE WAS NOT GIVEN NOTICE OF AN