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State v. Marlow

Court of Appeals of Ohio, Second District, Montgomery

August 23, 2019

STATE OF OHIO Plaintiff-Appellee
v.
JESSICA MARLOW Defendant-Appellant

          Criminal Appeal from Municipal Court Trial Court Case No. 2016-CRB-281

          GREGORY SPEARS, Atty. Reg. No. 0009002, Attorney for Plaintiff-Appellee

          DAWN S. GARRETT, Atty. Reg. No. 0055565, Attorney for Defendant-Appellant

          OPINION

          HALL, J.

         {¶ 1} Jessica Marlow appeals from the judgment of the trial court that revoked her misdemeanor community control supervision and imposed a net jail sentence of six days. The court stayed the sentence pending this appeal. Marlow's appointed appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of non-frivolous issues for review, and she has therefore filed a motion to withdraw. We notified Marlow of the Anders filing and gave her an opportunity to submit a pro se brief and indicated the time for doing so. She did not.

         Course of Proceedings

         {¶ 2} On March 7, 2016, Marlow was charged with one count of possession of drug paraphernalia, a fourth-degree misdemeanor. She pled guilty to an amended charge of disorderly conduct, as a fourth-degree misdemeanor, on March 29, 2016. Her sentence included a $100 fine, 30 days in jail, with one day of jail time credit and the remaining 29 days suspended, and she was placed on reporting community control sanctions for 2 years (730 days).

         {¶ 3} On February 1, 2017, a notice of revocation and order for a hearing was filed (Doc. #30), alleging that Marlow had violated her supervision by failing to get a drug assessment and treatment, and by twice testing positive for multiple unprescribed drugs. The Community Control Officer requested a warrant for her arrest. On the same date, the court issued the warrant. (Doc. #29.)

         {¶ 4} Marlow was not arrested on the warrant until November 2018. On November 6, 2018 an initial hearing was held and Marlow was released on bond. A revocation hearing was scheduled for November 13, 2018. The transcript reveals Marlow appeared with counsel. The court stated the noticed violations and said "[a]s a result of that and not seeing you, they went ahead and asked that a warrant be issued." Tr. at 2. Counsel stated "it doesn't look like they ever filed a motion to extend the probation from the two years she was given," and therefore the case was "over." Id. The trial court ruled "the warrant covers that." Id. at 3. When asked whether Marlow admitted or denied the violations, counsel indicated "she admits she tested positive." Id. And Marlow further stated "I am in a methadone clinic." Id. The trial court then revoked her community control supervision, imposed a ten day jail sentence, gave her credit for an additional four days of jail time credit, and indicated she was to serve six days. (Doc. #39.) The court stayed the jail sentence pending an appeal.

         Anders Brief

         {¶ 5} In the Anders brief, Marlow's appointed appellate counsel indicates that she "cannot find any meritorious issues to pursue on appeal." Nevertheless, counsel provided an analysis of whether the trial court lost jurisdiction over Marlow due to the passage of more than two years from the initiation of supervision and whether a successor to the original sentencing judge can preside over revocation proceedings.

         Analysis

         {¶ 6} Upon review, we concur in counsel's assessment that the foregoing issues are without merit and frivolous. Under R.C. 2951.07, "[i]f the offender under community control absconds or otherwise leaves the jurisdiction of the court without permission from the probation officer, the probation agency, or the court to do so, or if the offender is confined in any institution for the commission of any offense, the period of community control ceases to run until the time that the offender is brought before the court for its further action." The Ohio Supreme Court, interpreting virtually identical language of that statute when it applied to "probation," held that the issuance of a capias during the probationary term tolled the running of the probationary period so that the trial court retained jurisdiction to revoke supervision. Rash v. Anderson, 80 Ohio St.3d 349, 350-351, 686 N.E.2d 505 (1997). The same notion applies to community control supervision. A trial court has jurisdiction to proceed with "revocation proceedings held after expiration of the stated term of community control" provided "that the notice of a violation and revocation proceedings are commenced prior to the expiration." State v. Semenchuk, 4th Dist. Ross No. 10CA3140, 2010-Ohio-4864, ¶ 7. This court has recognized the same. State v. Adkins, 2d Dist., Montgomery No. 21810, 2007-Ohio-4886, ¶ 6. "Timely initiation of the [probation violation] complaint and warrant * * * was tantamount to an entry declaring the woman an absconder." State v. Wallace, 7 Ohio App.3d 262, 263, 454 N.E.2d 1356 (1st Dist. 1982).

         {¶ 7} Here it is undisputed that both a revocation proceeding was initiated and a warrant was issued before expiration of the period of supervision. In our opinion, given statutory authority and over 20 years of consistent case precedent, we agree with counsel that on this record an argument that the trial court did not ...


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