Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Municipal Court Trial Court Case No.
GREGORY SPEARS, Atty. Reg. No. 0009002, Attorney for
S. GARRETT, Atty. Reg. No. 0055565, Attorney for
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.
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
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.
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 ...