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State v. Nixon

Court of Appeals of Ohio, Eleventh District, Portage

August 26, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DAVID A. NIXON, Defendant-Appellant.

          Criminal Appeals from the Portage County Court of Common Pleas, Case Nos. 2015 CR 00417 and 2015 CR 00018.

         Judgment: Affirmed.

          Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, For Plaintiff-Appellee.

          David A. Nixon, pro se, PID: A694-305, Defendant-Appellant.

          OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} Appellant, David A. Nixon, appeals from the judgment of the Portage County Court of Common Pleas, denying his "Motion to Vacate Sentence" without a hearing. We affirm.

         {¶2} In January 2015, appellant was charged with one count of domestic violence, a felony of the fourth degree, in violation of R.C. 2919.25. On February 9, 2015, he pleaded guilty to the charge and, on May 8, 2015, the trial court sentenced him to house arrest for 30 days and placed him under the general control of the Adult Probation Department in the Intensive Supervision Program for one year and four additional years under the General Division Program. The trial court ordered appellant's stated prison term to be 18 months.

         {¶3} Four months later, the Probation Department filed a motion to revoke appellant's community control for a violation of a temporary protection order issued in a separate case and for failing to report for case management meetings. The record reflects appellant pleaded guilty to domestic violence, a felony of the third degree, in violation of R.C. 2919.25 and, on February 9, 2016, a sentencing and revocation hearing were held together. Appellant again was placed under the general control of the Adult Probation Department in the Intensive Supervision Program for one year and under the General Division Program for an additional 48 months. Appellant's stated prison term was set at three years.

         {¶4} In June 2016, the Probation Department again filed a motion to revoke based upon charges he was facing in Mahoning County, his failure to report these charges, and his failure to attend case management meetings. On February 27, 2017, the trial court found appellant had violated the terms of his community control and ordered: "Defendant's probation is continued and it shall be stayed pending Defendant's release from the pending cases from Judge Becky L. Doherty."

         {¶5} In February 2018, the Probation Department filed a motion to revoke community control for appellant's failure to report for case management meetings, failure to complete an anger management program or follow through with mental health counseling services. The trial court issued a warrant for appellant's arrest for failing to appear at the revocation hearing. On March 30, 2018, appellant was held "without bond" as he appeared in court without counsel for his revocation hearing.

         {¶6} On May 11, 2018, the state withdrew the motion to revoke and the trial court found it had not lifted the stay on appellant's probation. The court consequently noted "probation is unstayed and Defendant shall be placed on probation as stated on February [2]7, 2017." On February 5, 2019, appellant filed a motion to vacate his sentence arguing the trial court lacked authority to stay his probation and lacked subject matter jurisdiction to sentence him. The trial court denied appellant's motion without a hearing. He appeals and assigns two errors for our review. They provide:

         {¶7} "[1.] The trial court abused its discretion by denying defendant-appellant's motion to vacate sentence without hearing and by failing to render the sentence void based on the trial court's and defendant-appellant's knowledge of the lack of subject matter jurisdiction.

         {¶8} "[2.] The trial court committed prejudicial error by denying defendant-appellant's pro se motion to vacate sentence when defendant-appellant clearly and convincingly demonstrated an infringement of his constitutional rights and statutory provisions, as to render the trial court's judgment and sentences a nullity or void."

         {¶9} Under his assignments of error, appellant challenges the trial court's decision denying his motion to vacate his sentence without a hearing. He asserts the trial court lacked subject-matter jurisdiction to impose a sentence while ...


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