[Cite as State v. Sherouse,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 24422 : v. : Trial Court Case No. 10-CR-101/01 : JEFFREY L. SHEROUSE : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 8th day of July, 2011.

...........

MATHIAS H. HECK, JR., by TIMOTHY J. COLE, Atty. Reg. #0084117, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JOSHUA S. CARTER, Atty. Reg. #0084925, 5405 Fairford Court, Dayton, Ohio 45414 Attorney for Defendant-Appellant

.............

FAIN, J.

{¶ 1} Defendant-appellant Jeffrey Sherouse appeals from an order revoking his

community control sanctions and sentencing him to prison for a term of twelve months on his

original plea of guilty to Theft. Sherouse contends that the trial court erred by permitting a 2

probation officer to testify to matters out of her own personal knowledge, when the probation

officer who had personal knowledge was on vacation; by imposing a maximum sentence of

twelve months and by previously, as part of his original sentence, having included a condition

of community control sanctions requiring him to abstain from the use of alcohol.

{¶ 2} We conclude that Sherouse cannot now complain about the requirement of

abstinence from alcohol as a condition of his community control sanction, since he did not

appeal from the original sentence imposing that condition. We conclude that any error in the

admission of testimony of a probation officer without personal knowledge is harmless, since

the two violations of his community control sanctions that the trial court found were admitted

by Sherouse, himself. Finally, we conclude that the trial court did not abuse its discretion by

imposing a maximum, one-year sentence for Theft.

{¶ 3} The judgment of the trial court is Affirmed.

I

{¶ 4} In March 2010, Sherouse was indicted on one count of Theft, in violation of

R.C. 2913.02(A)(1). A pre-sentence investigation report was filed indicating that Sherouse

had a lengthy juvenile record and that the Theft offense would be his fourth felony offense.

The report also shows that Sherouse was convicted of Operating a Motor Vehicle while

Intoxicated (OVI) in 2002, 2008 and 2009. He was also convicted of Public Intoxication in

November and December 2005, and in 2008. In 1986 Sherouse was convicted of Voluntary

Manslaughter, and was sentenced to seven to twenty-five years in prison. He was released on

parole in 1992, and re-admitted in 1993, following a conviction for Aggravated Assault.

Thereafter, he was released on parole in February 2010 and remained on active parole 3

supervision at the time of the Theft offense.

{¶ 5} Following his plea of guilty to the Theft offense, Sherouse was sentenced to

Community Control Sanctions. A termination entry was filed on August 31, 2010. As part

of the termination entry, the trial court included the following sanctions:

{¶ 6} “1. A term of intensive probation supervision for a period not to exceed five

(5) years;

{¶ 7} “2. A requirement that the offender pay court costs as determined by the

Montgomery County Clerk of Courts and a supervision fee of $50;

{¶ 8} “3. A requirement that the offender pay an attorney fee of $130;

{¶ 9} “4. A requirement that the offender receive a drug and alcohol assessment on

September 1, 2010 and complete treatment as recommended by that agency, the Court, or the

Division of Criminal Justice Services;

{¶ 10} “5. A requirement that the offender maintain verifiable employment;

{¶ 11} “6. A requirement that the offender complete 100 hours of community service

work;

{¶ 12} “7. A requirement that the offender not be in any building, structure, room,

vehicle or place when you know or should have known that illegal drugs or any firearms are

present;

{¶ 13} “8. A requirement that the offender abstains from use of illegal drugs, drugs

of abuse, and alcohol;

{¶ 14} “9. A recommendation that the offender be placed on ‘NO BREAKS’ status.”

{¶ 15} The termination entry also stated that should Sherouse violate the conditions of 4

his community control, the trial court could “impose a longer time under the same sanction,

impose a more restrictive sanction, or a prison term of twelve months to be served.”

{¶ 16} On November 9, 2010, Sherouse was given notice that he had violated the

terms of his community control sanctions, along with notice of a revocation hearing date.

The revocation hearing was held on November 23, 2010. Sherouse was represented by

counsel, who made an oral motion for a continuance in order to subpoena witnesses. Counsel

also made the motion because Sherouse’s probation officer was on vacation and was therefore

not present to testify at the hearing.

{¶ 17} At the hearing, the State called Montgomery County Intensive Probation

Officer, Linda Toops. Ms. Toops testified that she was familiar with Sherouse and that she

had witnessed “several” of his visits to his probation officer, Todd Humfleet. She further

testified that she had access to Sherouse’s probation records.

{¶ 18} According to Toops, Sherouse was totally non-compliant with his community

control sanctions. She testified that he had a criminal case pending before the Kettering

Municipal Court. She testified that he failed to verify any employment and had failed to

make his monthly payments of one hundred dollars. She further testified that Sherouse had

failed to complete drug and alcohol treatment as well as community service hours. Finally,

Toops testified that Sherouse had failed two Breathalyzer tests administered by the probation

department. Toops testified that she had personally observed him under the influence and

smelling of alcohol during one of his probation visits.

{¶ 19} Sherouse also testified during the hearing. He claimed that he was employed,

but that Humfleet had told him that he could wait to verify the employment when he received 5

his tax forms. He testified that his employer owed him money, and that he was unable to

meet his monthly required payments until he received those monies. He testified that he was

in the process of completing the drug and alcohol treatment, and that he only had 92 hours of

community service left to perform out of the 100 hours he was required to perform. Sherouse

admitted that he had consumed alcohol while on probation.

{¶ 20} The trial court found that Sherouse had violated the terms of his community

control by failing to abstain from consuming alcohol and by failing to complete his hours of

community service. Sherouse was sentenced to twelve months in prison.

{¶ 21} Sherouse appeals.

II

{¶ 22} Sherouse’s First Assignment of Error states as follows:

{¶ 23} “BECAUSE SHEROUSE DID NOT HAVE THE OPPORTUNITY TO

CONFRONT AND CROSS-EXAMINE HIS PROBATION OFFICER, BECAUSE GOOD

CAUSE WAS NOT SHOWN FOR HIS ABSENCE, AND BECAUSE HIS REVOCATION

IS UNSUPPORTED BUT FOR THE ABSENT PROBATION OFFICER’S NOTES, USED

BY THE PROSECUTION’S ONLY WITNESS, SHEROUSE’S FOURTEENTH

AMENDMENT DUE PROCESS RIGHTS WERE VIOLATED.”

{¶ 24} Sherouse contends that the trial court denied him his constitutional right to

confront the witnesses against him by failing to continue the revocation hearing date until such

time as his probation officer could be present for purposes of cross-examination, and by

permitting the State’s only witness to testify, over his objection, without personal knowledge

of the matters to which she was testifying. 6

{¶ 25} The trial court’s revocation decision was based solely upon the findings that

Sherouse had failed to abstain from alcohol and that he did not complete his community

service hours.

{¶ 26} Toops testified that she had personally observed Sherouse report to the

probation department offices smelling of alcohol and having the appearance of intoxication.

More importantly, Sherouse testified and admitted to alcohol usage during the term of

probation. Furthermore, Sherouse testified that he had only completed eight of one hundred

required community service hours during the three months he had been on probation. Thus,

the trial court had first-hand testimony, from personal knowledge, from a probation officer, as

well as the admissions of Sherouse, himself, upon which to base the revocation decision.

Toops was subject to cross-examination by Sherouse’s counsel. The trial court did not find

any violations that were predicated solely upon Toops’s review of records outside of her own

personal knowledge. Therefore, if it was error to have admitted testimony of Toops outside

of her own personal knowledge, that error was harmless, beyond reasonable doubt.

{¶ 27} “The right of the defendant to continue on probation rests within the sound

discretion of the court.” State v. Scott (1982),

. Thus, we review the

trial court's decision revoking probation for an abuse of discretion, which “implies an

unreasonable, arbitrary, unconscionable attitude on the part of the trial court.” State v.

Richardson, Montgomery App. No. 21113,

. A decision is

unreasonable, and therefore an abuse of discretion, if no sound reasoning process supports the

decision. State v. Picklesimer, Greene App. No. 06-CA-118,

.

{¶ 28} The trial court had competent evidence before it that Sherouse had violated the 7

terms of his probation. We find no abuse of discretion in the decision to terminate probation.

Sherouse’s First Assignment of Error is overruled.

III

{¶ 29} Sherouse’s Second Assignment of Error is:

{¶ 30} “REQUIRING SHEROUSE TO ABSTAIN FROM THE USE OF ALCOHOL

AS A CONDITION OF PROBATION IS NOT RELATED TO THE GOALS OF JUSTICE,

REHABILITATING A PROBATIONER, AND INSURING HIS GOOD BEHAVIOR AND,

THEREFORE, THE TRIAL COURT ERRED IN IMPOSING IT AS A CONDITION OF

PROBATION.”

{¶ 31} Sherouse contends that the trial court erred by imposing that he abstain from

alcohol as a condition of his community control sanction. He argues that the no-alcohol

restriction has no reasonable relationship to his offense or his rehabilitation. The State cites

Sherouse’s recent history of alcohol-related convictions for the proposition that the no-alcohol

restriction was reasonably related to his rehabilitation.

{¶ 32} We conclude that this argument is outside the proper scope of this appeal.

Sherouse could have appealed from his original sentence to community control sanctions,

which he now claims included the improper no-alcohol condition. State v. Kelly, Champaign

App. No. 2004-CA-6,

. He did not; therefore, he cannot now be heard

to complain about the original sentence, from which he did not appeal.

{¶ 33} Sherouse’s Second Assignment of Error is overruled.

III 8

{¶ 34} The Third Assignment of Error asserted by Sherouse provides:

{¶ 35} “THE TRIAL COURT ERRED IN SENTENCING SHEROUSE TO THE

MAXIMUM SENTENCE OF TWELVE MONTHS AS THE TRIAL JUDGE DID NOT

DEFINE FACTORS PROVING SHEROUSE SHOWS THE GREATEST LIKELIHOOD TO

COMMIT FUTURE CRIMES.”

{¶ 36} Pursuant to R.C. 2929.15(B), when an offender violates the terms of

community control, the trial court may extend the term of the control, impose a stricter

community control sanction, or impose a prison term that does not exceed the term stated in

the termination entry. Sherouse contends that the trial court erred by imposing the maximum

sentence without having made the findings required by R.C. 2929.14(C)(2). But that part of

the sentencing statute was severed, on constitutional grounds, in State v. Foster,

,

. A trial court may impose a prison term within the appropriate

statutory range without making findings for imposing the maximum sentence. Id., ¶ 100.

{¶ 37} The trial court stated on the record that it had considered the testimony, the

pre-sentence investigation report, and the “purposes and principles of sentencing in the Ohio

Revised Code and seriousness and recidivism factors contained therein.” The trial court

further found that Sherouse evidenced a “complete disrespect of community control as a

concept.” The trial court then sentenced Sherouse to twelve months in prison, the maximum

sentence for the offense.

{¶ 38} The record demonstrates that the trial court expressly stated that it had

considered the appropriate statutory factors. The sentence imposed is within the permissible

range of sentencing possibilities. There is nothing in this record to suggest that the trial 9

court’s sentencing decision was unreasonable, unconscionable or arbitrary. We find no

abuse of discretion with regard to the sentence imposed.

{¶ 39} The Third Assignment of Error is overruled.

IV

{¶ 40} All of Sherouse’s assignments of error having been overruled, the judgment of

the trial court is Affirmed.

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FROELICH and HALL, JJ., concur.

Copies mailed to:

Mathias H. Heck Timothy J. Cole Joshua S. Carter Hon. Michael Tucker