[Cite as State v. Solomon,

.]

COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : -vs- : : Case No. 2012-CA-7 WILLIAM SOLOMON, III : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Morrow County Court of Common Pleas, Case No. 2008CR-0132

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 18, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHARLES S. HOWLAND DENNIS PUSATERI JOCELYN STEFANCIN 250 East Broad Street, Ste. 1400 60 East High Street Columbus, OH 43215 Mt. Gilead, OH 43338 [Cite as State v. Solomon,

.]

Gwin, J.

{¶1} Defendant-appellant, William R. Solomon, III [“Solomon”] appeals the

revocation of his community control and imposition of a five-year prison term following

an evidentiary hearing in the Morrow County Court of Common Pleas. Plaintiff-appellee

is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} Solomon was indicted by the Morrow County Grand Jury for one count of

Domestic Violence. Because of prior convictions for domestic violence, the crime was a

felony of the third degree. On May 9, 2008, Solomon pled guilty to the indictment. He

was placed on community control sanctions for a period of five years. The terms and

conditions of supervision included standard conditions and 11 special conditions of'

supervision.

{¶3} A motion to revoke community control sanctions was filed on December

10, 2010. The motion alleged that Solomon violated community control by (1)

committing a new crime (Solomon was indicted for Domestic Violence on August 26,

2010), (2) failing to report to his probation officer, and (3) consuming alcohol.

{¶4} On December 23, 2010, the court held a probable cause hearing. The

court found Solomon to be indigent, continued the matter, and ordered that an attorney

be appointed to represent Solomon.

{¶5} On May 3, 2011, Solomon acting pro se filed a motion to withdraw his

former plea. The state filed a response to the motion on May 19, 2011. The motion was

denied by Judgment Entry filed May 27, 2011. Morrow County, Case No. 2012-CA-7 3

{¶6} On September 30, 2011, Solomon with counsel waived his right to a

probable cause hearing. The trial court set October 21, 2011 for an evidentiary hearing

on the motion to revoke Solomon’s community control sanctions. On October 21, 2011,

the trial court granted Solomon’s motion for a continuance and rescheduled the

evidentiary hearing for November 16, 2011. On that date, the trial court re-scheduled

the hearing because Solomon’s attorney was ill. The court scheduled the matter for a

hearing on November 22, 2011.

{¶7} At the hearing evidence was presented that Solomon complied with all 28

terms and conditions of community control between the time of his placement on May 8,

2009 and his failure to report to his probation officer on August 9, 2010.

{¶8} Solomon testified that his failure to report was during a time when his

medical card had expired, he was trying to ration his psychotropic medications by taking

one-third of his daily dosage. He claimed he was bedridden and incapacitated with

anxiety that resulted in a hospitalization.

{¶9} Solomon testified that he and his wife called in to his probation officer

when he was unable to make post-August 9 meetings. He also testified that on two

previous occasions he was permitted to call in rather than report because of health

issues. One was when he was recovering from eye surgery, the other when he was

suffering with what was apparently H1N1 viral influenza.

{¶10} Solomon's probation officer was a career deputy sheriff and police officer.

He testified that call-ins were never permitted because all his probationers are required

to report in person, and essentially took the position that "the rules are the rules." He did

not know “off the top of his head” the frequency with which he made Solomon provide Morrow County, Case No. 2012-CA-7 4

urine screens for drugs and alcohol. The probation officer further testified that

Solomon did not notify him that he was charged with a new offense. Solomon, acting as

his own attorney, was acquitted after a jury trial of the new charge.

{¶11} As to the charge of consumption of alcohol, the probation officer testified

that at some prior court proceeding Solomon had told him he had relapsed and been

drinking. Solomon testified that he told the probation officer he had “was self-

medicating” and was drinking non-alcoholic beer.

{¶12} At the conclusion of the hearing, the court found that Solomon had

violated the terms and conditions of his community control. The court imposed the

previously suspended sentence of five years in prison.

ASSIGNMENTS OF ERROR

{¶13} Solomon raises one assignment of error,

{¶14} “I. THE TRIAL COURT ERRED BY REVOKING DEFENDANT-

APPELLANT'S COMMUNITY CONTROL, BY HOLDING A PROBATIONER WITH

MULTIPLE AND SERIOUS MENTAL ILLNESSES TO THE SAME STANDARDS OF

UNDERSTANDING, CAPABILITY AND COMPLIANCE THAT WOULD REASONABLY

APPLY TO A MENTALLY HEALTHY PERSON, BY EXPECTING SUCH PERSON TO

RESPOND TO THE SAME SUPERVISION METHODS AND STANDARDS AS WOULD

A MENTALLY HEALTHY PERSON, AND BY FAILING TO CONDUCT REASONABLE

INQUIRY INTO WHETHER ANY VIOLATIONS OF COMMUNITY CONTROL WERE

WILLFUL, ALL IN VIOLATION OF THE DUE PROCESS AND EQUAL PROTECTION

PROVISIONS OF THE UNITED STATES AND OHIO CONSTITUTIONS.” Morrow County, Case No. 2012-CA-7 5

Analysis

Community control sanctions essentially replace the concept of

“probation” in Ohio's criminal justice system. See generally Griffin & Katz,

Ohio Felony Sentencing Law 394-396, §§ S.2-T5.4 (1988 Ed.). Although

similar in their operational effect, community control sanctions differ a

great deal from probation in many ways including the manner by which

violations of those controls are handled. Judge Griffin and Professor Katz

explain this difference in their treatise as follows:

“Prior to 1995 Senate Bill 2, it was quite appropriate for a judge to

treat probation as a contract for leniency. The judge imposed but

suspended a prison sentence-the presumed proper punishment for the

crime of conviction. Probation was conditioned on good behavior. Violation

of that probation was a breach of contract with the sentencing judge. For

the breach, the judge could properly impose the suspended prison

sentence-even for the most trivial violation of probation.

“Under Senate Bill 2, a sentence to a community control sanction is

not a contract for good behavior that automatically is punishable by prison

if it is violated. The community control sanction that is imposed is the

appropriate sentence for the crime of conviction. That sanction was the

one that should have adequately punished the offender for his misconduct

and should have adequately protected the public from future crime by the

offender. The sentence should have been reasonably calculated to

achieve those overriding purposes. Just as the Parole Board can no Morrow County, Case No. 2012-CA-7 6

longer extend a sentence as a revised punishment for the felony which

sent the offender to the penitentiary, so the court which imposes

punishment for a violation of a community control sanction cannot punish

the offender again for the crime that gave rise to the community control

sanction. The sanction for the violation of the community control sanction

should be the sanction that is commensurate with the seriousness of the

violation and adequately protects the public from future crime by the

offender and others.” Id. at 426-427, § T5.36 (Emphasis added.)

(Footnotes deleted.).

State v. Gilliam (June 10, 1999), 4th Dist. No. 98CA30,

, at *3(June 10,

1999).

{¶15} A community control revocation hearing is not a criminal trial. State v.

White, 5th Dist. No.2009–CA–00111, 2009–Ohio–6447. The state therefore need not

establish a community control violation by proof beyond a reasonable doubt. White,

supra at ¶ 13; State v. Ritenour, 5th Dist. No.2006AP010002, 2006–Ohio–4744 at ¶ 36;

State v. Spencer, 5th Dist. No. 2005–CA–15, 2006–Ohio–5543 at ¶ 12; State v. Henry,

5th Dist.. No. 2007–CA–0047, 2008–Ohio–2474. The Supreme Court of Ohio has

recently confirmed that when reviewing the manifest weight of the evidence, an

appellate court conducts the same analysis in both criminal and civil cases. Eastley v.

Volkman,

, 2012–Ohio–2179,

, ¶ 12.

{¶16} The right to continue on community control depends on compliance with

community control conditions and “is a matter resting within the sound discretion of the

court.” State v. Garrett, 5th Dist. No. 2010 CA 00210, 2011–Ohio–691 at ¶ 13; State v. Morrow County, Case No. 2012-CA-7 7

Schlecht, 2nd Dist. No. 2003–CA–3, 2003–Ohio–5336, citing State v. Johnson, 2nd

Dist. No. 17420,

(May 25, 2001).

{¶17} Once a court finds a defendant violated the terms of probation, the

decision whether to revoke probation lies within the court's sound discretion. State v.

White, supra at ¶ 14. (Citing State v. Ritenour, supra at ¶ 37). (Internal Citations

omitted). Thus, a reviewing court will not reverse a trial court's decision absent an abuse

of discretion. State v. Sheets,

,

(1996); State v.

Ritenour, supra at ¶ 37. An abuse of discretion connotes more than an error in law or

judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable. State v. Maurer,

,

(1984).

{¶18} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. Jamison,

,

,

certiorari denied (1990),

,

,

. Reviewing

courts should accord deference to the trial court's decision because the trial court has

had the opportunity to observe the witnesses' demeanor, gestures, and voice inflections

which cannot be conveyed to us through the written record, Miller v. Miller,

,

(1988).

{¶19} Solomon argues, in essence, that his mental health problems constitute a

mitigating factor. See, State v. Wolfe, Stark App. No. 2008–CA–00064, 2009–Ohio–

830.

{¶20} In State v. Bleasdale,

,

(1990) the

defendant was given a suspended sentence, was placed on probation on the condition

that he is accepted by, and successfully complete a specific drug program. The Morrow County, Case No. 2012-CA-7 8

defendant was ultimately terminated from the program after he was diagnosed as

suffering from several mental disorders and the staff determined that it was not

equipped to deal with the mental problems that the defendant exhibited. After a

probable cause hearing, the trial court revoked the defendant's probation and reinstated

his sentence of confinement. On appeal, the Eleventh District Court of Appeals

determined that the trial court had abused its discretion in revoking the defendant's

probation because the defendant had not willfully or intentionally violated the conditions

of his probation. Rather, the court stated, the defendant had been cooperating with the

program but was terminated “due to the program's inability to properly minister his

case.”

.

{¶21} Crim. R. 32.3 does not require that a probation violation be willful. As the

Eleventh District stated in State v. Stockdale (Sept. 26, 1997), 11th Dist. No. 96–L–172,

“there is nothing in Crim. R. 32.3 ... that mandates that the state must introduce

evidence that the probation violation was willful.” Accord, State v. Miller, 6th Dist. No. F-

05-016,

(“There is no requirement that the state prove

willfulness before the court can revoke a defendant's community control.”) (citations

omitted); State v. Wolfson, 4th Dist. No. 03CA25,

(“the State

only had to prove that Wolfson violated the terms of her community control sanctions,

not that she had a mens rea of ‘willfulness,’ before the court could revoke Wolfson's

community control sanctions”); State v. Norris, 5th Dist. No. 2010CA0070, 2010-Ohio-

6007, ¶ 20.

{¶22} In the case at bar, the facts supporting the revocation of appellant's

community control sanctions are clearly distinguishable from those in Bleasdale. In this Morrow County, Case No. 2012-CA-7 9

case, the court revoked Solomon’s community control solely based on his voluntary

conduct, not based on conditions over which he had no control.

{¶23} The only evidence that Solomon could not report to his probation officer

due to his mental illness came from Solomon; no medical or other testimony was

submitted to corroborate or substantiate the nature and extent of any disability.

{¶24} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the

fact-finder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008–Ohio–6635, ¶

31, quoting State v. Woullard,

, 2004–Ohio–3395,

,

¶ 81. In other words, “[w]hen there exist two fairly reasonable views of the evidence or

two conflicting versions of events, neither of which is unbelievable, it is not our province

to choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149, 2002–Ohio–

1152, at ¶ 13, citing State v. Gore,

,

(1999).

{¶25} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass,

,

(1967), paragraph one of the syllabus; State v. Hunter,

, 2011–

Ohio–6524,

, ¶ 118. Accord, Glasser v. United States,

,

,

(1942); Marshall v. Lonberger,

,

, 74 L.Ed .2d 646 (1983).

{¶26} The judge as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness's credibility. “While the [judge]

may take note of the inconsistencies and resolve or discount them accordingly * * * such Morrow County, Case No. 2012-CA-7 10

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence”. State v. Craig, 10th Dist. No. 99AP–739,

(Mar 23, 2000) citing State v. Nivens, 10th Dist. No. 95APA09–1236,

(May 28, 1996). Indeed, the [judge] need not believe all of a witness' testimony, but may

accept only portions of it as true. State v. Raver, Franklin App. No. 02AP–604, 2003–

Ohio–958, ¶ 21, citing State v. Antill,

, 67,

(1964); State

v. Burke, 10th Dist. No. 02AP–1238, 2003–Ohio–2889, citing State v. Caldwell (1992),

,

(4th Dist. 1992). Although the evidence may have

been circumstantial, we note that circumstantial evidence has the same probative value

as direct evidence. State v. Jenks, supra.

{¶27} In Cross v. Ledford,

, 477,

(1954), the

Supreme Court further cautioned,

The mere number of witnesses, who may support a claim of one or

the other of the parties to an action, is not to be taken as a basis for

resolving disputed facts. The degree of proof required is determined by

the impression which the testimony of the witnesses makes upon the trier

of facts, and the character of the testimony itself. Credibility, intelligence,

freedom from bias or prejudice, opportunity to be informed, the disposition

to tell the truth or otherwise, and the probability or improbability of the

statements made, are all tests of testimonial value. Where the evidence is

in conflict, the trier of facts may determine what should be accepted as the

truth and what should be rejected as false. See Rice v. City of Cleveland,

,

. Morrow County, Case No. 2012-CA-7 11

161 Ohio St. at 477–478. (Emphasis added).

{¶28} We agree that the trial judge should take into consideration all factors,

including physical and mental examinations, in the reevaluation and reassessment of

the correctness of the sentence upon a revocation of community control. See State v.

Qualls,

,

(1988). However, Solomon's argument that

it was unfair to not extend yet another attempt at treatment is without merit. The trial

court has no such requirement imposed upon it. See State v. Wolfe, supra; State v.

Wheat, Stark App. No. 2007 CA 00165, 2008–Ohio–671 at ¶ 21.

{¶29} The court, according to the record, considered Solomon's mental condition

as a factor before imposing sentence.

{¶30} Solomon’s sole assignment of error is overruled and the judgment of the

Morrow County Court of Common Pleas is affirmed.

By Gwin, J.,

Delaney, P.J., and

Hoffman, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. WILLIAM B. HOFFMAN WSG:clw 0926 [Cite as State v. Solomon,

.]

IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : WILLIAM SOLOMON III. : : : Defendant-Appellant : CASE NO. 2012-CA-7

For the reasons stated in our accompanying Memorandum-Opinion, Solomon’s sole

assignment of error is overruled and the judgment of the Morrow County Court of

Common Pleas is affirmed.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. WILLIAM B. HOFFMAN