[Cite as State v. Meyer,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26999

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE TONYA MEYER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 11 02 0397 (B)

DECISION AND JOURNAL ENTRY

Dated: August 27, 2014

CARR, Judge.

{¶1} Appellant Tonya Meyer appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

I.

{¶2} After pleading guilty to one count of illegal assembly or possession of chemicals

for the manufacture of drugs, Meyer was sentenced to community control for a period of two

years. The sentencing entry was time-stamped and entered upon the journal on April 4, 2011.

The sentencing entry further stated that “community control is to commence on March 23,

2011.”

{¶3} In the morning of March 26, 2013, the trial court issued a journal entry stating

that, on March 13, 2013, it appeared that Meyer had failed to comply with conditions of

community control, and that upon request of the Adult Probation Department, the trial court

ordered that a capias be issued for Meyer’s appearance. During the afternoon of March 26, 2

2013, the capias was issued. According to a journal entry issued on April 29, 2013, the parties

appeared in court regarding a community control violation charge against Meyer. Meyer pleaded

not guilty at that time, and the trial court remanded her to the county jail (without the possibility

of release due to emergency jail overcrowding) to await a later community control violation

status conference.

{¶4} The parties appeared in court on April 30, 2013, for the status conference. The

trial court lifted the community control violation holder on the conditions that Meyer enter into

the Day Reporting Program and submit to random drug screening. The court further remanded

her to the jail to await the community control violation hearing. At the violation hearing, Meyer

pleaded guilty. Although the trial court scheduled the sentencing hearing for the following week,

it nevertheless ordered that Meyer’s community control be extended for one additional year until

March 22, 2014.

{¶5} Prior to sentencing hearing, Meyer filed a motion to withdraw her guilty plea and

further raised the issue of whether the trial court had subject matter jurisdiction to address the

community control violation. Specifically, Meyer moved the court to dismiss the violation for

lack of jurisdiction. The trial court scheduled a hearing and directed the parties to be prepared to

address the issues of whether Meyer had absconded during the period of her community control;

if so, for what duration; and whether her period of community control was tolled. After the

hearing, the trial court determined that Meyer had absconded for approximately 200 days during

her period of community control, that her period of community control was tolled during that

time, and that the trial court therefore had subject matter jurisdiction to address the violation.

{¶6} The trial court allowed Meyer to withdraw her guilty plea. She then pleaded no

contest to the violation. The trial court sentenced her, extending her period of community 3

control through December 31, 2014. Meyer filed a timely appeal in which she raises one

assignment of error for review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AS A MATTER OF LAW BY REVOKING APPELLANT’S PROBATION AND SANCTIONING APPELLANT WHEN THE COURT NO LONGER HAD JURISDICTION.

{¶7} Meyer argues that the trial court lost jurisdiction to sanction her for a violation of

community control because her term of community control had expired. This Court disagrees.

{¶8} This Court reviews de novo a trial court’s refusal to dismiss a violation of

community control for lack of subject matter jurisdiction. State v. McQuade, 9th Dist. Medina

No. 08CA0081-M,

, ¶ 6.

{¶9} Meyer argues that the capias for her arrest was issued on March 26, 2013, after

her two-year period of community control had expired. Although the issuance of a capias tolls

the period of community control until the defendant can be brought before the court regarding a

violation, McQuade at ¶ 7, it is axiomatic that there must be time remaining in the period of

community control which may be tolled at the time of the issuance of the capias. Nevertheless,

there are other events besides the issuance of a capias which may toll the period of community

control.

{¶10} R.C. 2951.07 states, in pertinent part: “If the offender under community control

absconds * * *, the period of community control ceases to run until the time that the offender is

brought before the court for its further action.” In concluding that it retained jurisdiction to

address the community control violation and sanction Meyer, the trial court relied on In re

Townsend,

(1990). The Townsend court held that a probationer need not 4

leave the jurisdiction to abscond; rather, he need only voluntarily absent himself from the

supervision of the probation authority.

. Reviewing the evidence adduced at the

hearing, the trial court found that Meyer had failed to report to her probation officer for an

extended period of time. Moreover, the court believed the probation officer’s testimony that she

had been unable to locate Meyer despite efforts to do so. Accordingly, the trial court found that

the two-year period of Meyer’s community control was tolled from October 1, 2012, until the

date of her arrest on April 15, 2013, so that the capias was issued and violation proceedings were

initiated during the period of community control. The trial court concluded, therefore, that it

maintained subject matter jurisdiction to sanction Meyer for a community control violation.

{¶11} In her appellate brief, Meyer relies on a Fifth District case for the proposition that

the trial court loses jurisdiction to sanction a defendant for a violation after the period of

probation has expired. State v. Justice, 5th Dist. No. 08 CA 47,

. Relying on

R.C. 2951.09 and Kaine v. Marion Prison Warden,

(2000), the Justice court

wrote:

At the end or termination of the period of probation, the jurisdiction of the judge or magistrate to impose sentence ceases and the defendant shall be discharged. Discharge is required even if the alleged probation violation occurred during the probationary period and could have resulted in a valid probation revocation and imposition of sentence if it had been timely prosecuted.

Id. at ¶ 14.

{¶12} The Ohio Supreme Court, however, more recently discussed the issue of subject

matter jurisdiction within the context of community control violations. In State ex rel. Hemsley

v. Unruh,

,

, the high court recognized that a judge may

conduct a community control violation hearing where the court does not “patently and

unambiguously lack jurisdiction.” See id. at ¶ 10. It presented three reasons in support. 5

{¶13} First, the high court recognized the basic statutory jurisdiction accorded to the

common pleas court by the legislature to address charged community control violations pursuant

to R.C. 2929.15(B)(1).

. That provision expressly confers authority on the

sentencing court to impose one or more enumerated penalties for a violation of a condition of

community control. R.C. 2929.15(B)(1)(a)-(c).

{¶14} Second, the Supreme Court emphasized that R.C. 2951.09 on which the Kaine

court relied had been repealed.

. Former R.C. 2951.09 was specific to probation

and provided, “At the end or termination of the period of probation, the jurisdiction of the judge

or magistrate to impose sentence ceases and the defendant shall be discharged.” Case law

interpreting this provision held that “[i]t matters not that the alleged violation of probation

occurred during the period of probation and could have resulted, if timely prosecuted, in a

revocation of probation and imposition of sentence.” State v. Jackson,

(8th Dist. 1995), quoting State v. Jackson,

(5th Dist. 1988) (further

holding that “even where a probationer absconds during the period of probation, the court is

deprived of jurisdiction to act after the original probation period, having failed to extend the

period of probation prior to its expiration because of the disappearance of the defendant.”) As

the Supreme Court recognized in

, however, R.C. 2951.09 was repealed on

January 1, 2004, and the legislature has not enacted an analogous statute relevant to community

control.

{¶15} The reason from Hemsley that is most applicable to the instant case before this

Court is the third. The high court concluded that it was unclear whether the defendant’s period

of community control was tolled pursuant to R.C. 2951.07 due to the defendant’s possibly

having absconded during his community control.

. It would necessarily then be 6

reasonable for the trial court to determine whether the defendant had absconded during the

period of community control to determine whether the court retained jurisdiction to proceed on

the community control violation, where that issue was “not patently and unambiguously” clear.

See id. at ¶ 15. That is precisely what the trial court did in this case.

{¶16} The dissent takes issue with our reliance on the guidance promulgated in

Hemsley. While we acknowledge the procedural posture of that case as a disposition of a writ of

prohibition, it is clear that the high court recognized the trial court’s authority to determine

whether it retained jurisdiction over the defendant with respect to the filing of a community

control violation. Where there exists a question as to whether or not the period of community

control has expired, the trial court does not patently and unambiguously lack jurisdiction to

address the issue of whether a tolling event occurred which might have extended the termination

date of the period. It is axiomatic that whether the period of community control has been tolled

will not be relevant during the original time frame. Tolling only becomes relevant if the court or

probation department attempts to impose sanctions or ongoing supervision beyond the originally

anticipated termination date. At that time, the trial court reasonably may hold a hearing to

determine whether a tolling event, such as the defendant’s absconding, has occurred during the

original period. This has been recognized in practice even prior to the Supreme Court’s opinion

in Hemsley. See, e.g., State v. Hardy, 8th Dist. Cuyahoga No. 93677,

, ¶ 7, 18

(concluding that the trial court properly found that the defendant’s period of community control

tolled during a period of prison confinement so that the court retained jurisdiction to address an

alleged violation).

{¶17} This Court further acknowledges the limitation on the trial court’s jurisdiction to

proceed on a community control violation beyond the period of community control. If a tolling 7

event has occurred, however, the period of community control necessarily would not have

expired on the originally ordered date. Accordingly, we read the Supreme Court’s recognition

that “the [trial] court was authorized to conduct proceedings on the alleged community-control

violations even though they were conducted after the expiration of the term of community

control, provided that the notice of violations was properly given and the revocation proceedings

were commenced before the expiration[,]”

, in context with its first and third

reasons for determining that there was no patent and unambiguous lack of jurisdiction. In other

words, notice must be given and proceedings commenced before the expiration of the term of

community control in consideration of tolling events. Specifically, a trial court maintains

jurisdiction to proceed on alleged community control violations based on statutory jurisdiction

accorded by the legislature and during the extant period of community control which may extend

beyond the original termination date based on some tolling event. Id. at ¶ 11, 14; see also State

v. Gibby, 5th Dist. Fairfield No. 13-CA-81,

(applying the third ground in

Hemsley and concluding that the trial court retained jurisdiction to address a community control

violation where notice was given and proceedings were commenced at a time beyond the original

expiration date, but during a period of continuing community control due to tolling events). In

fact, the second reason cited above and emphasized by the dissent reasonably expanded the

sentencing court’s jurisdiction to address community control violations beyond the expiration

date so long as the defendant properly received notice of the violation and the revocation

proceedings were commenced, not concluded, prior to the expiration of the community control

period.

{¶18} Based on the evidence adduced at the hearing on the issue of whether Meyer had

absconded during her period of community control, a determination necessary for the trial court 8

to determine whether it retained jurisdiction to address the community control violation, the trial

court found that Meyer had absconded for nearly 200 days. Meyer does not challenge that

finding on appeal. Her community control was, therefore, tolled for that amount of time.

Because the trial court sentenced Meyer on the violation well within the period of her

community control due to the tolling of time, it retained subject matter jurisdiction in this matter.

Meyer’s assignment of error is overruled.

III.

{¶19} Meyer’s sole assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 9

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

HENSAL, J. CONCURS.

BELFANCE, P. J. DISSENTING.

{¶20} I respectfully dissent from the judgment of the majority, as I would conclude that

the trial court lacked jurisdiction to conduct the community control violation hearing.

{¶21} Pursuant to the trial court’s April 4, 2011 journal entry, Ms. Meyer’s two-year

community control sanction began on March 23, 2011, and, therefore, ended on March 23, 2013.

Thus, in order to have subject matter jurisdiction to conduct community control violation

proceedings, the notice of community control violations had to be properly given and the

revocation proceedings had to be commenced before the expiration of the community control

period. See State ex rel. Hemsley v. Unruh,

,

. That did

not occur in this case. Although the State has argued that tolling occurred to extend the trial

court’s authority to conduct proceedings, the State could argue about tolling events only if the

trial court had jurisdiction in the first place. In this case, because notice of the violations was not

properly given and the revocation proceedings were not commenced prior to the expiration of

Ms. Meyer’s community control period, the trial court did not have jurisdiction over the matter,

including the issue of whether any absconding-related tolling events took place. See id.; see also

Bowling v. Holland, N.D.Ohio No. 1:11 CV 492,

, *2 (Aug. 23, 2011), fn. 2. 10

{¶22} While I agree that there is important language in Hemsley that is helpful in

resolving this appeal, the manner in which the majority relies on Hemsley is troubling. Hemsley

was a prohibition case in which the Supreme Court had to determine whether to grant an

extraordinary remedy, namely a writ of prohibition. See

. As such, the Hemsley

court was not deciding the ultimate propriety of any legal actions the trial court may have taken

in the underlying case. Rather, its focus was to determine whether the relator had demonstrated

grounds for the issuance of the writ. Ultimately, it declined to grant the writ given that the

relator had an adequate remedy at law and it did not appear that the trial court patently lacked

jurisdiction. See id. at ¶ 15. In other words, the relator could challenge any errors of the trial

court through the ordinary appeal process. Thus, the Supreme Court’s use of the phrase “does

not patently and unambiguously lack jurisdiction” relates to the standard which is to be applied

in determining whether the writ should be granted and should not be considered as a standard by

which this Court should decide the jurisdictional issue presented in Ms. Meyer’s appeal. Id.

{¶23} It is additionally troubling that, in its reliance on Hemsley, the majority has not

acknowledged the following critical language from the opinion, which provides a vital caveat in

evaluating the subject matter jurisdiction of the trial court in these matters:

Because R.C. 2951.09 was not applicable, the court was authorized to conduct proceedings on the alleged community-control violations even though they were conducted after the expiration of the term of community control, provided that the notice of violations was properly given and the revocation proceedings were commenced before the expiration.

(Emphasis added.)

. From this language, it is clear that the Supreme Court

concluded that a writ of prohibition was not warranted in Hemsley, at least in part, because, “the

charge of violating community control was filed and the proceeding on the charges commenced

before Hemsley’s community control expired in March 2010.”

This would also lead to the 11

inference that the trial court would lack jurisdiction if the notice of violation was not given and

the revocation proceedings were not commenced before the expiration of the period of

community control.

{¶24} In the instant matter, the record supports the conclusion that neither of those

conditions was met in this case prior to the expiration of the stated community control period.

Accordingly, I would conclude that the trial court lacked jurisdiction to hold the proceedings at

all and, thus, did not have jurisdiction to have the hearing to determine whether any tolling took

place. In doing so, I note that, if proper monitoring is occurring, when a defendant fails to report

or otherwise violates a provision of community control, it is not an undue burden for the

supervising authority to file a notice of violation such that proceedings can be commenced within

the stated community control period. This is so even if the defendant has absconded.1 If timely

notice and commencement occurs, then tolling would ensue. See Hemsley,

,

. However, the majority seems to endorse a form of automatic tolling

that would essentially dispense with any requirement of timely filing of a notice of violation and

commencement of proceedings within the stated community control period.2 Thus, I respectfully

dissent.

1 Upon the filing of the notice, the court may commence the proceedings by simply scheduling the hearing and sending notice in accordance with the procedural requirements. If the defendant fails to appear, then tolling would occur. 2 For example, if a defendant has absconded, the majority essentially allows the State to sit back and take no action. Thus, even if the State did not file a notice of violation and commence the proceedings prior to the expiration of community control, it could proceed to file a notice of violation and commence the proceedings 20 years after the expiration of the community control period. Clearly, such would violate basic tenants of due process that are foundational to our system of justice. 12

APPEARANCES:

RHONDA KOTNIK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.