[Cite as State v. Ireland,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 2015-CA-12 : v. : T.C. NO. 13CR26 : BRANDON W. IRELAND : (Criminal appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the ___1st___ day of _____April_____, 2016.

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JANE A. NAPIER, Atty, Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

S. TODD BRECOUNT, Atty. Reg. No. 0065276, 115 N. Main Street, Urbana, Ohio 43078 Attorney for Defendant-Appellant

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DONOVAN, P.J.

{¶ 1} Defendant-appellant Brandon W. Ireland appeals a decision of the

Champaign County Court of Common Pleas, Criminal Division, which revoked his

community control sanction, previously imposed for his convictions for two counts of

trafficking in drugs in April of 2013, and imposing a two-year sentence. Ireland contends -2-

that the evidence in the record does not support the finding of the trial court that he

violated the terms of hiscommunity-control sanction. Ireland filed a timely notice of

appeal with this Court on March 27, 2015.

{¶ 2} On February 13, 2013, Ireland pled guilty to two counts of trafficking in drugs,

in violation of R.C. 2925.03(A)(1)(C)(2)(a), both felonies of the fifth degree. Shortly

thereafter on April 2, 2013, the trial court sentenced Ireland to community control. On

May 11, 2013, Ireland tested positive for heroin, and a community control violation hearing

was held on May 28, 2013. The trial court permitted Ireland to remain on community

control but ordered him to complete the Teen Challenge Program of Greater Cleveland

(TCP). TCP is a religious-based rehabilitation program for individuals found to be drug

and/or alcohol dependent. The program consists of two phases. Ireland completed

Phase I of the program in Cleveland, Ohio. However, at the beginning of the second

phase which was held in Missouri, Ireland and some other students from the program

bought and consumed alcohol. Ireland then left the program and returned to Ohio. As

a result of this infraction, Ireland was unsuccessfully discharged and did not complete

Phase II of the TCP.

{¶ 3} On December 20, 2013, the trial court held a second community control

violation hearing. For a second time, the trial court permitted Ireland to remain on

community control. The trial court placed Ireland on electronic ankle monitoring and

ordered him to attend and complete the West Central Probation Incentive Program

(WCP). The trial court warned Ireland that if he violated his community control again, he

would be sentenced to twelve months in prison for each of the two counts of trafficking in

drugs, and the sentences would be served consecutively for a total of twenty-four months -3-

in prison. Ireland subsequently completed the WCP program and was taken off

electronic ankle monitoring.

{¶ 4} Thereafter, on March 5, 2015, Ireland was charged with two violations of his

community control, to wit:

Notice further says the defendant has violated supervision in the following

manner:

1. Violation of Standard Condition of Supervision Rule #1: “I will obey

federal, state and local laws and ordinances, including those related to

illegal drug use and registration with authorities.” To wit:

On or about 12/13/14, in the vicinity of 3001 Sun Valley Drive, Springfield,

Ohio, you caused or attempted to cause physical harm to Amanda Johnson.

2. Violation of Standard Condition of Supervision Rule #2: “I will follow all

orders given to me by my supervising officer or other authorized

representatives of the Court or the Department of Rehabilitation and

Correction.” To wit:

On or after 2/10/15, you failed to comply with a verbal order issued by your

supervising officer, instructing you to turn yourself in to the Clark County Jail

to clear [an] active warrant.

{¶ 5} A community control violation hearing was held on March 13, 2015. After

hearing testimony from the State and Ireland, the trial court found him responsible of

violating the terms of his community control by a preponderance of the evidence.

Specifically, the trial court found that Ireland committed domestic violence against his

wife, Amanda Johnson, on December 13, 2014. The trial court also found that Ireland -4-

failed to turn himself in to the police in Clark County to clear the arrest warrant for

domestic violence after being ordered to by his probation officer, Victor Bullock. The trial

court revoked Ireland’s community control and sentenced him to twelve months in prison

for each of the two counts of trafficking in drugs for which he was originally convicted.

The trial court ordered that the sentences be served consecutively for an aggregate

sentence of twenty-four months in prison.

{¶ 6} It is from this judgment that Ireland now appeals.

{¶ 7} Because they are interrelated, Ireland’s first and second assignments of error

will be discussed together as follows:

{¶ 8} “THE TRIAL COURT ERRED WHEN FINDING BY A PREPONDERANCE

OF THE EVIDENCE THAT ON OR ABOUT DECEMBER 13, 2014, IN THE VICINITY OF

3001 SUN VALLEY DRIVE, SPRINGFIELD, OHIO, APPELLANT CAUSED OR

ATTEMPTED TO CAUSE PHYSICAL HARM TO AMANDA JOHNSON.”

{¶ 9} “THE TRIAL COURT ERRED WHEN FINDING BY A PREPONDERANCE

OF THE EVIDENCE THAT ON OR AFTER FEBRUARY 10, 2015, APPELLANT FAILED

TO COMPLY WITH A VERBAL ORDER ISSUED BY HIS SUPERVISING OFFICER,

INSTRUCTING HIM TO TURN HIMSELF IN TO THE CLARK COUNTY JAIL TO CLEAR

AN ACTIVE WARRANT.”

{¶ 10} In his first assignment, Ireland argues that insufficient evidence was

adduced at his revocation hearing in order to establish by a preponderance of the

evidence that he committed domestic violence against his wife, Amanda Johnson. In his

second assignment, Ireland contends that the evidence was insufficient to establish that

he failed to comply with an order from his probation officer to turn himself in to the Clark -5-

County Police in order to clear the active arrest warrant stemming from the domestic

violence incident. Lastly, Ireland argues that the evidence was insufficient to establish

that he was unsuccessfully discharged from the Teen Challenge Program for failing to

attend and complete Phase II of the residential prison alternative program.

{¶ 11} “The right to continue oncommunitycontroldepends upon compliance

withcommunitycontrolconditions and is a matter resting within the sound discretion of the

court. Accordingly, we review the trial court's decision torevokea defendant'scommunity

controlfor an abuse of discretion. Abuse of discretion has been defined as an attitude that

is unreasonable, arbitrary, or unconscionable.” (Internal citations omitted.)State v.

Lewis,2d Dist. Montgomery No. 23505, 2010–Ohio–3652, ¶ 11.

{¶ 12} A defendant is entitled to due process when his community controlis

revoked as the result of a violation of a condition imposed on that control. Gagnon v.

Scarpelli,

,

,

(1973). The due process

rights which must be observed in acommunitycontrolrevocationhearing are: (1) written

notice of the claimed violations ofcommunity control; (2) disclosure of evidence against

him; (3) an opportunity to be heard in person and to present witnesses and documentary

evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a neutral

and detached hearing body; and (6) a written statement by the fact finder as to the

evidence relied upon and the reasons forrevokingcommunitycontrol. See Gagnonat 786,

quotingMorrissey v. Brewer,

,

,

(1972);State v. Nallen,2d Dist. Miami No. 2012 CA 24,2013–Ohio–3284, ¶ 18.

{¶ 13} “[C]ommunitycontrolrevocationproceedings are not the same as a criminal

trial, and arevocationofcommunitycontrol punishes the failure to comply with the terms -6-

and conditions ofcommunitycontrol, not the specific conduct that led to the

revocation.”State v. Black,2d Dist. Montgomery No. 24005, 2011–Ohio–1273, ¶ 17.

Uponrevokingcommunitycontrol, the trial court may (1) lengthen the term of the

community control sanction; (2) impose a more restrictive community control sanction; or

(3) impose a prison term on the offender, provided that the prison term is within the range

of prison terms available for the offense for whichcommunitycontrolhad been imposed

and the term does not exceed the prison term specified in the notice provided to the

offender at the original sentencing hearing.R.C. 2929.15(B).

{¶ 14} In the instant case, a review of the transcript of the probation revocation

hearing reveals that Ireland did not comply with the terms and conditions of his community

control. Specifically, the trial court had before it evidence that Ireland committed

domestic violence against Johnson. Deputy Steven Elliot from the Clark County Sheriff’s

Office testified that he was the officer who responded to a report of domestic violence at

a residence Johnson shared with Ireland on December 13, 2014. Deputy Elliot testified

that Johnson informed him that she and Ireland were in the process of getting a divorce,

and he had stopped by the house earlier to retrieve some property. Deputy Johnson

further testified that Johnson stated that she arrived home while Ireland was there, and

the two got into an argument. Eventually, the argument escalated into a physical

confrontation during which Ireland pushed Johnson down in the kitchen, picked her up

and pushed her against the refrigerator, spit on her, and stuck his thumb in her mouth

and began pushing on her teeth. Deputy Elliot also testified that Johnson stated that

Ireland had smashed her cell phone during the incident. Deputy Elliot took a picture of

the broken phone that was submitted at the revocation hearing as State’s Exhibit 4. -7-

{¶ 15} Additionally, the State submitted Johnson’s written statement wherein she

described being physically assaulted by Ireland. Johnson also reported that Ireland

smelled of alcohol when he assaulted her. At the hearing, however, Johnson testified

that she “misspoke” when she reported to Deputy Elliot that Ireland had assaulted her.

Johnson also testified that her written statement was also incorrect insofar as she had

accused Ireland of physically assaulting her. Johnson testified that she, not Ireland,

broke her cell phone. Nevertheless, the trial court found that Johnson’s testimony at the

revocation hearing was not credible in light of Deputy Elliot’s testimony and her written

statement describing the physical abuse she suffered at the hands of Ireland.

Accordingly, we conclude that the trial court did not abuse its discretion when it found by

a preponderance of the evidence that Ireland committed domestic violence against

Johnson, thereby violating his community control.

{¶ 16} Furthermore, Probation Officer Victor Bullock unequivocally testified that on

February 10, 2015, he became aware that Ireland had an active arrest warrant for

domestic violence against Johnson. On the same day, Officer Bullock called Ireland and

ordered him to turn himself in at the Clark County Jail. Officer Bullock testified that he

was “led to believe” by Ireland that he was going to turn himself in. Officer Bullock

testified that the next day on February 11, 2015, he checked the Clark County jail roster

in order to see if Ireland had turned himself in as ordered, but he had not. Bullock further

testified that Ireland called him on February 12, 2015, and acknowledged that he had not

turned himself in because he was trying to raise money in order to post bond.

Accordingly, we conclude that the trial court did not abuse its discretion when it found by

a preponderance of the evidence that Ireland failed to comply with an order from his -8-

probation officer to turn himself in to the Clark County Police in order to clear the active

arrest warrant stemming from the domestic violence incident involving Johnson.

{¶ 17} Ireland’s first and second assignments of error are overruled.

{¶ 18} Ireland’s third and final assignment of error is as follows:

{¶ 19} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

ERRONEOUSLY FOUND THAT APPELLANT HAD PREVIOUSLY BEEN PLACED IN A

RESIDENTIAL ALTERNATIVE TO PRISON, NAMELY PHASE II OF THE TEEN

CHALLENGE PROGRAM, AND [WAS] SUBSEQUENTLY UNSUCCESSFULLY

DISCHARGED FROM SAID PROGRAM.”

{¶ 20} In his final assignment, Ireland argues that the trial court committed

reversible error when it found that he had previously been placed in a residential

alternative to prison, the Teen Challenge Program, and was unsuccessfully discharged

without completing the program. Specifically, Ireland asserts that the trial court never

explicitly ordered him to complete Phase II of the TCP which was held in Cape Girardeau,

Missouri. Ireland further argues that his decision to drop out of the second phase of

the program that he was voluntarily attending should not have been used as evidence to

support the revocation of his community control.

{¶ 21} In support of his argument, Ireland cites to the following exchange between

himself and the trial court at his second community control violation hearing held on

December 20, 2013:

The Court: *** Court finds that the Defendant has two prior violations

of community control. Mr. Ireland, I spent several minutes today talking

about details and how details are important. And I believe that you are -9-

amenable to community control. As I had mentioned earlier, I was

unaware at the time of sentencing that the National Teen Challenge

Program had two phases. And although you didn’t complete phase two of

the program, you did successfully complete the Teen Challenge Program

of Greater Cleveland, which was the set condition of your community

control.

And so if I as a Judge have an expectation that you are going to pay

attention to detail, I too as a Judge have a requirement to pay attention to

detail. And in your journal entry of conviction and sentencing I set as your

condition that you successfully complete the Teen Challenge Program of

Greater Cleveland. And you did do that. The fact that you got kicked out

of the Missouri Program [Phase II] is not good. But when I look at what

type of punishment you should receive, I’ve got to – I believe that Court has

to give greater weight to the expectations it set out for you in writing.

Because as I’ve told you, and as we’ve discussed, it’s all about the details,

isn’t it?

Ireland: Yes, Your Honor.

The Court: So, I believe that you should deserve – I believe that you

deserve, it’s not the benefit of the doubt, but the Court should hold itself to

the same standard it would expect you to be held to. I also believe that

you appear to have learned a great deal from your Teen Challenge

experience. Which also raises the expectation of your future conduct.

So for those reasons, I’m going to return you to community control. -10-

You’ll be returned to community control under the same standard and

special conditions that were previously outlined in your April 2, 2013, file

stamp [sic] journal entry and your June 6, 2013, file stamp journal entry. ***

As is clear from the above exchange, the trial court acknowledged that it was unaware

that the TCP had a second phase. While noting that it was “not good” that Ireland had

been unsuccessfully discharged from the second phase of the TCP, the trial court praised

him for completing the first phase held in Cleveland, Ohio, which was a set condition of

his community control. Moreover, at the conclusion of the revocation hearing on

December 20, 2013, the trial court continued Ireland’s community control.

{¶ 22} In the instant appeal, Ireland argues that the trial court should not have

considered his failure to complete the second phase of the TCP when it revoked his

community control. Ireland points out that the trial court acknowledged that he was not

required to attend the second phase of the TCP as a condition of his community control,

and therefore, his failure to complete Phase II should not have been held against him

when the trial court revoked his community control on March 13, 2015.

{¶ 23} At the revocation hearing on March 13, 2015, the trial court stated the

following:

The Court: *** Court finds that it considered alternatives to

imprisonment. Notes that there are no reasonable alternatives to

imprisonment available in taking into account the totality of the

circumstances surrounding the nature of the Defendant’s community control

violations. He’s not amenable for residential alternative to prison because

of pending charges in Clark County Common Pleas Court case number -11-

2014 CR 797 for domestic violence. That through his February 26 [2015]

arrest, at the residence he shared with the victim [Johnson] of the

community control violation, the Defendant appears to have violated the no

contact order with the alleged victim.

The Defendant has previously been placed in a residential

alternative to prison. And was unsuccessfully discharged from Phase Two

of the residential Teen Challenge Program. ***

{¶ 24} Ireland admitted at the March 13, 2015, revocation hearing that he failed to

complete Phase II of the TCP. Even though the trial court acknowledged that Ireland’s

attendance at Phase II of the TCP was not a set condition of his community control, it was

still free to consider his failure to complete the program when determining that he was not

amenable to any future residential alternatives to prison. Significantly, the March 13,

2015, hearing was Ireland’s third community control revocation hearing. In revoking

Ireland’s community control, the trial court considered the totality of the circumstances,

including his pre-sentence investigation report outlining his past criminal history, as well

as the pending charges which formed the basis for his community control violations.

Nothing in the record establishes that the trial court placed undue weight on Ireland’s

failure to complete Phase II of the TCP.

{¶ 25} Furthermore, the issue before the trial court was whether Ireland had

violated the conditions of community control supervision by committing domestic violence

against Johnson and by failing to comply with an order from his probation officer to turn

himself in to the Clark County Police in order to clear an active arrest warrant. As

previously stated, evidence presented at the revocation hearing reasonably supports a -12-

finding that he did violate the conditions of his community control, and the trial court did

not abuse its discretion by revoking his supervision and imposing a prison term.

{¶ 26} Ireland’s third assignment of error is overruled.

{¶ 27} All of Ireland’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

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FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Jane A. Napier S. Todd Brecount Hon. Nick A. Selvaggio