[Cite as State v. Noonan,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NOS. CA2018-10-203 CA2018-10-204 Appellee, : OPINION : 7/22/2019 - vs - :

WHITNEY A. NOONAN, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case Nos. CR2018-01-0067 and CR2018-04-0683

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for appellee

Engel & Martin, LLC, Mary K. Martin, 4660 Duke Drive, Suite 101, Mason, Ohio 45040, for appellant

M. POWELL, J.

{¶ 1} Appellant, Whitney Noonan, appeals a decision of the Butler County Court of

Common Pleas revoking her community control and sentencing her to prison.

{¶ 2} In June 2018, appellant pled guilty to a fourth-degree felony count of theft from

a person in a protected class in Case No. CR2018-01-0067 ("Case No. 67") and to a fifth- Butler CA2018-10-203 CA2018-10-204

degree felony count of attempted failure to appear in Case No. CR2018-04-0683 ("Case

No. 683"). On July 20, 2018, the trial court sentenced appellant to three years of community

control in both cases. The sentencing entries provided general conditions of supervision

and several court-ordered community control conditions. As relevant here, appellant was

required to successfully complete a substance abuse treatment program at Sojourner

Recovery Services, an inpatient residential alcohol, drug abuse, and mental health

treatment facility. Appellant was further required to "enter, comply with, and complete the

Court Directed Addiction Treatment (C.D.A.T.) Program" and "to comply with all the terms

and conditions of the Drug Court (C.D.A.T.) Participation Agreement." The terms of the

agreement included successful completion of the Sojourner treatment program.

{¶ 3} Appellant entered the Sojourner treatment program on August 2, 2018. On

August 24, 2018, appellant sought emergency medical treatment at Fort Hamilton Hospital

for chest pain and numbness in her left arm. She was treated and released that same day.

On September 4, 2018, appellant sought emergency medical treatment at the hospital for

chest pain. She was diagnosed with and hospitalized for chronic infective endocarditis and

pulmonary embolism. She was released from the hospital on September 10, 2018. The

next day, however, appellant once again sought emergency medical treatment at the

hospital for difficulty breathing. She was diagnosed with MRSA and hospitalized for several

days. On September 18, 2018, appellant was "medically discharged" from the Sojourner

treatment program due to the severity of her medical issues.

{¶ 4} On September 27, 2018, appellant's probation officer filed a violation of

community control affidavit in both cases. The affidavits alleged that appellant violated the

conditions of her community control by being unsuccessfully discharged from the Sojourner

treatment program. On October 26, 2018, the trial court held a hearing on appellant's

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community control violations. Mike Campbell, appellant's probation officer, and Casey Clay,

appellant's clinical dependency counselor at Sojourner, testified at the hearing. The parties'

exhibits were admitted into evidence, including appellant's discharge summary from

Sojourner prepared by Clay.

{¶ 5} Campbell and Clay both testified that appellant was discharged from the

Sojourner treatment program for medical reasons and that such discharge was not a

successful discharge. Campbell understood that appellant was "medically terminated" from

the Sojourner treatment program because it could not handle appellant's medical conditions

which included lung and heart problems and which resulted in several hospitalizations.

Campbell further testified that on September 7, 2018, appellant called him and informed

him that while she was hospitalized, a visitor injected her with heroin and then left, and that

she had to be revived with Narcan. Appellant's counsel objected to this testimony; the trial

court overruled the objection.

{¶ 6} Clay testified that other than one minor violation involving a cellphone, for

which appellant was not discharged, and some conflicts with peers, appellant did well in

group participation. Clay testified that it was not until appellant's medical issues became

worse that she no longer benefitted from the treatment program. Consequently, appellant

was medically discharged from Sojourner as her medical issues prevented her from

benefitting from or participating in the program. Clay testified that once appellant took care

of her medical issues, she would be welcome back into the program. Clay affirmed that

appellant was not discharged from the program for doing anything wrong.

{¶ 7} At the conclusion of the hearing, the trial court found that appellant had

violated her community control in both cases by being unsuccessfully discharged from the

Sojourner treatment program and by overdosing on heroin while hospitalized. The trial

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court further noted appellant's poor performance during the pretrial phase of the case and

in "Drug Court." The trial court then sentenced appellant. Noting that appellant's discharge

from treatment was not a technical violation and that appellant overdosing on heroin "would

constitute a new felony offense," the trial court sentenced appellant to 12 months in prison

in both cases, to be served concurrently. The sentencing entries terminating appellant's

community control in both cases and sentencing her to an aggregate 12-month prison term

were journalized on October 26, 2018. At the hearing and in both sentencing entries, the

trial court gave appellant 94 days of jail-time credit.

{¶ 8} Appellant now appeals, raising three assignments of error.

{¶ 9} Assignment of Error No. 1:

{¶ 10} APPELLANT'S CONSTITUTIONAL DUE PROCESS RIGHTS WERE

VIOLATED WHEN SHE WAS NOT GIVEN NOTICE OF AN ALLEGED COMMUNITY

CONTROL VIOLATION.

{¶ 11} Appellant asserts that the trial court revoked her community control in part for

overdosing on heroin. Appellant argues that the revocation of her community control for

overdosing on heroin violated her due process rights because the notice of community

control violation filed by Campbell only alleged she had been discharged from the Sojourner

treatment program, not that she had used or possessed heroin.

{¶ 12} Crim.R. 32.3(A) provides that a trial court "shall not impose a prison term for

violation of the conditions of a community control sanction * * * except after a hearing at

which the defendant shall be present and apprised of the grounds on which action is

proposed."

{¶ 13} A defendant is entitled to due process when his or her community control is

revoked as a result of a violation of a community control condition. Gagnon v. Scarpelli,

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,

(1973). The due process rights which must be observed

in a community control revocation hearing are (1) written notice of the claimed violations of

community control, (2) disclosure of evidence against the offender, (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

for revoking community control. State v. Shumway, 2d Dist. Greene No. 2017-CA-51, 2018-

Ohio-1227, ¶ 11; Columbus v. Bickel,

(10th Dist. 1991). "[A]

revocation of community control punishes the failure to comply with the terms and

conditions of community control, not the specific conduct that led to the revocation."

Shumway at ¶ 12.

{¶ 14} We find that appellant's due process rights were not violated. The written

notice of community control violation only alleged that appellant had violated the terms and

conditions of her community control by being discharged from the Sojourner treatment

program. Appellant's probation officer testified he initiated the revocation of appellant's

community control based upon appellant's unsuccessful discharge from the Sojourner

treatment program. More importantly, and despite the trial court's remarks at the October

26, 2018 community control violation and sentencing hearings regarding appellant's heroin

overdose, both sentencing entries terminating appellant's community control plainly state

she had violated her community control by being discharged from the C.D.A.T. Program,

hence by being discharged from the Sojourner treatment program. It is well-established

that a court speaks only through its journal entries and not by oral pronouncement or

through decisions. State v. Starr, 12th Dist. Clermont Nos. CA2018-09-065 and CA2018-

09-066,

; State v. Coyle, 12th Dist. Clermont No. CA97-02-014, 1997

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, *6 (Oct. 13, 1997).

{¶ 15} Appellant's first assignment of error is overruled.

{¶ 16} Assignment of Error No. 2:

{¶ 17} THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT

APPELLANT VIOLATED THE TERMS OF HER COMMUNITY CONTROL.

{¶ 18} Appellant argues the trial court abused its discretion in finding she violated

her community control and in revoking her community control based upon her discharge

from the Sojourner treatment program. Appellant asserts her failure to successfully

complete the Sojourner treatment program was due to circumstances beyond her control,

namely, her significant medical issues and her resulting inability to benefit from or

participate in the treatment program. In other words, appellant asserts she did not violate

the terms of her community control; rather, she was unable to comply with them.

{¶ 19} A trial court's decision revoking community control may only be reversed on

appeal if the trial court abused its discretion. State v. Bishop, 12th Dist. Clermont No.

CA2010-08-054,

, ¶ 11.1 An abuse of discretion occurs when the trial

court's attitude is unreasonable, arbitrary, or unconscionable.

"A trial court does not

abuse its discretion by revoking an offender's community control where the violation in

question was one over which the offender had control." State v. Tranter, 12th Dist. Clermont

No. CA2000-05-035,

, *11 (Mar. 26, 2001).

1. In its brief, the state suggests that we should review the trial court's revocation of appellant's community control pursuant to R.C. 2953.08(G)(2), and not under an abuse of discretion standard, as "this authority pre- dates the enactment of R.C. 2953.08, applied by this Court to revocation proceedings * * * in State v. Bishop, 12th Dist. Clermont Nos. CA2018-05-031 [and] CA2018-05-036,

." Bishop, however, challenged the imposition of a prison sentence following the revocation of community control, not the trial court's finding that community control was violated. We therefore properly reviewed the felony sentence in Bishop pursuant to the standard of review set forth in R.C. 2953.08(G)(2). By contrast, appellant's second assignment of error solely relates to the trial court's finding that appellant violated her community control. The decision of a trial court finding a violation of community control will not be disturbed absent an abuse of discretion. State v. Kaimachiande, 3d Dist. Logan No. 8-18-57,

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{¶ 20} "'The privilege of probation [or community control] rests upon the probationer's

compliance with the probation conditions and any violation of those conditions may properly

be used to revoke the privilege.'" State v. Russell, 11th Dist. Lake No. 2008-L-142, 2009-

Ohio-3147, ¶ 7, quoting State v. Bell,

(5th Dist. 1990). The state has

the burden to prove the offender violated the terms of community control. State v. Michael,

3d Dist. Henry No. 7-13-05,

. The state is only required to present

substantial evidence that the offender violated the terms of his community control. State v.

Miller, 6th Dist. Fulton No. F-05-016,

.

{¶ 21} In a case similar to the case at bar, a defendant was sentenced to probation

on the condition that he successfully complete a specific drug rehabilitation program. State

v. Bleasdale,

(11th Dist. 1990). The defendant was subsequently

terminated from the program after he was diagnosed with several mental disorders and the

rehabilitation center determined it was not equipped to deal with the defendant's mental

problems. The center recommended that the defendant be placed in a more intensive

treatment facility or be given more intensive outpatient treatment while still residing at the

center. As a result of his discharge from the program, the defendant's probation was

revoked and he was sentenced to a prison term.

{¶ 22} On appeal, the Eleventh Appellate District reversed the trial court's decision.

The appellate court held that the trial court had abused its discretion in revoking the

defendant's probation because the defendant had not intentionally violated the conditions

of his probation.

. Rather, "[t]he evidence shows that [the defendant] was

cooperating with the program. The termination of the [defendant] was due to the program's

inability to properly minister his case."

The appellate court further stated, "after the

determination that [the defendant] suffers mentally and emotionally, the court revoked his

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probation. In short, there [is] no evidence of a substantial nature in order to find the

revocation [is] justified."

{¶ 23} The Eleventh Appellate District subsequently clarified its Bleasdale ruling as

follows:

This court reversed the decision on the basis that the violation was due to circumstances beyond the defendant's control. * * * Thus, [this ruling] indicate[s] that an inability to comply can not [sic] constitute grounds for revocation. That is not equivalent to requiring an intent to violate a probation term.

(Emphasis added.) State v. Stockdale, 11th Dist. Lake No. 96-L-172,

, *6 (Sep. 26, 1997).

{¶ 24} By contrast, community control violations were found to be due to

circumstances within a defendant's control where a defendant was unable to successfully

complete a sexual offender treatment because of his failure to recognize the seriousness

of his offense and his risk to reoffend, where a defendant refused to take his medications,

and where a defendant resisted a batterer's treatment program, claimed he did not need to

participate, and failed to participate from the beginning. See State v. Clark, 6th Dist. Wood

No. WD-12-073,

; State v. Wolfe, 5th Dist. Stark No. 2008-CA-00064, 2009-

Ohio-830; and Michael,

.

{¶ 25} At the October 26, 2018 hearing, Campbell and Clay both testified that

appellant was discharged from the Sojourner treatment program because of her medical

issues and her resulting inability to benefit from or participate in the treatment program.

Evidence of appellant's medical issues and hospitalizations while she was in the Sojourner

treatment program was supported by five exhibits, including discharge summaries from Fort

Hamilton Hospital and appellant's discharge summary from the Sojourner treatment

program. See State v. Solomon, 5th Dist. Morrow No. 2012-CA-7,

;

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Michael. The exhibits show that between August 2, 2018, and September 18, 2018,

appellant sought emergency medical treatment three times, was diagnosed with chronic

infective endocarditis, pulmonary embolism, pneumonia, and MRSA, and was consequently

hospitalized.

{¶ 26} Appellant's discharge summary from the Sojourner treatment program plainly

states that "[d]ue to severity of medical needs, client is unable to participate in and benefit

from [the] treatment at this time. She is neutrally medically discharged * * * to manage her

physical health needs. When she is medically cleared to return, she is encouraged to seek

readmission." (Emphasis added.) The discharge summary further indicates that appellant

was already suffering from chronic endocarditis when she entered the Sojourner treatment

program and that while in the program, she was referred for heart surgery and informed she

would need constructive open surgery as soon as possible.

{¶ 27} We find that the trial court abused its discretion in finding that appellant

violated her community control because she failed to successfully complete the Sojourner

treatment program. Appellant's participation in the treatment program was dependent upon

Sojourner's ability to provide appellant with services which it was unable or unwilling to do

because of appellant's medical conditions. Appellant's discharge from the treatment

program was due solely to her medical issues. The violation in question was therefore not

one over which appellant had control but rather was due to Sojourner's inability to provide

services to appellant, thereby preventing her from complying with the terms of her

community control. "In short, there [is] no evidence of a substantial nature in order to find

[that] the revocation [is] justified." Bleasdale,

. The trial court's

revocation of appellant's community control is accordingly reversed and appellant's

community control is reinstated.

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{¶ 28} Appellant's second assignment of error is sustained.

{¶ 29} Assignment of Error No. 3:

{¶ 30} THE TRIAL COURT ERRED AS TO APPELLANT'S JAIL TIME CREDIT.

{¶ 31} The trial court originally sentenced appellant to three years of community

control in both cases in July 2018. The sentencing entry in Case No. 67 notified appellant

that violation of her community control could result in a 12-month prison term "with credit

for 96 days as of this date." The sentencing entry in Case No. 683 provided no jail-time

credit. Subsequently, the trial court's October 26, 2018 entries revoking appellant's

community control and sentencing her to 12 months in prison in both cases reflected a jail-

time credit of only 94 days. Appellant argues that both jail-time credit figures cannot be

correct and requests that the matter be remanded for the trial court to issue a nunc pro tunc

entry with the correct jail-time credit. Appellant does not state which jail-time credit figure

is correct. We find we need not reach the merits of appellant's arguments.

{¶ 32} The term "jail-time credit" is used as shorthand for custody credit. State v.

White, 12th Dist. Clermont Nos. CA2015-12-102 and CA2015-12-103,

. "A prisoner receives credit for any time spent in confinement, including

'confinement in lieu of bail while awaiting trial, confinement for examination to determine

the prisoner's competence to stand trial or sanity, and confinement while awaiting

transportation to the place where the prisoner is to serve the prisoner's prison term.'" State

v. Fugate,

,

, ¶ 1, fn. 1, quoting R.C. 2967.191. Jail-time

credit relates only to the length of a sentence and not the underlying conviction. State v.

Burns, 12th Dist. Clermont No. CA2018-03-015,

.

{¶ 33} Given our holding above reversing the trial court's revocation of appellant's

community control and reinstating such community control, we find that the issue is not

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presently "ripe" for review. Because appellant will once again serve a term of community

control, and not a term of imprisonment, pursuant to our remand, there is no issue

concerning jail-time credit that can be determined at this time either by the trial court or by

this court. See State v. Bradley, 2d Dist. Champaign No. 02CA35,

. "In

other words, the issue [appellant] raises in this appeal is not ripe for judicial review at this

time."

The appropriate time to raise the issue will be when, and if, appellant once again

violates her community control and the trial court reimposes a sentence of imprisonment

following such community control violation.

{¶ 34} Appellant's third assignment of error is overruled.

{¶ 35} The trial court's revocation of appellant's community control is reversed and

appellant's community control is reinstated. The matter is remanded to the trial court to

determine whether and how the terms and conditions of appellant's community control can

be modified to allow appellant to undergo a substance abuse treatment program while

actively and affirmatively addressing her medical issues in a manner consistent with this

opinion.

{¶ 36} Judgment reversed and remanded.

HENDRICKSON, P.J., and S. POWELL, J., concur.

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