State v. Mehl

2022-Ohio-1154

STATE OF OHIO, Plaintiff-Appellee, v. DAVID E. MEHL, Defendant-Appellant.

No. 20CA14

Court of Appeals of Ohio, Fourth District, Athens

March 29, 2022

Kathryn Cornelius-Blume, Dagger, Johnston, Miller, Ogilvie & Hampson, LLP, Lancaster, Ohio, for Appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Assistant Athens County Prosecuting Attorney Athens, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

JASON P. SMITH, PRESIDING JUDGE

{¶1} Appellant, David E. Mehl, appeals the trial court's judgment revoking his community control in two cases and sentencing him to four years in prison. Mehl raises a single assignment of error on appeal, contending that the trial court abused its discretion when it revoked his community control and imposed prison time. For the reasons that follow Mehl's sole assignment is overruled and the judgment of the trial court is affirmed.

FACTS

{¶2} Appellant, David Mehl, pleaded guilty to one count of burglary, a second-degree felony in violation of R.C 2911.12(A)(2) on February 14, 2019, and was sentenced to a five-year term of community control (16CR0452). At his initial sentencing hearing, he was advised that a violation of his community control could result in the imposition of a four-year prison term. One of the specific conditions of his community control was that he enter and successfully complete the "SEPTA Correctional Facility program."^[1] The State filed a notice of violation on May 22, 2018, alleging four violations of community control that included failure to report, testing positive for methamphetamine and failure to pay restitution. Mehl admitted to these violations and the trial court continued his community control. The State filed another notice of violation on July 23, 2018, alleging six violations of community control that included testing positive for methamphetamine, MDMA, and suboxone, and failure to show up for an appointment at the "Clearview Detox Program," as ordered. Mehl admitted to these violations and the trial court again continued his community control, adding a new condition requiring him to enter and successfully complete a program at the "Star/SEPTA Correctional Facility."^[2]

{¶3} Another notice of violation was filed on December 4, 2018, alleging two violations, one of which was Mehl's unsuccessful termination from the "Star/SEPTA Correctional Facility Program." Mehl again admitted to the violations and the trial court once again continued his community control, but it added a new condition requiring him to complete the "Athens County Prosecutor's Office Vivitrol Program, "^[3] as well participate in the detox program at "Clem House."^[4] The State filed yet another notice of violation on January 27, 2020, alleging three violations, one of which was an allegation that Mehl failed to successfully complete the vivitrol program. This notice of violation was followed by a supplemental notice of violation on January 30, 2020, a second supplemental notice of violation on February 10, 2020, a third supplemental notice of violation on February 12, 2020, a fourth supplemental notice of violation on March 9, 2020, and a fifth supplemental notice of violation on March 10, 2020. In all, the supplemental notices of violations alleged ten violations of community control, including the commission of a new felony (aggravated possession of drugs), the commission of a new misdemeanor (driving under suspension), a report that Mehl was in receipt of stolen property, and that he had trespassed on the property of an individual named Thomas McKee. Mehl admitted to most of the violations, but did not admit to the trespassing allegation. The trial court again continued Mehl's community control, gave him 95 days credit for time served, and ordered him to enter and successfully complete a program at "River City CBCF."^[5]

{¶4} Another notice of violation was filed on July 15, 2020, alleging that Mehl had been terminated from the "River City CBCF" program. This notice was followed by an amended supplemental notice on July 17, 2020, and a second supplemental notice of violation on July 30, 2020. The amended and supplemental notice included a total of seven community control violations, which included allegations that Mehl, on two different occasions, created a safety risk to officers at the Southeastern Ohio Regional Jail, failed to follow orders while in jail, and caused damage to his jail cell by flooding the toilet two different times. Mehl admitted to these violations and the trial court again continued his community control, giving him 65 days credit for time served and ordering him to enter and successfully complete the "STAR Community Justice Center" program. Near this time period, on September 14, 2020, Mehl pled guilty to the new felony offense (aggravated possession of drugs-identified as case no. 20CR0037) and was sentenced to a five-year term of community control. He was informed during his sentencing hearing that a violation of his community control could result in the imposition of a one-year prison term. Thus, his two community control terms were running together at this point.

{¶5} Finally, the State filed a notice of violation on December 2, 2020, alleging Mehl had failed to complete the "STAR program" as ordered. This violation constituted a violation of his community control in his 2016 burglary case, as well as his 2020 aggravated possession of drugs case. Mehl once again admitted to the violation. This time, however, the trial court revoked Mehl's community control and imposed a prison term of four years in case no. 16CR0452 and one year in case no. 20CR0037, to be served concurrently. It is from the trial court's December 23, 2020, judgment entry that Mehl now brings his appeal, setting forth a single assignment of error for our review.

ASSIGNMENT OF ERROR

I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REVOKED APPELLANT'S COMMUNITY CONTROL AND IMPOSED PRISON TIME.

{¶6} In his sole assignment of error, Mehl contends that the trial court erred when it revoked his community control and imposed prison time. Although the wording of Mehl's assignment of error includes a challenge to the trial court's decision to revoke his community control, the argument portion of his brief primarily challenges the sentence imposed by the trial court upon revoking community control. Mehl argues that the trial court inappropriately relied on alleged past misconduct when it imposed a four-year prison term, rather than simply focusing on the reason for the most recent violation, which was his failure to complete the STAR Community Justice Center program. The State contends, however, that the trial court did not look at prior bad acts, "but merely recognized that [Mehl] failed to take advantage of the various opportunities that were given to him[, ]" one of which was the STAR program. The State further argues that this Court has previously found the failure to complete a drug treatment program that was ordered as a condition of community control to be a violation of a substantive rehabilitation requirement, and that Mehl admitted that he failed to complete the STAR program. The State argues that the trial court weighed all of the appropriate factors considered the principles and purposes of sentencing, and did not err or abuse its discretion when it revoked Mehl's community control and sentenced him to prison.

Standard of Review

{¶7} This Court has explained that the proper standard to be applied when reviewing decisions revoking community control is one of abuse of discretion. State v. Newsome, 4th Dist. Hocking No. 17CA2, 2017-Ohio-7488, ¶ 7, citing State v. Johnson, 4th Dist. Meigs No 14CA10, 2015-Ohio-1373 ¶ 13. In both Newsome and Johnson, we noted that this Court has previously applied a two-part standard in such cases, as follows:

" 'Because a community control revocation hearing is not a criminal trial, the State does not have to establish a violation with proof beyond a reasonable doubt. State v. Wolfson, Lawrence App. No. 03CA25, 2004-Ohio-2750, ¶ 7, citing State v. Payne, Warren App. No. CA2001-09-081, 2002-Ohio-1916, in turn citing State v. Hylton (1991), 75 Ohio App.3d 778, 782, 600 N.E.2d 821. Instead, the prosecution must present "substantial" proof that a defendant violated the terms of his community control sanctions. Wolfson, citing Hylton at 782, 600 N.E.2d 821. Accordingly, we apply the "some competent, credible evidence" standard set forth in C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, to determine whether a court's finding that a defendant violated the terms of his community control sanction is supported by the evidence. Wolfson at ¶ 7, citing State v. Umphries (July 9, 1998), Pickaway App. No. 97CA45; State v. Puckett (Nov. 12, 1996), Athens App. No. 96CA1712. This highly deferential standard is akin to a preponderance of the evidence burden of proof. Wolfson, citing State v. Kehoe (May 18, 1994), Medina App. No. 2284-M. * * * Thus, we conclude the appropriate review in this matter is twofold. First, we review the record to determine whether there is substantial evidence to support the court's finding that C.M.C. violated the terms of probation or community control. If it does, then we review the court's ultimate decision to revoke probation, i.e., the sanction, under the more deferential abuse of discretion standard.'"

Newsome at ¶ 7, quoting Johnson at ¶ 13, in turn quoting In the Matter of C.M.C., 4th Dist. Washington No. 09CA15, 2009-Ohio-4223, ¶ 17.

{¶8} Here, Mehl admitted to the violation that ultimately resulted in the revocation of his community control. Thus, our review focuses on the trial court's ultimate decision to revoke community control, as...