[Cite as State v. Miller, 2017-Ohio-5801.]


                                     MILLERCOURT OF APPEALS
                                       HOLMES COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                       JUDGES:
                                                    Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                          Hon. William B. Hoffman, J.
                                                    Hon. John W. Wise, J.
-vs-
                                                    Case Nos. 16 CA 006 and 16 CA 009
PRESTON MILLER

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case Nos. 10 CR 084 and 13 CR
                                                003


JUDGMENT:                                       Reversed and Remanded



DATE OF JUDGMENT ENTRY:                          July 10, 2017



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

F. CHRISTOPHER OEHL                             JEFFREY G. KELLOGG
ASSISTANT PROSECUTOR                            5 South Washington Street
164 East Jackson Street                         Millersburg, Ohio 44654
Millersburg, Ohio 44654
Holmes County, Case Nos. 16 CA 006 and 16 CA 009                                         2

Wise, John, J.

      {¶1}   Appellant Preston Miller appeals his revocation of community control in the

Holmes County Court of Common Pleas. Appellee is the State of Ohio. The relevant facts

leading to this consolidated appeal are as follows.

             Procedural Background - Common Pleas Case No. 10 CR 084

      {¶2}   On January 20, 2011, following his conviction on charges of attempted

burglary and attempted grand theft of a firearm (both felonies of the fourth degree), the

Holmes County Court of Common Pleas (hereinafter “trial court”) sentenced appellant to

three years of community control.

      {¶3}   On June 25, 2012, appellant’s chief probation officer, Roger M. Estill, filed

a motion to revoke appellant’s community control, alleging appellant had failed to comply

with counseling and curfew requirements. Appellant appeared in court on July 10, 2012

and entered a plea of admission. The trial court thereupon continued appellant on the

original terms and conditions of his community control.

      {¶4}   On January 22, 2013, Estill again filed a motion to revoke appellant’s

community control, this time alleging inter alia appellant had been charged with new

criminal charges under case number 13 CR 003, infra.

      {¶5}   Appellant again entered a plea of admission, and on April 29, 2013, the trial

court revoked his community control and ordered him to serve a prison term of eighteen

months.

      {¶6}   Appellant thereafter applied for judicial release. Via a judgment entry issued

July 30, 2013, appellant was granted judicial release and ordered to serve three years of

community control.
Holmes County, Case Nos. 16 CA 006 and 16 CA 009                                          3

              Procedural Background - Common Pleas Case No. 13 CR 003

       {¶7}   On April 29, 2013, following convictions on one count of theft and one count

of forgery (both felonies of the fifth degree), the trial court sentenced appellant to nine

months in prison.

       {¶8}   Appellant thereafter applied for judicial release. On July 30, 2013, appellant

was granted judicial release and placed on community control for a period of three years.

                                 2016 Arrest of Appellant

       {¶9}   On July 20, 2016, shortly before the expiration of appellant’s community

control period, Chief Probation Officer Estill filed with the Holmes County Clerk of Courts

an order to arrest appellant pursuant to R.C. 2951.08, setting forth both of the above trial

court case numbers, 10 CR 084 and 13 CR 003.

       {¶10} On August 1, 2016, appellant was arrested under Estill's above order by law

enforcement officers.

       {¶11} On August 4, 2016, the State, via the Holmes County Prosecutor’s Office,

filed a motion under both case numbers to revoke or modify appellant’s community control

sanctions. Attached therewith was a violation report alleging among other things that

appellant had failed to report to the probation office since May 2016 and had changed

residence to a location in Wayne County, Ohio.

       {¶12} On August 17, 2016, appellant filed a joint motion to dismiss the aforesaid

motion to revoke, asserting a lack of court jurisdiction over him subsequent to the date

July 30, 2016. The State filed a memorandum in opposition on August 23, 2016.
Holmes County, Case Nos. 16 CA 006 and 16 CA 009                                       4


      {¶13} On August 25, 2016, following a stipulation of evidence, the trial court

denied appellant’s motion to dismiss the State’s motion to revoke. Appellant thereupon

entered an admission to violating the terms of community control.

      {¶14} The trial court issued a judgment entry under both case numbers on August

26, 2016 ordering inter alia that appellant’s community control would be extended by one

year and that he would serve the remainder of a 236-day jail sentence.

      {¶15} On September 23, 2016, appellant filed a notice of appeal. He herein raises

the following sole Assignment of Error:

      {¶16} “I. THE TRIAL COURT ERRED AND THE DEFENDANT/APPELLANT

WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DENIED HIS MOTION TO

DISMISS THE MOTION TO REVOKE COMMUNITY CONTROL.”

                                           I.

      {¶17} In his sole Assignment of Error, appellant contends the trial court deprived

him of due process of law by denying his motion to dismiss the State’s motion to revoke

his community control. We agree.

      {¶18} An order that revokes community control and imposes a sentence is a final

appealable order. See, e.g., State v. Greenberg, 10th Dist. Franklin No. 12AP–602, 2013-

Ohio-1638, ¶ 12. Generally, an appellate court reviews a trial court's decision revoking

community control sanctions on an abuse-of-discretion standard. State v. Cofer, 2nd Dist.

Montgomery No. 22798, 2009-Ohio-890, ¶ 13. However, statutory interpretation is a

question of law that we review de novo. State v. Mullins, 10th Dist. Franklin Nos. 16AP–

236, 16AP–237, 2016-Ohio-8347, ¶ 19 (additional citations omitted).
Holmes County, Case Nos. 16 CA 006 and 16 CA 009                                            5


       {¶19} R.C. 2951.08(A) states in pertinent part: “*** During a period of community

control, any peace officer may arrest the person under a community control sanction

without a warrant upon the written order of the chief probation officer of the probation

agency if the person under a community control sanction is under the supervision of that

probation agency or on the order of an officer of the adult parole authority created

pursuant to section 5149.02 of the Revised Code if the person under a community control

sanction is under the supervision of the authority. ***.”

       {¶20} This Court has recognized that the issuance of a capias or a warrant is

sufficient to toll a probationary period until the probationer is brought before the pertinent

court. See State v. Hamilton, 5th Dist. Guernsey No. 03 CA 8, 2003-Ohio-5366, ¶ 13,

citing Rash v. Anderson, 9th Dist. Lorain No. 97 CA006728, 1997 WL 270553, affirmed

(1997), 80 Ohio St.3d 349, 686 N.E.2d 505. Similarly “*** Ohio courts have repeatedly

held that the tolling of the probationary period can only be accomplished by a timely filed

motion to terminate probation and a timely filed warrant, capias, or summons.” State v.

Jones, 123 Ohio App.3d 144, 148, 703 N.E.2d 833 (11th Dist.1997) (emphasis in original).

The Eleventh District Court went on to conclude: “*** [I]t is clear that the form filed by the

probation department is not a warrant but merely a statutorily created convenience to

avoid obtaining a judge's signature. No Ohio courts have allowed this form, in conjunction

with a motion to terminate probation, to extend a probationary period of a defendant. It

simply does not qualify as a warrant, capias, or summons.” Id.1




1  The Jones court relied upon an earlier version of R.C. 2951.08(A), but our research
leads us to conclude that the subsequent revisions have not substantially changed the
statute for purposes of the present issue.
Holmes County, Case Nos. 16 CA 006 and 16 CA 009                                           6


       {¶21} In the General Assembly’s enactment of a statute, it is presumed that a just

and reasonable result is intended. R.C. 1.47(C). Ambiguities and reasonable doubts in

interpreting criminal statutes are to be resolved in favor of the accused. See City of

Bowling Green v. Kirby, 6th Dist. Wood Nos. 90WD100, 90WD101, 1992 WL 32100. See,

also, R.C. 2901.04(A). We note the General Assembly in R.C. 2951.08(A) has utilized the

phrase “written order of the chief probation officer” to authorize an arrest “without a

warrant,” and has thereby indicated that such an order is not meant to be elevated to the

full legal equivalent of a warrant or similar device emanating from a court. Therefore, we

find such an order from a chief probation officer does not toll a period of community control

pending a court appearance by the defendant.

       {¶22} Accordingly, we find merit in appellant’s contention that the trial court lacked

jurisdiction to revoke his community control and issue additional sanctions after July 30,

2016 under the facts and circumstances presented. We thus hold the trial court erred in

failing to dismiss or deny the State’s motion to revoke.

       {¶23} Appellant's sole Assignment of Error is sustained.

       {¶24} For the reasons stated in the foregoing opinion, the judgments of the Court

of Common Pleas, Holmes County, Ohio, are hereby reversed and remanded.

By: Wise, John, J.
Gwin, P. J., and
Hoffman, J., concur.

JWW/d 0627
