[Cite as State v. Struffolino, 2020-Ohio-1051.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                         Court of Appeals No. WD-19-019

        Appellee                                      Trial Court No. 2016CR0014

v.

Anthony Struffolino                                   DECISION AND JUDGMENT

        Appellant                                     Decided: March 20, 2020

                                                  *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                                  *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Anthony Struffolino, appeals the February 11, 2019

judgment of the Wood County Court of Common Pleas which, following his admission to

a community control violation, sentenced him to 180 days in jail. For the reasons that

follow, we affirm.
       {¶ 2} Appellant was indicted on one count of breaking and entering, R.C.

2911.13(A) and (C), a fifth-degree felony. On July 13, 2016, appellant entered a guilty

plea to the charged count and on September 14, 2016, appellant was sentenced to three

years of community control with general conditions. Relevant to this appeal, at the plea

hearing the trial court informed appellant as follows:

              In lieu of prison the Court could place on you what is called

       community control sanctions, and the Court could establish certain things

       for you to do. If you failed to comply with those, you could then be sent to

       prison for up to twelve months. Do you understand that?

Appellant indicated that he understood.

       {¶ 3} On July 30, 2018, the state filed a petition for revocation of community

control alleging that appellant violated the conditions by testing positive for marijuana.

After admitting to the violation, the court extended appellant’s community control for

one year.

       {¶ 4} On October 31, 2018, the state filed a second petition for revocation of

community control based on a positive marijuana drug screen. On November 2, 2018,

appellant admitted to the violation, appellant was granted an own recognizance bond and

the matter was set for disposition on February 2, 2019. In the interim, the Wood County

Adult Probation Department ordered that appellant be arrested for failing to report to the

probation department; this incident was added as an addendum to the petition for

revocation.




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       {¶ 5} The dispositional hearing was held on February 8, 2019, and appellant was

ordered to serve 180 days in the local jail at the conclusion of which his community

control would be terminated as unsuccessful. This appeal followed with appellant raising

the following assignment of error:

              The trial court did not comply with R.C. 2929.11 and 2929.12 in

       sentencing appellant to serve one hundred eighty days in the Wood County

       Justice Center.

       {¶ 6} In his sole assignment of error, appellant contends that although the 180-day

jail sentence is not unlawful, the trial court abused its discretion in not ordering a lesser

sentence. Specifically, appellant contends that the court failed to give proper weight to

the mitigating factors: the fact that appellant has a family and is employed and “could

not balance the requirements and conditions of his community control with his

obligations to provide financial support for his family.”

       {¶ 7} R.C. 2929.15(B) permits the court upon violation of the community control

sanction to impose “[a] more restrictive sanction under section 2929.16, 2929.17, or

2929.18 of the Revised Code, including but not limited to, a new term in a community-

based correctional facility, halfway house, or jail pursuant to division (A)(6) of section

2929.16 of the Revised Code[.]” R.C. 2929.15(B)(1)(b). R.C. 2929.16(A)(6) provides:

              If the offender is sentenced to a community control sanction and

       violates the conditions of the sanction, a new term of up to six months in a

       community-based correctional facility that serves the county, in a halfway




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       house, or in a jail, which term shall be in addition to any other term

       imposed under this division.

       {¶ 8} In addition, the trial court may impose any sentence, so long as it is within

the sentencing range for the degree of felony involved. R.C. 2929.12(A); R.C.

2929.13(A); R.C. 2929.14(A); State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124, ¶ 17, superseded by statute on other grounds as stated in State v.

Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11, 15 (R.C.

2953.08(G)(2) defines the appellate standard of review of sentencing judgments). On

appeal, our standard of review is limited by R.C. 2953.08(G)(2) to whether there is clear

and convincing evidence that the sentencing court’s findings under R.C. 2929.13(B) or

(D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I) are supported by the record and whether

the sentence is contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

59 N.E.3d 1231, ¶ 22-23.

       {¶ 9} The trial court must use its discretion to impose the appropriate sentence

which achieves the purposes of protecting the public and punishing the defendant, while

imposing a sentence that does not unnecessarily burden state or local government

resources. R.C. 2929.11(A); R.C. 2929.12(A); R.C. 2929.13(A).

       {¶ 10} However, there is no requirement that the court make specific findings or

use specific language to reflect consideration of the applicable statutory factors. State v.

O’Dell, 45 Ohio St.3d 140, 147, 543 N.E.2d 1220 (1989); State v. Simpson, 11th Dist.

Lake No. 2016-L-014, 2016-Ohio-7746, ¶ 19. Absent an affirmative showing to the




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contrary, we presume the court properly considered the relevant factors set forth in R.C.

2929.11 and 2929.12. O’Dell; State v. Adjei, 1st Dist. Hamilton No. C-160207, 2016

Ohio App. LEXIS 3637, *3 (Sept. 9, 2016).

         {¶ 11} At the probation revocation hearing appellant, with questioning by the

court, explained his problems with marijuana use and his inability to balance his work,

family, and community control obligations. In imposing sentence, the court stated that it

reviewed the PSI, the probation violations, and considered the factors under R.C. 2929.11

and 2929.12, and the circumstances under R.C. 2929.15.

         {¶ 12} Because the appellant’s sentence was within the permissible range and

given that prior consideration was given to the statutory sentencing factors, we find that

the trial court did not abuse its discretion in ordering a 180-day jail sentence and

appellant’s sentence was not contrary to law. Appellant’s assignment of error is not well-

taken.

         {¶ 13} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair proceeding and the judgment of the Wood County Court of

Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs

of this appeal.


                                                                         Judgment affirmed.




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                                                                 State v. Struffolino
                                                                 C.A. No. WD-19-019




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
CONCUR.                                         _______________________________
                                                            JUDGE


Gene A. Zmuda, P.J.                             _______________________________
CONCURS AND WRITES                                          JUDGE
SEPARATELY.



       ZMUDA, P.J.

       {¶ 14} On February 11, 2019, the trial court imposed a 180-day jail term on

appellant as a sanction for his admitted violation of the conditions of his community

control. Appellant argues that the trial court erred because it failed to consider the

purposes of felony sentencing pursuant to R.C. 2929.11 or consider any aggravating or

mitigating factors described in R.C. 2929.12 in imposing the sanction. While I believe

the majority correctly concludes that the sanction imposed was proper, I disagree that the




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trial court’s compliance with felony sentencing statutes is the appropriate analysis by

which that conclusion should be reached. For that reason, I concur with the majority’s

judgment in affirming the trial court’s sanction but would reach that conclusion through a

different analysis.

       {¶ 15} When a defendant violates the conditions of community control imposed

following a felony conviction, “the court imposes an appropriate sanction for that

misconduct, but not for the original or underlying crime.” In re. B.H., 6th Dist. Erie No.

E-14-096, 2015-Ohio-2296, ¶ 24, citing State v. Beverly, 4th Dist. Ross No. 01CA2603,

2002 WL 59643, *3 (Jan.11, 2002). The possible sanctions for the violation of the

conditions of community control are established under R.C. 2929.15(B)(1) which states:

              If the conditions of a community control sanction are violated or if

       the offender violates a law or leaves the state without the permission of the

       court or the offender's probation officer, the sentencing court may impose

       upon the violator one or more of the following penalties:

              (a) A longer time under the same sanction if the total time under the

       sanctions does not exceed the five-year limit specified in division (A) of

       this section;

              (b) A more restrictive sanction under section 2929.16, 2929.17, or

       2929.18 of the Revised Code, including but not limited to, a new term in a

       community-based correctional facility, halfway house, or jail pursuant to

       division (A)(6) of section 2929.16 of the Revised Code;




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              (c) A prison term on the offender pursuant to section 2929.14 of the

       Revised Code and division (B)(3) of this section[.]

Upon appellant’s admission to violating the terms of his community control, the trial court

elected to impose a 180-day jail term pursuant to R.C. 2929.15(B)(1)(b) as a penalty for

appellant’s violation. Appellant argues this sanction was contrary to law because the trial

court did not consider the factors established under R.C. 2929.11 and 2929.12 related to

felony sentencing. I would not find that the imposition of a jail term pursuant to R.C.

2929.15(B)(1)(b) requires a trial court to make these considerations.

       {¶ 16} When imposing a penalty for the violation of community control, the trial

court is required to comply with “the relevant sentencing statutes.” State v. Fraley, 105

Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17. Therefore, to require compliance

with R.C. 2929.11 and 2929.12 before imposing a jail term pursuant to R.C.

2929.15(B)(1)(b), those statutes must be relevant to the proceedings. I note that had the

trial court imposed a prison sentence, R.C. 2929.11 and 2929.12 would be relevant as

described in Fraley. R.C. 2929.15(B)(1)(c), which permits the imposition of a prison

term as a penalty for the violation of community control conditions, explicitly states that

any prison term imposed must be made pursuant to R.C. 2929.14. Further, R.C.

2929.15(B)(3) only allows the imposition of a prison term if the sentencing court

complied with all of the requirements in R.C. 2929.19(B)(2) at the original sentencing.

When imposing the original sentence, the trial court would have been required to

consider the factors established in R.C. 2929.11 and 2929.12. In that scenario, those




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factors would be relevant in determining whether the reserved prison sentence being

imposed as a community control violation penalty was properly established at the original

sentencing. That is not the case here.

       {¶ 17} Appellant was not ordered to serve a prison term as a result of his violation

of the conditions of his community control. Instead, he was ordered to serve 180 days in

jail. R.C. 2929.15(B)(1)(b) states that upon finding a community control violation, the

trial court may impose “[a] more restrictive sanction under section 2929.16, 2929.17, or

2929.18 of the Revised Code, including but not limited to, a new term in * * * jail

pursuant to division (A)(6) of section 2929.16 of the Revised Code.” Moreover, the other

Revised Code sections identified in R.C. 2929.15(B)(1)(b) do not reference or

incorporate any aspect of the original sentence where the trial court’s compliance with

R.C. 2929.11 and 2929.12 would be required. Additionally, as the trial court is imposing

a penalty for a community control violation and not the underlying crime, the penalty is

not a new sentence which automatically requires analysis under the felony sentencing

statutes. In re. B.H. at ¶ 24.

       {¶ 18} Instead, R.C. 2929.15(B)(1)(b) establishes a penalty and requires that the

penalty only be imposed once an offender is found to be in violation of their community

control conditions—a decision over which the trial court exercises broad discretion.

State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 10. Logically,

the trial court’s consideration of the felony sentencing factors found in R.C. 2929.11 and

2929.12 has no relation to the imposed penalty. Therefore, those factors are not relevant




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in this appeal and any analysis of the trial court’s compliance with those sections is

likewise not appropriate for our review in this case.

       {¶ 19} I believe the appropriate standard of review of the trial court’s decision is

under an abuse of discretion standard. The General Assembly has granted “broad

discretion to trial courts in imposing community control sanctions.” Id. Therefore, “[w]e

review the trial court’s imposition of community-control sanctions under an abuse of

discretion standard.” Id. “An abuse of discretion implies that the trial court’s attitude is

unreasonable, arbitrary, or unconscionable.” State v. Clement, 6th Dist. Lucas No.

L-12-1249, 2013-Ohio-3554, ¶ 5, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,

450 N.E.2d 1140 (1983). A review of the record under this correct standard establishes

the trial court did not abuse its discretion in imposing the 180-day jail term as a penalty

for appellant’s violation of his community control.

       {¶ 20} The jail term to be imposed as a sanction for violating the conditions of

community control is established under R.C. 2929.16(A)(6). A six-month jail term is

specifically identified as a possible residential sanction to be imposed on an offender that

has violated previously imposed community control conditions. Appellant makes no

argument and cites to no authority which shows the trial court’s chosen penalty was

unreasonable, arbitrary, or unconscionable. The penalty was authorized by statute and

imposed only after appellant admitted to his violations. Under these facts, it is clear the

trial court did not abuse its discretion and I would affirm the judgment of the trial court.




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      {¶ 21} Because the majority’s conclusion is premised solely under a felony

sentencing analysis, I agree only with their conclusion, not the manner in which it was

reached. While I disagree with the majority’s analysis, I concur in the decision reached

and would affirm the judgment of the trial court.




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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