[Cite as State v. Nixon, 2019-Ohio-3445.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :      OPINION

                 Plaintiff-Appellee,           :
                                                      CASE NOS. 2019-P-0023
        - vs -                                 :                2019-P-0024

DAVID A. NIXON,                                :

                 Defendant-Appellant.          :


Criminal Appeals from the Portage County Court of Common Pleas, Case Nos. 2015
CR 00417 and 2015 CR 00018.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

David A. Nixon, pro se, PID: A694-305, Richland Correctional Institution, 1001
Olivesburg Road, P.O. Box 8107, Mansfield, OH 44905 (Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, David A. Nixon, appeals from the judgment of the Portage

County Court of Common Pleas, denying his “Motion to Vacate Sentence” without a

hearing. We affirm.

        {¶2}     In January 2015, appellant was charged with one count of domestic

violence, a felony of the fourth degree, in violation of R.C. 2919.25. On February 9,

2015, he pleaded guilty to the charge and, on May 8, 2015, the trial court sentenced him
to house arrest for 30 days and placed him under the general control of the Adult

Probation Department in the Intensive Supervision Program for one year and four

additional years under the General Division Program. The trial court ordered appellant’s

stated prison term to be 18 months.

      {¶3}   Four months later, the Probation Department filed a motion to revoke

appellant’s community control for a violation of a temporary protection order issued in a

separate case and for failing to report for case management meetings. The record

reflects appellant pleaded guilty to domestic violence, a felony of the third degree, in

violation of R.C. 2919.25 and, on February 9, 2016, a sentencing and revocation

hearing were held together.    Appellant again was placed under the general control of

the Adult Probation Department in the Intensive Supervision Program for one year and

under the General Division Program for an additional 48 months. Appellant’s stated

prison term was set at three years.

      {¶4}   In June 2016, the Probation Department again filed a motion to revoke

based upon charges he was facing in Mahoning County, his failure to report these

charges, and his failure to attend case management meetings. On February 27, 2017,

the trial court found appellant had violated the terms of his community control and

ordered: “Defendant’s probation is continued and it shall be stayed pending Defendant’s

release from the pending cases from Judge Becky L. Doherty.”

      {¶5}   In February 2018, the Probation Department filed a motion to revoke

community control for appellant’s failure to report for case management meetings,

failure to complete an anger management program or follow through with mental health

counseling services. The trial court issued a warrant for appellant’s arrest for failing to




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appear at the revocation hearing.      On March 30, 2018, appellant was held “without

bond” as he appeared in court without counsel for his revocation hearing.

       {¶6}   On May 11, 2018, the state withdrew the motion to revoke and the trial

court found it had not lifted the stay on appellant’s probation. The court consequently

noted “probation is unstayed and Defendant shall be placed on probation as stated on

February [2]7, 2017.”       On February 5, 2019, appellant filed a motion to vacate his

sentence arguing the trial court lacked authority to stay his probation and lacked subject

matter jurisdiction to sentence him. The trial court denied appellant’s motion without a

hearing. He appeals and assigns two errors for our review. They provide:

       {¶7}   “[1.] The trial court abused its discretion by denying defendant-appellant’s

motion to vacate sentence without hearing and by failing to render the sentence void

based on the trial court’s and defendant-appellant’s knowledge of the lack of subject

matter jurisdiction.

       {¶8}   “[2.]    The trial court committed prejudicial error by denying defendant-

appellant’s pro se motion to vacate sentence when defendant-appellant clearly and

convincingly demonstrated an infringement of his constitutional rights and statutory

provisions, as to render the trial court’s judgment and sentences a nullity or void.”

       {¶9}   Under his assignments of error, appellant challenges the trial court’s

decision denying his motion to vacate his sentence without a hearing. He asserts the

trial court lacked subject-matter jurisdiction to impose a sentence while his probation

was stayed. Appellant’s contention is without merit.

       {¶10} R.C. 2951.07 provides:

       {¶11} A community control sanction continues for the period that the
             judge or magistrate determines and, subject to the five-year limit



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               specified in section 2929.15 or 2929.25 of the Revised Code, may
               be extended. If the offender under community control absconds or
               otherwise leaves the jurisdiction of the court without permission
               from the probation officer, the probation agency, or the court to do
               so, or if the offender is confined in any institution for the
               commission of any offense, the period of community control ceases
               to run until the time that the offender is brought before the court for
               its further action. (Emphasis).

       {¶12} Preliminarily, it is unclear the trial court had the authority to “stay”

appellant’s community control.        Once community control is imposed, it “continues,”

pursuant to statute, for the period the court ordered.               Permitting a court to stay

community control would allow a court to have supervision over a party beyond the five-

year limitation period set by statute, even if statutory tolling events have occurred.

       {¶13} That said, it is unclear whether the trial court was “staying” community

control or noting that community control would “cease to run,” pursuant to R.C. 2951.07,

because appellant was confined in an institution due to the pending cases in Judge

Doherty’s court. Our record fails to disclose whether appellant was incarcerated, but

the court would be empowered, via statute, to recognize that the community control was

tolled, or “stayed,” if appellant was, in fact, in jail or prison.

       {¶14} Regardless of the foregoing, appellant was originally sentenced on May 8,

2015 and placed on community control for a total of five years. Only three years and

nine months had elapsed on his community control at the time appellant filed his motion

on February 5, 2019. Appellant’s community control was still active at all relevant dates

identified in this case. Thus, the trial court maintained subject-matter jurisdiction over

appellant. Accordingly, the trial court did not err in denying appellant’s motion to vacate

without a hearing.

       {¶15} Appellant’s assignments of error lack merit.



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      {¶16} The judgment of the Portage County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, J.,

MARY JANE TRAPP, J.,

concur.




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