[Cite as State v. Cunningham, 2012-Ohio-959.]




                          IN THE COURT OF APPEALS OF OHIO
                             SECOND APPELLATE DISTRICT
                                MONTGOMERY COUNTY

STATE OF OHIO                                   :
                                                :     Appellate Case No. 24584
        Plaintiff-Appellee                      :
                                                :     Trial Court Case No. 10-CR-3773
v.                                              :
                                                :
JOHN L. CUNNINGHAM                              :     (Criminal Appeal from
                                                :     (Common Pleas Court)
        Defendant-Appellant              :
                                                :
                                             ...........

                                             OPINION

                             Rendered on the 9th day of March, 2012.

                                             ...........

MATHIAS H. HECK, JR., Atty. Reg. #0079994, by CARLEY J. INGRAM, Atty. Reg.
#0020084, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County
Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ANDREA DEWAR OLADI, Atty. Reg. #0078868, Law Office of the Public Defender, 117
South Main Street, Suite 400, Dayton, Ohio 45422
      Attorney for Defendant-Appellant

                                                     .............

HALL, J.

        {¶ 1} In March 2011, Appellant John Cunningham pleaded guilty to fifth-degree

felony theft for stealing metal poles from a Dayton Public School storage facility. He was
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sentenced to up to five years of community control. One of the community-control conditions

prohibits Cunningham from coming within 1,000 feet of any Dayton Public School.

Cunningham’s sole assignment of error argues that this condition is overly broad.

       {¶ 2} The state argues that we should dismiss this appeal as moot. The

community-control statute provides that if an offender who is under a community-control

sanction absconds, “the period of the community control sanction ceases to run until the

offender is brought before the court for its further action.” R.C. 2929.15(A)(1). The state has

filed a motion to supplement the record with three trial-court entries: the July 2011 order

suspending the community-control period and issuing a capias warrant for Cunningham’s

arrest, the January 6, 2012 warrant return, and the January 9, 2012 notice of

community-control revocation hearing and order. The motion is granted. The state contends

that Cunningham cannot complain about a condition that no longer applies to him. We

disagree that the condition no longer applies.

       {¶ 3} In July, the trial court declared Cunningham an absconder and ordered his

arrest. Cunningham was arrested on January 5, and a community-control revocation hearing

was set for January 10. The state’s motion says that the state has ordered a recording of the

hearing. From this we infer that the hearing did take place. Since Cunningham has been

“brought before the court,” the above statutory provision no longer applies. Therefore this

appeal is not moot and we decline to dismiss it. Instead we consider its merits.

       {¶ 4} “Probation conditions must be reasonably related to the statutory ends of

probation and must not be overbroad.” State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888,

814 N.Ed.2d 1201, ¶ 16, citing State v. Jones, 49 Ohio St.3d 51, 550 N.E.2d 469 (1990). This
                                                                                          3


standard also applies to community-control sanctions. Id.; State v. Lane, 2d Dist. Greene No.

2010 CA 21, 2010-Ohio-5639, ¶ 10, fn. 1 (recognizing that Jones’s holding also applies to

community-control conditions). In determining whether a particular condition meets this

standard “courts must ‘consider whether the condition (1) is reasonably related to

rehabilitating the offender, (2) has some relationship to the crime of which the offender was

convicted, and (3) relates to conduct which is criminal or reasonably related to future

criminality and serves the statutory ends of probation [or community control].” Id. at ¶ 12,

quoting Jones at 53.

       {¶ 5} We applied this test in the analogous case of State v. Kuhn, 2d Dist.

Montgomery No. 20912, 2005-Ohio-6836. In that case the defendant was a teacher and

school administrator. He pleaded no contest to eleven misdemeanor charges of public

indecency, allowing underage persons to possess or consume alcohol on one’s property, and

furnishing alcohol to underage persons. The defendant was sentenced to community control.

One of the community-control conditions prohibited the defendant from coming within 1,000

feet of any private or public school. On appeal, the defendant contended that this condition

was overly broad and unduly restrictive. Disagreeing, the state pointed out that the law

prohibits sexual predators from living within 1,000 feet of a school and punishes drug

trafficking more severely when it is done within 1,000 feet of a school. Also, the state,

pointing out that the defendant was a teacher convicted of giving minors alcohol and allowing

them to consume it, as well as public indecency, argued that the condition was reasonably

related to the defendant’s rehabilitation and helped to ensure the safety of the community. We

agreed that prohibiting the defendant from having contact with minors furthered his
                                                                                           4


rehabilitation and the community’s protection. But we found that these goals were

accomplished by another condition, which prohibited the defendant from having “personal or

job related interaction with anyone under the age of 21.” The prohibition on sexual predators,

we said, limits where such people may live “not points past which they might travel.” Id. at ¶

31. And drug trafficking is itself criminal. “The same does not apply to passing a school while

traveling on an errand.” Id.

       {¶ 6} On the record in Kuhn, we found that the restriction was overly broad and

unduly restrictive. “The court might have prohibited Defendant from entering those places,”

we said, “but its proximity requirement is overly-broad in relation to the purposes the

restriction might serve.” Id. at ¶ 32. “Further,” we continued, “those same purposes are amply

served by the restriction that Defendant have no contact with persons under twenty-one years

of age.” Id. We reversed and vacated the school-proximity condition and otherwise affirmed

the appealed order.

       {¶ 7} For the same reason that it was in Kuhn, the school-proximity condition in the

present case is overly broad and unduly restrictive.

       {¶ 8} The sole assignment of error is sustained.

       {¶ 9} In Kuhn we suggested that a condition prohibiting the defendant in that case

from entering schools would have served certain purposes of community control but was

unnecessary because another condition served those purposes. Here, because there is not

another condition that serves the same purposes, instead of vacating the entire

school-proximity condition, like we did in Kuhn, we will modify it. Instead of being

prohibited from coming within 1,000 feet of any Dayton Public School, Cunningham may not
                                                                                        5


enter or be on any property of the Dayton Public School system.

       {¶ 10} The trial court’s order is affirmed as modified.

                                                  .............

GRADY, P.J., concurs.

DONOVAN, J., concurring in part and dissenting in part:

       {¶ 11} This case is illustrative of a recent disturbing trend wherein the trial court

readily acquiesces and adopts all recommendations of the adult probation department without

giving thoughtful and thorough judicial discernment to the suggested condition’s

reasonableness and breadth.

       {¶ 12} Elimination of the 1,000-foot restriction is not sufficient. The condition of

supervision should be vacated in its entirety. In my view, the majority’s reliance upon Kuhn

is misplaced. Kuhn was a teacher and administrator who victimized minors. Restricting him

from access to school children by prohibiting him from entering a school would have been

both reasonable for his own rehabilitation and the safety of the community. Thus, the court

might have reasonably prohibited him from entering school premises.

       {¶ 13} The majority herein concludes that “there is not another condition that serves

the same purpose.” (Presumably, the purpose of deterring Cunningham from stealing scrap

metal from surplus facilities owned by Dayton Public Schools). I do not agree with this

conclusion since Cunningham’s community control includes thirteen additional conditions of

community control. Among these conditions are a curfew, attendance at a theft clinic and

abstention from illegal drugs. Adherence to these other conditions should prevent future

thefts of scrap metal from any property to support Cunningham’s drug habit.
                                                                                            6


        {¶ 14} In my view, the restriction herein is overly broad and unreasonable even as

modified by the majority. It unduly restricts Cunningham from any educational, recreational,

social, cultural or political activity taking place on property owned by Dayton Public Schools.

It is worth emphasizing that the theft occurred at a storage facility not a school or adjacent

school property. It should be noted that the prohibition involving all Dayton Public School

property was not a condition of supervision recommended by the prosecutor, as her written

recommendation was simply “intensive supervision.”            Furthermore, unlike a private

commercial establishment such as Elder Beerman or Macy’s which commonly requests such

trespass orders upon a theft conviction, Dayton Public Schools did not request this broad

prohibition.

        {¶ 15} The court’s discretion in imposing conditions of community control is not

without limit. I would sustain the assignment of error and reverse, directing the trial court to

vacate the condition in its entirety.

                                         ..........



Copies mailed to:

Mathias H. Heck
Carley J. Ingram
Andrea Dewar Oladi
Hon. Frances E. McGee
