[Cite as State v. Tingler , 2011-Ohio-3802.]


                                         COURT OF APPEALS
                                      FAIRFIELD 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 No. 10-CA-49
ROBERT S. TINGLER

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Fairfield County Common
                                                Pleas Court, Case No. 08-CR-379


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                          August 1, 2011


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


GREGG MARX                                      THOMAS R. ELWING
Assistant Prosecuting Attorney                  60 West Columbus Street
Fairfield County, Ohio                          Pickerington, Ohio 43147
239 W. Main Street, Ste. 101
Lancaster, Ohio 43130
Fairfield County, Case No. 10-CA-49                                                  2

Hoffman, J.


       {¶1}   Defendant-appellant Robert S. Tingler appeals his conviction entered by

the Fairfield County Court of Common Pleas for violating the terms of his community

control. Plaintiff-appellee is the State of Ohio.

                                   STATEMENT OF THE CASE

       {¶2}   On October 31, 2008, Appellant plead guilty to one count of escape, in

violation of R.C. 2921.34(A)(1) and (C)(2)(a), and was sentenced to two years of

suspended incarceration and three years of community control.

       {¶3}   On April 22, 2010, the State of Ohio filed a motion to revoke Appellant’s

community control in the Fairfield County Court of Common Pleas, alleging Appellant

violated the terms of his community control by failing to report and by committing

additional crimes while on community control. At the hearing on the motion to revoke,

the State introduced the testimony of a probation officer who did not supervise

Appellant’s probation, but testified Appellant failed to report.

       {¶4}   Via Judgment Entry of September 3, 2010, the trial court found Appellant

had violated the terms of his community control, and imposed the original two year

sentence of incarceration. Appellant now appeals, assigning as error:

       {¶5}   “I. THE TRIAL COURT ERRED IN FINDING APPELLANT VIOLATED HIS

COMMUNITY CONTROL BY FAILING TO REPORT TO HIS PROBATION OFFICER,

BECAUSE THIS FINDING WAS BASED ON EVIDENCE PRESENTED IN VIOLATION

OF APPELLANT’S DUE PROCESS RIGHT TO CONFRONT AND CROSS-EXAMINE

ADVERSE WITNESSES AS GUARANTEED BY THE FOURTEENTH AMENDMENT
Fairfield County, Case No. 10-CA-49                                                   3


TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE

OHIO CONSTITUTION.

       {¶6}   “II. THE TRIAL COURT ERRED IN FINDING APPELLANT VIOLATED

HIS COMMUNITY CONTROL BY COMMITTING ADDITIONAL CRIMINAL OFFENSES,

AS THIS FINDING WAS NOT SUPPORTED BY EVIDENCE PROVING THE

ADDITIONAL       OFFENSES        WERE      COMMITTED        DURING   THE   TERM     OF

APPELLANT’S COMMUNITY CONTROL, THUS APPELLANT WAS DENIED DUE

PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO

CONSTITUTION.”

                                                 II.

       {¶7}   We will address Appellant’s second assignment of error first as we find it

relevant in our analysis of Appellant’s first assigned error.

       {¶8}   Appellant argues the trial court erred in allowing the State to present

evidence Appellant was convicted of additional criminal offenses in another county while

on community control, because the State did not establish the crimes were committed

during the term of Appellant’s community of control.

       {¶9}   At the revocation hearing, the State presented two certified copies of

judgment entries from the Franklin County Common Pleas Court stating Appellant had

been convicted of obstructing justice and attempted burglary on February 23, 2010.

Appellant argues the State did not establish the two offenses were actually committed

by Appellant during the term of Appellant’s community control for the case herein in

Fairfield County.
Fairfield County, Case No. 10-CA-49                                                    4


        {¶10} At the revocation hearing, the trial court stated on the record,

        {¶11} “The Court finds, based on the evidence presented, that there is

substantial evidence of violation of community control and they would be a violation of

Term No. 5 alleging that Mr. Tingler failed to maintain good behavior and/or obey the

laws of the State of Ohio.

        {¶12} “The Court finds from the evidence that there is substantial evidence that

there were two convictions out of Franklin County, two felony convictions occurring on

February 23rd of 2010, and that those charges and convictions arose and were

concluded while Mr. Tingler was on community control for this case.”

        {¶13} Tr. at 39-40.

        {¶14} Additionally, at the revocation hearing, Appellant himself testified to his

incarceration in Franklin County and his failure to report pursuant to the terms of his

community control as a result thereof,

        {¶15} “Q. And let’s go back in time. How long have you been incarcerated all

together?

        {¶16} “A. Eight months.

        {¶17} “Q. Eight months. When were you - - this last time, when did you go into

jail?

        {¶18} “A. I went in January 1st.

        {¶19} “Q. January 1st, January 2nd?

        {¶20} “A. January 2nd, I’m sorry.

        {¶21} “Q. And what jail did you go to?

        {¶22} “A. Franklin County Jail.
Fairfield County, Case No. 10-CA-49                                                      5


        {¶23} “Q. The Franklin County Jail?

        {¶24} “A. Yes, sir.

        {¶25} “Q. And why did you go to the Franklin County Jail?

        {¶26} “A. For the charges in front of us today.

        {¶27} “Q. Okay. So you’ve been continuously incarcerated since that date?

        {¶28} “A. Yes, sir.

        {¶29} “Q. Okay. Do you know the last date you reported to your Adult Probation

Authority officer in Columbus?

        {¶30} “A. Yes, sir.

        {¶31} “Q. What date was that?

        {¶32} “A. It was - - exact day, I’m not sure, but it was roughly five or six months

prior to January of 2010.

        {¶33} “Q. Were you given terms and conditions for supervision in Franklin

County?

        {¶34} “A. Yes sir.

        {¶35} “Q. How many times did you meet with the Probation Department here in

Fairfield County?

        {¶36} “A. Two times.

        {¶37} “Q. Two times? And when was that?

        {¶38} “A. That was the day I was released from Fairfield County Jail and one

week later.

        {¶39} “Q. And when were you released from the Fairfield County Jail, do you

know?
Fairfield County, Case No. 10-CA-49                                                   6


       {¶40} “A. I believe it was November 20th. I believe that was the day I was

released. I believe that was the day I was placed on probation here.

       {¶41} “Q. Okay. And you met with them one time after that as well?

       {¶42} “A. Yes, a week later.”

       {¶43} Tr. at 33-34.

       {¶44} Also, on cross-examination, Appellant testified,

       {¶45} “Q. Okay. And that’s when you were incarcerated in Franklin County?

       {¶46} “A. Yes, ma’am.

       {¶47} “Q. Okay. And you were convicted of a fifth-degree felony, obstructing

justice; a third-degree felony, attempted burglary; and a fifth-degree felony, illegal

processing of drug documents?

       {¶48} “A. Yeah. It was the felony-five, obstruction, and they dropped the felony-

three, burglary, to a felony-four, attempted burglary. And they threw the illegal drug

documents out all together. So I pled out - - -

       {¶49} “Q. Not according to the court entries.

       {¶50} “But you have been convicted of two felonies. And what dates were you

convicted of those?

       {¶51} “A. I was convicted February 23rd.

       {¶52} “Q. Okay. And you were - - -

       {¶53} “A. The Court: What year?

       {¶54} “The Defendant: 2010.

       {¶55} “The Court: Okay.
Fairfield County, Case No. 10-CA-49                                                  7


       {¶56} “Q. And you were on probation on this particular case in Fairfield County

in February of 2010; correct?

       {¶57} “A. No, ma’am. I was under the impression that I was on probation in

Columbus, APA.

       {¶58} “Q. Okay. You were reporting to them, but it was probation because of the

felony in this county; correct?

       {¶59} “A. Yeah.”

       {¶60} Tr. at 38-39.

       {¶61} Upon review of the above, we find Appellant admitted to violating his

Fairfield County reporting requirement due to his incarceration in Franklin County.

Therefore, Appellant cannot demonstrate prejudice as a result of the alleged error. The

second assignment of error is overruled.

                                              I.

       {¶62} Based upon our analysis and disposition of Appellant’s second

assignment of error, we find Appellant’s first assignment of error moot under the two

issue rule.
Fairfield County, Case No. 10-CA-49                                                   8


      {¶63} The judgment of the Fairfield County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE
Fairfield County, Case No. 10-CA-49                                                  9


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
ROBERT S. TINGLER                          :
                                           :
       Defendant-Appellant                 :         Case No. 10-CA-49


       For the reason stated in our accompanying Opinion, the judgment of the Fairfield

County Court of Common Pleas is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ John W. Wise _____________________
                                           HON. JOHN W. WISE
