[Cite as State v. Thomas, 2011-Ohio-270.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :      JUDGES:
                                            :      Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                  :      Hon. Sheila G. Farmer, J.
                                            :      Hon. Patricia A. Delaney, J.
-vs-                                        :
                                            :
JEFFREY DAVID THOMAS                        :      Case No. 10CA79
                                            :
        Defendant-Appellant                 :      OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Court of Common Pleas,
                                                Case No. 07CR417




JUDGMENT:                                       Affirmed; Community Control Violation
                                                Journal Entry Vacated; Remanded




DATE OF JUDGMENT ENTRY:                         January 24, 2011




APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

ANDREW M. KVOCHICK                              WILLIAM C. FITHIAN, III
38 South Park Street                            111 North Main Street
Mansfield, OH 44902                             Mansfield, OH 44902
Richland County, Case No. 10CA79                                                       2

Farmer, J.

      {¶1}   On December 3, 2007, appellant, Jeffrey Thomas, was placed on

community control for a period of three years.

      {¶2}   On April 26, 2010, appellant was charged with violating his probation, to

wit: assaulting his uncle and father, resisting arrest, and damaging a police car. On

May 19, 2010, a probation revocation hearing was set for May 26, 2010. On May 20,

2010, appellant filed a request for a continuance of the hearing. The hearing proceeded

on May 26, 2010. During the hearing, appellant requested a continuance because of a

pending Municipal Court case in which appellant had filed a motion for a competency

evaluation. The trial court did not continue the hearing. By community control violation

journal entry filed May 26, 2010, the trial court sentenced appellant to two twelve month

prison terms, to be served consecutively.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶4}   "AT    THE     HEARING         CONCERNING      THE    REVOCATION        OF

APPELLANT'S COMMUNITY CONTROL, HE WAS DENIED DUE PROCESS OF LAW

AS REQUIRED BY THE FOURTEENTH AMENDMENT TO CONSTITUTION OF THE

UNITED STATES.       THE ISSUE CONCERNING APPELLANT'S COMPETENCY TO

ASSIST IN HIS OWN DEFENSE WAS RAISED, BUT NOT DETERMINED BY THE

TRIAL COURT."
Richland County, Case No. 10CA79                                                     3


                                             II

       {¶5}   "AFTER THE ISSUE OF APPELLANT'S COMPETENCY WAS RAISED,

THE COURT PROCEEDED AND COMMITTED REVERSIBLE ERROR IN THE

FOLLOWING WAYS: (A) THE COURT DID NOT CONDUCT THE HEARING AND

APPELLANT DID NOT KNOWINGLY WAIVE HIS RIGHT TO A HEARING; (B)

APPELLANT DID NOT ADMIT THAT HE VIOLATED THE TERMS OF HIS

PROBATION; AND (C) THE COURT DID NOT FIND THAT APPELLANT HAD

VIOLATED THE TERMS OF HIS PROBATION."

                                             III

       {¶6}   "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING

TO ADVISE APPELLANT OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL WHEN:

(A) COUNSEL FOR APPELLANT WAIVED APPELLANT'S RIGHT TO A HEARING

WITHOUT CLEAR INSTRUCTIONS FROM APPELLANT TO WAIVE HIS RIGHT TO A

HEARING."

                                              I

       {¶7}   Appellant claims the trial court erred in not conducting a competency

hearing prior to addressing his violations of his community control. We disagree.

       {¶8}   Appellant argues the requirements of R.C. 2945.37 (competence to stand

trial; raising of issue; procedures; municipal courts) are applicable sub judice.

       {¶9}   During appellant's probation violation hearing, defense counsel requested

a continuance because of a pending municipal court case:
Richland County, Case No. 10CA79                                                      4


       {¶10} "MR. STIFFLER: There has been a motion to continue filed based on the

municipal case.        I believe Cassie Mayer filed a request to have a competency

evaluation done. I didn't know if you were going to grant that or not.

       {¶11} "THE COURT: Never done a competency evaluation on a probation

violation.

       {¶12} "MR. STIFFLER: Your Honor, this is Jerry Thompson's case. I just have a

motion to continue based on the fact that she asked for a competency evaluation for a

not guilty by reason of insanity, which was the same incident I believe that is the

probation violation.

       {¶13} "***

       {¶14} "THE COURT: I have no idea why she did that. None of that has been

brought to my attention that I know of." May 26, 2010 T. at 3.

       {¶15} A motion for a competency evaluation was not filed with the trial court sub

judice. It was filed in the municipal court case, and that's what defense counsel was

relying on in requesting the continuance. The trial court did not grant the continuance

request.

       {¶16} The grant or denial of a continuance rests in the trial court's sound

discretion. State v. Unger (1981), 67 Ohio St.2d 65. In order to find an abuse of that

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217.

       {¶17} R.C. 2945.37(B) specifically addresses "competency" in terms of

competency to stand trial:
Richland County, Case No. 10CA79                                                            5


       {¶18} "In a criminal action in a court of common pleas, a county court, or a

municipal court, the court, prosecutor, or defense may raise the issue of the defendant's

competence to stand trial. If the issue is raised before the trial has commenced, the

court shall hold a hearing on the issue as provided in this section. If the issue is raised

after the trial has commenced, the court shall hold a hearing on the issue only for good

cause shown or on the court's own motion."

       {¶19} In State v. Bell (1990), 66 Ohio App. 3d 52, 56, this court stated, "due

process does not require a court to consider the defense of insanity in revocation

proceedings."

       {¶20} We conclude that appellant never requested a competency evaluation in

the probation violation proceedings, and it is not clear in the record whether a

competency evaluation or a not guilty by reason of insanity plea was involved in the

municipal court case.

       {¶21} Without a request for a competency evaluation, the trial court decision's to

not grant the continuance request was not an abuse of discretion.

       {¶22} Assignment of Error I is denied.

                                              II

       {¶23} Appellant claims the trial court erred in failing to conduct a hearing.

Specifically, appellant claims he did not knowingly waive his right to a hearing, he did

not admit to the probation violations, and the trial court failed to find that he had violated

his probation. We agree in part under the authority of State v. Baker, 119 Ohio St.3d

200, 2008-Ohio-3330.
Richland County, Case No. 10CA79                                                         6


       {¶24} Crim.R. 32.3 governs revocation of community release. Subsection (A)

states the following:

       {¶25} "(A) Hearing

       {¶26} "The court shall not impose a prison term for violation of the conditions of

a community control sanction or revoke probation except after a hearing at which the

defendant shall be present and apprised of the grounds on which action is proposed.

The defendant may be admitted to bail pending hearing."

       {¶27} There are several pages of dialogue between appellant, defense counsel,

and the trial court. The trial court repeatedly asked appellant if he wanted a hearing, but

appellant answered non-responsively. May 26, 2010 T. at 5-6. Eventually the following

exchange occurred:

       {¶28} "MR. STIFFLER: ***So you either can have a hearing on those issues or

you can admit to them. Do you want a hearing or do you want to make admissions?

       {¶29} "THE DEFENDANT: No, I say.

       {¶30} "MR. STIFFLER: You did do that?

       {¶31} "THE DEFENDANT: Yeah.

       {¶32} "MR. STIFFLER: All right. He will admit to the allegations, Your Honor.

       {¶33} "THE COURT: He admits he assaulted his father and his uncle?

       {¶34} "MR. STIFFLER: Yes.

       {¶35} "THE COURT: Okay. What do you want to say by way of explanation as

to why you assaulted your own father and your uncle? The police say when they came,

they heard him hollering for help.

       {¶36} "THE DEFENDANT: Heard him hollering for help?
Richland County, Case No. 10CA79                                                        7


       {¶37} "THE COURT: Yeah. Your uncle was down in the basement, and you

were beating him, and he was hollering for help.

       {¶38} "THE DEFENDANT: Well, he approached me a couple of times, even

before that. This has been a continuous thing between me and him.

       {¶39} "THE COURT: Between you and your uncle?

       {¶40} "THE DEFENDANT: Yeah. He, I don't know, I guess he likes starting

altercations. And I been trying to just chill and - -

       {¶41} "***

       {¶42} "THE COURT: And why did you assault your dad?

       {¶43} "THE DEFENDANT: Uhm, I don't know. I have no explanation for that

one." May 26, 2010 T. at 6-8, 9.

       {¶44} Although the trial court failed to state a finding in specific language, the

trial court did state the following:

       {¶45} "THE COURT: ***Whether or not there was some misunderstanding

between you and the police officers, you were assaulting not police officers in this case,

but your own family members, your own dad and your own uncle. So it is hardly the

sort of a thing I can keep you on probation for. I believe that the sentence I reserved

was 36 months, wasn't it?

       {¶46} "MR. TUNNELL: Yes, sir.

       {¶47} "THE COURT: Okay. You have not been to prison before. I am making it

12 months each count consecutive, 24 months prison term." May 26, 2010 at 11.

       {¶48} Upon review, we find the trial court did not err as argued by appellant

under this assignment of error. However, in reviewing the trial court's May 26, 2010
Richland County, Case No. 10CA79                                                          8

community control violation journal entry, we find it fails to comply with Baker, supra. In

Baker at syllabus, the Supreme Court of Ohio held the following:

         {¶49} "A judgment of conviction is a final appealable order under R.C. 2505.02

when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon

which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4)

entry on the journal by the clerk of court. (Crim.R.32(C), explained.)"

         {¶50} Under Baker, the journal entry sub judice does not comply with Crim.R.

32(C).

         {¶51} Assignment of Error II is granted in part. The May 26, 2010 community

control violation journal entry is vacated and the matter is remanded to the trial court for

re-sentencing pursuant to Baker.

                                             III

         {¶52} Appellant claims the trial court failed to advise him of his Sixth

Amendment right to counsel and to a hearing. We disagree.

         {¶53} Crim.R. 32.3(B) states the following:

         {¶54} "(B) Counsel

         {¶55} "The defendant shall have the right to be represented by retained counsel

and shall be so advised. Where a defendant convicted of a serious offense is unable to

obtain counsel, counsel shall be assigned to represent the defendant, unless the

defendant after being fully advised of his or her right to assigned counsel, knowingly,

intelligently, and voluntarily waives the right to counsel. Where a defendant convicted of

a petty offense is unable to obtain counsel, the court may assign counsel to represent

the defendant."
Richland County, Case No. 10CA79                                                        9


       {¶56} Appellant was afforded counsel as the transcript clearly indicates.

Counsel actively participated in the hearing. The fact that said counsel was standing in

for appellant's appointed counsel and represented him during the hearing did not violate

his right to counsel.

       {¶57} Appellant also argues the transcript indicates he did not fully appreciate

his waiver of the hearing. We disagree with this interpretation of appellant's admissions.

A full reading of the transcript indicates he understood his right to a hearing, and then

proceeded to argue in mitigation as to being "goaded" into the fight with his uncle. May

26, 2010 T. at 7-8.

       {¶58} Upon review, we find the trial court did not err as argued herein.

       {¶59} Assignment of Error III is denied.

       {¶60} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed, but the May 26, 2010 community control violation journal entry is

vacated and the matter is remanded to said court for re-sentencing pursuant to Baker.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.

                                             _s/ Sheila G. Farmer__________________


                                             s/ W. Scott Gwin_____________________


                                             s/ Patricia A. Delaney_________________

                                                       JUDGES


SGF/sg 105
Richland County, Case No. 10CA79                                                10


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :        JUDGMENT ENTRY
                                           :
JEFFREY DAVID THOMAS                       :
                                           :
       Defendant-Appellant                 :        CASE NO. 10CA79




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed, but the

May 26, 2010 community control violation journal entry is vacated and the matter is

remanded to said court for re-sentencing pursuant to State v. Baker, 119 Ohio St.3d

200, 2008-Ohio-3330. Costs to appellant.




                                           _s/ Sheila G. Farmer__________________


                                           s/ W. Scott Gwin_____________________


                                           s/ Patricia A. Delaney_________________

                                                    JUDGES
