[Cite as State v. Rue, 2019-Ohio-1720.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                   :         OPINION

                   Plaintiff-Appellee,            :
                                                            CASE NO. 2018-T-0092
         - vs -                                   :

 LAMONT MAURICE RUE,                              :

                   Defendant-Appellant.           :


 Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CR
 00774

 Judgment: Reversed and vacated.


 Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
 Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, Ohio
 44481-1092 (For Plaintiff-Appellee).

 Michael A. Partlow, 112 South Water Street, Suite C, Kent, Ohio 44240 (For Defendant-
 Appellant).



THOMAS R. WRIGHT, P.J.

        {¶1}      Appellant, Lamont Maurice Rue, appeals the trial court’s decision revoking

community control and imposing a two-year prison term. We reverse and vacate.

        {¶2}      Rue raises one assignment of error:

        {¶3}      “The trial court erred as a matter of law by sentencing appellant to a two-

year term of incarceration.”
       {¶4}    Rue asserts the trial court lacked jurisdiction to impose a prison term for a

community control violation because his community control had ended.               The state

contends Rue’s community control had not ended but instead was tolled based on his

failure to report to his probation officer.

       {¶5}    Whether a court has jurisdiction to hear a case is a matter of law that we

review de novo. State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St.3d 315,

2016-Ohio-478, 56 N.E.3d 913, ¶12.

       {¶6}    As Rue argues, a trial court generally lacks jurisdiction to revoke community

control upon the expiration of the term, and any revocation of community control and

sentence imposed thereafter must be vacated. R.C. 2929.15(A)(1); Davis v. Wolfe, 92

Ohio St.3d 549, 552, 751 N.E.2d 1051, 2001-Ohio-1281; State v. Wright, 2nd Dist. Darke

No. 05-CA-1678, 2006-Ohio-6067, ¶16.

       {¶7}    R.C. 2929.15(A)(1) states:

       {¶8}    “The duration of all community control sanctions imposed upon an offender

under this division shall not exceed five years. If the offender absconds or otherwise

leaves the jurisdiction of the court in which the offender resides without obtaining

permission from the court or the offender's probation officer to leave the jurisdiction of the

court, or if the offender is confined in any institution for the commission of any offense

while under a community control sanction, the period of the community control sanction

ceases to run until the offender is brought before the court for its further action.”

(Emphasis added).

       {¶9}    Thus, although a defendant’s community control supervision is not to

exceed five years, community control “ceases to run” “if the offender absconds.”




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       {¶10} The Supreme Court has held in addressing an analogous probation

violation case that a trial court “loses jurisdiction” to impose a sentence if “the state fails

to initiate probation violation proceedings during the original probation period * * *.” State

v. Yates, 58 Ohio St.3d 78, 80, 567 N.E.2d 1306 (1991). Yates adopted the holding of

the court of appeals reversing the trial court’s imposition of prison. It explained that a trial

court loses jurisdiction to prosecute a probation violation unless revocation proceedings

are instituted during the probationary period. Id. at 79.

       {¶11} Thus,      consistent     with    the    persuasive      authority    in    Yates,

community control is not automatically tolled upon a defendant’s “absconding” or his

failure to report to his probation officer, as the state argues. Instead, “[i]t is well settled

that when the state fails to initiate community control violation proceedings during the

original term of community control, the trial court loses its jurisdiction to extend that

sanction.” State v. Fairbank, 6th Dist. Wood No. WD-06-015, 2006-Ohio-6180, ¶11.

       {¶12} Further, the only reference in Yates is to the First District Court of Appeals’

decision in State v. Simpson, 2 Ohio App.3d 40, 440 N.E.2d 617 (1st Dist.1981). In

Simpson, the court of appeals addressed an appeal following the trial court’s sua sponte

extension of the defendant’s term of probation without the knowledge of the defendant,

and held:

       {¶13} “When a defendant is placed on probation and absconds prior to the

expiration of the probation period, but is not declared an absconder during such original

probation period for purposes of tolling the probation period, the sentencing court

cannot sua sponte extend defendant's period of probation without the knowledge of the

probationer, his written acknowledgment of unsatisfactory compliance with the conditions




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of his probation, or his assent to the extension thereof. Where no action is taken to

institute a probation violation hearing during the original probation period, the sentencing

court loses jurisdiction to impose the suspended sentence once the original probation

period expires.” Id. at syllabus.

       {¶14} And Simpson predominantly relies on two United States Supreme Court

decisions dealing with a parolee’s right to due process, including written notice and an

opportunity to be heard, when facing parole revocation. Id. at 41, citing Gagnon v.

Scarpelli , 411 U.S. 778, 93 S.Ct. 1756 (1973), and Morrissey v. Brewer, 408 U.S. 471,

92 S.Ct. 2593 (1972).

       {¶15} Furthermore, in 2011, the Ohio Supreme Court in dicta seemingly extended

its holding in Yates to community control revocation proceedings as well. State ex rel.

Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, 943 N.E.2d 1014. Upon affirming

the denial of a writ of prohibition, Unruh stated: “the [trial] court was authorized to conduct

proceedings on the alleged community-control violations even though they were

conducted after the expiration of the term of community control, provided that the notice

of violations was properly given and the revocation proceedings were commenced before

the expiration. See State v. Breckenridge, Franklin App. No. 09AP–95, 2009-Ohio-3620,

2009 WL 2196764, ¶7; State v. Semenchuk, Ross App. No. 10CA3140, 2010-Ohio-4864,

2010 WL 3904276, ¶6-7.” (Emphasis added.) Id. at ¶13. Thus, because the state

charged     Hemsley       with      a   community       control    violation    before     his

community control expired, it had jurisdiction to decide if a tolling event occurred, and as

such, a writ was not warranted because the trial court did not patently and unambiguously

lack jurisdiction to proceed. Id.




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       {¶16} Consistent with Unruh, the Fourth District Court of Appeals in State v.

Semenchuk, 4th Dist. Ross No. 10CA3140, 2010-Ohio-4864, ¶7, held that

community control “revocation proceedings held after expiration of the stated term of

community control” are permissible provided “that the notice of a violation and revocation

proceedings are commenced prior to the expiration.”

       {¶17} Notwithstanding the foregoing, the state urges us to affirm the court’s

decision based on the Ninth District Court of Appeals’ decision in State v. Meyer, 18

N.E.3d 805, 9th Dist. Summit No. 26999, 2014-Ohio-3705. Meyer also relies on the Ohio

Supreme Court’s decision in State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-

Ohio-226, 943 N.E.2d 1014, but as the Meyer dissent points out, the majority overlooks

Unruh’s statement in paragraph 13 that revocation proceedings must be commenced

before the term expires.

       {¶18} Instead, Meyer relies on Unruh’s statement that it was unclear whether the

defendant’s community control period had tolled due to possible absconding, and Meyer

held that a court may still adjudicate this issue even if the proceeding to revoke

community control are not instituted within the term of community control.                Meyer

explained that it is reasonable for a trial court to retain jurisdiction to determine if a tolling

event occurred. Id. at ¶16.

       {¶19} Meyer also heavily relies on the fact that unlike community control,

probation was governed by the now-repealed R.C. 2951.09, which read in part: “At the

end or termination of the period of probation, the jurisdiction of the judge or magistrate to

impose sentence ceases, and the defendant shall be discharged.” And because several




                                                5
cases relied on this repealed provision for holding that probation revocation proceedings

must be instituted prior to the expiration of the term, Meyer distinguished them.

       {¶20} However, and unlike the cases cited by Meyer, neither the Supreme Court

in Yates nor the court of appeals in Yates relies on this now-repealed provision. Further

and more importantly, Meyer does not address Yates, and it does not address the due

process concerns raised by Yates. Thus, we disagree with the holding in Meyer, and

follow Yates, as good and persuasive law.

       {¶21} Here, Rue pleaded guilty to burglary and was sentenced to five years

community control June 5, 2012. His community control was originally due to end June

5, 2017. Thereafter, the docket shows that two separate warrants were issued for his

arrest due to two separate probation violations.

       {¶22} The first warrant for Rue’s arrest was issued March 9, 2017. This violation

was addressed in the trial court’s April 27, 2017 judgment finding a probation violation

after an April 20, 2017 hearing.       The court’s decision does not state that Rue’s

community control was tolled due to absconding and consequently does not address how

long Rue’s community control tolled as a result.                The court orders Rue’s

community control to continue and imposes additional conditions that he make payments

toward restitution and continue on community control until restitution is paid in full.

       {¶23} Rue does not contest that he violated the terms of his community control in

2017 and concedes that his community control was tolled as a result. He asserts that his

community control was tolled from the date the court issued a bench warrant for his arrest

on March 9, 2017 until Rue was brought “before the court” on April 20, 2017, for a total of

42 days.




                                              6
          {¶24} The state, on the other hand, contends that Rue’s community control was

tolled for five months and 17 days, or 168 days, beginning November 3, 2016, the date

he initially failed to report to probation, until Rue was “brought before the court” on April

20, 2017.

          {¶25} The corresponding probation report for this first violation confirms that Rue

failed to report as required by the terms of his community control beginning November 3,

2016 and that a warrant for his arrest was issued. He was arrested on March 20, 2017

and brought before the court April 20, 2017. There is no motion to revoke or written notice

of a violation in the trial court’s file, but the docket confirms that a warrant was issued

March 9, 2017.

          {¶26} There is likewise no transcript before us of the April 20, 2017, violation

hearing,     but   regardless,   neither   party   contends   that   the   tolling   of   Rue’s

community control based on absconding was addressed at this first violation hearing.

          {¶27} Assuming Rue’s community control was tolled by the 168 days alleged by

the state, then his community control would have terminated November 20, 2017, or the

original termination date of June 5, 2017 plus 168 days.

          {¶28} Issues triggered by the foregoing, but that we do not decide here, include

(1) what is sufficient notice of a probation violation to satisfy due process concerns; (2) is

a notation on the docket that a warrant was issued for a probation violation sufficient to

“initiate” community control revocation proceedings; (3) does a trial court have to make

an explicit finding that a defendant absconded and that community control was tolled; (4)

and if so, must such an entry include the number of days that community control was

tolled?




                                               7
       {¶29} We do not decide the foregoing issues because none is outcome

determinative. Instead, we proceed under the best-case scenario for the state, and under

the assumption that Rue’s community control was tolled for 168 days as the state alleges,

based on his first probation violation.    And even proceeding on this assumption, the

state’s tolling argument fails because Rue’s community control ended before the second

probation violation proceedings were instituted against him.

       {¶30} For Rue’s second community control violation, a warrant was issued for his

arrest December 18, 2017, based in part on his failure to report to probation from June

20, 2017 until his arrest on July 17, 2018. He was “brought before the court” for this

violation   on      August   23,   2018.     Thus,   the   state   argues    that   Rue’s

community control “ceased to run” from the date he failed to report until he was brought

before the court.

       {¶31} The trial court held the second probation revocation hearing August 23,

2018, and Rue’s counsel argued the court lacked jurisdiction. The trial court disagreed,

stating in part that his community control was continued because he failed to pay

restitution. While a court can extend a defendant’s community control for the failure to

pay restitution, if paying restitution is a condition of community control, a court cannot

extend community control beyond the five-year limit in R.C. 2929.15(A)(1) for this reason.

State v. Sheesley, 9th Dist. No. Summit, 27585, 2015-Ohio-4565, 46 N.E.3d 1134, ¶7.

       {¶32} Upon addressing whether Rue’s community control was tolled and whether

the court had jurisdiction to revoke his community control, the following exchange

occurred:




                                             8
       {¶33} [Rue’s attorney]: “to clarify, we believe the max amount of community

control that could be imposed is five years, and that even with - - that it couldn’t be

extended beyond that five years. And the one month it was tolled for the previous warrant

would still have been expired before the second [probation] violation.

       {¶34} “THE COURT: The Court disagrees with you. It was continued as a

sanction for multiple violations before.”

       {¶35} Aside from its apparent finding on this issue at the hearing, the court’s

corresponding judgment is silent on tolling and whether it had jurisdiction to terminate

Rue’s community control. The trial court notes it considered the probation reports in its

judgment entry: “the Court has considered the record, the violations in the probation

status report * * *.” Although probation reports are hearsay, the Rules of Evidence do not

apply to community control proceedings. Evid.R. 101(A)(3).

       {¶36} Notwithstanding the trial court’s finding that it had jurisdiction to revoke

Rue’s community control, it did not. No community control revocation proceedings were

initiated with the court until after his community control expired. And even assuming the

December 18, 2017 warrant for Rue’s arrest was sufficient to initiate the revocation

proceedings, it was not issued until after Rue’s community control term had already

expired.

       {¶37} The trial court lacked jurisdiction to address Rue’s probation violations even

though they occurred during his period of community control because no

community control revocation proceedings were instituted during his term of supervision.

Yates, supra.       Had    the   violation   proceedings   been initiated before     Rue’s

community control expired, the trial court would have had jurisdiction to decide whether




                                              9
his community control tolled based on his failure to report or “absconding.” State v.

Johnson, 7th Dist. Mahoning No. 09-MA-94, 2010-Ohio-2533, ¶31.

      {¶38} Regardless of when the tolling events occur, “when no action is taken to

commence a probation violation hearing during the original probation period, the court's

subject matter jurisdiction ends when the period of probation ends. See, e.g., State v.

Jackson (1988), 56 Ohio App.3d 141, 565 N.E.2d 848; State v. Simpson (1991), 2 Ohio

App.3d 40, 440 N.E.2d 617; State v. Yates (1991), 58 Ohio St.3d 78, 567 N.E.2d

1306; and State v. Sapp (June 11, 1983), Wood App. No. 92WD094.” In re Walker, 10th

Dist. Franklin No. 02AP-421, 2003-Ohio-2137, ¶20.

      {¶39} Here, the state did not institute Rue’s community control revocation

proceedings for his second violation before the end of his term of community control.

Thus, the court was without jurisdiction to decide if tolling occurred or sentence Rue to

prison, and as such, we are required to reverse and vacate its decision imposing a two-

year prison term. State v. Craig, 8th Dist. Cuyahoga No. 84861, 2005-Ohio-1194, ¶7.

      {¶40} The trial court’s decision is reversed and vacated.



TIMOTHY P. CANNON, J.

MATT LYNCH, J.

concur.




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