[Cite as State v. Telisman, 2016-Ohio-1303.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2015-L-074
        - vs -                                    :

STEVEN S. TELISMAN,                               :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 08 CR 000446.

Judgment: Reversed and remanded.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Harvey B. Bruner, Harvey B. Bruner Co., LPA, Hoyt Block Building, 700 West St. Clair
Avenue, Suite 110, Cleveland, OH 44113 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Steven S. Telisman, appeals from the judgment of the Lake

County Court of Common Pleas denying his “motion to terminate probation and lift

capias.” Because the state of Ohio concedes the merit of appellant’s assigned error, we

reverse the judgment of the trial court and remand the matter for further proceedings.

        {¶2}     In December 2008, appellant pleaded guilty to one count of attempted

extortion, in violation of Sections R.C. 2923.02 and R.C. 2905.11(A)(4), a felony of the
fifth degree. He was sentenced to 75 days in the county jail and a two-year term of

community control.      Appellant was subsequently detained by the Department of

Homeland Security. After hearings in federal court, appellant was deported from the

United States to Canada in March 2009.

       {¶3}   In May 2009, the state filed a motion to terminate appellant’s probation;

attached to the motion was an affidavit from the probation department alleging appellant

had violated two specific conditions of his probation. On July 9, 2010, the trial court

withdrew a previous order of arrest entered by the probation department and issued a

judicial warrant for appellant’s arrest.

       {¶4}   In February 2015, appellant filed a “motion to terminate probation and lift

capias.” The trial court denied the motion. Appellant failed to perfect an appeal within

the thirty-day window mandated by App.R. 4(A). This court later granted his motion for

leave to file a delayed appeal. Appellant assigns the following error:

       {¶5}   “The trial court’s denial of appellant’s motion to terminate probation and lift

capias was an abuse of discretion.”

       {¶6}   Appellant contends the trial court erred when it denied his motion to lift the

outstanding warrant without a hearing.      In particular, he asserts, as a result of his

deportation, he was unable to comply with community control conditions; hence, the trial

court’s refusal to hold a hearing on his motion was an abuse of discretion.

       {¶7}   The state notes the underlying motion to terminate probation and remove

the capias warrant emanated from the state’s initial motion to terminate community

control. The state further represents that, in the course of preparing for the underlying




                                             2
appeal, it has determined that it will not contest appellant’s argument and requests this

court to remand the matter to the trial court for further proceedings.

       {¶8}      Given the respective positions of the parties, we hold the trial court’s

judgment denying appellant’s motion should be reversed and remanded to the trial court

for a hearing.

       {¶9}      Appellant’s assignment of error has merit.

       {¶10} The judgment of the Lake County Court of Common Pleas is therefore

reversed and remanded for further proceedings.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




                                               3
