[Cite as State v. Fye, 2015-Ohio-4184.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102494



                                          STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                            RYAN FYE
                                                       DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-573673-A

        BEFORE:           Stewart, J., Jones, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: October 8, 2015
ATTORNEYS FOR APPELLANT

Michael E. Stepanik
Jack W. Bradley
Jack W. Bradley Co., L.P.A.
520 Broadway Avenue, 3rd Floor
Lorain, OH 44052


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Andrew T. Gatti
Frank Romeo Zeleznikar
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Ryan Fye requested that this appeal be placed on this

court’s accelerated calendar pursuant to App.R. 11.1 and Loc.R.11.1. By doing so, he has

agreed that we may render a decision in “brief and conclusionary form” consistent with

App.R. 11.1(E).

       {¶2} Fye pleaded guilty to one count of aggravated vehicular homicide and two

counts of aggravated vehicular assault.   At the time he entered his plea, he did so with

defense counsel’s understanding that “provided that [Fye] did not get into any trouble

either between [pleading guilty] and the time of sentencing and in the institution that the

Court would grant him judicial release after six months.”     The court accepted the plea

with no objection from the state and sentenced Fye to three years in prison.         After

serving six months of his prison term, Fye filed a motion for judicial release. The court

granted the motion over the state’s objection, placing Fye under community control and

ordering him, among other things, to “abide by the rules and regulations of the probation

department[.]” Nine days after releasing him, the court issued a capias for Fye’s arrest.

Following a hearing to determine whether Fye had violated the terms of community

control, the court revoked judicial release and ordered Fye to serve the remainder of his

original three-year sentence.
       {¶3} The impetus for revoking community control was a message that Fye posted

on a private account with the social network Facebook.    That message, made the day the

court granted his motion for judicial release, stated:

       Prison didn’t break me. It made me. Don’t come at me like before.
       Yes im [sic] skinny and muscular now. 7 months of working out
       everyday. Love my real friends and fam. Shout outs to my fam behind
       bars. I’ll see ya when youre [sic] time is near! Miss you brothers!

This message was posted below a picture of Fye extending both of his middle fingers.

One week after the post, Fye had his first meeting with his probation officer and

acknowledged by signature the rules of probation and community control.1 Rule No. 2

states that “[u]pon reporting to the Probation Department and when in Court you shall

conduct yourself in an orderly manner.”          After Fye acknowledged the rules, the

probation officer and prosecuting attorney’s office reported Fye’s Facebook post as a

violation of the rules of community control.




          The state maintains that Fye had his first meeting with the probation
       1


officer on December 9, 2014, at 3:33 p.m., before he posted the Facebook message.
As proof of that assertion, it has appended as Exhibit A to its brief what appears to
be a screen capture of Fye’s probation department file. This document is not part
of the record on appeal so we cannot consider it. State v. Ishmail, 54 Ohio St.2d
402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. We further note that
the state’s representation that it filed a motion to supplement the record with this
exhibit is not borne out by the record on appeal — there is nothing in the appellate
docket to show that the state filed a motion to supplement the record on appeal.
       {¶4} Fye’s three assignments of error complain that the court revoked his

community control without explanation, for an invalid reason, and based on conduct that

he claims was constitutionally protected. We agree with Fye that the Facebook posting

did not constitute a violation of rule No. 2 of the rules of probation and community

control because that post was not conduct occurring upon his reporting to the probation

department or when in court.

       {¶5} Rules, regardless of type or kind, must be interpreted according to their plain

and ordinary meaning. State v. Silverman, 121 Ohio St.3d 581, 2009-Ohio-1576, 906

N.E.2d 427, ¶ 20-26; State ex rel. Brilliant Elec. Sign Co. v. Indus. Comm., 57 Ohio St.2d

51, 54, 386 N.E.2d 1107 (1979). Rule No. 2 requires that the probationer, “[u]pon

reporting to the Probation Department and when in Court,” act in an orderly manner.

The rule plainly defines the conduct expected of a probationer when the probationer is

present before the probation department or the court.   This interpretation gives meaning

to words “upon reporting” in the context of the probation department and “when in

Court.”

       {¶6} The Facebook post was not made when Fye was present when reporting to

the probation department nor did Fye make the post when in court, so by its express

terms, rule No. 2 did not apply to Fye’s conduct.
       {¶7} The state argues that we should not give rule No. 2 a literal interpretation, but

should instead apply rule No. 2 “realistically” to find that Fye’s duty to conduct his affairs

in an “orderly manner” applies at all times, regardless of whether he is before the

probation department or the court.    For the state to make this argument is to concede that

the court did not give rule No. 2 its plain and unambiguous meaning. In any event, the

state’s suggestion that we give rule No. 2 a “realistic” interpretation goes far beyond the

express terms of what the rule requires:

       The State is asking the Court to interpret Rule #2 realistically — after
       reporting to the probation department probationers should conduct
       themselves in an orderly fashion at all times, whether in court, at the mall,
       or in the probation department.

Appellee’s brief at 3-4.

       {¶8} By injecting “at the mall” into what it believes the rule covers, the state seeks

to transform a rule that, by its own terms, covers conduct occurring only before the

probation department or in court into a rule that applies anywhere, at any time.     What is

more, the state’s expansive interpretation of rule No. 2 is unnecessary because it overlaps

other rules of probation and community control that apply to a probationer’s conduct: rule

No. 4 bars the use of drugs and alcohol; rule No. 7 bars association with persons having

known criminal records; and rule No. 10 requires the probationer to “obey all local, state,

and federal laws.”    The probationer’s conduct defined by these rules is such that the

state’s interpretation of rule No. 2 would render it redundant.     See E. Ohio Gas Co. v.

Pub. Util. Comm., 39 Ohio St.3d 295, 299, 530 N.E.2d 875 (1988) (“words in statutes

should not be construed to be redundant.”).
       {¶9} A court’s decision to revoke community control is analyzed under an abuse of

discretion standard.   State v. Groce, 8th Dist. Cuyahoga No. 97736, 2012-Ohio-5171, ¶

13. But the interpretation of a statute or rule is a question of law, State v. Vanzandt, 142

Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 6, and a court has no discretion to

commit an error of law.           State v. Beechler, 2d Dist. Clark No. 09-CA-54,

2010-Ohio-1900, ¶ 70.       The court erred as a matter of law by concluding that a

Facebook posting made outside the confines of the probation department or court

constituted a violation of rule No. 2 as a grounds for revoking community control.

       {¶10} We therefore sustain Fye’s first assignment. Doing so renders unnecessary

any discussion of whether the Facebook post constituted the exercise of a constitutionally

protected right — we must avoid deciding cases on constitutional grounds if

nonconstitutional grounds exist for reversal.       State v. Talty, 103 Ohio St.3d 177,

2004-Ohio-4888, 814 N.E.2d 1201, ¶ 9. And our conclusion that there was no violation

of rule No. 2 renders moot any consideration of Fye’s argument that the court revoked his

community control without providing a written explanation. See App.R. 12(A)(1)(c).

       {¶11} Judgment reversed and remanded.

       This cause is reversed and remanded to the trial court for further proceedings

consistent with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, JUDGE

LARRY A. JONES SR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR
