[Cite as State v. Lewis, 2011-Ohio-4603.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Julie A. Edwards, J.
-vs-
                                                  Case No. 2011 AP 01 0001
RICHARD M. LEWIS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court of
                                               New Philadelphia, Case No. TRD0605110A


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        September 12, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

RONALD L. COLLINS                              MARK A. PERLAKY
ASSISTANT PROSECUTOR                           TUSC. COUNTY PUBLIC DEFENDER
150 East High Avenue, Suite 113                153 North Broadway Street
New Philadelphia, Ohio 44663                   New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2011 AP 01 0001                                           2

Wise, J.

      {¶1}   Defendant-Appellant Richard M. Lewis appeals from the decision of the

New Philadelphia Municipal Court, Tuscarawas County, which imposed community

control sanctions following appellant’s arrest on an extradition warrant. The relevant

facts leading to this appeal are as follows.

      {¶2}   In August 2006, a vehicle driven by appellant collided with a motorcycle on

County Rd. 69 in Goshen Township, Tuscarawas County. Appellant was thereafter

cited with failure to yield on a left turn (R.C. 4511.42) and driving under a license

suspension (R.C. 4510.11(A)). On March 26, 2007, appellant pled no contest to both

charges and was thereupon found guilty. At a sentencing hearing on May 16, 2007, the

trial court sentenced appellant to 15 days in jail, with 165 days suspended for a two-

year term of probation supervision with conditions to pay restitution including any

outstanding medical bills incurred by the motorcycle rider in the collision, obtain an

alcohol abuse assessment, and maintain employment at all times.

      {¶3}   At the time of the accident, appellant was a resident of Williamsville, New

York. At the time of sentencing, appellant was living in La Mesa, California. He

apparently thereafter left Ohio after representing to probation officials that he had

steady employment in California.

      {¶4}   On or about September 17, 2008, a warrant was issued for appellant’s

arrest for failure to report to jail for 15 days as ordered.

      {¶5}   On November 4, 2010, appellant was arrested in the vicinity of San Diego,

California, on the charge of operating a vehicle while intoxicated.      Appellant was
Tuscarawas County, Case No. 2011 AP 01 0001                                            3


subsequently transported to New Philadelphia via an extradition on the aforesaid

warrant.

     {¶6}   Appellant was returned to the trial court for a hearing on November 15,

2010. The Tuscarawas County Public Defender was appointed to represent him. On

December 14, 2010, appellant admitted to violating his probation by failing to pay court

costs as ordered, failing to complete an assessment for alcohol abuse and complete

recommended treatment, failing to maintain employment at all times, and failing to

serve his 15 days in 2008. Appellant was thus found in violation of his probation and

was ordered to serve 165 days in jail. He was also ordered to not leave the State of

Ohio without permission of the court and to maintain employment. He was also ordered

to complete an assessment at an approved alcohol counseling agency and pay no less

than $3,000.00 every four months on past due restitution. Appellant’s probation was

further extended until May 2012.

     {¶7}   Appellant timely filed a notice of appeal. He herein raises the following two

Assignments of Error:

     {¶8}   “I. THE TRIAL COURT ERRED IN FORBIDDING APPELLANT FROM

LEAVING THE STATE OF OHIO AS SUCH DECISION WAS UNREASONABLY

RESTRICTIVE AS IT WAS ARBITRARY AND COMPLETELY UNRELATED TO THE

GOALS OF COMMUNITY CONTROL SANCTIONS.

     {¶9}   “II.   THE TRIAL COURT ERRED IN MANDATING THAT APPELLANT

LIVE AND WORK IN THE STATE OF OHIO, AS HE WAS NOT A RESIDENT OF

OHIO EITHER AT THE TIME OF THE OFFENSE OR AT THE TIME OF HIS
Tuscarawas County, Case No. 2011 AP 01 0001                                                4


PROBATION REVOCATION, AND THIS UNDULY INTERFERED WITH HIS

FUNDAMENTAL RIGHT TO TRAVEL.”

                                           I., II.

      {¶10} In his First and Second Assignments of Error, appellant contends the trial

court erred and violated his constitutional rights in forbidding him to leave the State of

Ohio without court permission as a condition of probation. We disagree.

      {¶11} A trial court has broad discretion in imposing additional requirements on

an offender as part of community control sanctions. State v. Culbertson, Ashtabula

App.No. 2006-A-0043, 2007-Ohio-1380, ¶7. But it is well-established that probation

cannot be overly broad so as to unnecessarily impinge upon a defendant's liberty.

State v. Meldrum, Stark App.No. 2001 CA00289, 2002-Ohio-1859, citing State v.

Maynard (1988), 47 Ohio App.3d 76, 547 N.E.2d 409. Thus, “[w]hile a trial court has

broad discretion in imposing probation conditions, that discretion is not limitless. * * * In

determining whether probation conditions are reasonably related to the statutory

purpose of probation and overbroad, a reviewing court should consider ‘whether the

condition (1) is reasonably related to rehabilitating the offender, (2) has some

relationship to the crime of which the offender was convicted, and (3) relates to

conduct which is criminal or reasonably related to future criminality and serves the

statutory ends of probation.’ ” State v. Coleman, Scioto App.No. 05CA3037, 2006-

Ohio-3200, ¶ 22, citing State v. Jones (1990), 49 Ohio St.3d 51, 52-53 (additional

citations omitted).

      {¶12} Among the fundamental rights under the United States Constitution is the

right to interstate travel. See Massachusetts Bd. of Retirement v. Murgia (1976), 427
Tuscarawas County, Case No. 2011 AP 01 0001                                                 5


U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520, f.n. 3. At least one Ohio appellate court

has determined that it is unconstitutional to impose a five-year probation condition that

an out-of-state offender not return to Ohio. See Casdorph v. Kohl (1993), 90 Ohio

App.3d 294, 295, 629 N.E.2d 34. However, this is the opposite of what occurred in the

case sub judice. Specifically, R.C. 2929.25(B)(2) states: “The sentencing court shall

require as a condition of any community control sanction that the offender abide by the

law and not leave the state without the permission of the court or the offender's

probation officer. ***.”

      {¶13} Appellant maintains that the trial court has provided no rationalization as

to why remaining and obtaining employment in Ohio for the duration of his probation

period is reasonably related to his rehabilitation or the traffic offenses for which he was

convicted. However, appellant’s view glosses over his actions upon his 2008

conviction. Appellant undisputedly went to California, where he failed to keep a job,

failed to follow up on an alcohol assessment, and paid nothing in restitution. It appears

that only extradition following an unrelated arrest in California compelled him to

seriously pay attention to his probation requirements in Ohio. Under these

circumstances, we are unable to find an abuse of discretion in the trial court’s ongoing

probation condition of remaining in Ohio. Furthermore, being mindful that enactments

of the Ohio General Assembly are presumed to be constitutional (see State v. Sinito

(1975), 43 Ohio St.2d 98, 101, 330 N.E.2d 8960), and having considered the

particulars of appellant’s probation under a case-by-case analysis, we find no merit in

appellant’s claim that his constitutional right to interstate travel has been violated in this

instance.
Tuscarawas County, Case No. 2011 AP 01 0001                                       6


      {¶14} Appellant’s First and Second Assignments of Error are therefore

overruled.

      {¶15} For the reasons stated in the foregoing opinion, the judgment of the New

Philadelphia Municipal Court, Tuscarawas County, is hereby affirmed.



By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.



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                                                             JUDGES
JWW/d 0823
Tuscarawas County, Case No. 2011 AP 01 0001                                   7


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




STATE OF OHIO                          :
                                       :
       Plaintiff-Appellee              :
                                       :
-vs-                                   :         JUDGMENT ENTRY
                                       :
RICHARD M. LEWIS                       :
                                       :
       Defendant-Appellant             :         Case No. 2011 AP 01 0001




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

judgment of the Municipal Court of New Philadelphia, Tuscarawas County, Ohio, is

affirmed.

       Costs assessed to appellant.




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                                                         JUDGES
