[Cite as State v. Gibby, 2014-Ohio-2921.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
MELINDA GIBBY                                :       Case No. 13-CA-81
                                             :
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Fairfield County
                                                     Court of Common Pleas, Case No.
                                                     05CR145



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    June 30, 2014



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

GREGG MARX                                           ANDREW T. SANDERSON
Prosecuting Attorney                                 Burkett & Sanderson, Inc.
                                                     118 West Chestnut Street, Suite B
By: JOCELYN S. KELLY                                 Lancaster, OH 43130
Chief Assistant Prosecuting Attorney,
Appellate Division
239 W. Main Street, Ste. 101
Lancaster, OH 43130
Fairfield County, Case No. 13-CA-81                                                    2




Baldwin, J.

      {¶1}      Appellant Melinda Gibby appeals a judgment of the Fairfield County

Common Pleas Court revoking her community control. Appellee is the State of Ohio.

                              STATEMENT OF FACTS AND CASE

      {¶2}      On January 14, 2005, appellant was indicted by the Fairfield County grand

jury on one count of possession of crack cocaine in Case No. 05CR12. On April 22,

2005, appellant was indicted on two counts of possession of crack cocaine and three

counts of trafficking in cocaine in Case No. 05CR145. The court consolidated the cases

on May 11, 2005.

      {¶3}      Appellant pled guilty to all counts on June 9, 2005. In Case No. 05CR145,

she was sentenced to 12 months incarceration on counts one and five, to run

concurrent with each other and concurrent with the sentences imposed on counts two,

three and four.     On counts two, three and four she was sentenced to 16 months

incarceration on each count, to be served consecutively. In case number 05CR12, she

was sentenced to 11 months incarceration, to be served consecutively to the 48 month

aggregate sentence imposed in Case No. 05CR145.

      {¶4}      The court granted appellant’s motion for judicial release on December 5,

2005, and placed her on community control for five years. On February 27, 2009,

modified community control stipulations and agreements were filed, stating her

remaining community control period to be 30 months.

      {¶5}      Appellant was incarcerated on unrelated charges from August 12, 2010, to

July 1, 2012.
Fairfield County, Case No. 13-CA-81                                                                               3


       {¶6}      Appellee filed a motion to revoke appellant’s community control on March

5, 2013. Hearing was set for May 6, 2013. Appellant filed a motion to continue the

hearing, which was granted. On June 17, 2013, appellant filed a motion to dismiss the

revocation proceedings on the basis that her community control period of supervision

expired on November 1, 2012.                 The trial court overruled the motion, finding that

appellant’s community control did not expire until August 1, 2013.

       {¶7}      The court held a hearing on the motion to revoke on September 30, 2013.

Appellant’s community control was thereafter revoked and she was sentenced to the 17

months of incarceration remaining on her prison sentence.

       {¶8}      Appellant assigns a single error on appeal:

       {¶9}      “THE TRIAL COURT COMMITTED HARMFUL ERROR IN FAILING TO

DISMISS THE PROBATION VIOLATION PROCEEDINGS HEREIN.”

       {¶10}     The trial court found that appellant was placed on a 30-month period of

community control beginning February 27, 2009. Appellant argues that because no

hearing took place and she was not present before the court when her probationary

period was extended, this extension is invalid.

       {¶11}     The docket reflects that courtroom proceedings were recorded on

February 26, 2009, for a re-entry court review hearing.1 The docket notation of this

hearing indicates that appellant spoke on the record at 9:09:10 a.m. The next day the

community control stipulations and agreements were filed by the court, and signed by

appellant and the judge.           The record before this Court on appeal does not include a

transcript of this hearing. In the absence of a transcript, we must presume regularity in

        1
          The reference to this hearing appears in the docket for Case No. 05CR12. When the court consolidated
Case No. 05CR145 with 05CR12, the court stated that all future pleadings should be filed under Case No. 05CR12.
Judgment Entry, May 11, 2005.
Fairfield County, Case No. 13-CA-81                                                      4

the proceedings. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384

(1980).

      {¶12}   The court found that appellant’s 30-month supervision time ran from

February 27, 2009 to June 17, 2010, or 475 days. The court found time was then tolled

from June 17, 2010 until June 21, 2010 due to the issuance of a capias for appellant’s

arrest. The court found time ran again from June 21, 2010 to August 12, 2010, or 52

days, and time was tolled again from August 12, 2010 to July 2, 2012 because appellant

was incarcerated. The court found that 246 days ran from July 2, 2012 to March 5,

2013, when a second capias was issued for appellant’s arrest. Time was tolled from

March 5 until March 27, 2013, and ran uninterrupted thereafter. The court found that as

of March 27, 2013, 127 days remained of appellant’s community control period, and the

motion to revoke that was filed on March 5, 2013, was therefore timely.

      {¶13}   Appellant concedes that time was tolled during her incarceration from

August 12, 2010, until July 2, 2012. However, she argues that time was not tolled on

the two occasions a capias was issued for her arrest because she was not found to be

an “absconder.”

      {¶14}   R.C. 2951.07 provides:

      {¶15}   ”A community control sanction continues for the period that the judge or

magistrate determines and, subject to the five-year limit specified in section 2929.15 or

2929.25 of the Revised Code, may be extended. If the offender under community

control absconds or otherwise leaves the jurisdiction of the court without permission

from the probation officer, the probation agency, or the court to do so, or if the offender

is confined in any institution for the commission of any offense, the period of community
Fairfield County, Case No. 13-CA-81                                                         5


control ceases to run until the time that the offender is brought before the court for its

further action.”

      {¶16}   In Rash v. Anderson, 80 Ohio St. 3d 349, 350, 686 N.E.2d 505 (1997), the

Ohio Supreme Court found that the issuance of a capias tolls the running of the

probationary period.    R.C. 2951.07 does not require that the probationer leave the

territorial jurisdiction of the court in order to “abscond” within the meaning of the statute.

In re Townsend, 51 Ohio St.3d 136, 554 N.E.2d 1336 (1990). Therefore, the issuance

of a capias for appellant’s arrest was sufficient to toll the time pursuant to R.C. 2951.07.

The trial court did not err in tolling the running of appellant’s community control period

during the two periods of time for which a capias had been issued for her arrest.

Therefore, the March 5, 2013, motion to revoke was filed while appellant was still on

community control.

      {¶17}   Appellant lastly argues that irrespective of whether the motion was filed

before her period of community control expired, the revocation hearing was not held

before her community control expired on August 1, 2013 pursuant to the court’s

calculation, and therefore the revocation was improper.

      {¶18}   Appellant cites this Court to our decision in State v. McKinney, 5th Dist.

Fairfield No. 03CA083, 2004-Ohio-4035, in which we held that the trial court was not

authorized to conduct revocation proceedings on a community control violation after the

period of community control had expired, even if the proceedings began before the

period of community control expired.       We relied on R.C. 2951.09, which has been

repealed, and on Davis v. Wolfe, 92 Ohio St. 3d 549, 751 N.E.2d 1051, 2001-Ohio-

1281. The Ohio Supreme Court has subsequently held that a trial court is authorized to
Fairfield County, Case No. 13-CA-81                                                 6


conduct proceedings on a community control violation, even though the proceedings

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

was given and revocation proceedings were commenced before the expiration of the

community control period. State ex rel. Hemsley v. Unruh, 128 Ohio St. 3d 307, 943

N.E.2d 1014, 2011-Ohio-226, ¶13. Because proceedings were commenced in March,

the trial court retained jurisdiction to conduct appellant’s revocation hearing in

September even though her community control expired in August.

      {¶19}   The assignment of error is overruled.    The judgment of the Fairfield

County Common Pleas Court is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Hoffman, P.J. and

Wise, J. concur.
