[Cite as State v. Shipman, 2016-Ohio-3295.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



                                              :   JUDGES:
STATE OF OHIO                                 :   Hon. W. Scott Gwin, P. J.
                                              :   Hon. William B. Hoffman
                         Plaintiff-Appellee   :   Hon. John W. Wise, J.
                                              :
-vs-                                          :   Case No. 2016 AP 01 0002
                                              :
                                              :
CHELITA L. SHIPMAN                            :   OPINION

                    Defendant-Appellant



CHARACTER OF PROCEEDING:                           Criminal Appeal from the Court of
                                                   Common Pleas, Case No. 2014 CR
                                                   09 0207

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            June 3, 2016



APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

RYAN STYER                                         GERALD A. LATANICH
PROSECUTING ATTORNEY                               Public Defender
AMANDA K. MILLER                                   153 North Broadway
ASSISTANT PROSECUTOR                               New Philadelphia, Ohio 44663
125 East High Avenue
New Philadelphia, Ohio 44663
[Cite as State v. Shipman, 2016-Ohio-3295.]


Wise, J.,

        {¶1}    Defendant-Appellant Chelita L. Shipman appeals the decision of the

 Tuscarawas County Common Pleas Court imposing a prison sentence following a

 violation of community control sanctions.

        {¶2}    Plaintiff-Appellee is the state of Ohio.

                                STATEMENT OF THE FACTS AND CASE

        {¶3}    On July 15, 2015, Appellant Chelita L. Shipman was placed on Community

 Control Sanctions for 3 years, following a guilty plea on one count of Felony Theft, a

 felony of the 5th Degree. As a term of her Community Control Sanction, Appellant was

 ordered to successfully complete the SRCCC program. The sentencing entry also

 notified Appellant “[t]he Court will impose a twelve (12) month sentence in the

 appropriate State Penal Institution of the Ohio Department of Rehabilitation and

 Correction if the Community Control Sanctions imposed above are violated.”

        {¶4}    On December 22, 2015, a Motion to Revoke the Community Control

 Sanctions was filed alleging Appellant had been terminated from the Stark Regional

 Community Corrections Center.

        {¶5}    On January 4, 2016, the trial court held a hearing on the motion to revoke.

 At the hearing, Appellant admitted she had been terminated but disputed the

 underlying reasons for the termination.

        {¶6}    The trial court revoked the Community Control Sanctions and ordered

 Appellant to serve the remainder of her prison sentence: twelve (12) months with one

 hundred fifty-two (152) days credit.

        {¶7}    Appellant now appeals, assigning the following error for review:
Tuscarawas County Case No. 2016 AP 01 0002                                             3


                                 ASSIGNMENT OF ERROR

     {¶8}    “I. A COURT ERRS IN IMPOSING A PRISON SENTENCE ON A

MOTION TO REVOKE COMMUNITY CONTROL SANCTIONS WHEN IT BASES THE

DECISION ON THE APPELLANTS STATUS AT THE TIME OF THE ORIGINAL

SENTENCING NOT FOR THE COMMUNITY CONTROL SANCTION.”

                                               I.

     {¶9}    In her sole Assignment of Error, Appellant contends the trial court erred in

ordering her to serve the remainder of her prison sentence following a revocation of her

community control sanction. We disagree.

     {¶10} As explained by this Court in State v. Gullet, 5th Dist. Muskingum No.

CT2006–0010, 2006–Ohio–6564, ¶ 23, “[o]nce a court finds that a defendant violated

the terms of probation, the decision whether to revoke probation lies within the court's

sound discretion.” In order to find an abuse of discretion, we must determine the trial

court's decision was unreasonable, arbitrary or unconscionable and not merely an error

of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

     {¶11} Pursuant to R.C. §2929.15(B), if an offender violates a condition of

community control, a trial court may impose:

     (a) A longer time under the same sanction if the total time under the sanctions

     does not exceed the five-year limit specified in division (A) of this section;

     (b) A more restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the

     Revised Code;

     (c) A prison term on the offender pursuant to section 2929.14 of the Revised

     Code.
Tuscarawas County Case No. 2016 AP 01 0002                                              4


      {¶12} Subsection (B)(2) provides:

      The prison term, if any, imposed upon a violator pursuant to this division shall be

      within the range of prison terms available for the offense for which the sanction

      that was violated was imposed and shall not exceed the prison term specified in

      the notice provided to the offender at the sentencing hearing pursuant to division

      (B)(2) of section 2929.19 of the Revised Code. The court may reduce the longer

      period of time that the offender is required to spend under the longer sanction,

      the more restrictive sanction, or a prison term imposed pursuant to this division

      by the time the offender successfully spent under the sanction that was initially

      imposed.

      {¶13} The gravamen of this assignment is what mechanics or “magic words”

must a trial court use in revoking community control sanctions. Appellant argues the

trial court's original findings during the 2015 sentencing hearing are insufficient and a

fait accompli. Appellant argues the trial court must evaluate the community control

violation and determine the appropriate punishment under R.C. §2929.11 and

§2929.12 again. See State v. Jamerson, 5th Dist. Tuscarawas No. 2014 AP 09 0034,

2015-Ohio-2284, ¶¶ 8-11

      {¶14} In sentencing Appellant to three years of community control sanctions, the

trial court stated the following during the original sentencing hearing :

      "The factors under R.C. 2929.12 for increasing and decreasing seriousness are

      not present. The applicable factors under R.C. 2929.12 indicating that recidivism

      is more likely outweigh those indicating that recidivism is less likely." The court

      discussed in its sentencing entry the basis for its finding that recidivism was more
Tuscarawas County Case No. 2016 AP 01 0002                                             5


     likely including, "the offender has prior adjudications of delinquency," "the

     offender has a prior history of criminal convictions," "the offender has not been

     rehabilitated to a satisfactory degree," "the offender expresses no genuine

     remorse," and "the offender's ORAS score is ... high risk." The trial court chose to

     impose three years of community control sanctions with a relevant term being “4.

     That the Defendant successfully complete the S.R.C.C.C. Program and any

     recommended substance abuse treatment or counseling."

     {¶15} The sentencing entry then notified Appellant that, "[t]he Court will impose

a twelve (12) month sentence in the appropriate State Penal Institution of the Ohio

Department of Rehabilitation and Correction, if the Community Control Sanctions

imposed above are violated."

     {¶16} At the revocation hearing on January 4, 2016, the following exchange took

place:

     COURT: And knowing that, do you admit that on December fourteen, two

     thousand fifteen, you were unsatisfactorily terminated from the S-R-C-C-C

     treatment program?

     THE DEFENDANT: Yes.

     THE COURT: Okay. Thank you, you can be seated. Will find that Ms. Shipman

     knows and understands her rights, has voluntarily waived those rights. The

     conduct does violate the terms and conditions of supervision imposed by the

     Court on July thirteen, two thousand fifteen, as a term and condition of

     supervision. (T. at 3).

     {¶17} The trial court then imposed sentence as follows:
Tuscarawas County Case No. 2016 AP 01 0002                                                6


      THE COURT: Okay. Well, obviously if you snuck it in there, you knew it was the

      wrong thing to do. The, when I look back at the sentencing entry in this case from

      July, the, the opportunity to complete S-R-C-C-C was, was really your best

      chance at community sanctions. I know that your criminal history started from

      thirteen years old, you had even high level juvenile felonies, and a long history of

      Court involvement, prior incarceration. The offense in this case, the theft offense,

      was committed shortly after release from post-release control and you were, you

      presented with a very high risk score of thirty-five. All of those things really would

      have pointed to a prison term being imposed right out of the gate, and I gave you

      the opportunity to successfully complete this program. I, I'm going to find that it is

      appropriate to revoke the supervision and impose the twelve months with the one

      hundred fifty-two days credit, plus the Court costs in this case. And would remind

      you that post-release control is optional for up to three years. If you fail to follow

      post-release control supervision requirements, they could, the parole board could

      return you to prison for up to six additional months, or give you greater

      restrictions to follow while under supervision. If you commit a new felony offense

      while you're on post-release control, you risk having the additional time added to

      your sentence for the new felony. And, so while you're at the prison, you might be

      able to earn days of credit if you productively participate in their programming.

      That is something you can make further inquiry about when you get there. Okay.

      Thank you. (T. at 6-7).

      {¶18} Appellant argues that the trial court’s sentence is a punishment for

violating the court’s “contract for leniency”.
Tuscarawas County Case No. 2016 AP 01 0002                                           7


      {¶19} Upon review, we find Appellant’s argument not well-taken. The trial court

made references to Appellant’s prior history, her ORAS score, and the short time

period between the current theft offense and her release from post-release control in

another case. Based on the foregoing, we find that the trial court clearly reviewed the

sentencing purposes and the factors set forth in R.C. §2929.11 and §2929.12.

      {¶20} Appellant’s assignment of error is overruled.

      {¶21} The judgment of the Court of Common Pleas, Tuscarawas County, Ohio is

affirmed.



By: Wise, J.

Gwin, P.J., and

Hoffman, J., concur.



JWW/d 0517
