[Cite as State v. Anderson, 2012-Ohio-957.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                   :

        Plaintiff-Appellee                      :   C.A. CASE NO. 24657

vs.                                            :    T.C. CASE NO. 10CR1954

JACK ANDERSON                                   :   (Criminal Appeal from
                                                     Common Pleas Court)
        Defendant-Appellant                     :

                                       . . . . . . . . .

                                          O P I N I O N

                     Rendered on the 9th day of March, 2012.

                                       . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros.
Attorney, Atty. Reg. No. 0020084, P.O. Box 972, Dayton, OH 45422

        Attorney for Plaintiff-Appellee

Christopher B. Epley, Atty. Reg. No. 0070981, 124 East Third Street,
Suite 300, Dayton, OH 45402
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Jack Anderson, entered pleas of guilty to two counts of non-support

of his dependents in violation of R.C. 2919.21(B), which are felonies of the fourth degree.

The trial court sentenced Defendant to five years of community control sanctions, including

requirements that Defendant make regular child support payments and pay restitution on the
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accrued arrearage, attend the Seek Work Opportunities Program (SWOP) until employed,

attend Non-Support Court, and be placed on “No Breaks” status. Defendant was advised at

the time of sentencing that if he violated the terms of his community control he could be

sentenced to a prison term of eighteen months on each count, to be served consecutively.

       {¶ 2} On February 4, 2011, a notice of community control revocation was filed

alleging that Defendant had violated the terms of his community control by failing to pay any

child support since being granted community control, by failing to attend Non-Support Court,

by failing to attend the SWOP program, and by absconding and failing to report to his

probation officer. Following a hearing on May 9, 2011, the trial court found that Defendant

violated the terms of his community control. The trial court revoked Defendant’s community

control and sentenced him to consecutive prison terms of eighteen months on each count, for a

total sentence of thirty-six months.

       {¶ 3} Defendant timely appealed to this court from the trial court’s decision revoking

his community control and sentencing him to thirty-six months in prison.          Defendant’s

appellate counsel has filed an Anders brief, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,

19 L.Ed.2d 493 (1967), stating that he could find no meritorious issues for appellate review.

We notified Defendant of his appellate counsel’s representations and afforded him ample time

to file a pro se brief.    None has been received.      This case is now before us for our

independent review of the record. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d

300 (1988).

       {¶ 4} Defendant’s appellate counsel has identified two possible issues for appeal.

       FIRST ASSIGNMENT OF ERROR
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       {¶ 5} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REVOKED

APPELLANT’S PROBATION.”

       {¶ 6} In State v. Lewis, 2d Dist. Montgomery No. 23505, 2010-Ohio-3652 at ¶11, 12,

15, 21, we stated:

                “The right to continue on community control depends upon compliance

       with community control conditions and is a matter resting within the sound

       discretion of the court. Accordingly, we review the trial court's decision to

       revoke a defendant's community control for an abuse of discretion.” State v.

       Jackson, Montgomery App. No. 23458, 2010–Ohio–2836, ¶ 56, internal

       citations omitted. “Abuse of discretion has been defined as an attitude that is

       unreasonable, arbitrary, or unconscionable. It is to be expected that most

       instances of abuse of discretion will result in decisions that are simply

       unreasonable, rather than decisions that are unconscionable or arbitrary.” Id.,

       internal citations omitted.

       “Because a community control violation hearing is not a criminal trial, the State need

not prove a violation beyond a reasonable doubt. State v. Cofer, Montgomery App. No. 22798,

2009–Ohio–890, ¶ 12. ‘The State need only present substantial evidence of a violation of the

terms of a defendant's community control.’ Id.” State v. Brandon, Montgomery App. No.

23336, 2010–Ohio–1902, ¶ 17.

       *    *    *

                “R.C. 2929.15(B) provides a trial court with three options if an offender

       violates a condition or conditions of community control. State v. Belcher,
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       Lawrence App. No. 06CA32, 2007–Ohio–4256, ¶ 20. These are: (1) extend the

       terms of the community control sanction, (2) impose a prison term that does

       not exceed that prison term specified by the court at the offender's sentencing

       hearing; or (3) impose a stricter community control sanction. R.C.

       2929.15(B).”    State    v.   Palacio,    Ottawa    App.     No.    OT–07–015,

       2008–Ohio–2374, ¶ 8. A trial court's choice of sanction under R.C.

       2929.15(B), where the defendant has violated the conditions of community

       control, is subject to review on appeal under an abuse of discretion standard.

       Id.; State v. Wolfson, Lawrence App. No. 03CA25, 2004–Ohio–2750, ¶ 8.

       *   *   *

               The Supreme Court has recognized that R.C. 2929.15(B) affords a trial

       court “a great deal of latitude in sentencing the offender” for violations of the

       conditions of community control. State v. Brooks, 103 Ohio St.3d 134, 814

       N.E.2d 837, 2004–Ohio–4746, ¶ 20. “R.C. 2929.15(B) requires the court to

       consider both the seriousness of the original offense leading to the imposition

       of community control and the gravity of the community control violation.” Id.

       {¶ 7} The testimony of Defendant’s probation officer, Donnie Anderson, and

Defendant’s own admissions at the revocation hearing, support the trial court’s findings that

the State proved that Defendant violated his community control by failing to attend the SWOP

program, failing to verify his employment, making only one fifty dollar payment toward his

child support since being put on community control, failing to report for Non-Support Court

on November 15, 2010, and thereafter failing to report to his probation officer until after he
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was arrested on an absconder warrant in February 2011.          Defendant complained at the

revocation hearing that his probation officer did not adequately explain to him what he was

supposed to do on community control and that he has difficulty reading and writing. The

evidence demonstrates that Defendant graduated from Miamisburg High School and is a ASE

certified master auto mechanic. The trial court found that this is Defendant’s third or fourth

non-support case, and that his testimony “has no credibility whatsoever.”

       {¶ 8} We find no arguable merit in a contention that the trial court abused its

discretion in finding that Defendant violated the terms of his community control.

       SECOND ASSIGNMENT OF ERROR

       {¶ 9} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED

APPELLANT TO 36 MONTHS AT THE CORRECTIONS RECEPTION CENTER.”

       {¶ 10} Defendant argues that the trial court abused its discretion when it imposed as a

penalty for the violation of Defendant’s community control, consecutive prison terms, rather

than one of the other less severe sanctions available for community control violations, such as

extending the term of community control or imposing stricter community control sanctions.

R.C. 2929.15(B). The Ohio Supreme Court has recognized that R.C. 2929.15(B) affords a

trial court a great deal of latitude in sentencing the offender for violations of community

control, and requires the court to consider both the seriousness of the offense leading to

community control and the gravity of the community control violation. Brooks. In that

regard, the trial court noted that this is Defendant’s third or fourth felony non-support case,

and the court stated:

               Your conduct is beyond egregious. For various periods of time I’ve
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       been responsible for the non-support docket all told for about three years, and

       this is the most egregious circumstance I have ever seen where someone who

       has no excuse whatsoever makes a choice not to support his children and

       apparently would prefer to be in prison rather than make the effort to support

       his children.

       {¶ 11} In State v. Jeffrey Barker, 2nd Dist. Montgomery No. 22779, 2009-Ohio-3511,

at ¶36-37, we wrote:

              The trial court has full discretion to impose any sentence within the

       authorized statutory range, and the court is not required to make any findings

       or give its reasons for imposing maximum, consecutive, or more than

       minimum sentences. State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470,

       2006-Ohio-856, at paragraph 7 of the syllabus. Nevertheless, in exercising its

       discretion the trial court must consider the statutory policies that apply to every

       felony offense, including those set out in R.C. 2929.11 and 2929.12. State v.

       Mathis, 109 Ohio St.3d 54, 846 11 N.E.2d 1, 2006-Ohio-855, at ¶37.

              When reviewing felony sentences, an appellate court must first

       determine whether the sentencing court complied with all applicable rules and

       statutes in imposing the sentence, including R.C. 2929.11 and 2929.12, in

       order to find whether the sentence is contrary to law. State v. Kalish, 120

       Ohio St.3d 23, 896 N.E.2d 124, 2008-Ohio-4912. If the sentence is not clearly

       and convincingly contrary to law, the trial court's decision in imposing the term

       of imprisonment must be reviewed under an abuse of discretion standard. Id.
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          {¶ 12} The trial court stated that it had considered the purposes and principles of

sentencing, R.C. 2929.11, and the seriousness and recidivism factors, R.C. 2929.12. It is also

clear that the court reviewed Defendant’s presentence investigation report from this case.

The court heard oral statements from Defendant’s counsel, and informed Defendant about

post release control requirements. We further note that the eighteen month sentence the court

imposed on each offense is within the authorized range of available punishments for a felony

of the fourth degree, R.C. 2929.14(A)(4), and Defendant was told when the sanctions were

imposed that the terms could be served consecutively. Defendant’s sentence is not contrary

to law.

          {¶ 13} With respect to the severity of the sentence, this was the third or fourth time

Defendant has been convicted of non-support of his children. Defendant has served time in

prison on those previous offenses. Defendant has job skills and is not incapable of being

employed. He offers no legitimate excuse for not supporting his children. Rather, he chooses

to go to prison rather than work and support his children. Defendant’s criminal history

suggests that he is likely to commit future crimes. R.C. 2929.12(D)(2), (3), and (5).

          {¶ 14} The overriding purposes of felony sentencing are to protect the public from

future crime by the offender and to punish the offender. R.C. 2929.11(A). The trial court

has discretion to determine the most effective way to comply with the purposes and principles

of sentencing. R.C. 2929.12(A). We find no arguable merit in a contention that the trial

court abused its discretion in imposing consecutive eighteen month sentences in this case.

          {¶ 15} In addition to reviewing the possible issues for appeal raised by Defendant’s

appellate counsel, we have conducted an independent review of the trial court’s proceedings
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and have found no error having arguable merit. Accordingly, Defendant’s appeal is without

merit and the judgment of the trial court will be affirmed.




DONOVAN, J., And HALL, J., concur.




Copies mailed to:

Carley J. Ingram, Esq.
Christopher B. Epley, Esq.
Jack Anderson
Hon. Mary Katharine Huffman
