[Cite as State v. Hoxworth, 2014-Ohio-5453.]


                                       COURT OF APPEALS
                                     HOLMES COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. Patricia A. Delaney, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 14 CA 006
RICHARD HOXWORTH

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. 09 CRB 262


JUDGMENT:                                      Reversed



DATE OF JUDGMENT ENTRY:                        December 11, 2014



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHRISTINE C. WILLIAMS                          JEFFREY G. KELLOGG
ASSISTANT PROSECUTOR                           5 South Washington Street
164 East Jackson Street                        Millersburg, Ohio 44654
Millersburg, Ohio 44654
Holmes County, Case No. 14 CA 006                                                       2

Wise, P. J.

       {¶1}   Appellant Richard Hoxworth appeals the September 9, 2014, Judgment

Entry of the Holmes County Municipal Court denying his motion to dismiss the motion to

revoke probation.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   The undisputed facts are as follows:

       {¶3}   On July 14, 2009, Appellant Richard Hoxworth entered a no contest plea

to one count of aggravated menacing, a first degree misdemeanor. Appellant was

sentenced to 180 days in jail, with credit for time served. The balance of the jail term

was suspended, and Appellant was placed on probation for two (2) years.

       {¶4}   On January 12, 2010, a motion to revoke Appellant’s probation was filed

alleging that Appellant had failed to report as directed.

       {¶5}   On January 19, 2010, the probation violation was dismissed.

       {¶6}   On December 2, 2010, a new motion to revoke probation was filed

alleging that Appellant admitted to using illegal drugs and tested positive for same.

       {¶7}   On December 7, 2010, Appellant admitted to the probation violation.

Appellant’s probation was continued with an order to complete drug counseling.

Appellant’s new term of probation was for a period of three (3) years beginning

December 7, 2010.

       {¶8}   On November 14, 2012, a motion to revoke probation was filed alleging

that Appellant had failed to report as directed.
Holmes County, Case No. 14 CA 006                                                      3


       {¶9}   On December 18, 2012, Appellant admitted to the probation violation.

Appellant was again placed on probation for a three (3) year period beginning

December 18, 2012.

       {¶10} On August 6, 2014, another motion to revoke probation was filed alleging

Appellant failed to report as ordered and had failed to pay his probation fees.

       {¶11} On August 12, 2014, a probable cause hearing was held. At said hearing

Appellant’s probation officer testified. During his testimony, he admitted that Appellant

was originally placed on probation on July 14, 2009, and that the instant motion to

revoke filed August 6, 2014, was filed more than five (5) years from the date Appellant

was originally placed on probation.

       {¶12} On August 25, 2014, Appellant filed a motion to dismiss the motion to

revoke.

       {¶13} On August 26, 2014, an adjudicatory hearing was held in this matter. At

the conclusion of the hearing, the trial court denied Appellant’s motion to dismiss.

Appellant then entered an admission to the probation violation. Appellant was ordered

to serve 180 days in jail with credit for time served. The balance was suspended, and

Appellant was placed on probation for an additional year.

       {¶14} On September 9, 2014, a Judgment Entry was filed denying Appellant’s

motion to dismiss the motion to revoke probation.

       {¶15} It is from this judgment entry that Appellant now appeals, assigning the

following errors for review:
Holmes County, Case No. 14 CA 006                                                     4


                                   ASSIGNMENT OF ERROR

      {¶16} "I. THE TRIAL COURT ERRED AND THE DEFENDANT/APPELLANT

WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DENIED HIS MOTION

TO DISMISS THE MOTION TO REVOKE PROBATION.”

                                                 I.

      {¶17} In Appellant’s sole Assignment of Error he argues that the trial court erred

in denying his motion to dismiss the motion to revoke probation. We agree.

      {¶18} R.C. §2929.25 Misdemeanor community control sanctions, provides:

             (A)(1) Except as provided in sections 2929.22 and 2929.23 of the

      Revised Code or when a jail term is required by law, in sentencing an

      offender for a misdemeanor, other than a minor misdemeanor, the

      sentencing court may do either of the following:

             (a) Directly impose a sentence that consists of one or more

      community control sanctions authorized by section 2929.26, 2929.27, or

      2929.28 of the Revised Code. The court may impose any other conditions

      of release under a community control sanction that the court considers

      appropriate. If the court imposes a jail term upon the offender, the court

      may impose any community control sanction or combination of community

      control sanctions in addition to the jail term.

             (b) Impose a jail term under section 2929.24 of the Revised Code

      from the range of jail terms authorized under that section for the offense,

      suspend all or a portion of the jail term imposed, and place the offender

      under a community control sanction or combination of community control
Holmes County, Case No. 14 CA 006                                                       5


     sanctions authorized under section 2929.26, 2929.27, or 2929.28 of the

     Revised Code.

              (2) The duration of all community control sanctions imposed upon

     an offender and in effect for an offender at any time shall not exceed five

     years.

              (3) At sentencing, if a court directly imposes a community control

     sanction or combination of community control sanctions pursuant to

     division (A)(1)(a) or (B) of this section, the court shall state the duration of

     the community control sanctions imposed and shall notify the offender that

     if any of the conditions of the community control sanctions are violated the

     court may do any of the following:

              (a) Impose a longer time under the same community control

     sanction if the total time under all of the offender's community control

     sanctions does not exceed the five-year limit specified in division (A)(2) of

     this section;

              (b) Impose a more restrictive community control sanction under

     section 2929.26, 2929.27, or 2929.28 of the Revised Code, but the court

     is not required to impose any particular sanction or sanctions;

              (c) Impose a definite jail term from the range of jail terms authorized

     for the offense under section 2929.24 of the Revised Code.

              {¶19} R.C. §2951.07 provides:

              A community control sanction continues for the period that the

     judge or magistrate determines and, subject to the five-year limit specified
Holmes County, Case No. 14 CA 006                                                       6


      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

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

      court for its further action.

      {¶20} As set forth above, the total time of all community-control sanctions

imposed for a misdemeanor offense may not exceed five years. R.C. §2929.25(A)(2).

      {¶21} In this instant case, Appellant argues and the State concedes that the trial

court erred in extending his probation beyond the statutory five (5) year limit. Appellant

was initially placed on probation on July 14, 2009. No evidence was presented that the

term of probation was extended for any reason. The five-year limitation was up on July

14, 2014. The State’s motion to revoke probation was not filed until August 6, 2014,

after the expiration of the five-year maximum period.
Holmes County, Case No. 14 CA 006                                                 7


      {¶22} Based on the foregoing, we find that the trial court erred in denying

appellant's Motion to Dismiss. The judgment of the Municipal Court of Holmes County,

Ohio, is hereby reversed and Appellant’s probation is terminated.


By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.




JWW/d 1124
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