[Cite as State v. Schuttera, 2018-Ohio-3305.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :    JUDGES:
                                                :    Hon. John W. Wise, P.J.
        Plaintiff-Appellee                      :    Hon. Patricia A. Delaney, J.
                                                :    Hon. Earle E. Wise, Jr., J.
-vs-                                            :
                                                :
ANDREW SCHUTTERA                                :    Case No. 18-COA-007
                                                :
        Defendant-Appellant                     :    OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 15 CRI 001




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    August 15, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CHRISTOPHER R. TUNNELL                               RUTH R. FISCHBEIN-COHEN
110 Cottage Street                                   3552 Severn Road
Ashland, OH 44805                                    Cleveland, OH 44118
Ashland County, Case No. 18-COA-007                                                       2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Andrew Schuttera, appeals his January 17, 2018

sentence by the Court of Common Pleas of Ashland County, Ohio, on community control

violations. Plaintiff-Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On August 24, 2015, appellant pled guilty to one count of trafficking in heroin

in violation of R.C. 2925.03 and one count of tampering with evidence in violation of R.C.

2921.12. By judgment entry filed November 19, 2015, the trial court sentenced appellant

to six months in a community based correctional facility followed by three years of

supervised probation.

       {¶ 3} On December 8, 2017, appellant's probation officer filed a motion alleging

seven community control violations. Appellant pled guilty to three of them. A sanctions

hearing was held on January 8, 2018. By second nunc pro tunc judgment entry filed

January 17, 2018, the trial court sentenced appellant to thirty days in jail and ninety days

of house arrest with a passive GPS monitor.

       {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                               I

       {¶ 5} "IT WAS ERROR BY THE COURT NOT TO CONSIDER THE ORC 2929.12

FACTORS."
Ashland County, Case No. 18-COA-007                                                          3


                                                 I

       {¶ 6} In his sole assignment of error, appellant claims the trial court erred in not

considering the factors of R.C. 2929.12 in sanctioning him on his community control

violations. We disagree.

       {¶ 7} Appellant originally pled guilty to third and fourth degree felonies.          By

judgment entry filed November 19, 2015, the trial court sentenced appellant to six months

in jail pending his acceptance into a community based correctional facility.              Upon

acceptance into the facility and compliance with the program, any remaining jail time

would be suspended. The trial court also ordered three years of supervised probation.

The trial court specifically stated the following:



              The Court further ORDERS, based upon the statutory sentencing

       factors, that if the Defendant violates the conditions of this sanction, he will

       be ordered to serve 18 Months under the authority of the Ohio Department

       of Rehabilitation and Correction in an appropriate penal institution with

       regard to the Count Two offense of TRAFFICKING IN HEROIN, in violation

       of Ohio Revised Code Section 2925.03(A)(2), a felony of the fourth (4th)

       degree; and he will be ordered to serve 36 Months under the authority of

       the Ohio Department of Rehabilitation and Correction in an appropriate

       penal institution with regard to the Count Three offense of TAMPERING

       WITH     EVIDENCE,       in   violation   of   Ohio   Revised   Code   Section

       2921.12(A)(1), a felony of the third (3rd) degree.        The Court reserves

       jurisdiction to make specific findings and orders concerning whether, if
Ashland County, Case No. 18-COA-007                                                      4


      imposed, those prison terms shall be served concurrently or consecutively

      to one another.



      {¶ 8} The trial court noted it considered "the purposes of felony sentencing as set

forth in Section 2929.11 of the Ohio Revised Code," and "fully considered the provisions

of O.R.C. Chapter 2929, the circumstances of the offense, the information contained in

the pre-sentence investigation and the information furnished by the parties to this case."

Appellant did not appeal his sentence.

      {¶ 9} On December 26, 2017, appellant pled guilty to three community control

violations: 1) using marijuana; 2) breaking curfew; and 3) associating with an individual

who influenced him to engage in criminal activity. Two of the three were direct violations

of the November 19, 2015 sentencing order. R.C. 2929.13(B)(1)(d) states:



             A sentencing court may impose an additional penalty under division

      (B) of section 2929.15 of the Revised Code upon an offender sentenced to

      a community control sanction under division (B)(1)(a) of this section if the

      offender violates the conditions of the community control sanction, violates

      a law, or leaves the state without the permission of the court or the

      offender's probation officer.


      {¶ 10} R.C. 2929.15(B)(1) gives the trial court discretion to determine the most

appropriate way to deal with each individual who violates community control sanctions:
Ashland County, Case No. 18-COA-007                                                    5


            (B)(1) If the conditions of a community control sanction are violated

     or if the offender violates a law or leaves the state without the permission of

     the court or the offender's probation officer, the sentencing court may

     impose upon the violator one or more of the following penalties:

            (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 and division (B)(3) of this section, provided that a prison term

     imposed under this division is subject to the following limitations, as

     applicable:

            ***

            (ii) If the prison term is imposed for any technical violation of the

     conditions of a community control sanction imposed for a felony of the fourth

     degree that is not an offense of violence and is not a sexually oriented

     offense or for any violation of law committed while under a community

     control sanction imposed for such a felony that consists of a new criminal

     offense and that is not a felony, the prison term shall not exceed one

     hundred eighty days.



     {¶ 11} Subsection (B)(3) states:
Ashland County, Case No. 18-COA-007                                                           6




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

       (B)(1) of this section 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 division (B)(1) of this section

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

       initially imposed.



       {¶ 12} R.C. 2929.14(A)(3) provides for a prison term of "nine, twelve, eighteen,

twenty-four, thirty, or thirty-six months" for a felony of the third degree. R.C. 2929.14(A)(4)

provides for a prison term of "six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen,

fifteen, sixteen, seventeen, or eighteen months" for a felony of the fourth degree.

       {¶ 13} In this case, the trial judge who sentenced appellant in 2015 was the same

judge who held the sanctioning hearing after accepting appellant's admissions to violating

his community control.

       {¶ 14} During the January 8, 2018 sanctioning hearing, the trial court clearly

considered the mitigating factors offered by appellant. The trial court heard how appellant

was remorseful, was compliant for about a year and a half before violating, how he was

in the military and served for five years, suffered from PTSD which led to substance and
Ashland County, Case No. 18-COA-007                                                       7


alcohol abuse, and was committed to his treatment. T. at 3-5. The trial court heard

directly from appellant who explained he was not thinking when he associated with known

criminals, and had a mental lapse in breaking curfew. T. at 6-7. The trial court informed

appellant that he "put a lot of faith and trust in the recommendations of the Supervising

Officers," as they "are the ones that have the contact with you and can best decide how

you are going to respond," and found appellant remained "amenable to a Community

Control Sentence" and "Community Control won't demean the seriousness of your

offense." T. at 7-8.

       {¶ 15} In its second nunc pro tunc judgment entry filed January 17, 2018, the trial

court noted, "[b]ased upon the purposes and principles of the felony sentencing law of

Ohio and the information furnished to the Court at the hearing, the Court finds that the

Defendant is amenable to continuance of community control sanctions." The trial court

sentenced appellant to thirty days in jail and ninety days of house arrest with a passive

GPS monitor. This sanction was well under the permissible ranges and the specific prison

terms listed in the November 19, 2015 sentencing judgment entry provided to appellant.

       {¶ 16} In the 2015 sentencing judgment entry, the trial court stated it "notified the

Defendant of the consequences of a violation of community control," the consequences

of which were included in the entry and cited above. The trial court noted it reviewed the

presentence investigation report and fully considered the provisions of R.C. Chapter

2929. During the 2018 sanctions hearing, the trial court listened to the presentation of

defense counsel and the statements made by appellant, and found those arguments

persuasive. Even though appellant admitted to violations, the trial court continued his

community control sanction with some modifications.
Ashland County, Case No. 18-COA-007                                                      8


      {¶ 17} Upon review, we do not find a violation of R.C. 2929.11 and/or 2929.12 or

any abuse of discretion in the trial court's sanction for violating community control under

R.C. 2929.15.

      {¶ 18} The sole assignment of error is denied.

      {¶ 19} The judgment of the Court of Common Pleas of Ashland County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Wise, John, P.J. and

Delaney, J. concur.



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