[Cite as State v. Jackson, 2012-Ohio-5132.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               DEFIANCE COUNTY



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 4-12-08

        v.

CYNTHIA I. JACKSON,                                       OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 4-12-09

        v.

CYNTHIA I. JACKSON,                                       OPINION

        DEFENDANT-APPELLANT.



                Appeals from Defiance County Common Pleas Court
                  Trial Court No. 10-CR-10908 and 08-CR-10243

                                     Judgments Affirmed

                           Date of Decision: November 5, 2012
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APPEARANCES:

         Terice A. Warncke for Appellant

         Morris J. Murray and Russell R. Herman for Appellee



PRESTON, J.

         {¶1} Defendant-appellant, Cynthia Jackson, appeals the Defiance County

Court of Common Pleas’ sentence of 39 months imprisonment following the

revocation of her community control. Jackson argues the trial court violated Ohio

felony sentencing statutes by sentencing her to community control and a prison

term, and that the trial court failed to properly consider the purposes and principles

for sentencing when it sentenced her to a prison term rather than residential

substance abuse treatment. For the reasons that follow, we affirm.

         {¶2} On June 6, 2008, a Defiance County grand jury indicted Jackson on

one count of illegal assembly or possession of chemicals for the manufacture of

drugs in violation of R.C. 2923.02 and 2925.041, a felony of the third degree.

(Case No. 08 CR 10243, Doc. No. 1).

         {¶3} On June 16, 2008, the trial court held an arraignment hearing. (Case

No. 08 CR 10243, Doc. No. 8). Jackson entered a plea of not guilty to the charge.

(Id.).




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         {¶4} On February 2, 2009, the trial court held a second hearing. (Case No.

08 CR 10243, Doc. No. 17). At that time, the State amended the indictment to

charge Jackson with attempted illegal assembly or possession of chemicals for the

manufacture of drugs, a felony of the fourth degree. (Id.). Jackson did not object

to the amendment and entered a plea of no contest to the offense. (Id.). The trial

court ordered a presentence investigation and set the case for a sentencing hearing.

(Id.).

         {¶5} On March 23, 2009, the trial court held a sentencing hearing. (Case

No. 08 CR 10243, Doc. No. 19). The trial court sentenced Jackson to three years

of community control with a reserved sentence of 17 months imprisonment. (Id.).

         {¶6} On February 24, 2010, the trial court held a hearing on the State’s

motion to revoke Jackson’s community control after Jackson admitted to using

methamphetamines. (Case No. 08 CR 10243, Doc. No. 21); (Feb. 24, 2010 Tr. at

7). Jackson waived her right to counsel and admitted she violated the conditions

of her community control. (Case No. 08 CR 10243, Doc. No. 21). The trial court

revoked Jackson’s community control and imposed the previously reserved 17

months imprisonment. (Id.).

         {¶7} On April 12, 2010, Jackson filed a motion for judicial release. (Case

No. 08 CR 10243, Doc. No. 22). On May 27, 2010, the trial court held a hearing

on Jackson’s motion. (Case No. 08 CR 10243, Doc. No. 26). The trial court


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granted Jackson judicial release, supervised Jackson’s judicial release with

community control sanctions for three years, and suspended the balance of the 17

months imprisonment previously imposed. (Id.).

       {¶8} On July 22, 2010, A Defiance County grand jury indicted Jackson on

one count of illegal assembly or possession of chemicals for the manufacture of

drugs in violation of R.C. 2925.04 and 2925.041, a felony of the third degree, one

count of aggravated possession of drugs in violation of R.C. 2925.11(A)(C)(1)(b),

a felony of the fifth degree, and one count of possession of cocaine in violation of

R.C. 2925.11(A)(C)(4)(a), a felony of the third degree. (Case No. 10 CR 10908,

Doc. No. 1).

       {¶9} On August 4, 2010, the trial court held an arraignment hearing. (Case

No. 10 CR 10908, Doc. No. 7). Jackson entered a plea of not guilty to the

charges. (Id.).

       {¶10} After several continuances, on May 11, 2011, the State amended

count two of the indictment to charge Jackson with aggravated possession of

drugs, a felony of the fifth degree, rather than a felony of the third degree, and

dismissed count one. (Case No. 10 CR 10908, Doc. No. 22); (July 12, 2012 Tr. at

6). Jackson changed her plea to no contest to counts two and three. (Case No. 10

CR 10908, Doc. No. 22).




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       {¶11} On July 12, 2011, the trial court held a sentencing hearing. (Case

No. 10 CR 10908, Doc. No. 24). The trial court sentenced Jackson to four years

of community control with a reserved sentence of 11 months imprisonment on

each count for a total reserved sentence of 22 months imprisonment. (Id.). The

trial court stated that the reserved 22-month prison term would be served

consecutively to the reserved prison term in case number 08 CR 10243 in the

event that Jackson violated her community control. (Id.).

       {¶12} On January 6, 2012, the State filed a motion to revoke Jackson’s

judicial release in Case No. 08 CR 10243 and community control in Case No. 10

CR 10908 because her urine sample had tested positive for methamphetamines.

(Case No. 08 CR 10243, Doc No. 28); (Case No. 10 CR 10908, Doc. No. 26).

       {¶13} On January 17, 2012, the trial court held a hearing on the State’s

motion. (Case No. 08 Cr 10243, Doc. No. 31); (Case No. 10 CR 10908, Doc. No.

29). Jackson was represented by counsel. (Id.); (Id.). Jackson waived her right to

a probable cause hearing and the trial court continued the matter for a final

adjudicatory hearing. (Id.); (Id.).

       {¶14} On January 30, 2012, the trial court held a final adjudicatory hearing

on the State’s motion to revoke Jackson’s judicial release and community control.

(Case No. 08 CR 10243, Doc. No. 32); (Case No. 10 CR 10908, Doc. No. 30).

Jackson admitted she had violated the terms of her judicial release and community


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control as the State had alleged in its motion. (Id.); (Id.). The trial court revoked

Jackson’s judicial release and community control and imposed the balance of the

previously reserved 17 months imprisonment in case number 08 CR 10243. (Id.);

(Id.).    The trial court also imposed the previously reserved 22 months

imprisonment in case number 10 CR 10908 and ordered Jackson to serve the terms

consecutively for a total of 39 months imprisonment. (Id.); (Id.). The trial court

filed its judgment entry on February 1, 2012. (Id.); (Id.).

         {¶15} On March 1, 2012, Jackson filed a notice of appeal for each case.

(Case No. 08 CR 10243, Doc. No. 37); (Case No. 10 CR 10908, Doc. No.35).

This Court consolidated the cases. Jackson now raises two assignments of error

for our review.

                             Assignment of Error No. I

         The court violated Ohio felony sentencing statutes by initially
         sentencing Cynthia Jackson to both prison and community
         control because community control and prison terms are
         mutually exclusive

         {¶16} In her first assignment of error, Jackson argues the trial court erred

by sentencing her to community control and imposing the reserved prison term

because Ohio law permits a court to sentence a defendant to either of the

sanctions, but not to both. Jackson contends that the trial court’s decision to

impose a prison term after she had already completed a period of community

control was contrary to law.

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       {¶17} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767,

¶ 23 (the clear and convincing evidence standard of review set forth under R.C.

2953.08(G)(2) remains viable with respect to those cases appealed under the

applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,

12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3d Dist. Nos.

1-04-38; 1-04-39, 2005-Ohio-1082, ¶ 19, citing R.C. 2953.08(G). Clear and

convincing evidence is that “which will produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus; State v. Boshko,

139 Ohio App.3d 827, 835 (12th Dist.2000). An appellate court should not,

however, substitute its judgment for that of the trial court because the trial court is

‘“clearly in the better position to judge the defendant’s dangerousness and to

ascertain the effect of the crimes on the victims.”’ State v. Watkins, 3d Dist. No.

2-04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400

(2001).

       {¶18} R.C. 2929.20 governs judicial release. The statute states:


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       If the court grants a motion for judicial release under this section, the

       court shall order the release of the eligible offender, shall place the

       eligible offender under an appropriate community control sanction,

       under appropriate conditions, and under the supervision of the

       department of probation serving the court and shall reserve the right

       to reimpose the sentence that it reduced if the offender violates the

       sanction. If the court reimposes the reduced sentence, it may do so

       either concurrently with, or consecutive to, any new sentence

       imposed upon the eligible offender as a result of the violation that is

       a new offense.

Id. In the present case, the trial court granted Jackson judicial release on May 27,

2010, supervised her judicial release with community control sanctions, and

suspended the remainder of her 17-month prison term in accordance with R.C.

2929.20. (Case No. 08 CR 10243, Doc. No. 26). While on judicial release,

Jackson committed two more offenses and was sentenced to community control in

case number 10 CR 10908. (Case No. 10 CR 10908, Doc. No. 24). Jackson then

violated the conditions of her community control as to the newer charges and

judicial release as to the older case by testing positive for an illegal drug. (Case

No. 08 CR 10243, Doc No. 28); (Case No. 10 CR 10908, Doc. No. 26). Both the

former version of R.C. 2929.15 and the current version of R.C. 2929.15 (after


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H.B. 86) permit a court to impose a prison term on an offender who violates the

conditions of a community control sanction. R.C. 2929.15; R.C. 2929.15, revised

by 2011 Am.Sub.H.B. No. 86. Additionally, R.C. 2929.20 permits a court to

reimpose a suspended sentence if an offender violates the terms of her judicial

release. In the present case, the trial court imposed the suspended sentence and the

reserved sentence as a result of Jackson’s violation of her community control and

judicial release with a positive test for methamphetamines. This Court fails to find

any error in the trial court’s imposition of a prison term based on the applicable

law.

       {¶19} Jackson argues her case is similar to State v. Hartman, 3d Dist. No.

15-10-11, 2012-Ohio-874. We disagree. In Hartman, this Court stated that after

S.B. 2, a trial court could not impose a prison sentence and community control

sanctions on the same offense. Id. at ¶ 6. This Court reversed the trial court’s

judgment because the trial court had imposed a prison sentence to run concurrently

with community control sanctions, and also reserved an additional prison term. Id.

at ¶ 8. This Court held that the trial court’s imposition of a prison term and

community control sanctions for the same offense was contrary to law.            Id.

However, in the present case, the trial court did not impose a prison term and

community control sanctions for the same offense. The trial court only imposed

community control sanctions and correctly notified Jackson of the length of the


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prison term the trial court would impose if Jackson violated her community

control sanctions. State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, ¶ 18.

Thus, the instant case is clearly distinguishable from Hartman and the trial court’s

actions were not contrary to law as Jackson claims.

       {¶20} Jackson’s first assignment of error is, therefore, overruled.

                            Assignment of Error No. II

       The court failed to properly consider the principles and
       purposes of sentencing when it denied Ms. Jackson’s request for
       residential substance abuse treatment

       {¶21} In her second assignment of error, Jackson argues the trial court

abused its discretion when it sentenced her to a prison term rather than a

residential substance abuse treatment facility. Jackson contends that the purposes

and principles for sentencing are to protect the public from the offender’s crimes

and to punish the offender. Jackson argues that in her case, she had harmed

herself and not the public with her drug abuse, so the purpose of sentencing should

be addressing her substance abuse issues.

       {¶22} When sentencing an offender, a trial court is required to consider the

sentencing purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12.

State v. Stone, 3d Dist. No. 9-11-39, 2012-Ohio-1895, ¶ 10, citing Foster, 109

Ohio St.3d 1, 2006-Ohio-856, ¶ 36-42.          R.C. 2929.12 contains a number of

factors, including that the trial court should consider whether:


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       [a]t the time of committing the offense, the offender was under

       release from confinement before trial or sentencing, under a sanction

       imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

       Revised Code, or under post-release control pursuant to section

       2967.28 or any other provision of the Revised Code for an earlier

       offense * * *.

R.C. 2929.12(D)(1). Furthermore, the sentence should be reasonably calculated to

achieve the overriding purposes of felony sentencing contained in R.C. 2929.11,

which are “to protect the public from future crimes by the offender and others and

to punish the offender, and shall be commensurate with and not demeaning to the

seriousness of the offender’s conduct and its impact upon the victim, and

consistent with sentences imposed for similar crimes committed by similar

offenders.” State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 8.

       {¶23} In the instant case, Jackson has been on community control for over

three years. During that period, she has admitted to violating the conditions of her

community control twice and has also committed two new offenses. Jackson’s

pre-sentence investigation (“PSI”) indicates that she has been attending counseling

since she was placed on community control. (PSI). Furthermore, one of the

requirements of her community control in case number 10 CR 10908 was that

Jackson should undergo drug, alcohol, and psychological treatment or counseling


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as directed by her supervising officer. (Case No. 10 CR 10908, Doc. No. 23). At

her January 30, 2012 disposition hearing following the revocation of her

community control and judicial release, Jackson requested that the trial court place

her in a residential treatment facility because she would like one more opportunity

to address her substance abuse issues. (Jan. 30, 2012 Tr. at 6). In response, the

trial court stated, “[i]t’s the discussion we had the last time * * *.” (Id.). Thus, the

trial court considered further treatment for Jackson, but determined she had not

responded to treatment over the previous three years and that her repeated

violations warranted a prison term. We cannot find that the trial court abused its

discretion given the facts in this case.

       {¶24} Jackson’s second assignment of error is, therefore, overruled.

       {¶25} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

                                                                 Judgments Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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