[Cite as State v. Hanshaw, 2011-Ohio-6539.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. Willam B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Julie A. Edwards, J.
-vs-
                                                 Case No. 11CAA010004
RICHARD HANSHAW
AKA RICHARD ZIRN
                                                 OPINION
        Defendant-Appellant




CHARACTER OF PROCEEDING:                      Appeal from the Delaware County Common
                                              Pleas Court, Case No. 10-CRI-02-0125


JUDGMENT:                                     Affirmed, in part; Reversed, in part; and
                                              Remanded


DATE OF JUDGMENT ENTRY:                       December 12, 2011


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


CAROL HAMILTON O'BRIEN                        PHILLIP D. LEHMKUHL
Delaware County Prosecuting Attorney          101 North Mulberry Street
                                              Mount Vernon, Ohio 43050
DOUGLAS DUMOLT
Assistant Prosecuting Attorney
140 N. Sandusky St., 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 11CAA010004                                                2

Hoffman, P.J.


       {¶ 1} Defendant-appellant Richard Hanshaw, aka Richard Zirn, appeals his

sentence entered by the Delaware County Court of Common Pleas for violation of R.C.

2919.21(B), nonsupport of dependents. Plaintiff-appellee is the State of Ohio.

                                 STATEMENT OF THE CASE

       {¶ 2} On November 4, 2010, following a jury trial, Appellant was found guilty of

nonsupport of dependents, in violation of R.C. 2919.21(B). On November 10, 2010, the

trial court accepted the verdict and entered judgment on the verdict. On December 15,

2010, via Judgment Entry of Sentence, the trial court sentenced Appellant.          On

February 3, 2011, the trial court modified Appellant’s sentence reducing the sentence

imposed from ten days per month to six days per month to be served in two three-day

periods in jail. No other term of the original sentence was altered.

       {¶ 3} On January 13, 2011, Appellant filed a notice of appeal from the trial

court’s December 15, 2010 Judgment Entry, assigning as error:

       {¶ 4} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED A CONDITION OF

COMMUNITY CONTROL WHICH PROHIBITED THE DEFENDANT-APPELLANT

FROM PURCHASING ALCOHOLIC BEVERAGES OR ENTERING ANY PUBLIC OR

PRIVATE BUSINESS ESTABLISHMENTS WHERE ALCOHOLIC BEVERAGES ARE

SOLD OR CONSUMED, WITH THE EXCEPTION OF GROCERY STORES OR

RESTAURANTS.

       {¶ 5} “II. THE TRIAL COURT ERRED WHEN IT IMPOSED A CONDITION OF

COMMUNITY CONTROL WHICH PROHIBITED DEFENDANT-APPELLANT FROM

FILLING ANY PRESCRIPTION FOR A CONTROLLED SUBSTANCE, AS DEFINED IN
Delaware County, Case No. 11CAA010004                                                       3


SECTION      3719.01(D)      OF    THE     OHIO      REVISED      CODE,      UNLESS      SAID

PRESCRIPTION DRUG WAS PRE-APPROVED BY HIS PROBATION OFFICER.

       {¶ 6} “III. THE TRIAL COURT ERRED WHEN IT SENTENCED DEFENDANT-

APPELLANT, VIA THE MODIFIED SENTENCING ENTRY OF FEBRUARY 4, 2011 TO

SERVE THREE DAYS IN JAIL TWICE PER MONTH IF HE FAILED TO PAY CHILD

SUPPORT AND COURT COSTS DURING THE PRECEDING MONTH, ($345.00)

GIVEN THE STATUS OF THE DEFENDANT-APPELLANT AS AN UNEMPLOYED,

INDIGENT       DEFENDANT          WHO       SUFFERS         FROM       SERIOUS         HEALTH

AFFLICATIONS.”

                                               I. and II.

       {¶ 7} In the first and second assignments of error, Appellant appeals those

portions of the December 15, 2010 sentencing entry imposing the following conditions

upon Appellant’s community control:

       {¶ 8} “5. The defendant shall not purchase alcoholic beverages nor enter any

public or private business establishment, where alcoholic beverages are sold or

consumed, with the exception of grocery stores or restaurants.

       {¶ 9} “6. The defendant shall not consume or possess any controlled substance

as defined by Section 3719.01(D) of the Ohio Revised code.               The defendant shall

provide all prescriptions to his probation officer for pre-approval before filling.”

       {¶ 10} Appellant asserts the restrictions do not serve any rehabilitative purpose,

as neither alcohol nor prescription drugs played a role in the criminal conduct for which

he is convicted.
Delaware County, Case No. 11CAA010004                                                     4


       {¶ 11} Pursuant to R.C. 2951.02, the trial court is granted broad discretion in

setting conditions of probation. Specifically, R.C. 2951.02(C) provides “* * * [i]n the

interests of doing justice, rehabilitating the offender, and insuring his good behavior, the

court may impose additional requirements on the offender * * *. Compliance with the

additional requirements shall also be a condition of the offender's probation or other

suspension.” The courts' discretion in imposing conditions of probation is not limitless.

See State v. Livingston (1976), 53 Ohio App.2d 195, 196-197, 7 O.O.3d 258, 259, 372

N.E.2d 1335, 1337, citing United States v. Strada (D.C.Mo.1974), 393 F.Supp. 19;

People v. Dominguez (1967), 256 Cal.App.2d 623, 64 Cal.Rptr. 290; Williams v. State

(Tex.Crim.App.1975), 523 S.W.2d 953; see, also, Lakewood v. Davies (1987), 35 Ohio

App.3d 107, 519 N.E.2d 860, paragraph two of the syllabus. Such conditions cannot be

overly broad so as to unnecessarily impinge upon the probationer's liberty. See State v.

Maynard (1988), 47 Ohio App.3d 76, 547 N.E.2d 409.

       {¶ 12} In determining whether a condition of probation is related to the “interests

of doing justice, rehabilitating the offender, and insuring his good behavior,” courts

should consider whether the condition (1) is reasonably related to rehabilitating the

offender, (2) has some relationship to the crime of which the offender was convicted,

and (3) relates to conduct which is criminal or reasonably related to future criminality

and serves the statutory ends of probation. See, e.g., United States v. Tolla (C.A.2,

1986), 781 F.2d 29, 32-33; State v. Maynard, supra, at paragraph two of the syllabus;

State v. Livingston, supra; Howland v. Florida (Fla.App.1982), 420 So.2d 918, 919;

Rodriguez v. Florida (Fla.App.1979), 378 So.2d 7; Nitz v. State (Alaska App.1987), 745

P.2d 1379.
Delaware County, Case No. 11CAA010004                                                       5

       {¶ 13} In State v. Hicks, 1999 Ohio 916, the Third District Court of Appeals held:

       {¶ 14} “The court's discretion in imposing conditions of probation is not without

limit. State v. Livingston (1976), 53 Ohio App.2d 195, 372 N.E.2d 1335. The conditions

imposed by the trial court cannot be so overly broad as to impinge on the constitutional

rights of the probationer. State v. Maynard (1988), 47 Ohio App.3d 76, 547 N.E.2d 409.

       {¶ 15} “To determine if the trial court has indeed abused its discretion the

appellate courts should consider whether the condition has a relationship to the crime

for which the offender was convicted, whether the condition relates to conduct which is

not in itself criminal and whether the condition requires or forbids conduct which is not

reasonably related to future criminality or does not serve the statutory ends of probation.

State v. Jones (1990), 49 Ohio St.3d 51, 550 N.E.2d 469; State v. Livingston (1976), 53

Ohio App.2d 195, 372 N.E.2d 1335.

       {¶ 16} “The record reveals that Hicks was convicted of aggravated assault.

Therefore we consider whether or not the challenged condition of probation is related to

the crime of aggravated assault. The record before this court does not disclose any

reason why Hicks' hairstyle or body artistry might possibly be related to his crime of

aggravated assault. In fact, all the record does disclose is that Hicks acted upon an

emotional misunderstanding with his sister.

       {¶ 17} “The state suggests, however, that hairstyle and body artistry are indeed

related to the crime of aggravated assault. For ‘[i]t is well known that tattoos and body

piercing are obtained by adult males for purposes of making themselves appear macho

and fierce looking.’ We cannot take judicial notice of such a speculative and tenuous

connection of cause and effect, however. Thus, we have no basis for holding that Hicks'
Delaware County, Case No. 11CAA010004                                                      6


crime of aggravated assault is in anyway related to the condition of his probation

requiring approval from his probation officer regarding hairstyle and body artistry.

       {¶ 18} “The state has failed to provide evidence in the record connecting the

crime of aggravated assault to the challenged probation condition and none is self-

evident. Therefore, we conclude that the trial court abused its discretion by imposing

this probation condition upon Hicks. Appellant's Assignment of Error No. 1 is sustained.”

       {¶ 19} Appellant herein argues the conditions imposed as part of his probation do

not “rationally relate” to his crime of failure to pay child support, and are not reasonably

related to future criminality. We agree.

       {¶ 20} While the purchase of alcohol (a non-essential, debatably luxury item) or

abuse of controlled substances arguably may affect Appellant’s ability to pay child

support, we find the conditions are overly broad. Appellant’s inability to enter private

establishments serving alcohol other than grocery stores and restaurants is overly

broad, and may prohibit otherwise lawful activity.        Further, the condition requiring

Appellant’s probation officer to approve doctor prescriptions for controlled substances is

improper. We find those conditions are overly broad and restrictive beyond that which

is reasonably related to the crime for which Appellant is charged or to future criminality.

       {¶ 21} Appellant’s first and second assignments of error are sustained, in part.

                                                III.

       {¶ 22} In the third assignment of error, Appellant argues the trial court erred in its

February 4, 2011 entry modifying his sentence ordering Appellant to serve three days in

jail twice per month, and in imposing court costs because Appellant suffered from a

serious health condition.
Delaware County, Case No. 11CAA010004                                                  7


      {¶ 23} As set forth above, Appellant filed his notice of appeal in this Court from

the trial court’s December 15, 2010 Judgment Entry on January 13, 2011. Accordingly,

the entry was filed by the trial court after Appellant’s notice of appeal to this Court.

Appellant’s notice of appeal does not identify the February 4, 2011 entry as an entry

being appealed from. Further, despite Appellant’s mischaracterization of the entry as a

nunc pro tunc, the entry is in fact a modification of Appellant’s sentence.1 Accordingly,

we decline to review the merits of the argument raised.

      {¶ 24} The judgment of the Delaware County Court of Common Pleas is affirmed,

in part; reversed, in part; and remanded.

By: Hoffman, P.J.

Wise, J. and

Edwards, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ John W. Wise______________________
                                            HON. JOHN W. WISE


                                            s/ Julie A. Edwards___________________
                                            HON. JULIE A. EDWARDS




1
 We question whether the trial court had jurisdiction to enter its February 4, 2011 entry
during the pendency of the appeal, and also question, as does Appellee, the trial court’s
authority to change (modify) a sentence after entered.
Delaware County, Case No. 11CAA010004                                           8


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :         JUDGMENT ENTRY
                                        :
RICHARD HANSHAW                         :
AKA RICHARD ZIRN                        :
                                        :
       Defendant-Appellant              :         Case No. 11CAA010004


       For the reasons stated in our accompanying Opinion, the judgment of the

Delaware County Court of Common Pleas is affirmed, in part; reversed, in part; and

remanded for redetermination of Appellant’s community control conditions.   Costs

waived.




                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ John W. Wise______________________
                                        HON. JOHN W. WISE


                                        s/ Julie A. Edwards___________________
                                        HON. JULIE A. EDWARDS
