[Cite as State v. Eisele, 2014-Ohio-662.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                       :   Hon. William B. Hoffman, J.
                                                :   Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :   Case No. 2013CA00037
                                                :
DENNIS WAYNE EISELE                             :
                                                :
                                                :
       Defendant-Appellant                      :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court of
                                                    Common Pleas 2012CR0438



JUDGMENT:                                           AFFIRMED IN PART, REVERSED IN
                                                    PART, AND REMANDED


DATE OF JUDGMENT ENTRY:                             February 18, 2014




APPEARANCES:

For Plaintiff-Appellee:                             For Defendant-Appellant:

JOHN D. FERRERO, JR.                                KRISTINE W. BEARD
STARK CO. PROSECUTOR                                4450 Belden Village St. NW
RONALD MARK CALDWELL                                Suite 703
110 Central Plaza South, Ste. 510                   Canton, OH 44718
Canton, OH 44702-1413
Stark County, Case No. 2013CA00037                                                    2

Delaney, J.

        {¶1} Appellant Dennis Wayne Eisele appeals from the October 24, 2012

judgment entries of the Stark County Court of Common Pleas. Appellee is the state of

Ohio.

                         FACTS AND PROCEDURAL HISTORY

        {¶2} A statement of the facts underlying appellant’s criminal convictions is not

necessary to our resolution of this appeal. Appellant was charged by indictment with

one count each of inducing panic [R.C. 2917.31(A)(1)(C)(6), a felony of the fourth

degree], menacing by stalking [R.C. 2903.211(A)(1)(B)(2)(b), a felony of the fourth

degree], and telecommunications harassment [R.C. 2917.21(A)(2), a felony of the fifth

degree]. He ultimately entered pleas of guilty to the charges, although the count of

inducing panic was amended to a misdemeanor of the first degree [R.C. 2917.31(A)(1)].

        {¶3} Upon completion of a pre-sentence investigation, on July 23, 2012, the

trial court sentenced appellant to a three-year term of community control. The terms

and conditions of appellant’s community control relevant to this appeal include the

following:

              1.   [Appellant] shall obey all federal, state, and local laws and

              ordinances * * * including all orders, rules and regulations of Stark

              County Common Pleas Court or the Department of Rehabilitation

              and Correction. The conduct of [appellant] shall at all times be as a

              responsible law abiding citizen. * * * *.

              * * * *.

              16. [Appellant] shall follow the following Special Conditions:
Stark County, Case No. 2013CA00037                                                   3


             b.   That [appellant] shall comply with the Intensive Supervision

             Probation Program as directed by his probation officer. * * * *.

             f. That [appellant] shall have no contact directly or indirectly with

             Robyn Music [appellant’s former roommate] or Julie McLaughlin

             [the victim of the criminal offenses].

             * * * *.

             i. That [appellant] shall not have a pager, scanner, or cell phone.

             j. That [appellant] shall not have access to any spoofing devices.

             * * * *.

             l. That [appellant] shall abstain from drugs and alcohol and shall

             not frequent establishments where alcohol is served as a primary

             source of business.

             * * * *.

      {¶4} On August 3, 2012, appellant filed a “Motion to Reconsider Sentence” in

which he asked the trial court to modify its order prohibiting him from having a cell

phone. Appellant’s motion states he requires a cell phone to enable him to contact

emergency services because he is blind, and further states in pertinent part:

             * * * *. [Appellant] understands the nature of the charges he was

             sentenced for and agrees that some restrictions are reasonably

             related to the charges. For example, [appellant] does not contest

             the prohibition against spoofing devices. Also, [appellant] would

             not object to being limited to the number of cell phones and that he
Stark County, Case No. 2013CA00037                                                      4


              be required to keep his probation officer informed of any

              telecommunication device that he uses. * * * *.

        {¶5} Appellant’s motion was not ruled upon. On August 7, 2012, appellant’s

probation officer filed a Motion to Revoke Probation of Modify Former Order alleging

appellant violated Condition 1, supra, by possessing both a Utah state identification

card and an Ohio state identification card and having “made questionable statements, of

a criminal nature, which raised concerns in regards to his supervision in the community

and his current housing.” The motion further alleged a violation of Rule 16b, supra:

“[appellant] made statements to Probation Officers that he knew ways around our rules

of probation,” and Rule 16i, supra: he possessed a cell phone.

        {¶6} The trial court held a revocation proceeding on October 17, 2012.

Appellee’s first witness was a Stark County Sheriff’s deputy who transported appellant

between court and the county jail. She testified she was transporting appellant on

October 10, 2012 when she overheard him say his roommate had “rolled” on him and

he was going to “get” her.      The deputy knew appellant was the speaker because

another prisoner commented, “How are you going to do that? You’re blind.” Appellant

stated again “She doesn’t want me to come to Medina County because I’m going to get

her.”

        {¶7} Appellant’s probation officer, Shelley Wolf, testified she met with appellant

on July 26, 2012 and read the rules of probation to him, which he acknowledged in

writing. Appellant was released to live with a “friend of a friend” in Alliance. Between
Stark County, Case No. 2013CA00037                                                      5


August 3 and August 6, however, Wolf received numerous calls from the roommate1

asking that appellant be removed. The caller told Wolf appellant offered to buy alcohol

for the roommate’s 12-year-old son.

       {¶8} On August 7, Wolf went to the house to talk to appellant. Wolf found a cell

phone and charger in the bedroom used by appellant, next to the air mattress he slept

on. Appellant said the phone didn’t belong to him but admitted someone gave it to him

to use until the judge allowed him to get his own. Wolf asked appellant about the

statement regarding buying alcohol for a 12-year-old, and appellant said it was

“misconstrued.”    Appellant told Wolf he was smart enough to get around the rules of

probation and showed her state I.D. cards from both Utah and Ohio.

       {¶9} On cross examination Wolf was asked why appellant was permitted to

have access to a land line but not a cell phone. She responded that the matter was up

to the court’s discretion but she believed it was more difficult to use “spoofing” devices

on a land line. Wolf knew appellant wanted a cell phone but told him he couldn’t have

one unless the trial court modified the rules of probation. Appellant told Wolf he needed

to keep the cell phone to maintain his employment as a part-time phone sex operator.

       {¶10} Appellant testified on his own behalf at the revocation hearing. He said he

meant he would “get” his former roommate in a legal sense: he wanted her prosecuted

for the same crimes he was charged with. He was not aware he wasn’t allowed to have

two state I.D.s in his possession. He admitted he borrowed a cell phone because the

house he was staying at had no land line and he needs a phone for medical reasons



1
  This roommate was referred to as “Kelly” at the hearing and is apparently a different
roommate than the object of appellant’s threats to “get” his former roommate, Robyn
Music.
Stark County, Case No. 2013CA00037                                                    6


and to contact someone regarding employment. Finally, appellant claimed he merely

asked Kelly’s opinion about someone buying alcohol for her 12-year-old; he was not

actually offering to do so.

       {¶11} On cross-examination, appellant acknowledged he recalled Wolf reviewing

the rules of probation with him; she told him he could not have a cell phone until the

judge ruled on his motion.

       {¶12} At the conclusion of the hearing, the trial court revoked appellant’s

community control and sentenced him to a term of 18 months on the count of menacing

by stalking, 12 months on the count of telecommunications harassment, and 6 months

on the count of inducing panic, to be served concurrently for a total of 18 months.

       {¶13} Appellant now appeals from the October 24, 2012 judgment entries of

sentencing and Community Control Sanctions Revoked and Sentence Imposed of the

Stark County Court of Common Pleas.

       {¶14} Appellant raises two assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶15} “I. THE TRIAL COURT’S FINDING THAT THE APPELLANT VIOLATED

THE CONDITIONS OF COMMUNITY CONTROL AND THE REVOCATION OF

COMMUNITY CONTROL ARE AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AND AN ABUSE OF DISCRETION BY THE TRIAL COURT.”

       {¶16} “II.   THE TRIAL COURT FAILED TO CONSIDER THE STATUTORY

FACTORS CONTAINED IN R.C. 2929.12 AT SENTENCING AND THEREFOR (sic)

THE SENTENCE IMPOSED IS CONTRARY TO LAW.”
Stark County, Case No. 2013CA00037                                                     7


                                      ANALYSIS

                                           I.

      {¶17} In his first assignment of error, appellant argues the trial court’s finding

that appellant violated the terms of community control is against the manifest weight of

the evidence and its revocation of community control is an abuse of discretion. We

disagree.

      {¶18} Community control is comparable to probation, and those who are placed

on community control are monitored by the county probation department. R.C.

2951.021(A), Crim.R. 32.3(A).    We therefore apply the standards for revocation of

probation.

      {¶19} Although a revocation proceeding must comport with the requirements of

due process, it is not a criminal proceeding. State v. Ryan, 3rd Dist. Union No. 14-06-

55, 2007-Ohio-4743, citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36

L.Ed.2d 656 (1973). Therefore, the minimum due process requirements afforded a

defendant in a probation revocation proceeding differ from those in a criminal trial. The

minimum due process requirements for revocation hearings are as follows:

             (a) Written notice of the claimed violations of [probation or] parole;

             (b) disclosure to the [probationer or] parolee of evidence against

             him; (c) opportunity to be heard in person and to present witnesses

             and documentary evidence; (d) the right to confront and cross-

             examine adverse witnesses (unless the hearing officer specifically

             finds good cause for not allowing confrontation); (e) a ‘neutral and

             detached’ hearing body such as a traditional parole board,
Stark County, Case No. 2013CA00037                                                     8


             members of which need not be judicial officers or lawyers; and (f) a

             written statement by the fact finders as to the evidence relied on

             and reasons for revoking [probation or] parole.

             State v. Miller, 42 Ohio St.2d 102, 104, 326 N.E.2d 259 (1975),

             quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33

             L.Ed.2d 484 (1972).

      {¶20} Appellant does not contend he was denied any of the above. Instead, he

argues he had legitimate reasons to possess the cell phone and the trial court should

reasonably have extended his community control.

      {¶21} A community control or probation revocation is not a criminal trial;

therefore, appellee is not required to establish a violation of the terms of community

control “beyond a reasonable doubt.” Ryan, supra, 2007–Ohio–4743, ¶ 7, citing State v.

Hylton, 75 Ohio App.3d 778, 600 N.E.2d 821 (4th Dist.1991). Instead, appellee must

show “substantial” proof appellant violated the terms of his community control sanctions.

Id. Substantial evidence is akin to a preponderance-of-the-evidence burden of proof.

State v. Ohly, 166 Ohio App.3d 808, 2006–Ohio–2353, 853 N.E.2d 675, at ¶ 18, citing

State v. Hayes, 6th Dist. No. WD–00–075,unreported, 2001 WL 909291 (Aug. 10,

2001). “Substantial evidence is considered to consist of more than a mere scintilla of

evidence, but somewhat less than a preponderance.” Id., citations omitted.

      {¶22} A trial court's finding of a violation of community control will not be

disturbed on appeal absent an abuse of discretion. State v. Burdette, 5th Dist. Morrow

No. 10-CA-9, 2011-Ohio-4425, *4. An abuse of discretion implies more than an error of

law or judgment; instead, it connotes that the trial court's attitude is unreasonable,
Stark County, Case No. 2013CA00037                                                      9

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983). When applying the abuse of discretion standard, an appellate court

may not simply substitute its judgment for that of the trial court. Id. Moreover, in terms

of credibility determinations, the weight of the evidence and the credibility of the

witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227,

231, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.

       {¶23} We find appellee demonstrated substantial proof appellant was aware of

the prohibition against having a cell phone in his possession but admittedly did possess

a cell phone in violation of the terms of community control.         Regardless of any

innocuous reason appellant wants a cell phone, the community control condition against

having one is directly related to the terms of the offenses for which he was convicted.

See, State v. Lacey, 5th Dist. Richland No. 2005-CA-119, 2006-Ohio-4290, ¶ 48, citing

State v. Talty, 103 Ohio St.3d 177, 814 N.E.2d 1201, 2004-Ohio-4888. He willfully and

admittedly violated this condition.

       {¶24} Moreover, appellant’s threats against his former roommate, statements

about buying alcohol for minors, and statements about evading the rules of probation

may, taken individually, seem minor, but viewed as a whole they reflect upon appellant’s

credibility and his willingness to comply with the terms of community control. We note

“the privilege of probation rests upon the probationer's compliance with the probation

conditions and any violation of those conditions may properly be used to revoke the

privilege.” State v. Bell, 66 Ohio App.3d 52, 57, 583 N.E.2d 414 (5th Dist.1990).

       {¶25} The trial court’s finding that appellant committed multiple violations of his

community control terms and conditions is supported by substantial evidence, and the
Stark County, Case No. 2013CA00037                                                           10


revocation of community control does not constitute an abuse of the court’s discretion.

Appellant’s first assignment of error is overruled.

                                                  II.

       {¶26} In his second assignment of error, appellant argues his sentence is

contrary to law because the trial court failed to consider the requisite statutory factors.

We agree and remand this matter to the trial court for resentencing.

       {¶27} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,

the Ohio Supreme Court set forth a two-step process for examining felony sentences.

The first step is to “examine the sentencing court's compliance with all applicable rules

and statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law.” Kalish at ¶ 4. If this first step “is satisfied,” the second step

requires the trial court's decision be “reviewed under an abuse-of-discretion standard.”

Id.

       {¶28} Appellant states the trial court made no findings pursuant to R.C. 2929.11

regarding the overriding principles of felony sentencing and R.C. 2929.12 regarding the

seriousness of the offender’s conduct. Following a community control violation, the trial

court conducts a second sentencing hearing. At this second hearing, the court

sentences the offender anew and must comply with the relevant sentencing statutes.

State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17, citing State

v. Martin, 8th Dist. Cuyahoga No. 82140, 2003-Ohio-3381, at ¶ 35. We have reviewed

the record of the revocation hearing and find the trial court did not make any reference

to its consideration of the factors in R.C. 2929.11 and R.C. 2929.12.
Stark County, Case No. 2013CA00037                                                  11


       {¶29} We find there was not adequate judicial fact-finding pursuant to the H.B.

86 amendments. See, State v. Green, 5th Dist. Licking No. 12-CA-17, 2012-Ohio-4362.

       {¶30} Appellant’s second assignment of error is sustained and this matter is

remanded to the trial court for the limited purpose of resentencing.

                                      CONCLUSION

       {¶31} Appellant’s first assignment of error is overruled and his second assigned

of error is sustained. The judgment of the Stark County Court of Common Pleas is

therefore affirmed in part, reversed in part, and remanded.

By: Delaney, J. and

Hoffman, J. concurs;

Gwin, P.J., concurs, in part and dissents, in part
Stark County, Case No. 2013CA00037                                                    12

Gwin, J., dissents,
      {¶32} I respectfully dissent from that portion of the majorities opinion that finds

the trial court was required to reference R.C. 2929.11 and R.C. 2929.12 when

sentencing appellant for violating his community control sanctions.

      {¶33} Appellant was original sentenced to community control sanctions pursuant

to R.C. 2929.13(B)(1)(a) for having plead guilty to fourth and fifth degree felonies.

Appellant was then found guilty of violating the previously imposed community control

sanctions. R.C. 2929.13(B)(1)(d) provides,

             (d) 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.

             R.C. 2929.15(B) gives the trial court discretion to determine the

      most appropriate way to deal with each individual who violates community

      control sanctions:

             (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;
Stark County, Case No. 2013CA00037                                                    13


              (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.

              (2) The prison term, if any, imposed upon a violator pursuant to this

       division 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 this division by

       the time the offender successfully spent under the sanction that was

       initially imposed.

       {¶34} 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. R.C. 292914(A)(5) provides for a prison term of six,

seven, eight, nine, ten, eleven, or twelve months for a felon of the fifth degree.

       {¶35} R.C. 2929.15 does not require the trial court that sentences an offender

for violating the terms of previously imposed community control sanctions to make

findings pursuant to R.C. 2929.11 and R.C. 2929.12. This makes sense because the

trial court previously considered those factors when initially sentencing the offender to

community control sanctions. In the case at bar, appellant was informed that a violation
Stark County, Case No. 2013CA00037                                                       14


of the community control sanctions could “lead to either a more restrictive sanction, a

longer sanction, or a prison term of eighteen months.” Judgment Entry Sentenced –

(Community Control Sanction) filed July 23, 2012 at 5-6.

         {¶36} Indeed,    even if the trial court is required to consider the R.C.

2929.11 and R.C. 2929.12 sentencing factors, R.C. 2929.12(D) mandates that a

court consider whether,

               (1) At 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 or had been

         unfavorably terminated from post-release control for a prior offense

         pursuant to division (B) of section 2967.16 or section 2929.141 of the

         Revised Code.

         {¶37} In the case at bar, the trial judge who conducted the original sentencing

hearing heard the evidence that appellant had violated the terms of his community

control sanctions. That judge considered the testimony, including appellant’s, in

determining the most appropriate manner to address the violation. When it is clear from

the record that the trial court engaged in the appropriate analysis, little can be gained by

sending the case back for the trial court to, in essence, recite the “magic” or “talismanic”

words.

         {¶38} The transcript and sentencing entries reveal that the trial court reviewed

appellant’s presentence investigation report during the original sentencing hearing.
Stark County, Case No. 2013CA00037                                                   15


Further, the trial court heard the evidence presented during appellant’s revocation

hearing. Upon review of the sentencing entries and the pertinent transcripts, I would

find, even if the trial court is required to consider R.C. 2929.11 and R.C. 2929.12, the

trial court properly considered the purposes and principles of felony sentencing, the

factors of seriousness and recidivism and the R.C. 2929.14(C) factors when it

sentenced appellant for violating the court’s previously imposed community control

sanctions.

      {¶39} I would affirm the judgment of the Stark County Court of Common Pleas.
