[Cite as State v. Hogan, 2012-Ohio-4314.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                   GREENE COUNTY

STATE OF OHIO                                     :
                                                  :        Appellate Case No. 2012-CA-1
        Plaintiff-Appellee                        :
                                                  :        Trial Court Case No.
                                                           2010-CR-174
v.                                                :
                                                  :
MARCUS HOGAN                                      :        (Criminal Appeal from
                                                  :        (Common Pleas Court)
        Defendant-Appellant                 :
                                                  :
                                            ...........

                                            OPINION

                       Rendered on the 21st day of September, 2012.

                                            ...........

ELIZABETH A. ELLIS, Atty. Reg. #0074332, Greene County Prosecutor’s Office, 55
Greene Street, Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. #0017456, Post Office Box 291771, Kettering, Ohio
45429
      Attorney for Defendant-Appellant

                                                          .............

FAIN, J.

        {¶ 1}    Defendant-appellant Marcus L. Hogan appeals from the revocation of

his community control sanctions and twelve-month sentence for two counts of
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Non-Support of Dependents, felonies of the fifth degree. His counsel has filed a brief

under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967), indicating that he could find no potential assignments of error having

arguable merit. Neither can we. Accordingly, the judgment of the trial court is

Affirmed.



                           I. The Course of Proceedings

       {¶ 2}    In 2010, Hogan was charged with two counts of Non-Support of

Dependents, felonies of the fifth degree. He pled no contest, was found guilty, and

was sentenced to community control sanctions for a period not to exceed five years.

The trial court specified a prison sentence of twelve months on each count, to be

served consecutively, in the event that the community control sanctions would be

revoked.

       {¶ 3}    In August 2011, the State moved to revoke Hogan’s community

control sanctions, alleging that a condition of those sanctions requiring periodic

payments towards various costs, fees and financial sanctions had been violated. In

September 2011, the State filed a new motion to revoke Hogan’s community control

sanctions, again based upon his failure to make the payments required.             The

allegations in this motion were somewhat different from those in the earlier motion.

       {¶ 4}    In late September 2011, Hogan waived a probable cause hearing on the

alleged violations, as evidenced by the signatures of himself and his counsel on the

entry. A hearing was set for December 21, 2011.
                                                                                          3


         {¶ 5}   In November 2011, the State filed a new motion to revoke Hogan’s

community control sanctions, based upon allegations of non-payment of required

payments, and four additional alleged failures to comply with conditions of the

community control sanctions.

         {¶ 6}   On December 21, 2011, the trial court held a hearing on the alleged

violations. Hogan’s probation officer, Brian J. Martin, and a Greene County Child

Support Agency Enforcement case worker, Tracy Mershon, testified for the State.

Hogan and his mother testified on Hogan’s behalf. At the conclusion of the hearing,

the trial court found that all five alleged violations were proven beyond a reasonable

doubt.

         {¶ 7}   The trial court proceeded immediately to disposition. The trial court

revoked Hogan’s community control sanctions, and imposed a twelve-month sentence

for each of the Non-Support of Dependents offenses, to be served concurrently, for a

total sentence of twelve months.

         {¶ 8}   Hogan appealed. His counsel filed an Anders brief, indicating that he

could not find any potential assignments of error having arguable merit. By entry

filed herein on June 6, 2012, we afforded Hogan the opportunity to file his own, pro se

brief within 60 days. He has not done so.



    II. There Are No Potential Assignments of Error Having Arguable Merit

         {¶ 9}   The conditions of community control that Hogan was alleged to have

violated are the following:
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               1.   I will not own, control, purchase, or possess any firearms,

       ammunition, dangerous ordinance or weapons, including chemical agents,

       electronic devices used to immobilize, edged weapons, pyrotechnics and/or

       explosive devises or reside in a home where the aforementioned items are

       present.

       2. I will obey all laws; this includes city, county, state, and federal laws and

will not be charged with and/or convicted of a violation of law.

       10. I will not possess, use, purchase, or have under my control any narcotic

drug or other controlled substance or illegal drugs including any instrument, device or

other object used to administer drugs or to prepare them for administration, unless it is

lawfully prescribed for me by a licensed physician. I agree to inform my supervising

officer of any such prescription within 48 hours of being prescribed such medication.

I agree to submit to drug testing as requested by the Adult Probation Department or

any other law enforcement agency while on probation.

       12. I understand a case plan may have been developed by the Adult Probation

Department to assist in my rehabilitation. I understand I will be required to follow

this plan as a condition of my probation and it is hereby incorporated into this order.

       13. I will make a minimum monthly payment of $100.00 per month toward

my court costs, supervision fees, restitution, fines and any other fees assessed against

me. All payments are to be paid to the Greene County Clerk of Courts, 45 North

Detroit Street, Xenia, Ohio 45385. Payments are to be made in the form of cash,

certified check, or money order.       Personal checks and credit cards will not be
                                                                                                    5


       accepted.

       {¶ 10} The trial court found, beyond reasonable doubt, that Hogan had violated all

five of these conditions. Although the evidence in the record of the revocation hearing is

conflicting to some extent, there is evidence in the record to support each of the five findings

of violation.

                {¶ 11} Specifically, there is evidence that: (1) a rifle, with fifteen rounds of

       ammunition, was found in a truck belonging to Hogan’s mother that Hogan was

       driving; (2) Hogan pled guilty to Driving Under Suspension, that offense having

       occurred on October 18, 2011; (3) Hogan tested positive for marijuana; (4) Hogan did

       not return to Mississippi and establish a payroll deduction plan there, as required by his

       case plan; and (5) Hogan did not make the required payments of $100 per month.

                {¶ 12} Hogan’s mother testified that her husband put the rifle in her truck, but

       did not know when he did so. Hogan testified that he had cleaned the truck out a day

       or two before driving to see Martin, his probation officer, and the rifle was not there

       then. He testified that he did not use marijuana, but had been around people who

       were smoking it. He did not deny the Driving Under Suspension violation. He

       testified that he did fall behind in his payments, but went to Mississippi and looked for

       work. He testified that he was on a path to becoming a truck driver when his license

       was suspended for non-payment of support. He testified that he did start working for

       Perfect Touch Contracting, but that his payroll deduction paperwork had not been

       complete when he “had to come up here.” He did not explain why he had to come

       back to Ohio from Mississippi.
                                                                                              6


        {¶ 13} The trial court was unmoved by Hogan’s explanations, as evidenced by

the following comments just prior to sentencing Hogan:

        What I find as disturbing about this case as anything is that in September the

Probation Department filed an affidavit simply saying you had failed to pay your child

support obligation. And the Court notes that you came here owing $15,000 plus in

back child support payments, but gave you community control to pay those down;

probably recognizing the fact that it was never going to be paid off during your

community control in any event.

        But the disturbing aspect is that you’ve drawn most of these violations since

you were first notified that the Court was focusing on you for a violation. You drove

under suspension, knowing you didn’t have the right to drive. You tested positive for

marijuana. A gun was found in your truck, apparently, and from the state of the

evidence we don’t know how it got there, but you have a responsibility to be away

from guns.

        Frankly, I don’t buy the fact that you checked the car one day and coincidently

a rifle goes in the next day and then the following day the Probation Department just

coincidently finds it.

        And, as a part of the plan specifically in this case you were to go to Mississippi,

and you’re back up here.        So you weren’t following the plan provided by the

Probation Department.

        Frankly, I don’t think that you were taking seriously your obligations to this

Court, or the obligations of following the requirements the Court has set forth, or the
                                                                                                     7


       obligations of support, or basically complying with the law.

                I think you’re pretty much doing what you want to do. I’ve got evidence here

       that you’re capable of working, that you have worked, and that under the questioning

       by your Counsel of all the monies you received, not a dime was paid toward child

       support.

                I just don’t think at this point in time you are a good fit for community control,

       and as such, the Court finds that a prison sentence at this time is consistent with the

       principles and purposes of sentencing and would otherwise demean the seriousness of

       your conduct, and that a prison sentence is appropriate at this time. Transcript, pp.

       54-56.

       {¶ 14} We have performed our duty, under Anders v. California, supra, to conduct an

independent review of the record. We find no potential assignments of error having arguable

merit. There was evidence in the record to support the trial court’s findings that Hogan had

violated the conditions of his community control sanctions. The sentence imposed – two,

twelve-month sentences to be served concurrently – does not constitute an abuse of the trial

court’s discretion in sentencing.



                                        III. Conclusion

       {¶ 15} This court having found no potential assignments of error having arguable

merit, the judgment of the trial court is Affirmed.

                                                      .............

GRADY, P.J., and HALL, J., concur.
                       8


Copies mailed to:

Elizabeth A. Ellis
J. David Turner
Hon. Stephen Wolaver
