[Cite as State v. Castellini, 2012-Ohio-1603.]


                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                   :   APPEAL NOS. C-110445
                                                                  C-110446
        Plaintiff-Appellee,                      :   TRIAL NOS. B-0905739A
                                                                B-0907053
  vs.                                            :

PETER CASTELLINI,                                :   O P I N I O N.

      Defendant-Appellant.                       :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: April 11, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michaela M. Stagnaro, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Judge.

       {¶1}     Defendant-appellant Peter Castellini appeals from two judgments

entered by the Hamilton County Court of Common Pleas that revoked his community-

control sanctions and together imposed an aggregate prison term of six years. Because

these judgments were neither contrary to law nor an abuse of the trial court’s

discretion, we must affirm.

                              Facts & Procedural Background

       {¶2}     Castellini has been subject to various protection orders involving

members of his family. In August 2009, he was indicted on one count of violating a

protection order for contacting William Castellini, in violation of R.C. 2919.27(A), in the

case numbered B-0905739A. Two months later, in October 2009, he was indicted on

an additional count of violating a protection order, this time for contacting Joyce

Castellini, and one count of retaliation for threatening a judge, in violation of R.C.

2921.05(A), in the case numbered B-0907053.

       {¶3}     In each case, Castellini moved under Crim.R. 11(H) for leave to plead

not guilty by reason of insanity.      He also moved the trial court to evaluate his

competency to stand trial. See R.C. 2945.371. In January 2010, the court found that

Castellini was incompetent to stand trial, and ordered him to undergo treatment at the

Summit Behavioral Healthcare Center to restore his competency. See R.C. 2945.38.

Three months later, in April 2010, the court found that he was competent to stand trial.

       {¶4}     In June 2010, Castellini pleaded guilty to violating a protection order in

the case numbered B-0905739A, and retaliation in the case numbered B-0907053.

The remaining count for violating a protection order in the latter case was dismissed.




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          {¶5}   Following a mental health evaluation, the court imposed two identical

and concurrent two-year terms of community-control sanctions. The court ordered

Castellini to complete a community-based correctional program known as Cornerstone,

and not to contact any member of his family or the judge whom he had threatened. The

court further warned Castellini that if he violated these sanctions, it would impose

consecutive prison terms of one year in the case numbered B-0905739A, and five years

in the case numbered B-0907053.

          {¶6}   In September 2010, a probation officer informed the court that

Castellini had violated his community-control sanctions by contacting members of his

family.     One month later, in October 2010, the court found that Castellini was

incompetent to participate in revocation proceedings, and again ordered him to

undergo treatment to restore his competency. Three months later, in January 2011, the

court found that Castellini was competent to participate in the proceedings.

          {¶7}   At the revocation hearing, Castellini admitted that he had called his

brother. In mitigation, defense counsel indicated that while Castellini had been waiting

to be transferred from jail to the Cornerstone program, he suffered Lithium toxicity and

decompensation. This apparently left him unable to participate in the Cornerstone

program. He was, therefore, released instead.

          {¶8}   Castellini called his brother two days later. He explained to the court:

                 Judge, I have permanent ringing in my left ear, never goes

                 away. And I’m certain that I had a mild stroke when I was

                 in jail. I asked my brother Michael to take me to the

                 hospital. I didn’t have any money for a bus. I went to

                 probation. I didn’t know I wasn’t allowed. I just asked




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               him to take me to the hospital and hold my hand while I

               was there. T.p. 35.

       {¶9}    In response, the state argued that Castellini remained a threat to his

family, and reminded the court that he had threatened a judge. After comparing

Castellini to Dr. Jekyll and Mr. Hyde, the court revoked his community-control

sanctions and imposed consecutive prison terms of one year in the case numbered B-

0905739A, and five years in the case numbered B-0907053. Castellini now appeals,

raising two assignments of error.

                                Fundamental Fairness

       {¶10}   In his first assignment of error, Castellini argues that the trial court

erred in revoking his community-control sanctions and imposing prison terms. He

maintains that due to his mental health at the time he violated his sanctions, his

imprisonment was contrary to the fundamental fairness required by the Fourteenth

Amendment to the United States Constitution. We are not persuaded.

       {¶11}   For support, Castellini relies exclusively on Bearden v. Georgia, 461

U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). In Bearden, the United States

Supreme Court held that where a probationer has made all reasonable efforts to pay a

fine or make restitution, yet cannot do so through no fault of his or her own, “it is

fundamentally unfair to revoke probation automatically without considering whether

adequate alternative methods of punishing the defendant are available.” Id. at 668-

669.   The court concluded that such a deprivation would violate the Fourteenth

Amendment. Id. at 673.

       {¶12}   Castellini argues that, in light of Bearden, the trial court abused its

discretion in revoking his community-control sanctions and imposing prison terms.




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However, constitutional analysis is a question of law that we review de novo. State v.

Ziepfel, 107 Ohio App.3d 646, 652, 669 N.E.2d 299 (1st Dist.1995).

       {¶13}    Despite its holding, the Bearden court recognized that in other contexts,

a defendant’s lack of fault in violating the terms of his or her probation would not

“necessarily prevent a court from revoking probation.” Id. at 668, fn. 9.

               For instance, it may indeed be reckless for a court to

               permit a person convicted of driving while intoxicated to

               remain on probation once it becomes evident that efforts

               at controlling his chronic drunken driving have failed.

               Ultimately, it must be remembered that the sentence was

               not imposed for a circumstance beyond the probationer’s

               control but because he had committed a crime.              In

               contrast to a condition like chronic drunken driving,

               however, the condition at issue here—indigency—is itself

               no threat to the safety or welfare of society. Id. (citations

               and quotation marks omitted)

       {¶14}    Considering Bearden, the Tenth District Court of Appeals has held that

“insanity is not a complete defense in a probation revocation hearing but is a mitigating

factor which a court should consider when the issue is timely raised.” State v. Qualls,

50 Ohio App.3d 56, 60, 522 N.E.2d 957 (10th Dist.1988). The court reasoned that

where “the condition of the defendant which led to the commission of an act which is in

violation of probation (arguably insanity in this case) is a threat to the safety or welfare

of society, then the sentencing court may revoke probation even though that condition

of defendant is one over which he has no control.” Id., citing Bearden at 670. Accord

State v. Bell, 66 Ohio App.3d 52, 56-57, 583 N.E.2d 414 (5th Dist.1990); State v.



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Hutchison, 63 Ohio App.3d 721, 725, 580 N.E.2d 34 (9th Dist.1989). See also United

States v. Brown, 899 F.2d 189 (2d Cir.1990); Knight v. Estelle, 501 F.2d 963 (5th

Cir.1974).

       {¶15}    Persuaded by this precedent, we decline to read into the Fourteenth

Amendment an additional substantive limitation on sentencing courts. Castellini was

afforded ample opportunity to present mitigating factors to the trial court, including his

mental health at the time of his violation. The court, however, evidently agreed with the

state’s assertion that Castellini was dangerous and remained a threat to his family. We

cannot say that this was fundamentally unfair, even if Castellini was insane at the time

of his violation. The first assignment of error is, therefore, overruled.

                     Purposes and Principles of Felony Sentencing

       {¶16}    In his second assignment of error, Castellini argues that the trial court

erred in failing to consider the purposes and principles of felony sentencing. See R.C.

2929.11 and 2929.12. We disagree.

       {¶17}    When reviewing a sentence, we first must determine whether it was

contrary to law. State v. Brown, 1st Dist. Nos. C-100309 and C-100310, 2011-Ohio-

1029, ¶ 13, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,

¶ 14. If the sentence was not contrary to law, we then must decide whether it was an

abuse of the trial court’s discretion. Brown at ¶ 13, citing Kalish at ¶ 17.

       {¶18}    “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. Under R.C. 2929.15(B)(1), the

court may impose one of the following penalties:




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               (a) A longer time under the same sanction if the total

               time under the sanctions does not exceed the five-year

               time limit specified in division (A) of this section;

               (b)   A more restrictive sanction under R.C. 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.

       {¶19}   Any prison term imposed under this subdivision “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 * * * .” R.C. 2929.15(B)(2). See State v. Brooks,

103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, paragraph two of the syllabus.

       {¶20}   Castellini was convicted of violating a protection order, a fifth-degree

felony, in the case numbered B-0905739A, and retaliation, a third-degree felony, in

the case numbered B-0907053. At the time, these offenses were punishable up to

one year and five years in prison, respectively. See former R.C. 2929.14(A)(3) and

(5). Instead, the court imposed community-control sanctions for each offense, but

warned Castellini that if he violated any condition of these sanctions, it would

impose consecutive prison terms of one year in the case numbered B-0905739A, and

five years in the case numbered B-0907053. At the revocation hearing, the court did

so. Thus, Castellini’s prison terms are within the range authorized by law.

       {¶21}   Despite this, Castellini argues that, in imposing the maximum sentences

consecutively, the trial court failed to consider the overriding purposes of felony

sentencing and the seriousness and recidivism factors set forth in R.C. 2929.11 and

2929.12.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22}    We must disagree. Although the trial court did not specifically state

that it had considered R.C. 2929.11 and 2929.12, we may presume that it did. State

v. Strong, 1st Dist. Nos. C-100484 and C-100486, 2011-Ohio-4947, ¶ 82, citing State

v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Moreover, the

trial court was required not only to consider the gravity of the community-control

violation, but also the seriousness of the original offenses that lead to the imposition

of community control. Brooks at ¶20. With this in mind, we cannot say that the trial

court disregarded R.C. 2929.11 and 2929.12, particularly in light of Castellini’s past

threats to his family and a judge. We, therefore, hold that his prison terms are not

contrary to law.

       {¶23}    We next turn to whether the trial court abused its discretion. “The term

‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.”             Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶24}    This is certainly a sad case. We wonder whether Castellini would now

face six years in prison had he been able to participate in the Cornerstone program.

Moreover, we are troubled by the length of his sentence given his seemingly innocuous

violation. We further fear that prison will do little to prepare Castellini for his eventual

reintegration into society.

       {¶25}    Nevertheless, we share the trial court’s concern for the threats that

Castellini made against members of his family and a fellow member of the judiciary.

We also recognize the trial court’s superior position in assessing the proper response to

a community-control violation.       Having thoroughly reviewed the record, we find

nothing to suggest that the judge selected the sentences arbitrarily, based the sentences

on impermissible factors, failed to consider pertinent factors, or gave unreasonable



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weight to any pertinent factor. See State v. Wolfe, 5th Dist. No. 2008-CA-00064,

2009-Ohio-830, ¶ 46.      We, therefore, cannot say that the trial court abused its

discretion in imposing these prison terms.

       {¶26}   Accordingly, the second assignment of error is overruled, and the

judgments of the trial court are affirmed.

                                                               Judgments affirmed.


H ILDEBRANDT , P.J., and H ENDON , J., concur.


Please note:
       The court has recorded its own entry this date.




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