[Cite as Strongsville v. Feliciano, 2011-Ohio-5394.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 96294



                             CITY OF STRONGSVILLE
                                                             PLAINTIFF-APPELLEE

                                                       vs.

                                ALNARDO FELICIANO
                                                             DEFENDANT-APPELLANT




                                JUDGMENT:
                       AFFIRMED IN PART, REVERSED IN
                            PART AND REMANDED


                                        Criminal Appeal from the
                                         Berea Municipal Court
                                        Case No. 10 CRB 00688

        BEFORE: E. Gallagher, J., Blackmon, P.J., and Sweeney, J.

    RELEASED AND JOURNALIZED:                                October 20, 2011
 ATTORNEY FOR APPELLANT
                                            2


Tiaon Michele Lynch
13317 Madison Avenue
Lakewood, Ohio 44107


ATTORNEY FOR APPELLEE

George F. Lonjak
Strongsville City Prosecutor
614 Superior Avenue
Suite 1310
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

          {¶ 1} This case came to be heard upon the accelerated calendar pursuant to

App.R. 11 and Loc.R. 11.1.

          {¶ 2} Defendant-appellant, Alnardo Feliciano, appeals his sentence from the

Berea Municipal Court. We affirm in part, reverse in part, and remand.

          {¶ 3} Appellant was charged with domestic violence against his wife on June 11,

2010, in the city of Strongsville. The trial court issued an order of protection in favor of

appellant’s wife on June 16, 2010, and appellant, through that order, was required to

wear a GPS monitoring device during the pendency of the case.1 On October 13, 2010,

appellant pled guilty to an amended charge of disorderly conduct in violation of R.C.

      1
       During the pendency of this case appellant’s wife filed for divorce.
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2917.11, a misdemeanor of the fourth degree. Appellant was sentenced on December 3,

2010, at which time he was fined $250 and sentenced to 15 days in jail with credit for

time served. The trial court also imposed one year of community control sanctions with

conditions only the following of which are relevant to the present appeal: that appellant

take and pass random drug and alcohol tests as ordered by the probation department; that

appellant   complete      a    drug   and     mental     health   assessment   and        follow   all

recommendations; and that appellant stay away from his wife.

       {¶ 4} Appellant brought the present appeal, advancing two assignments of error

pertaining to his community control sanctions for our review.                  Appellant’s first

assignment of error states:

       {¶ 5} “The lower court abused its discretion in ordering defendant to have a drug

and alcohol assessment performed and in ordering random drug and alcohol testing when

no alcohol or drugs were involved in the underlying crime.”

       {¶ 6} A    trial       court   is    vested     with   broad   discretion     in     imposing

community-control sanctions and will not be subject to reversal absent an abuse of that

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

“The term ‘abuse of discretion’ connotes more than error of law or judgment. It implies

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

Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. A court’s

discretion in imposing such conditions is not, however, limitless. Talty at ¶11., citing
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State v. Jones (1990), 49 Ohio St.3d 51, 52, 550 N.E.2d 469. Conditions may not be

imposed that are so overly broad as to unnecessarily impinge upon the probationer’s

liberty.   Id. at 180.   Further, conditions should be imposed in the interests of

rehabilitating the offender, administering justice, and ensuring the offender’s good

behavior. Id. at 181.

       {¶ 7} When reviewing community control sanctions, we consider whether the

condition imposed, “(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.” Talty, at ¶12, citing State v. Jones (1990), 49 Ohio St.3d 51, 53, 550

N.E.2d 469.

       {¶ 8} In the case sub judice we cannot say that the trial court’s community

control sanctions requiring appellant to take and pass random drug and alcohol tests as

ordered by the probation department and to complete a drug and alcohol assessment bear

any relationship to the crime for which appellant was convicted. The record before us is

utterly lacking any mention of drugs or alcohol having been involved in the incident for

which appellant was convicted.

       {¶ 9} A review of case law in this area reveals that instances where drug and

alcohol related probation and community control conditions have been upheld have all

involved some nexus between the offender’s conviction and drug or alcohol use. See
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State v. Chavers, Wayne App. No. 04CA0022, 2005-Ohio-714 (Probation condition that

offender not consume alcohol or visit a bar that serves alcohol constituted an abuse of

the trial court’s discretion where nothing in the record indicated that alcohol was

involved in the crime or the offender’s past criminal history.); State v. Wooten, Franklin

App. No. 03AP-546, 2003-Ohio-7159 (Trial court abused its discretion in requiring

defendant to undergo drug assessment, possess no alcohol, and submit to random

urinalysis where record lacked evidence linking offender’s connection to drugs or

alcohol.); State v. Weimer, Trumbull App. No. 2004-T-0040, 2005-Ohio-2361

(Upholding probation conditions requiring offender convicted of driving under the

influence from consuming or possessing drugs or alcohol or being found in any

establishment where alcohol is sold or consumed by the drink.); State v. Madey,

Cuyahoga App. No. 81166, 2002-Ohio-5976 (Where offender was convicted of

misdemeanor assault involving alcohol usage, the trial court’s probation condition

barring her from consuming alcohol for two years was valid. However the trial court’s

further conditions that the offender not work in bars, get alcohol counseling, and attend

weekly AA meetings were invalid under Jones because the record lacked sufficient

evidence to support a conclusion that the offender had a drinking problem necessitating

such conditions.); State v. Hayes (July 25, 1997), Meigs App. No. 96CA23-Meigs Co.

(Upholding probation condition barring consumption of alcohol despite the fact that

offender’s crime was not directly linked to alcohol but where offender had a severe
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alcohol problem and alcohol consumption was an underlying or motivating factor in his

crime.); State v. Harn (Aug. 20, 1987), Franklin App. No. 87AP-269 to 87AP-271.

(Upholding prohibition on alcohol consumption because there was some evidence that

alcohol was involved in the crime and the offender appeared to possess an alcohol

problem and had a past history of alcohol related arrests.)

       {¶ 10} The present case is not an instance where the record reflects that appellant

has a history of drugs or alcohol problems. See Lakewood v. Hartman (1999), 86 Ohio

St.3d 275, 714 N.E.2d 902 (Upholding a trial court’s probation condition that offender’s

vehicle be equipped with an ignition device designed to detect alcohol despite the fact

that offender’s conviction did not involve alcohol. The offender’s extensive history of

four prior driving under the influence convictions and eight suspended license

convictions demonstrated her lack of appreciation for the responsibility of operating a

motor vehicle. It was reasonable for the trial court to believe that additional conditions

were necessary to rehabilitate her and protect those who may be injured by her conduct.);

State v. Curry (Feb. 21, 1991), Franklin App. No. 90AP-838 (Alcohol abstinence

condition upheld in part because of offender’s history of alcohol-related convictions.)

       {¶ 11} The present record is devoid of any indication that appellant’s crime was

related to alcohol or drug use, that appellant had a history of drug or alcohol abuse, or

that appellant at any point in time engaged in the use of such substances. As such, we

find that the trial court abused its discretion in ordering defendant to have a drug and
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alcohol assessment performed and in ordering random drug and alcohol testing.

       {¶ 12} Appellant’s first assignment of error is sustained.

       {¶ 13} Appellant’s second assignment of error states:

       {¶ 14} “The lower court abused its discretion in ordering defendant to have an

electronic monitoring bracelet until probation determined it could be removed when

there was no evidence that defendant had any contact with his soon to be ex-wife in over

six months and there was no evidence that defendant presented a continuing danger to

his wife.”

       {¶ 15} We need not address the merits of appellant’s second assignment of error

because in the trial court’s December 3, 2010 judgment of conviction the trial court

ordered appellant to “stay away” from his wife but did not order electronic monitoring.

A court speaks through its docket and its journal entries and not by oral pronouncement.

State v. Turner, Cuyahoga App. No. 88489, 2007-Ohio-3264, at ¶9; State v. Deal,

Cuyahoga App. No. 88669, 2007-Ohio-5943, at ¶54. As such, we find appellant’s

second assignment of error to be without merit.

       {¶ 16} The judgment of the trial court is reversed to the extent that it imposed the

community control sanctions addressed in appellant’s first assignment of error and the

cause is remanded. As such, appellant’s sentence and the remaining conditions of his

probation remain intact.

       {¶ 17} Judgment affirmed in part, reversed in part and remanded to the lower
                                             8

court for further proceedings consistent with this opinion.

       It is ordered that said appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

PATRICIA A. BLACKMON, P.J., and
JAMES J. SWEENEY, J., CONCUR
