# State v. Browning

> Ohio Court of Appeals · February 10, 2022 · 2022 Ohio 386

URL: https://www.frixlaw.com/law-library/cases/6221962

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** February 10, 2022
- **Citations:** 2022 Ohio 386
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Luper Schuster
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6221962

## Opinion text

[Cite as State v. Browning, 2022-Ohio-386.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 20AP-566
(C.P.C. No. 16CR-646)
v. :
(REGULAR CALENDAR)
Zack J. Browning, :

Defendant-Appellant. :

D E C I S I O N

Rendered on February 10, 2022

On brief: G. Gary Tyack, Prosecuting Attorney, and
Michael P. Walton, for appellee.

On brief: Yeura Venters, Public Defender, and Timothy E.
Pierce, for appellant. Argued: Timothy E. Pierce.

APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, P.J.
{¶ 1} Defendant-appellant, Zack J. Browning, appeals from an entry of the
Franklin County Court of Common Pleas purporting to terminate his community control
as unsuccessful. For the following reasons, we reverse.
I. Facts and Procedural History
{¶ 2} By indictment filed February 5, 2016, plaintiff-appellee, State of Ohio,
charged Browning with one count of aggravated trafficking in drugs in violation of R.C.
2925.03, a third-degree felony; one count of aggravated possession of drugs in violation of
R.C. 2925.11, a third-degree felony; and one count of theft of drugs in violation of R.C.
2913.02, a fourth-degree felony. After initially entering a plea of not guilty, Browning
agreed, on February 28, 2017, to enter a plea of guilty to one count of theft of dangerous
No. 20AP-566 2

drugs as a fourth-degree felony in exchange for the dismissal of the remaining charges. The
state and Browning jointly recommended a sentence of community control and restitution
in the amount of $95.41.
{¶ 3} Following a February 28, 2017 sentencing hearing, the trial court sentenced
Browning to three years of community control. The terms of the community control
required Browning to "submit to a Netcare evaluation and complete any recommended
treatment[,] * * * to have drug evaluation and treatment, on an out-patient basis, follow
aftercare recommendations and participate in random drug/urine screens. [Browning]
shall complete Cognitive Behavior Program." (Feb. 28, 2017 Jgmt. Entry at 1-2.) In
addition to the period of community control, the trial court imposed a $500.00 fine, $95.41
in restitution, and the payment of court costs in an amount to be determined.
{¶ 4} On October 18, 2017, the trial court issued an entry declaring Browning an
absconder, noting that Browning had absconded on or about February 28, 2017, the day of
his sentencing hearing, and the trial court ordered the community control period
suspended, pursuant to R.C. 2951.07, until such time as Browning is taken into custody.
The trial court issued a capias for Browning on October 19, 2017.
{¶ 5} The capias was returned as served on October 24, 2017. The trial court then
set a bond of $10,000 and released Browning from jail on November 1, 2017. A
November 1, 2017 criminal case processing sheet noted "strict compliance with probation,"
and a December 15, 2017 criminal case processing sheet specifically stated that Browning
was restored to community control.
{¶ 6} More than two years later, on September 8, 2020, the state filed a statement
of violations for revocation of community control hearing indicating Browning had tested
positive for THC on February 12, 2020 and that Browning had failed to complete the
recommended drug treatment services. The trial court conducted a hearing on
November 9, 2020. When the trial court stated the hearing was related to community
control revocation, defense counsel argued that Browning's three-year term of community
control had expired and the trial court, therefore, lacked jurisdiction to revoke community
control. Defense counsel also noted at the hearing that Browning had paid restitution in
full but had yet to pay the fine and costs imposed as part of his sentence. The trial court
No. 20AP-566 3

noted defense counsel's objection but found it "[had] to terminate [Browning's community
control as] unsuccessful." (Tr. at 5.)
{¶ 7} After the hearing, the trial court filed a November 10, 2020 entry terminating
community control as unsuccessful. Specifically, the trial court stated in the entry that
Browning "has not complied with the terms of [his] Community Control," and purported to
discharge Browning from community control. Browning timely appeals.
II. Assignments of Error
{¶ 8} Browning assigns the following errors for our review:
[1.] Because Appellant had been discharged from community
control by operation of law due to the community control
supervision period having expired the lower court lacked
authority to factually determine he had not complied with the
terms of community control and to order Appellant's
community control terminated unsuccessfully. Its ruling to
that effect was void and violated Appellant's Right to Due
Process of Law under the Fifth and Fourteenth Amendments of
the United States Constitution, the Due Course of Law
provisions of Article I, Sections 1 and 16 of the Ohio
Constitution, R.C. 2929.15(C), and R.C. 2953.08(B)(2).

[2.] The lower court erred when it required Appellant to pay
financial sanctions previously imposed as a condition of
community control once the period of community control had
expired and he had been discharged from supervision by
operation of law.

III. Final Appealable Order and Standing
{¶ 9} As a threshold matter, we must address the state's argument that this court
lacks jurisdiction to hear the appeal. The state filed a motion to dismiss on April 9, 2021
arguing the trial court entry purporting to terminate community control is not a final
appealable order pursuant to R.C. 2505.02(B). In a July 8, 2021 memorandum decision,
this court disagreed with the state and found the trial court's judgment was a final order
subject to appeal. State v. Browning, 10th Dist. No. 20AP-566, ¶ 15 (July 8, 2021)
(memorandum decision). Though the state reiterates its argument that the trial court's
judgment was not a final appealable order, we decline to revisit the issue. Accordingly, for
the reasons stated in our July 8, 2021 memorandum decision, the trial court's
November 10, 2020 entry is a final appealable order.
No. 20AP-566 4

{¶ 10} We similarly reject the state's argument that Browning lacks standing to
pursue the appeal. The state asserts Browning cannot show he is an aggrieved party such
that he has standing to appeal from the trial court's entry. The state relies on the
proposition that "[a] party is aggrieved, and thus has standing to appeal, if (1) he has a
present interest in the subject matter of the litigation and (2) he has been prejudiced by the
judgment of the trial court." Thomas v. Wright State Univ. School of Medicine, 10th Dist.
No. 12AP-839, 2013-Ohio-3338, ¶ 12, citing Willoughby Hills v. C.C. Bar's Sahara, Inc., 64
Ohio St.3d 24, 26 (1992). As Browning is the named criminal defendant in the underlying
trial court action and the trial court purported to find he unsuccessfully completed
community control, we conclude Browning satisfies both prongs of the test for whether he
is an aggrieved party. Thus, Browning has standing to pursue the appeal. We now proceed
to the merits of Browning's appeal.
IV. First Assignment of Error – Termination of Community Control
{¶ 11} In his first assignment of error, Browning argues the trial court lacked
authority to make a factual determination of whether he complied with the terms of
community control and to order his community control terminated unsuccessfully.
{¶ 12} R.C. 2929.15 governs the imposition of community control. R.C.
2929.15(A)(1) provides for tolling of the term of community control where an offender
absconds. Even accounting for tolling based on absconding, here the parties do not dispute
that Browning's three-year term of community control expired, at the latest, by April 27,
2020. The question on appeal, then, is whether the trial court had the authority to conduct
the November 9, 2020 community control revocation proceedings and enter a factual
finding that Browning's community control terminated unsuccessfully. See State v. Rue,
164 Ohio St.3d 270, 2020-Ohio-6706, ¶ 17 (where the trial court conducted revocation
proceedings after the expiration of community control, the issue is not whether the trial
court had jurisdiction to conduct the community control revocation proceedings but
whether the trial court had the authority to conduct these proceedings). A determination
of the trial court's authority to conduct community control proceedings after the expiration
of the term of community control involves the trial court's application of the community
control statute. See State v. Dawson, 5th Dist. No. 17CA021, 2018-Ohio-2685, ¶ 14-15 (trial
court's authority to conduct community control proceedings involves an interpretation of
No. 20AP-566 5

the community control statute). An appellate court reviews a trial court's interpretation
and application of a statute de novo. State v. Smith, 10th Dist. No. 14AP-154, 2014-Ohio-
5303, ¶ 5, citing State v. Willig, 10th Dist. No. 09AP-925, 2010-Ohio-2560, ¶ 14.
{¶ 13} "[A] court is 'authorized to conduct proceedings on the alleged community-
control violations even though they were conducted after the expiration of the term of
community control, provided that the notice of violations was properly given and the
revocation proceedings were commenced before the expiration.' " Rue at ¶ 56, quoting
State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, ¶ 13. Here, there is no
dispute that Browning's community control expired, at the latest, on April 27, 2020, but the
notice of alleged community control violation did not occur until September 8, 2020. Thus,
pursuant to the Supreme Court of Ohio's decision in Rue, the trial court had no authority
to conduct the November 9, 2020 community control revocation proceedings on the alleged
community control violation. Rue at ¶ 63 (trial court lacked authority to revoke community
control because the revocation proceedings were not commenced before the expiration of
the community control term); State v. Evans, 11th Dist. No. 2021-T-0001, 2021-Ohio-3479,
¶ 10.
{¶ 14} Though the state concedes the trial court lacked authority to revoke
community control, it nonetheless maintains the trial court retained authority to make a
factual finding that Browning did not successfully complete community control. We do not
agree. Pursuant to the Supreme Court's decision in Rue, once the community control
period has expired, the trial court lacks authority to " 'conduct proceedings' " on community
control violations. Rue at ¶ 56, quoting Hemsley at ¶ 13. The Rue decision is not limited to
revocation of community control; instead, the Supreme Court was clear in Rue that once
the community control period has expired, the trial court lacks authority to conduct
proceedings on community control violations if those proceedings were not commenced
before the expiration of community control. Therefore, we disagree with the state that the
trial court retained authority to render a factual finding related to Browning's community
control where the proceedings were not initiated until after the expiration of his community
control term.
{¶ 15} Because the state did not notify Browning of the alleged community control
violation or commence the proceedings before the expiration of Browning's community
No. 20AP-566 6

control period, the trial court lacked the authority to conduct the proceedings and to make
a factual finding that Browning's community control was terminated as unsuccessful. Rue
at ¶ 3. We sustain Browning's first assignment of error.
V. Second Assignment of Error – Fines and Costs
{¶ 16} In his second assignment of error, Browning argues the trial court erred when
it required him to pay costs and fines imposed as part of his community control when his
community control term expired.
{¶ 17} Under this assignment of error, Browning asserts the trial court erroneously
required him to satisfy financial conditions, including the payment of a fine and court costs,
as a condition of his community control. Browning points to the September 8, 2020
statement of violations indicating that court costs and the fine were special conditions of
his community control and to a cost bill sent November 13, 2020 stating Browning owes
$1,428 in fines and costs. However, a review of the record demonstrates that the imposition
of court costs and fines was part of Browning's original sentence and was not a special
condition of his community control, as reflected in the February 28, 2017 judgment entry
of his conviction.1
{¶ 18} In the instant case, Browning appeals only from the trial court's
November 10, 2020 entry purporting to terminate his community control as unsuccessful.
The November 10, 2020 entry makes no mention of fines or court costs. To the extent
Browning challenges the trial court's imposition of a fine and court costs, " '[w]e have
jurisdiction to review assignments of error stemming only from the judgment subject of the
notice of appeal.' " State v. Darks, 10th Dist. No. 12AP-578, 2013-Ohio-176, ¶ 6, quoting
State v. Thompkins, 10th Dist. No. 07AP-74, 2007-Ohio-4315, ¶ 7, citing App.R. 3(D).
" '[A]ssignments of error must relate to the judgment that is the subject of the notice of
appeal.' " Darks at ¶ 6, quoting Thompkins at ¶ 7. Therefore, Browning's argument related

1We note that this court's July 8, 2021 memorandum decision denying the state's motion to dismiss for lack
of a final appealable order includes a statement that Browning's community control conditions included the
payment of a fine and court costs. State v. Browning, 10th Dist. No. 20AP-566, ¶ 2 (July 8, 2021)
(memorandum decision). Though the memorandum decision attributes this statement to the trial court's
February 28, 2017 judgment entry, we clarify now that the statement was a reference to the trial court's
September 8, 2020 statement of violations and is not a reflection of the trial court's February 28, 2017
judgment entry journalizing Browning's conviction and sentence.
No. 20AP-566 7

to the imposition of a fine and the payment of court costs is not properly before this court,
and we overrule Browning's second and final assignment of error.
VI. Disposition
{¶ 19} Based on the foregoing reasons, the trial court lacked authority to conduct
proceedings on an alleged community control violation where the state did not notify
Browning of the alleged violation or commence the community control proceedings before
the expiration of his term of community control. Additionally, Browning's argument
related to the trial court's imposition of a fine and court costs is not properly before this
court on appeal. Having sustained Browning's first assignment of error and having
overruled Browning's second assignment of error, we reverse the decision of the Franklin
County Court of Common Pleas and remand the matter to that court with instructions to
vacate the November 10, 2020 entry.
Judgment reversed; cause remanded.

SADLER and BEATTY BLUNT, JJ., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6221962. Public record. Not legal advice.