Opinion

State v. Brown

2022 Ohio 2285

Court: Ohio Court of Appeals
Filed: Jun 30, 2022
Status: Published
On the bench: Mayle
Cited by: 1 cases
Authority: More cited than 53.4%

applying Rue in addressing a misdemeanor offense

How later courts described this case

applying Rue in addressing a misdemeanor offense

Written by the judges who cited it.

The opinion

[Cite as State v. Brown, 2022-Ohio-2285.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

WOOD COUNTY

State of Ohio Court of Appeals No. WD-21-060

Appellee Trial Court No. 2017CR0584

Bryan Christopher Brown DECISION AND JUDGMENT

Appellant Decided: June 30, 2022

*****

Paul A. Dobson, Wood County Prosecuting Attorney, and

David T. Harold, Assistant Prosecuting Attorney, for appellee.

Jeffrey P. Nunnari, for appellant.

*****

MAYLE, J.

{¶ 1} Appellant, Bryan Brown, appeals the August 12, 2021 judgment of the

Wood County Court of Common Pleas sentencing him for a community control violation.

For the following reasons, we affirm.

I. Background and Facts

{¶ 2} Brown was indicted on a single count of unauthorized use of a motor vehicle

in violation of R.C. 2913.03(B) and (D)(3), a fifth-degree felony. He later pleaded guilty

to an amended charge of unauthorized use of a motor vehicle in violation of R.C.

2913.03(B) and (D)(2), a first-degree misdemeanor. On April 16, 2018, the trial court

filed its entry sentencing Brown to a three-year term of community control. Brown’s

term of community control should have ended on April 16, 2021.1

{¶ 3} However, on October 30, 2020, the state filed a petition for revocation of

Brown’s community control based on Brown’s conviction of disorderly conduct in the

Toledo Municipal Court. The certificate of service on the petition shows that the state

mailed the petition to Brown’s trial counsel, but did not mail it to Brown.

{¶ 4} On November 2, 2020, the trial court issued a notice and order setting

Brown’s case for a “Community Control Violation Bond Hearing” on December 11,

2020. The certificate of service on the order instructed the clerk of court to “deliver” a

copy of the order to Brown and his trial counsel. The docket shows that, on November 3,

2020, the clerk sent copies of the order to Brown “by Regular U.S. Mail” at an address on

Kensington in Toledo and in care of his attorney, and emailed a copy of the order to trial

counsel. The docket shows that the Kensington address was the first and only address

that the clerk had for Brown until May 2021.

In State v. Rue, 164 Ohio St.3d 270, 2020-Ohio-6706, 172 N.E.3d 917, ¶ 4, fn. 1, the

Supreme Court of Ohio noted that, because a court speaks through its judgment entries, a

term of community control begins on the date that a sentencing entry is filed. Here,

although Brown’s sentencing hearing was held on April 13, 2018, and the parties use

April 13 as the date that Brown’s term of community control began, the trial court’s

sentencing entry was not filed and journalized until April 16, 2018. Under Rue, the date

of filing—April 16—is the proper start date for Brown’s term of community control.

{¶ 5} Brown did not appear for the December 11 hearing, so, on December 14,

2020, the trial court issued a warrant for his arrest. The certificate of service on the

judgment entry authorizing the warrant again instructed the clerk of court to “deliver” a

copy of the entry to Brown and his trial counsel. The docket shows that, on

December 14, 2020, the clerk sent copies of the entry to Brown “by Regular U.S. Mail”

at the Kensington address and in care of his attorney, and emailed a copy of the entry to

trial counsel.

{¶ 6} It was not until May 18, 2021, that Brown was served with the December

2020 warrant. Following Brown’s arrest, on May 25, 2021, the trial court held a video

bond hearing. During the hearing, Brown’s attorney provided the trial court with a new

address for Brown on Central Avenue in Toledo. However, Brown’s address in the

clerk’s file was not updated following the May 25 hearing. After Brown listed the

Central Avenue address on the bond form that he signed on May 27, 2021, the clerk

updated the case file to reflect Brown’s Central Avenue address.

{¶ 7} On June 15, 2021, the trial court held the community control violation

hearing. At the hearing, Brown’s attorney argued that, pursuant to the recently-released

decision in State v. Rue, 164 Ohio St.3d 270, 2020-Ohio-6706, 172 N.E.3d 917, the trial

court should dismiss the community control violation and find that Brown’s community

control terminated on April 13, 2021, because a term of community control does not

automatically toll when an offender absconds, the trial court did not make a finding that

Brown absconded, and Brown did not receive adequate notice that his term of community

control had been extended. The court requested that each side file a memorandum

outlining their legal positions.

{¶ 8} In his memo, Brown argued that Rue stood for the proposition that

absconding, in and of itself, did not operate to toll a defendant’s period of community

control; rather, some judicial decision that triggers the tolling must be made during the

period of community control for the fact that a defendant absconds to have any legal

force and effect. Because the trial court never made a judicial determination that Brown

had absconded, he argued, his period of community control was not tolled beyond

April 13, 2021, and the court lost authority to conduct further community control

violation proceedings. As a result, he requested that the trial court terminate his

community control.

{¶ 9} In response, the state argued that Brown received proper notice of the

December 2020 community control violation hearing, which was filed before his term of

community control expired, and, as Rue recognized, a trial court is authorized to conduct

community control violation proceedings after a community control term expires as long

as the state initiated revocation proceedings and the defendant received proper notice of

the proceedings before the term expired. The state included the affidavit of Charlye

Lopez, Brown’s probation officer, with its memorandum. In it, Lopez averred that he

spoke to Brown on the phone on December 8, 2020, and told him about the hearing

scheduled for December 11, 2020.

{¶ 10} On August 10, 2021, the trial court held another hearing to address “the

legal issue of whether the court ha[d] jurisdiction” to sanction Brown for the alleged

community control violation. The state called Lopez to testify.

{¶ 11} After confirming that Brown was placed on community control for three

years beginning April 13, 2018, Lopez explained that he learned of Brown’s new

conviction through a “regular check through the Toledo Municipal Court.” Although

Brown was convicted in February 2020, Lopez did not find the conviction until October

2020. According to Lopez, the new criminal conviction and failing to report to Lopez the

arrest that led to the new conviction were each violations of the terms and conditions of

Brown’s community control.

{¶ 12} Lopez testified that the address he had in his file for Brown was an

apartment on Alexis Road. He was unsure if that address was the same address that

Brown gave him at the time of his sentencing, or if Brown had updated his address. He

also had a working phone number for Brown.

{¶ 13} On December 8, 2020, Lopez called Brown and spoke with him about the

case and the upcoming community control violation hearing on December 11, so it was

Lopez’s understanding that Brown had actual knowledge of the hearing. Lopez was at

the December 11 hearing, but Brown did not appear, so the trial court issued a warrant for

Brown’s arrest.

{¶ 14} Lopez testified that all of these events took place before Brown’s term of

community control was set to expire on April 13, 2021.

{¶ 15} After hearing the testimony and the parties’ arguments, the trial court

determined that it was authorized to proceed with the community control violation

proceedings because

the law is clear—and the Supreme Court has said this—that a trial court is

authorized to conduct proceedings on an alleged community control

violation even though they are conducted after the expiration of the term of

community control provided that the notice of violation was properly given

and the revocation proceedings were commenced before the expiration.

The court found that violation proceedings in Brown’s case began with the petition that

was filed on October 30, 2020—well before Brown’s term of community control

expired—and that Brown was notified of the proceedings both by the notice sent by the

court to Brown’s last known address and by the telephone call from Lopez. The court

found that Brown’s failure to appear constituted absconding under R.C. 2951.07, which

tolled the period of community control. Thus, the court concluded that it had jurisdiction

to dispose of Brown’s community control violation.

{¶ 16} The court went on to find that Brown had violated the terms of his

community control and sentenced him to 15 days in jail, after which his community

control would be unsuccessfully terminated. The court stayed its sentence pending

appeal.

{¶ 17} Brown now appeals, raising a single assignment of error:

THE TRIAL COURT LACKED AUTHORITY TO REVOKE

APPELLANT’S COMMUNITY CONTROL.

II. Law and Analysis

{¶ 18} In his assignment of error, Brown argues that the trial court lost authority to

proceed with his community control violation because Brown was not served with written

notice of the violation and hearing date or the warrant for his arrest before the original

expiration date of his term of community control. The state responds that Brown’s period

of community control was tolled from the time the warrant issued until the time Brown

appeared in court on the community control violation because Brown had actual notice of

the violation and hearing date, and any lack of actual notice was invited error because

Brown failed to update his mailing address with his probation officer.

{¶ 19} A proceeding to revoke community control is not equivalent to—and need

not have the same level of formality as—a criminal trial. State v. Johnson, 6th Dist.

Lucas Nos. L-20-1032 and L-20-1033, 2021-Ohio-4447, ¶ 29, citing State v. Stollings, 2d

Dist. Greene No. 2000-CA-86, 2001 WL 501981, *2 (May 11, 2001); State v. Pavlich,

6th Dist. Erie No. E-10-011, 2011-Ohio-802, ¶ 25; State v. Ryan, 3d Dist. Union No. 14-

06-55, 2007-Ohio-4743, ¶ 8; and Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756,

36 L.Ed.2d 656 (1973). Regardless, an offender facing revocation is entitled to certain

minimum due process protections, including written notice of the alleged violation and

the opportunity to be heard in person and to present witnesses and evidence. Id., citing

Pavlich at ¶ 25; State v. McKeithen, 3d Dist. Marion No. 9-08-29, 2009-Ohio-84, ¶ 22;

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

408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

{¶ 20} Notice is important in Brown’s case because the trial court held the

community control violation hearing and sentenced Brown for the violation after

April 16, 2021—the original expiration of his term of community control. A trial court

has authority to conduct proceedings on a defendant’s alleged community control

violation after the defendant’s term of community control expires only if “‘the notice of

violations was properly given and the revocation proceedings were commenced before

the expiration.’” Rue, 164 Ohio St.3d 270, 2020-Ohio-6706, 172 N.E.3d 917, at ¶ 18,

quoting State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, 943 N.E.2d

1014, ¶ 13. So, if Brown was not properly notified of the October 30, 2020 petition for

revocation and the December 11, 2020 hearing, the trial court lost its authority to proceed

and Brown’s community control terminated on April 16, 2021. If, however, Brown was

properly notified, the trial court retained its authority to proceed with the community

control violation hearing and determine the matter because Brown’s term of community

control was tolled from the time that the trial court issued the warrant for Brown’s arrest

until Brown appeared before the court on May 25, 2021. R.C. 2951.07 (“If the offender

under community control absconds * * *, the period of community control ceases to run

until the time that the offender is brought before the court for its further action.”); State v.

Marlow, 2d Dist. Montgomery No. 28216, 2019-Ohio-3393, ¶ 6, quoting State v.

Wallace, 7 Ohio App.3d 262, 263, 454 N.E.2d 1356 (1st Dist.1982); and citing Rash v.

Anderson, 80 Ohio St.3d 349, 350-351, 686 N.E.2d 505 (1997) (“‘Timely initiation of the

[community control violation] complaint and warrant * * * [i]s tantamount to an entry

declaring the [offender] an absconder.’” (Ellipsis sic.)).

{¶ 21} Service of notice in criminal cases is controlled by Crim.R. 49. The rule

requires that “[w]ritten notices * * * shall be served upon each of the parties.” Crim.R.

49(A). When service is required under Crim.R. 49(A) and the party to be served is

represented by an attorney, “service shall be made upon the attorney unless service upon

the party himself is ordered by the court.” Crim.R. 49(B). Either way, service “shall be

made in the manner provided in Civil Rule 5(B).” Id.

{¶ 22} Under Civ.R. 5(B)(1), service on a party who is not represented by an

attorney should be made directly on the party and service on a represented party should

be made on the party’s attorney “unless the court orders service on the party.” Among

the permissible methods of service is “mailing [the document] to the person’s last known

address by United States mail, in which event service is complete upon mailing[.]”

(Emphasis added.) Civ.R. 5(B)(2)(c). When notice of a hearing is sent to a defendant’s

attorney, knowledge of the hearing can be imputed to the defendant. See State v. Connin,

6th Dist. Fulton No. F-21-001, 2021-Ohio-4445, ¶ 16, citing State v. Balas, 68 Ohio

App.3d 524, 526, 589 N.E.2d 86 (9th Dist.1990); and Crim.R. 49.

{¶ 23} Here, the certificate of service on the state’s petition for revocation of

community control—which outlines the community control violation that the state

accused Brown of—indicates that the state mailed a copy of the petition to Brown’s

attorney. In the certificate of service on the notice and order setting the December 2020

hearing, the trial court ordered the clerk to “deliver” a copy of the order to Brown and his

attorney. The docket shows that the clerk “[f]orwarded copies of JE to [Brown] by

Regular U.S. Mail and to Counsel by email” on November 3, 2020. The docket also

shows that the clerk mailed two copies of the hearing notice to Brown: one to Brown at

the Kensington address and one to Brown in care of his attorney. And, in the certificate

of service on the warrant, the trial court ordered the clerk to “deliver” a copy of the order

to Brown and his attorney. The docket shows that the clerk “[f]orwarded copies of JE to

[Brown] by Regular U.S. Mail and to Counsel by email” on December 14, 2020. The

docket also shows that the clerk mailed two copies of the warrant to Brown: one to

Brown at the Kensington address and one to Brown in care of his attorney. Taken

together, this shows that Brown was notified of the community control violation, the

December 11 hearing, and the issuance of the warrant in compliance with Crim.R. 49.

Under Civ.R. 5(B)(2)(c), service to Brown was considered complete as soon as the state

and the clerk put the documents in the mail.

{¶ 24} Although it is possible to overcome this presumption of perfected service

and notice, Brown has not pointed to anything in the record that indicates that service of

the petition for revocation, the notice of hearing, or the warrant was unsuccessful, such as

an entry on the docket noting that mail sent to him was returned to the clerk as

undeliverable. Compare, e.g., State v. Adams, 12th Dist. Warren No. CA2011-06-062,

10.

2012-Ohio-1802, ¶ 14-16 (presumption of service overcome when the docket did not

contain any entries indicating that the hearing notice was sent to the defendant, the file

did not contain “certified mail receipts, envelopes, or any indication that the hearing

notice was received by [the defendant] or was returned for a delivery failure at any time,”

and the state did not present any evidence to counter the defendant’s affidavit stating that

he did not receive the notice).

{¶ 25} We also cannot ignore the fact that there is uncontroverted information in

the record showing that Brown had actual knowledge of the alleged community control

violation and the December 11, 2020 hearing. Lopez testified that he spoke to Brown

about Brown’s case and the December 11 hearing on December 8, 2020. Additionally, at

the May 25, 2021 bond hearing, Brown’s attorney said that Brown “realizes while he did

miss court back in December, he just didn’t have transportation available to him due

partially to the pandemic that was still going on.” (Emphasis added.) Notably, at no

point in the proceedings before the trial court did Brown claim that he was unaware of the

petition for revocation, the December 11 hearing, or the December 14 warrant, or that he

had not received notice of the petition, hearing, or warrant. Rather, the only information

in the record about Brown’s knowledge of the proceedings is that he did not attend the

December 2020 hearing because he did not have transportation.

{¶ 26} On the whole, the record supports a finding that Brown received the

required notices—either directly or through his attorney—so his due process rights were

not violated. Therefore, because the proper notices were sent and the community control

11.

violation proceedings began before Brown’s term of community control was set to expire

on April 16, 2021, and the warrant issued on December 14, 2020, tolled Brown’s term of

community control until he appeared before the trial court on May 25, 2021, the trial

court had authority to conduct the community control violation proceedings. Rue, 164

Ohio St.3d 270, 2020-Ohio-6706, 172 N.E.3d 917, at ¶ 18; R.C. 2951.07; Marlow, 2d

Dist. Montgomery No. 28216, 2019-Ohio-3393, at ¶ 6. Accordingly, Brown’s

assignment of error is not well-taken.

III. Conclusion

{¶ 27} For the foregoing reasons, the August 12, 2021 judgment of the Wood

County Court of Common Pleas is affirmed. Brown is ordered to pay the costs of this

appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.