[Cite as State v. Nichols , 2022
- Ohio
- 2895.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY STATE OF OHIO Plaintiff

- Appellee

v. ROBERT ALLEN NICHOLS Defendant

- Appellant : : : : : : : : : : Appellate Case No. 2021

- CA

- 46 Trial Court Case No. 2021

- CR

- 17 (Criminal Appeal from Common Pleas Court )

. . . . . . . . . . . O P I N I O N Rendered on the 19th day of August , 2022

.

. . . . . . . . . . . SAMANTHA B. WHETHERHOLT, Atty. Reg. No. 0069198 , Assistant Prosecuting Attorney, Champaign County Prosecutor’s Offic e, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff

- Appellee KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 1717 Liberty Tower, 120 West Second Street, Dayton, Ohio 4540 2 Attorney for Defendant

- Appellant

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

WELBAUM , J.- 2

-

{¶ 1} Defendant

- appellant, Robert Allen Nichols, appeals from a judgment of the Champaign County Court of Common Pleas , which revoked his community control sanctions and sentenced him to 18 months in prison for do mestic violence. For the reasons outlined below, the judgment of the trial court w ill be affirmed.

Facts and Course of Proceedings {¶ 2} On January 22, 2021, the State filed a bill of information charging Nichols with a fourth

- degree

- felony count of domestic violence. The charge stemmed from a domestic dispute between Nichols and his girlfr iend, A.C., at their residence in Urbana, Ohio. A.C. reported to the police that an intoxicated Nichols had struck her on the face and the top of her head with his open hand because Nichols thoug ht that she had been talking to another man on the telephone. {¶ 3} On January 28, 2021, Nichols entered into a plea agreement with the State and pled guilty as charged in the bill of information. In exchange for Nichols’s guilty plea, the State agreed to recommend having a presentence investigation report (“PSI”) prepared before sentencing. The State also agre ed to recommend the imposition of community control sanctions at the sentencing hearing on the condition s that Nichols’s PSI did not reveal any criminal history unk nown to the State and that Nichols was not charged with any additional criminal offenses dur ing the pendency of his case. In addition, Nichols agreed to pay court costs and any court

- appointed counsel fees that might be imposed by the trial court at sentencing. The par ties also agreed that Nichols- 3

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was subject to the imposition of 12 months of p otential postrelease control enhancement time. {¶ 4} After being advised of the plea agreement, the trial court conducted a plea colloquy and accepted Nichols’s guilty plea to domestic violence. The trial court also ordered a PSI and scheduled the matter for s entencing. On February 18, 2021, the trial court sentenced Nichols to five years of community control sanctions with standard and special conditions. The standard conditions included, but were not limited to, Nichols ’s following all orders of his supervi sing officer and conducting himself as a responsible, law abiding citizen. The special conditions imposed by the trial court required Nichols to do all the following:
1. Pay court costs and any fines imposed by the trial court (no fines were imposed) ; 2. Succe ssfully gain admission to and complete the West Central Community Based Correctional Facility (“West Central”) residential
program ; 3. Comply with cognitive beh avior counseling and medication

- assisted treatment programming for alcohol dependency;
4. Complete any aftercare programming after being released from West Central ’s residential program ; 5. Obtain an assessment for and successfully complete alcohol dependency and anger management counseling as arranged by the Adult Parole Authority after being released from W est Central ’s- 4

- residential program ; 6. Comply with random drug screens;
7. Abstain from purchasing , possess ing, or consuming alcohol and being present in bars;
8. Complete 100 hours of community service;
9. Register for OhioMeansJobs in order to receive help finding em ployment after being released from West Central;
10. Obtain and maintain tax

- withholding employment; and
11. Have no contact with A.C. {¶ 5} During his plea and sentencing hearings , Nichols advised the trial court that he could not read or write. At the sentencing he aring, Nichols told the trial court that his illiteracy prevented him from obtaining employment. Nichols’s counsel also told the trial
court that N ichols had said he was previously denied admission to West Central in a prior criminal case due to his illit eracy, but counsel could not verify whether that was in fact
true. Despite this , Nichols’s counsel advised the trial court that Nichols was willing to try West Central again. T he trial court then sentenced Nichols to the five

- year term of community contr ol sanctions with the aforementioned standard and special c onditions. {¶ 6} Seven months after sentencing , Nichols’s probation officer filed a “Notice of Supervision Violation” on Septembe r 21, 2021. In the notice, the probation officer alleged that Nichols had violated his community control sanctions by:
1. Having contact with A.C.;
2. Failing to attend all scheduled appointments with the Justice- 5

- Reinvestment Grant Program (“JRGP”) as ordered by his supervising officer;
3. Th reatening to kill and/or do bodily harm to another;
4. Failin g to comply with the medication

- assisted treatment program;
5. Failing to complete the aftercare programming arranged by the JRGP; and
6. Failing to register for OhioMeansJobs. {¶ 7} On November 3, 2021, th e trial court held a hearing on Nichols’s alleged community control violations. At the hearing, Nichols’s probation officer, Herbert Nicholson, testified that Nichols had been admitted into the West Central residential program, which Nichols completed in July 2021. Officer Nicholson testified that after Nichols was released from West Central, he received information from the Urbana Police Department and from Nichols’s brother and mother indicating that Nichols had been having contact with A.C. Officer Ni cholson testified that he discussed these allegations with Nichols in August 2021, and that Nichols had admitted to having contact with A.C. after he wa s released from West Central. Nichols’s brother, Ernest Nichols, Jr., also testified at the hearing and confirmed that he had observed N ichols and A.C. together on more than one occasion. Ernest also testified that A.C. was then living with Nichols at his mother’s residence. {¶ 8} In addition to Nichols ’s having contact with A.C., Officer Nicholson testified tha t Nichols had not registered for OhioMeansJobs and that Nichol s was not gainfully employed. Officer Nicholson further testified that after Nichols was released from West- 6

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Central, he had been convicted of disorderly conduct in the C hampaign County Municipa l Court; the State presented testimony from the victim of that offense. The victim testified that on August 17, 2021, he and Nichols had an argument over Facebook Messenger during which Nichols sent him voice

- recor ded messages that contained threats of ha rm. Specifically, the victim testified that Nichols had threatened to have his “step

- d ad” or “father

- in

- law” kill him and “make [his] body come up missing.” He aring Tr. p. 23

- 25. The victim testified that he had also been convicted of disorderly conduct for making threats back at Nichols during their argument. {¶ 9} Officer Nicholson also testified that Nichols had failed to attend his West C entral aftercare programming. Jessic a Manuel, a coordinator for Champaign County ’s West Central JRGP, also testified at the hearing and confirmed that Nichols’s aftercare programming had included the JRGP and other counseling. Manuel testified that Nichols had attended his JRGP meetings and resched ule d meetings when he missed one. However, Manuel testified that Nichols failed to follow through with the JRGP’s treatment recommendations. {¶ 10} In addition, Manuel testified that Nichols initially sought treatment a t TCN Behavioral Health (“TCN”) but failed to follow TCN’s treatment plan. Manuel testified that on August 11, 2021, Nichols advised her that he had decided to switch from TCN to Mercy REACH, but he later reported that he did not like Mercy REACH and had decided to go back to TCN. Man uel testified that despite going back an d forth between these treatment providers, Nichols did not comply with eithe r TCN ’s or Mercy REACH’s program. {¶ 11} Manuel also testified that after Nichols was released from West Central’s- 7

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residential program, he had fa il ed to continue with his medication

- assisted treatment. Manuel testified that Nichols had initial ly complied with his medication

- assisted treatment while at West Central by receiving a Vivi trol shot on July 21, 2021 . However, Nichols never returned to the clinic for an other shot after his release from West Central

. Manuel testi fied that Nichols told her that he had not gotten another shot beca use he did not have a ride to the clinic . Manuel testified that after hearing this excuse, she offered to get Nic hols a ride to the clinic or to pay for Nichols to take the public tr ansportation system; after Manuel made that offer, Nichols told her that he would be able to get his own ride to the clinic

. Manuel also testified that Nic hols reported getting a job at the Super 8 hotel
i n Bellefontaine, but that it did not qualify as tax
- withholding employment. {¶ 12} After considering the foregoing te stimony, the trial court found that Nichols was guilty of all but one of the community control violations alleged in Officer Ni cholson’s “Notice of Supervision Violation.” Specifically, the trial court found that Nichols was not guilty of failing to attend all scheduled appointments with the JRGP. The trial court did, however, find that Nichols was guilty of having contact with A.C., t hreating to kill and/or or do bodily harm to another; f ailing to comply with his medicat ion

- assisted treatment program, f ailing to complete the aftercare prog ramming arranged by the JRGP, and failing to register for OhioMeansJobs. {¶ 13} In li ght of its guilty findings, the trial court proceeded to sentencing. During sentencing, Nichols’s counsel suggested that Nichols’s illiteracy, impulsivity, and difficulty “functioning in society” should be considered in mitigation of punishment. Hearing Tr. p.
45. Nichols also advised the trial court that he had previously been evaluated as having- 8

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“mental retardation ” and that he was “not smart.” Id . at 46 and 50

. {¶ 14} Following these statements, the trial court had a discussion with Nichols regarding his mental abilities. During that discussion, Nichols told the trial court that he knew how to use Facebook on his cellphone and explained how he sent messages through Facebook Messenger using a dictation application that recorded and read back the words he s poke into his cellphone. Nichols also told the trial court that he could send and receive e

- mails through Gmail, and that he played games such as bowling and darts

o n his cellphone. When asked by the trial court whether he understood what happens when so meone violates the rules of society, Nichols, responded: “Somewhat, yes.” Id

. at 51. Nichols also confirmed that he understood “violence is not a good thing.” Id

. {¶ 15} Based on the trial court’s discussion with Nichols, and based on the fact that Nichols was able to follow instructions at West Ce ntral and successfully complete that program, the trial court d etermined that Nichols had been intelligent enough to under stand what was expected of him. The trial court also determined that Nichols ’s trouble with im pulsivity arose in unstructured setting s

. After these considerations, and after conside ring the hearing testimony, the PSI, documentation from West Central, and the purposes and principles of felony sentencing, the trial court revoked Nichols’s community control sanctions and sentenced him to 18 months in prison. Nichols now appeals from that judgment, raising a single assignment of error for review.

Assignment of Error {¶ 16} Under his assignment of error, Nichols does not dispute the fact that he- 9

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violated the conditions of his community control sanctions . Nichols instead contends tha t the trial court’s judgment revoking his community control a nd sentencing him to prison was an abuse of discretion because the trial court failed to adequately consider his mental deficiencies when rendering that judgment. Nichols claims that his mental deficiencies, i.e., being illiter ate and being unable to exer cise impulse control, made it impossible for him to comply with the conditions of his community control. We , however, disagree with Nichols’s claims. {¶ 17} “The right to continue on community control depends upon compliance with the conditions of community cont rol and is a matter within the sound discretion of the trial court.” State v. Eastman , 2d Dist. Clark No. 2020

- CA

- 5, 2021

- Ohio

- 392, ¶ 13, citing State v. Lewis , 2d Dist. Montgomery No. 23505, 2010

- Ohio

- 3652, ¶ 11. “Accordi ngly, we review the trial court’ s revocation of community control for an abuse of discretion.” Id ., citing State v. Morgan , 2d Dist. Montgomery No. 26132, 2014

- Ohio

- 5071, ¶ 11. “A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitr ary.” (Citation omitted.) State v. Darmond , 135 Ohio St.3d 343, 2013

- Ohio

- 966, 986 N.E.2d 971, ¶ 34. “An abuse of discretion most often involves an unreasonable decision that is not supported by a sound reasoning process.” State v. Pate , 2021

- Ohio

- 1838 , 173 N.E.3d 567 , ¶ 36 (2d Dist.), citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). {¶ 18} In State v. Johnson , 2d Dist. Montgomery No. 22302, 2008

- O hio

- 4014, this court addressed a claim s imilar to the one Nichols has raised on appeal . In Johnson ,- 10

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the defendant claimed that the trial court had abused its discretion by revoking his community control sanctions because the defendant’s mental health issues prevented him from being able to complete the ordered treatment. Id . at ¶ 10. We found that when the trial court in Johnson announced its decision to revoke the defendant’s community control, it “went into a lengthy monologue about [the defendant’s] mental health claims [

. ] ” Id . at ¶ 15. In doing so, the trial court expressed that it was specifically concerned with the issue of whether the defendant was unable to comple te his treatment program beca use of depression. T he trial court determined from its past dealings with the defendant that the defendant had some “mental difficulty ” but found that there was nothing in the record indicating that the defendant’s depression prevented him from going “about the daily chores of living” or f rom doing what was necessary to successfully complete the
treatment program that was ordered. I d . Because the trial court considered the defendant’s mental condition as a factor before revoking his community control sanctions , we foun d no abuse of discretion in the tria l court’s judgment

. Id . at ¶ 16. {¶ 19} Similar to Johnson , the trial court in this case consider ed Nichols’s mental abilities before revoking his community control sanctions

. For example, i n ass essing Nichols’s alleged lack of int elligence, the trial court considered the fact that Nichols was proficient at using Facebook on his cellphone and was able to send messages through Facebook Messenger using a dictation application. The trial court also considered the fact that Nichols was able to play games on his cellphone and was proficient at sending and receiving e

- mails using Gmail. T he trial court further considered that Nichols had successfully completed the residential progr am at West Central, which indicated to the- 11

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trial court that Nichols had sufficient intelligence to follow the instructions that were given there

. The trial court also considered the fact that Nichols struggled with impulsivity and acting on his emotions in unstructu red settings. {¶ 20} Given that the trial court considered all of the se factors bef ore revoking Nichols’s community control, we find that Nichols’s claim that the trial court failed to adequately consider his mental deficiencies before rendering its j udgment lacks merit

. Contrary to Nichols’s claim otherwise, the reco rd clearly establishes that the trial court carefully considered Nichols’s mental abilities and impulsivity when rendering its judgment. Accordingly, there was no abuse of discretion in that regard. {¶ 21} Furthermore, t he trial court’s judgment revoking Nichols’s community
cont rol sanctions was reasonable. I t has been held that “ ‘[a] trial court does not abuse its discretion by revoking an of fender’ s community control where the violation in q uestion was one over which the offender had control.’ ” State v. Noonan , 12th Di st. Butler Nos. CA2018

- 10

- 203, CA2018

- 10

- 204, 2019

- Ohio

- 2960, ¶ 19, quoting State v. Tranter , 12th Dist. Clermont No. CA2000

- 05

- 035, 200 1 WL 290192, *3 (Mar. 26, 2001), citing State v. Stockdale , 11th Dist. Lake No. 96

- L

- 172, 1997 WL 663688 (Sept. 26, 1997). In this case , all of Nichols’s community control violations involved actions that were entirely within his control. For example, after completing the West Central residen tial program, Nichols chose to not follow through with the after care programming and medication

- assi sted
treatment even though he wa s offered assistance in doing so . Nichols also chose to hav e contact with A.C. even though it was prohibited, chose to engage in disorderly conduct , and chose not to register for OhioMeansJobs even though he was ordered to do- 12

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so . Because all of these community control violations were within Nichols’s control, and because the trial court found that Nichols strugg led in unstructured settings, it was reasonable and not an abuse of discretion for the trial court to revoke his community control sanctions and sentence him to prison. {¶ 22} Nichols’s sole assignment of error is overruled.

Conclusion {¶ 23} Having overruled Nichols’ s assignment of error, the judgment of the trial court is affirmed.

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

DONOVAN , J. and LEWIS , J. , concur.

Copies sent to: Samantha B. Whetherholt Kristin L. Arnold Hon. Nick A. Selvaggio