[Cite as State v. Rader , 2013-Ohio-4822.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 25660

v. : T.C. NO. 12CR1237 NATHAN C. RADER : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 1st day of November , 2013.

. . . . . . . . . . APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee ELIZABETH C. SCOTT, Atty. Reg. No. 0076045, 120 W. Second Street, Suite 603, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . FROELICH, J. {¶ 1} Nathan Rader appeals from a judg ment of the Montgomery County Court of Common Pleas, which revoked community control sanctions previously imposed for a domestic violence convic tion and sentenced him to two years in prison. For the following reasons, the judgment of the trial court will be affirmed.2 {¶ 2} In June 2012, Rader was indicted on one count of domestic violence, with two prior convictions for domestic violence. In July 2012, he pled guilty to the offense, a felony of the third degree. He was sentenced to community control sanctions for a period not to exceed five years and was informed that a violation of the community control sanctions could result in a pr ison sentence of three years. The conditions of community control included that Rader attend a nd complete the MonDay program. {¶ 3} On December 31, 2012, the State file d a notice of community control violation. The trial court he ld a hearing on the alleged vi olation on February 14, 2013, after which the court revoked Rader’s community control. He was sentenced to two years of imprisonment. {¶ 4} Rader appeals, raising one assignment of error.
THE TRIAL COURT ERRED IN FINDING MR. RADER IN VIOLATION OF HIS COMMUNITY CONTROL SANCTIONS AND SENTENCING HIM TO PRISON. {¶ 5} Rader contends that his commun ity control should not have been terminated because he wanted to complete the MonDay program, but was prevented from doing so “through no control” of his own and “against his wishes,” because MonDay dismissed him from its program. {¶ 6} “The right to continue on comm unity control depends upon compliance with community control conditions and is a ma tter resting within the sound discretion of the court. Accordingly, we review the trial c ourt’s decision to revoke a defendant’s community control for an abuse of discretion. Abuse of di scretion has been define d as an attitude that is unreasonable, arbitrary, or unconscionable.” (Internal citations omitted.) State v. Lewis ,3 2d Dist. Montgomery No. 23505, 2010-Ohio-3652, ¶ 11. {¶ 7} The following evidence was presente d at the hearing regarding Rader’s termination from the MonDay program. {¶ 8} Probation Officer Todd Pa trick supervised Rader’s community control and listed its conditions, which include d the requirement that he a ttend and complete a six-month program at a community-based correctional facility, known as MonDay. Rader was on “no break” status, which meant that any violation of his community control “could place him back in front of the Court for a violation hearing.” Rader ha d been informed of these and other conditions, and Patr ick had reviewed the c onditions with Rader. {¶ 9} Charles Skolds, a Resident Leader at the MonDay program, supervised Rader and was present on December 21, 2012, when an incident occurred which led to Rader’s termination from the program. Accord ing to Skolds, at around 10 p.m. that night, “late night” began, a period during which resi dents who have earned certain privileges are allowed to come out of their rooms and “watch movies, play games, play cards, [and] drink soda pop” as a reward for doing well in the program. Rader and approximately 25 other residents were participating that night. {¶ 10} A policy change was implemented that night, which changed the location of the late night activities from the resident floors to a multi-purpose room. Residents were upset about this change, because phone calls c ould be made on the floors, but could not be made in the multi-purpose room. {¶ 11} Residents were require d to stand in a line to be counted before being allowed to go to the multi-purpose room. Howe ver, according to Skolds, they “broke the4 line” and “dispersed when they were not authoriz ed to disperse.” Resi dents were repeatedly ordered by the two resident leaders and a team leader to get back in line, and the “vast majority” refused to do so. Se veral residents “instigat[ed] ot hers to not obey orders,” but Skolds could not say whether Rader wa s one of these individuals. {¶ 12} When the “mutiny” ended, the residents calmed dow n, and order was restored, Skolds talked with approximately 12 residents, voluntarily, to allow them to civilly air their complaints. Rader was one of thes e residents, and he acknowledged during the discussion that he had broken the rules. At the end of this discussion, Skolds handed out “character coupons” to all the people who partic ipated in the roundtable discussion, because although they “had committed their obvious rule vi olations by not following staff directives, * * * the evening ended on a positive note,” a nd Skolds wanted to acknowledge those who had shown maturity and g ood communication skills. {¶ 13} Skolds testified that Rader had committed more than ten rule violations at MonDay prior to the late night incident. {¶ 14} Rader also testified at the hearing. He explained that, on December 21, the residents had been informed a pproximately two hours before “l ate night” that the location had been moved to the multi-purpose room. The residents were “upset” about this change “because people save their phone calls for late night to call their fa milies or whoever,” and no phone was available in the mu lti-purpose room. Because they were upset, residents were “stepping off the line.” The floor leaders were issuing Level 3 rule vi olations (on a 4-level scale, with 4 being the highest). The residents filled out complaint forms, and then some of them discussed how they felt about the situa tion with Skolds, for which they received a5 character coupon. Rader subsequen tly learned that his rule viol ation had been elevated to a Level 4, allegedly for inciting the disturbance. {¶ 15} Rader admitted that he had not completed the MonDay program, but claimed that it was “under fals e pretenses.” He also acknow ledged that he was placed on “no breaks” status when his community control was imposed. He admitted to 17 rule violations while he was at the MonDay program. {¶ 16} A video of the late night incident was played for the trial court at the hearing. {¶ 17} In reaching its decision to revoke community control and send Rader to prison, the trial court repeated ly emphasized his “no break” st atus. The court pointed out that Rader was “not in a pos ition to challenge anything” or “second guess or question any rule change or procedural change” at the M onDay program due to his “no-break” status. The trial court did not abuse its discretion in concluding that Rader’s decision to protest a change in procedure at the MonDay program by purposely breaking a rule and then refusing to comply with staff orders, resulting in hi s discharge from the program, was grounds for termination of his community control. {¶ 18} Rader contends that it was impossible for him to complete the MonDay program, although he was willing to do so. Th e State correctly observes that Rader did not raise this argument in the trial court, and thus he may not raise it for the first time on appeal.
See State v. Weber , 2d Dist. Montgomery No. 25508, 2013-Ohio-3172, ¶ 33; State v. Myles , 2d Dist. Montgomery No. 25160, 2013-Ohio-1821, ¶ 15. {¶ 19} Moreover, the defense of impossibility generally arises in contempt6 proceedings, where it implies that the completion of a task is beyond or outside of one’s control. See Frey v. Frey , 197 Ohio App.3d 273, 2011-Ohio-6012, 967 N.E.2d 246, ¶ 26 (3rd Dist.); Ruben v. Ruben , 10th Dist. Franklin No. 12AP-717, 2013-Ohio-3924, ¶ 32. “Impossibility of performance is not a valid defense where [a party] created the impossibility by his own actions.” Ruben at ¶ 32. Rader’s situation was of his own creation. He was discharged from the MonDay program for a Le vel 4 rule violation, which followed 17 other rule violations of lesser degree. Because hi s own acts resulted in his inability to complete the MonDay program, Rader’s completion of the program was not “impossible.” {¶ 20} The assignment of error is overruled. {¶ 21} The judgment of the trial court will be affirmed.

. . . . . . . . . . DONOVAN, J. and WELBAUM, J., concur. Copies mailed to: April F. Campbell Elizabeth C. Scott Hon. Michael W. Krumholtz