[Cite as State v. Malfregeot, 2024-Ohio-257.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 113339

v. :

JAMES MALFREGEOT, :

Defendant-Appellee. :

[Appeal by Jane Doe, Victim-Appellant] :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED

RELEASED AND JOURNALIZED: January 25, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-654907-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Christine M. Vacha, Assistant Prosecuting 

Attorney, for appellee. 

Ohio Crime Victim Justice Center and Latina Bailey, for 

appellant. 
EILEEN T. GALLAGHER, J.:

Victim-appellant (“Jane Doe”) appeals an order terminating the 

community-control sanctions imposed on defendant-appellee, James Malfregeot 

(“Malfregeot”), and claims the following:

The trial court erred, violating victim-appellant Jane Doe’s 

constitutional rights pursuant to Ohio Constitution, Article I, Section 

10a(A)(1) and (4), when the court terminated defendant-appellee 

James Malfregeot’s community sanctions without complying with 

Revised Code Section 2930.161 by providing notice to the victimappellant Jane Doe. 

We find merit to the appeal, vacate the trial court’s October 10, 2023 

journal entry terminating community control, and remand this case back to the trial 

court to comply with Marsy’s Law.

I. Facts and Procedural History

In December 2021, Malfregeot pleaded guilty to two counts of gross 

sexual imposition in violation of R.C. 2907.05(A)(1) and 2907.05(A)(5), both fourthdegree felonies, and one count of assault in violation of R.C. 2903.13(A), a firstdegree misdemeanor. The trial court sentenced him to two years of communitycontrol sanctions on each count. 

In March 2023, Malfregeot filed a motion to terminate communitycontrol sanctions, but the trial court denied the motion. In October 2023, 

Malfregeot filed a second motion to terminate community-control sanctions. This 

time, the trial court granted the motion, stating in its journal entry: 
Per recommendation of the probation department, defendant may 

terminate early and as successful as of 10/10/23. Defendant 

successfully terminated from probation/community control 

supervision. 

The trial court terminated Malfregeot’s community control without providing notice 

to the state or the victim, Jane Doe. Jane Doe now appeals the trial court’s 

judgment.

II. Law and Analysis

A. Standard of Review

In the sole assignment of error, Jane Doe argues the trial court erred in 

granting Malfregeot’s motion to terminate community-control sanctions without 

complying with R.C. 2930.161 and giving notice to Jane Doe. 

We review a trial court’s decision to terminate a defendant’s 

community-control sanctions for an abuse of discretion. State v. Kusinko, 8th Dist. 

Cuyahoga No. 112817, 2023-Ohio-4545, ¶ 9. An abuse of discretion occurs when a 

court exercises its judgment in an unwarranted way regarding a matter over which 

it has discretionary authority. Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio3304, 187 N.E.3d 463, ¶ 35. This court has held that an abuse of discretion may be 

found where a trial court “applies the wrong legal standard, misapplies the correct 

legal standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 

176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.). Indeed, 

courts do not have discretion to erroneously apply the law. Johnson at ¶ 39 (“We 

take this opportunity to make it clear that courts lack the discretion to make errors 
of law, particularly when the trial court’s decision goes against the plain language of 

a statute or rule.). 

R.C. 2929.15(C) governs the early termination of community-control 

sanctions and states, in relevant part: 

If an offender, for a significant period of time, fulfills the conditions of 

a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of 

the Revised Code in an exemplary manner, the court may reduce the 

period of time under the sanction or impose a less restrictive 

sanction[.]

However, crime victims have been granted certain rights under Article 

I, Section 10a, Ohio Constitution, also known as “Marsy’s Law.” Thus, although a 

trial court may reduce the duration of community control, it may do so only as long 

as the victim’s rights under Marsy’s Law are protected. 

R.C. Chapter 2930 was enacted in accordance with Marsy’s Law. As 

relevant here, R.C. 2930.161(A)(1) requires a court to provide notice to the victim of 

a “probation or community control revocation disposition proceeding or any 

proceeding in which the court is asked to terminate the probation or community 

control of a person who was convicted of committing a criminal offense against the 

victim[.]” R.C. 2930.161(B) further provides:

(B) On request of a victim or victim’s representative who has provided 

current contact information, the probation department shall notify the 

victim and victim’s representative, if applicable, of the following as 

soon as it becomes known to the probation department:

(1) Any proposed modification to any term of probation or community 

control if the modification affects restitution, incarceration, or 

detention status or the defendant’s or alleged juvenile offender’s 

contact with or safety of the victim;
(2) The victim’s and victim’s representative’s right to be heard at a 

hearing that is set to consider any modification to be made to any term 

of probation or community control;

(3) Any violation of any term of probation or community control that 

results in the filing of a petition with the court to revoke probation or 

community control;

(4) Following a risk assessment of the terms of probation or community 

control, including the period of supervision and any modifications to 

the terms of probation or community control, any restricted locations 

and any other conditions of probation or community control that 

impact victim safety.

Under the plain language of R.C. 2930.161(A) and 2930.161(B), 

victims are guaranteed notice and an opportunity to be heard whenever a court 

considers early termination of a defendant’s community-control sanctions. In 

Kusinko, 8th Dist. Cuyahoga No. 112817, we held that a court abuses its discretion 

when it terminates a defendant’s community-control sanctions without giving the 

parties notice and an opportunity to be heard. Id. at ¶ 7-9.

Jane Doe asserts that she was not provided notice or an opportunity to 

be heard in response to Malfregeot’s motion to terminate his community-control 

sanctions before the court granted the motion and terminated the sanctions. The 

state filed a brief agreeing with Jane Doe that notice was not provided. And, we find 

nothing in the record or on the docket to indicate that any notice was provided to 

Jane Doe. We, therefore, find that the trial court abused its discretion in terminating 

Malfregeot’s community-control sanctions without providing Jane Doe with notice 

and opportunity to be heard.

The sole assignment of error is sustained.
Judgment vacated and case remanded to the trial court to comply with 

Marsy’s Law.

It is ordered that appellant recover from appellees costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas 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 T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., and

ANITA LASTER MAYS, J., CONCUR