[Cite as State v. Wallace , 2023 - Ohio - 676.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY

STATE OF OHIO, PLAINTIFF - APPELLEE, CASE NO. 3 - 22 - 40
v. PATRICK WALLACE, O P I N I O N DEFENDANT - APPELLANT.

Appeal from Crawford County Common Pleas Court

Trial Court No. 20 - CR - 0407 Judgment Affirmed Date of Decision: March 6, 2023

APPEARANCES: 

### Howard A. Elliott for AppellantCase No. 3

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-

ZIMMERMAN, J . {¶1} Defendant

- appellant, Patrick Wallace , (“ Wallace ”) appeals the August 30, 2022 judgment entry of the Crawford County Common Pleas Court , General Division , revoking his community control and imposing a 9

- month prison term . For the reasons that follow, we affirm
. {¶2} This case stems from Wallace ’s trave l from Franklin County to Crawford County to allegedly engage in sexual conduct ( by force or threat of force) with a juvenile after he admittedly provided her with marijuana. {¶3} On November 10, 2020 , t he Crawford County Grand Jury indicted Wa llace on two criminal counts: Count One, R ape in violation of R.C. 2907.02(A)(2), ( B ) , a first

- degree felon y and Count Two , C orrupting another with drugs in violation of R.C. 2925.02 ( A )( 4 )( a ) , (C) ( 3 ) , a fourth

- degree felony
. Wallace appeared for arraignment o n November 16, 2020 and entered pleas of not guilty
. {¶4} On January 13, 2021 , Wallace entered a guilty plea to Count Two ( the C orrupting

- another

- with

- drugs charge) in exchange for a dismissal of Count One ( the R ape charge ) pursuant to a negotiat ed

- plea agreement
. Importantly, the negotiated

- p lea agreement contained a joint

- sentencing recom mendation
. Specifically, Wallace and the State agreed to recommend to the trial court a five

year term of community control that included basic supervision by the Crawford County Probation Department
. Thereafter , the trial court hel d a sentencing hearingCase No. 3

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wherein the parties’ joint

- sentencing recommendation was followed in its entirety
. Further, the trial judge reserved an 18

- month prison term on Count Two and ordered
a post
- sentence investigation. 1 ( See Jan. 13, 2021 Tr. at 10). {¶5} On March 18, 2021 , the trial court issued an order suspending Wallace’s community control because he had not complied with the rules and regulations of supervi sion . Wallace was apprehended on that bench warrant on June 20, 2022
. {¶6} On June 21, 2022 , Wallace’s probation officer filed a notice of violation in the trial court seeking to revoke Wallace ’s community control due to violation of several rules including th at his whereabo uts were unknown; that he failed to complete the post
- sentence investigation and respond to attempts to contact him via telephone , and that he had a positive urine screen for THC and for EtG (alcohol)
. That same day , Wallace’s p robation officer provided him with a copy of that notice by personal service. Thereafter , Wallace appeared personally (with counsel) in the trial court at his preliminary

- revocation hearing , and the matter was scheduled for a final

- revocation hearing
.

1 At the time of his change

- of

- plea hearing, the State acknowledged that Wallace was a Franklin

- County resident. (Jan. 13, 2021 Tr. at 8). Thus, it is evident to us the parties agreed to waive completion of a presentence
- investigation report since the tri al court proceeded immediately to a sentencing hearing with the intent to transfer his supervision to Franklin County. The propriety of the trial court sentencing Wallace to community control without a presentence investigation report is not before us in this appeal. See Crim.R. 32.2; R.C. 2951.03(A)(1).Case No. 3

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{¶7} O n August 29 , 2022 , the trial court held a community

- control

revocation hearing , and found that Wallace violated community control. Thereafter, t he trial court revoked Wallace’s community control and sentenced him to a 9

- month prison term . {¶8} Wallace timely appeals and rais es two assignment s of error for our review that we will review separately
. Assignment of Error I The finding by the Trial Court of a community control violation herein because of the Defendant - Appellant’s failure to maintain conta ct with the Community Control Department, is against the manifest weight of the evidence inasmuch as no specific timetable for reporting was set by the Community Control supervisor who had advised the Defendant - Appellant that he would get back with him; as such, the conviction for this alleged community control violation must be reversed and set aside . {¶9} In his first assignment of error, Wallace argues that the trial court erred by finding that Wallace violated his community control
. Specifically, Wallace asserts that the record d oes not support the trial court’s deter mination that he failed to maintain contact with his probation officer, Eric Bohach (“Bohach”)
. {¶10} Initially, we note that the State failed to file a brief in the instan t case. The Ohio Rules of Appellate Procedure state in pertinent part that: [i]f an appellee fails to file the appellee ’ s brief within the time provided by this rule, or within the time as extended, the appellee will not be heard at oral argument * * * and in determining the appeal, the court may accept the appellant’ s statement of the facts and issues asCase No. 3

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correct and re verse the judgment if appellant’ s brief reasonably appears to sustain such action. App.R. 18(C)
. See also State v. Lewis , 3d Dist. Auglaiz e No. 2

- 16

- 13, 2017

- Ohio

996, ¶ 7 ; State v. Montgomery , 3d Dist. Putnam No. 12

- 13

- 11, 2014

- Ohio

- 1789, ¶ 9 ; State v. Young , 3d Dist. Seneca No. 13

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- 52, 2004

- Ohio

- 540, ¶ 4. However, upon our review of the rec ord, we find that the appellant’ s brief does no t reasonably appear to sustain a reversal of the trial court ’s judgment
. Thus, we will examine appellant’ s assignment s of error. Standard of Review {¶11} The decision of a trial court finding a community

- control violation will not be disturbed absent an abuse of discretion. State v. McKeithen , 3d Dist. Marion No. 9

- 08

- 29, 2009

- Ohio

- 84, ¶ 7, citing State v. Ryan , 3d Dist. Auglaize No
. 14

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- 55, 2007

- Ohio

- 47 43, ¶ 7; State v. Espinoza , 3d Dist. Allen No. 1

- 21

- 48, 2022

- Ohio

- 1807, ¶ 17. An abuse of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams , 62 Ohio St.2d 151, 157

- 158 (1980). Analysis {¶12} “Because a commu nity control violation hearing is not a criminal trial, the State need not prove a violation beyond a reasonable doubt.” State v. Roberts , 2d Dist. Champaign No. 2016

- CA

- 8, 2017

- Ohio

- 481, ¶ 20. Rather, “the State must show substantial evidence that the o ffender violated the terms of his community

-Case No. 3

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control sanctions at a community

- control

- revocation hearing.” State v. Boykins , 3d Dist. Marion No. 9

- 14

- 28, 2015

- Ohio

- 1341, ¶ 20. ‘Substantial evidence is akin to a preponderance

- of

- the

- evidence burden of proof .’ State v. Burdette , 5th Dist. Morrow No. 10

- CA

- 9, 2011

- Ohio

- 4425, *4 * * *. ‘Substantial evidence is considered to consist of more than a mere scintilla of evidence, but somewhat less than a preponderance.’ Id. * * *. (Citations omitted.) Id. at ¶ 2 1. {¶13} Relevant to this discussion , the trial court found that Wallace violated Crawford County condition number five

‘ I will follow all orders verbal or written given to me by my supervising officer or other authorized representatives of the Court or the D epartment of Rehabilitation and Correction .’ To Wit: As of 3/18/2021 [Wallace’s] whereabouts [ were ] unknown and a warrant was issued . (Doc. No. 23). {¶14} On appeal, Wallace a rgues that the evidence does not support his violation of condition number five regarding his whereabouts being unknown since at all times relevant his Probation Officer (Bohach) knew his address and failed to go to that address to locate him . Moreover, he argues that he could not be in violatio n of condition number five since Bohach told Wallace he would contact him by telephone at a later date
.Case No. 3

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{¶15} Wallace argues that it was the responsibility of the Crawford County Probation Department to take steps to seek him out , in addition to the failed at tempt s to reach him by telephone at the number s that he (Wallace) previously provided f or such a purpose
. On the contrary, t o us , what Wallace is really arguing relate s to an issue of witness credibil ity since Bohach testified that Wallace did not make contact with him until he (Wallace) became aware that a bench warrant had been issued for his arrest some 15 months after sentencing , and Wallace testified that he attempted to contact Bohach once a mont h since the court hearing to no avail
. “At a community

- control

- revocation hearing the trial court, being in the better position to observe the witnesses and hear their testimony, is entitled to deference on issues of witness credibility and weight of the evidence.” Boykins , 2015

- Ohio

- 1341, at ¶ 27. Here, the trial court was in a better position to assess the credibility of the witnesses and the trial court chose to believe Bohach instead of Wallace
. Accord id. See also State v. Scheck , 3d Dist. Marion No. 9

- 08

- 20, 2008

- Ohio

- 5314, ¶ 22
. {¶16} Moreover, i n our view , Wallace attempts to alleviate his responsibility to remain in contact with Bohach , by shift ing the blame to Bohach
. Importantly , Wallace’s failure to remain in contact with Bohach not only thwarted efforts to supervise him, but also frustrated Wallace’s own self

- serving request to transfer his community

- control supervision to Franklin County and resulted in the trial court’s finding that Wallace had absconded. Consequently, Wallace failed t o make himselfCase No. 3

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available to any of Bohach’s supervision efforts for almost 15 months. To us, Wallace’s lack of compliance supports the trial court’s determination that he had absconded, a non

- technical violation of his community

- control sanctions
. {¶17} Accor dingly, b ased on the evidence presented, we conclude that there was substantial evidence presented that Wallace violated the terms and conditions of his community

- control sanctions. See Boykins , 2015

- Ohio

- 1341, at ¶ 20. {¶18} Therefore, the trial court did not abuse its discretion by concluding that Wallace violated the terms and conditions of his community

- control sanctions. {¶19} Accordingly, Wallace’s first assignment of error is overruled.

Assignment of Error II The nine month sentence for the community control violation herein, in light of the proper conviction on the allegation of failure to report by the Defendant - Appellant, is in excess of what is permitted by law inasmuch as the Defendant - Appellant admitted to having commit ted two technical violations of community control, that of consumption of alcohol and consumption of marijuana, each subject to a maximum ninety day term of imprisonment, and accordingly, the sentence herein must be vacated and remanded to the Trial Court for further proceedings. {¶20} In his second assignment of error, Wallace argues that the trial court erred by sentencing him to 9

- month prison term for a technical violation of his community

- control orders. However, based upon our finding in appellant’s first assignment of error that the trial court’s revocation was based upon a non

- technicalCase No. 3

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violation (i.e., absconding), the assignment of error is rendered moot
. See App.R. 12(A)(1)( c ). {¶21} Acco rdingly, Wallace’s second assignment of error is overruled. {¶22} Having found no error prejudicial to Wallace in the particulars assigned and argued, the judgment of the Crawford County Court of Common Pleas is affirmed
. Judgment Affirmed MILLER, P.J. and WALD ICK, J., concur. /jlr