[Cite as State v. Arnold , 2019-Ohio-254.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 107466

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. BRIAN TIMOTHY ARNOLD

DEFENDANT-APPELLANT

JUDGMENT:

DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-593802-A

BEFORE: Boyle, P.J., Jones, J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: January 24, 2019ATTORNEY FOR APPELLANT

Patricia J. Smith 206 S. Meridian Street, Suite A Ravenna, Ohio 44266

Also Listed: Brian Timothy Arnold Inmate No. A682852 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901

ATTORNEY FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

MARY J. BOYLE, P.J.: {¶1} Defendant-appellant, Bria n Timothy Arnold, appeals from the trial court’s judgment reimposing his prison sent ence after he was found to have vi olated his judi cial release. Arnold’s appointed appellate c ounsel filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and requested leave to withdraw as counsel.

I. Anders Standard and Potential Issues for Review {¶2} In Anders , the United States Supreme Court held that if appointed counsel, after a conscientious examination of the case, determines the appeal to be wholly frivolous, he or she

should advise the court of that fact and request permissi on to withdraw. Id . at 744. This request, however, must be accompanied by a brief identifying anything in the record that couldarguably support the appeal. Id . In this case, appointed counsel fully complied with the requirements of Anders and Loc.App.R. 16(C). 1 {¶3} According to Anders , after appointed counsel has moved to withdraw from the case and filed a brief identifying anything in th e record that could arguably support the appeal, “the court — not counsel — then proceeds, afte r a full examination of all the proceedings, to

decide whether the case is wholly frivolous.” Id. Loc.App.R. 16(C) furt her states that after briefing is complete and a mer it panel has been assigned for re view, “[t]he pane l will conduct an independent examination of the record to determine if it discloses an issue of arguable merit prejudicial to the appellant.” {¶4} On October 30, 2018, this court ordered a ppointed counsel’s motion be held in abeyance pending our independe nt review as required by Anders and Loc.App.R. 16(C). We

further notified Arnold that he had until Decembe r 10, 2018, to file his own appellate brief, but

he did not do so. {¶5} Arnold’s counsel states in her Anders brief that she thoroughly reviewed the record, and concluded that ther e are no meritorious arguments th at she could make on Arnold’s

behalf. Arnold’s counsel has submitted the following potential issue for review: The trial court abused its discretion in terminating appellant’s community control. {¶6} After conducting an independe nt review of Arnold’s case, we dismiss his appeal and grant appointed counsel’s motion to withdraw. II. Procedural History and Factual Background {¶7} On March 12, 2015, a Cuyahoga County Gra nd Jury indicted Arnold with one

1 Effective February 1, 2019, Loc.App.R. 16 will be amended, eliminating subsection (C), pertaining to the filing of Anders briefs.count of aggravated robbery and one count of robbery in Cuyahoga C.P. No. CR-15-593802-A. Both charges carried one- and three-year firearm specifications. Arnold was declared indigent, and the trial court assigned him counsel. He pleaded not guilty to the charges. {¶8} In August 2015, Arnold accepted a plea deal , under which he pleaded guilty to robbery. In return, the aggravated robbery count was nolled, and the firearm specifications attached to the robbery count were deleted. {¶9} In September 2015, however, Arnold made an oral motion to withdraw his guilty plea, which the trial court gran ted. The trial court also gran ted Arnold’s defense counsel’s request to withdraw from the case. The trial court assigned Arnold new counsel. {¶10} In January 2016, Arnold accepted a new plea deal, under which he pleaded guilty to aggravated robbery, a felony of the first degr ee. The state deleted th e firearm specifications for that count and dismissed the robbery count. {¶11} In May 2016, the trial court sentenced Ar nold to a prison term of three years. 2 It advised Arnold that he was also subject to a ma ndatory five-year term of postrelease control. No direct appeal was taken. {¶12} In April 2017, after serving approximately 11 months, Arnold filed a motion for judicial release, which the trial court granted. The trial court placed Arnold on two years of community control, the terms of which included th at Arnold (1) abide by all rules and regulations of the probation department, (2) be supervised by Group D, (3) report weekly for three months and every two weeks thereafter or as directed by his probation officer, (4) attend programming as indicated in his case plan, (5) pay a monthly supervision fee, and (6) submit to random drug

2 The trial court initially sentenced Arnold to a prison te rm of three years and six months, but sua sponte corrected its sentence to three years in a journal entry.testing. The trial court also advised Arnold that the conditions and terms of his community control were subject to modifica tion by his probation officer and the approval of the trial court and that Arnold would be eligib le for early termination upon satis faction of the above conditions. The trial court also expressly reserved the ri ght to reimpose the balance of Arnold’s unserved prison sentence if he violated the above conditions. {¶13} In October 2017, the trial court held a judici al release violation hearing. It found that Arnold violated the terms of his judicial release after testing positive for illegal drugs. The trial court continued judicial re lease with the same conditions. {¶14} In January 2018, the trial court held another judici al release violation hearing. It

found that Arnold violated the term s of his judicial re lease after testing positive for illegal drugs. The trial court continued community control with the same conditions as well as an additional condition that Arnold successfully complete an outpatient treatment program and follow all

treatment and after care recommendations. {¶15} In May 2018, the trial court he ld a third judicial releas e violation hearing. It

found that Arnold violated the terms of his comm unity control after testing positive for illegal drugs. The trial court c ontinued judicial release with the same conditions. {¶16} In June 2018, the trial court he ld a fourth judicial releas e violation hearing, during which Arnold, his probation officer, and his de fense counsel spoke. It found that Arnold violated the terms of his judicial release after being unsuccessfully discha rged from his treatment program. The trial court terminated Arnold’s j udicial release and reim posed the remainder of his original three-year sentence with a mandatory five-year term of postrelease control to follow. {¶17} It is from this judgment that Arnold now appeals. III. Law and Analysis{¶18} In its sole potential issue for review, couns el argues that Arnold could argue that the trial court abused its discretion in terminating Arnold’s judicial release. {¶19} Pursuant to R.C. 2929.20(K), if a trial court grants judicial release to an eligible offender, the court “shall place the eligible offender under an appropriate community control sanction, under appropr iate conditions, and under the supervis ion of the depar tment of probation serving the court and shall reserve the right to reimpose the sentence that it reduced if the

offender violates the sanction.” Further, “[a] judicial rel ease revocation hearing is not a

criminal trial and does not result in a conviction.” State v. Westrick , 196 Ohio App.3d 141, 2011-Ohio-1169, 962 N.E.2d 818, ¶ 13 (3d Dist.). Theref ore, the state is not required to prove a judicial release vi olation “beyond a reasonable doubt”; instead, the state must show “substantial proof that the offender violated the term s of his or her j udicial release.” Id. at ¶ 21. “A trial court’s decision finding a violation of judicial release will not be disturbed on appeal absent an

abuse of discretion.” Id. at ¶ 22, citing State v. Alexander , 3d Dist. Union No. 14-07-45,

2008-Ohio-1485. {¶20} It is also important to note that althoug h the trial court is required to impose “an appropriate community cont rol sanction,” the fact remains that the offender is serving judicial release, not community control. As a result, the rules dealing with a violation of an original sentence of community control (R.C. 2929.15) should not be confused with the sections of the Revised Code regarding early judicial release (R.C. 2929.20) even though * * * R.C. 2929.20([K]) contains the term “community cont rol” in reference to the status of an offender when granted early judicial release.

State v. Franklin , 5th Dist. Stark No. 2011-CA -00055, 2011-Ohio-4078, ¶ 12, citing State v.

Mann , 3d Dist. Crawford No. 3-03-42, 2004-Ohio-4703, and State v. Durant , 5th Dist. Stark No. 2005 CA 00314, 2006-Ohio-4067.{¶21} During the June 2018 judicial release violation hearing, the trial court found that Arnold violated the terms of his judicial releas e because he was unsuccessfully discharged from his treatment program. During the hearing, Ar nold’s probation officer te stified that Arnold was discharged from the program “for inappropriate behavi or and vulgar language towards staff.” The probation officer stated that there were two se parate incidents. During the first incident, Arnold “used inappropriate language and was intimidating in his behavior to his TASC assessor to the point where she felt uncomfortable dealin g with Mr. Arnold on a personal level.” During the second incident, Arnold “got belligerent with his treatment group facilita tor” and used vulgar language. {¶22} Arnold’s defense counsel stat ed that he believed Arnold had mental health issues

and asked for a mental health assessment. He also reported that Arnold had a job and that he did not believe that pris on would be appropriate. {¶23} Arnold told the court that his probation offi cer and he were not seeing “eye to eye” and that he wanted to succeed on probation, but had issues. {¶24} The following exchange then occurred: TRIAL COURT: [Arnold,] you and I had a conversation on May 25th. And I said to you, knock it off. I told you I can’t keep doing this.

ARNOLD: I know. TRIAL COURT: This string of comin g in here for violations, testing positive, getting kicked out of the treatment programs, * * * intimidating workers, not dea ling with the court personnel properly, I can’t handle that and I’m not going to anymore. So what I’m going to do is I’m going to find you in violation. I’ve read all of the letters. I’ve reviewed everything. I’m going to find you in violation. I’m going to terminate your proba tion. I’m going to order the sentence in execution.{¶25} Based on the above, we find that the trial court did not abuse its discretion when it revoked Arnold’s judicial releas e and reimposed the remainder of Arnold’s three-year prison term. Arnold’s failure to complete his treatment program and inability to interact appropriately with program staff constituted violations of his judicial release and certainly warranted the trial court’s revocation. Accordingly, we grant counsel’s motion to withdraw. {¶26} Appeal dismissed. It is ordered that appellee recover from appellant the costs herein taxed. 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.

MARY J. BOYLE, PRESIDING JUDGE LARRY A. JONES, SR., J., and EILEEN A. GALLAGHER, J., CONCUR