[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, 2019 
ATTORNEY 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, Brian Timothy Arnold, appeals from the trial court’s 

judgment reimposing his prison sentence after he was found to have violated his judicial release. 

 Arnold’s appointed appellate counsel 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 permission to withdraw. Id. at 744. This 

request, however, must be accompanied by a brief identifying anything in the record that could 
arguably 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 the record that could arguably support the appeal, 

“the court — not counsel — then proceeds, after a full examination of all the proceedings, to 

decide whether the case is wholly frivolous.” Id. Loc.App.R. 16(C) further states that after 

briefing is complete and a merit panel has been assigned for review, “[t]he panel 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 appointed counsel’s motion be held in 

abeyance pending our independent review as required by Anders and Loc.App.R. 16(C). We 

further notified Arnold that he had until December 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 there are no meritorious arguments that 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 independent 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 Grand 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 granted. The trial court also granted 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 degree. The state deleted the firearm specifications 

for that count and dismissed the robbery count. 

{¶11} In May 2016, the trial court sentenced Arnold to a prison term of three years.2

 It 

advised Arnold that he was also subject to a mandatory 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 that 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 term 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 modification by his probation officer and the approval of the trial court 

and that Arnold would be eligible for early termination upon satisfaction of the above conditions. 

 The trial court also expressly reserved the right 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 judicial 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 release with the same conditions. 

{¶14} In January 2018, the trial court held another judicial release violation hearing. It 

found that Arnold violated the terms of his judicial release 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 aftercare recommendations. 

{¶15} In May 2018, the trial court held a third judicial release violation hearing. It 

found that Arnold violated the terms of his community control after testing positive for illegal 

drugs. The trial court continued judicial release with the same conditions. 

{¶16} In June 2018, the trial court held a fourth judicial release violation hearing, during 

which Arnold, his probation officer, and his defense counsel spoke. It found that Arnold 

violated the terms of his judicial release after being unsuccessfully discharged from his treatment 

program. The trial court terminated Arnold’s judicial release and reimposed 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, counsel 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 appropriate conditions, and under the supervision of the department 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 release 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.). Therefore, the state is not required to prove a 

judicial release violation “beyond a reasonable doubt”; instead, the state must show “substantial 

proof that the offender violated the terms of his or her judicial 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 although the trial court is required to impose “an 

appropriate community control 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 control” 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 release because he was unsuccessfully discharged from 

his treatment program. During the hearing, Arnold’s probation officer testified that Arnold was 

discharged from the program “for inappropriate behavior and vulgar language towards staff.” 

The probation officer stated that there were two separate 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 dealing with Mr. Arnold on a personal level.” During 

the second incident, Arnold “got belligerent with his treatment group facilitator” and used vulgar 

language. 

{¶22} Arnold’s defense counsel stated 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 prison would be appropriate. 

{¶23} Arnold told the court that his probation officer 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 coming in here for violations, testing 

positive, getting kicked out of the treatment programs, * * * 

intimidating workers, not dealing 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 probation. 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 release 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