[Cite as State v. Struffolino , 2020-Ohio-1051.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-19-019 Appellee Trial Court No. 2016CR0014

v. Anthony Struffolino DECISION AND JUDGMENT Appellant Decided: March 20, 2020

* * * * * Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.

* * * * * PIETRYKOWSKI, J. {¶ 1} Defendant-appellant, Anthony Struffolino, appeals the February 11, 2019 judgment of the Wood County Court of Common Pleas which, follow ing his admission to a community control violation, sentenced him to 180 days in jai l. For the reasons that follow, we affirm.2. {¶ 2} Appellant was indicted on one count of breaking and entering, R .C. 2911.13(A) and (C), a fifth-degree felony. On July 13, 2016, a ppellant entered a guilty plea to the charged count and on September 14, 2016, appellant was sentenced to three years of community control with general conditions. Relevant t o this appeal, at the plea hearing the trial court informed appellant as follows: In lieu of prison the Court could place on you what is called community control sanctions, and the Court could establish cert ain things for you to do. If you failed to comply with those, you could t hen be sent to prison for up to twelve months. Do you understand that? Appellant indicated that he understood. {¶ 3} On July 30, 2018, the state filed a petition for revocation of community control alleging that appellant violated the conditions by test ing positive for marijuana. After admitting to the violation, the court extended appellant’ s community control for

one year. {¶ 4} On October 31, 2018, the state filed a second petition for revo cation of community control based on a positive marijuana drug screen. O n November 2, 2018, appellant admitted to the violation, appellant was granted an o wn recognizance bond and the matter was set for disposition on February 2, 2019. In the interim, the Wood County Adult Probation Department ordered that appellant be arrested f or failing to report to the probation department; this incident was added as an addendum to the petition for

revocation.3. {¶ 5} The dispositional hearing was held on February 8, 2019, and app ellant was ordered to serve 180 days in the local jail at the conclusion o f which his community control would be terminated as unsuccessful. This appeal follo wed with appellant raising the following assignment of error: The trial court did not comply with R.C. 2929.11 and 2929.12 in sentencing appellant to serve one hundred eighty days in the Wo od County

Justice Center. {¶ 6} In his sole assignment of error, appellant contends that althou gh the 180-day jail sentence is not unlawful, the trial court abused its discr etion in not ordering a lesser sentence. Specifically, appellant contends that the court fail ed to give proper weight to the mitigating factors: the fact that appellant has a family a nd is employed and “could not balance the requirements and conditions of his community co ntrol with his obligations to provide financial support for his family.” {¶ 7} R.C. 2929.15(B) permits the court upon violation of the communi ty control sanction to impose “[a] more restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the Revised Code, including but not limited to, a ne w term in a communitybased correctional facility, halfway house, or jail pursuant to division (A)(6) of section 2929.16 of the Revised Code[.]” R.C. 2929.15(B)(1)(b). R.C. 2 929.16(A)(6) provides: If the offender is sentenced to a community control sanction an d violates the conditions of the sanction, a new term of up to si x months in a community-based correctional facility that serves the county, i n a halfway4. house, or in a jail, which term shall be in addition to any oth er term imposed under this division. {¶ 8} In addition, the trial court may impose any sentence, so long a s it is within the sentencing range for the degree of felony involved. R.C. 2 929.12(A); R.C. 2929.13(A); R.C. 2929.14(A); State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 17, superseded by statute on other grounds as stated in State v.

Tammerine , 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11, 15 (R.C. 2953.08(G)(2) defines the appellate standard of review of sente ncing judgments). On appeal, our standard of review is limited by R.C. 2953.08(G)(2) to whether there is clear and convincing evidence that the sentencing court’s findings un der R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I) are supported by the record and whether the sentence is contrary to law. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-23. {¶ 9} The trial court must use its discretion to impose the appropria te sentence which achieves the purposes of protecting the public and punish ing the defendant, while imposing a sentence that does not unnecessarily burden state or local government resources. R.C. 2929.11(A); R.C. 2929.12(A); R.C. 2929.13(A). {¶ 10} However, there is no requirement that the court make specific f indings or use specific language to reflect consideration of the applicabl e statutory factors. State v.

O’Dell , 45 Ohio St.3d 140, 147, 543 N.E.2d 1220 (1989); State v. Simpson , 11th Dist. Lake No. 2016-L-014, 2016-Ohio-7746, ¶ 19. Absent an affirmati ve showing to the5. contrary, we presume the court properly considered the relevant factors set forth in R.C.

2929.11 and 2929.12. O’Dell ; State v. Adjei , 1st Dist. Hamilton No. C-160207, 2016 Ohio App. LEXIS 3637, *3 (Sept. 9, 2016). {¶ 11} At the probation revocation hearing appellant, with questioning by the court, explained his problems with marijuana use and his inabil ity to balance his work, family, and community control obligations. In imposing sentenc e, the court stated that it reviewed the PSI, the probation violations, and considered the factors under R.C. 2929.11 and 2929.12, and the circumstances under R.C. 2929.15. {¶ 12} Because the appellant’s sentence was within the permissible ran ge and given that prior consideration was given to the statutory sente ncing factors, we find that the trial court did not abuse its discretion in ordering a 180- day jail sentence and appellant’s sentence was not contrary to law. Appellant’s assi gnment of error is not welltaken. {¶ 13} On consideration whereof, we find that appellant was not prejud iced or prevented from having a fair proceeding and the judgment of the Wood County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.

Judgment affirmed.6. State v. Struff olino C .A. No. WD-19-019

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ______________________

_________ JUDGE Arlene Singer, J. CONCUR. _______________________________ JUDGE

Gene A. Zmuda, P.J. ____________________

___________ CONCURS AND WRITES JUDGE SEPARATELY.

ZMUDA, P.J. {¶ 14} On February 11, 2019, the trial court imposed a 180-day jail te rm on appellant as a sanction for his admitted violation of the condi tions of his community control. Appellant argues that the trial court erred because i t failed to consider the purposes of felony sentencing pursuant to R.C. 2929.11 or consi der any aggravating or mitigating factors described in R.C. 2929.12 in imposing the sa nction. While I believe the majority correctly concludes that the sanction imposed was proper, I disagree that the7. trial court’s compliance with felony sentencing statutes is the appropriate analysis by which that conclusion should be reached. For that reason, I co ncur with the majority’s judgment in affirming the trial court’s sanction but would reac h that conclusion through a different analysis. {¶ 15} When a defendant violates the conditions of community control i mposed following a felony conviction, “the court imposes an appropriat e sanction for that misconduct, but not for the original or underlying crime.” In re. B.H. , 6th Dist. Erie No. E-14-096, 2015-Ohio-2296, ¶ 24, citing State v. Beverly, 4th Dist. Ross No. 01CA2603, 2002 WL 59643, *3 (Jan.11, 2002). The possible sanctions for t he violation of the conditions of community control are established under R.C. 2929 .15(B)(1) which states: If the conditions of a community control sanction are violated or if the offender violates a law or leaves the state without the per mission of the court or the offender's probation officer, the sentencing court may impose upon the violator one or more of the following penalties: (a) A longer time under the same sanction if the total time und er the sanctions does not exceed the five-year limit specified in divi sion (A) of this section; (b) A more restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the Revised Code, including but not limited to, a ne w term in a community-based correctional facility, halfway house, or jail p ursuant to division (A)(6) of section 2929.16 of the Revised Code;8. (c) A prison term on the offender pursuant to section 2929.14 o f the Revised Code and division (B)(3) of this section[.] Upon appellant’s admission to violating the terms of his commun ity control, the trial court elected to impose a 180-day jail term pursuant to R.C. 2929.15( B)(1)(b) as a penalty for appellant’s violation. Appellant argues this sanction was cont rary to law because the trial

court did not consider the factors established under R.C. 2929. 11 and 2929.12 related to felony sentencing. I would not find that the imposition of a j ail term pursuant to R.C. 2929.15(B)(1)(b) requires a trial court to make these considera tions. {¶ 16} When imposing a penalty for the violation of community control, the trial court is required to comply with “the relevant sentencing statu tes.” State v. Fraley , 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17. Therefore , to require compliance with R.C. 2929.11 and 2929.12 before imposing a jail term pursu ant to R.C. 2929.15(B)(1)(b), those statutes must be relevant to the procee dings. I note that had the trial court imposed a prison sentence, R.C. 2929.11 and 2929.12 would be relevant as

described in Fraley. R.C. 2929.15(B)(1)(c), which permits the imposition of a pris on term as a penalty for the violation of community control condit ions, explicitly states that any prison term imposed must be made pursuant to R.C. 2929.14. Further, R.C. 2929.15(B)(3) only allows the imposition of a prison term if th e sentencing court complied with all of the requirements in R.C. 2929.19(B)(2) at the original sentencing. When imposing the original sentence, the trial court would have been required to

consider the factors established in R.C. 2929.11 and 2929.12. In that scenario, those9. factors would be relevant in determining whether the reserved p rison sentence being imposed as a community control violation penalty was properly e stablished at the original sentencing. That is not the case here. {¶ 17} Appellant was not ordered to serve a prison term as a result of his violation of the conditions of his community control. Instead, he was or dered to serve 180 days in jail. R.C. 2929.15(B)(1)(b) states that upon finding a communi ty control violation, the trial court may impose “[a] more restrictive sanction under sec tion 2929.16, 2929.17, or 2929.18 of the Revised Code, including but not limited to, a ne w term in * * * jail pursuant to division (A)(6) of section 2929.16 of the Revised C ode.” Moreover, the other Revised Code sections identified in R.C. 2929.15(B)(1)(b) do no t reference or incorporate any aspect of the original sentence where the trial court’s compliance with R.C. 2929.11 and 2929.12 would be required. Additionally, as t he trial court is imposing a penalty for a community control violation and not the underly ing crime, the penalty is not a new sentence which automatically requires analysis under the felony sentencing

statutes. In re. B.H. at ¶ 24. {¶ 18} Instead, R.C. 2929.15(B)(1)(b) establishes a penalty and requir es that the penalty only be imposed once an offender is found to be in viol ation of their community

control conditions—a decision over which the trial court exerci ses broad discretion. State v. Talty , 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 10. L ogically, the trial court’s consideration of the felony sentencing factor s found in R.C. 2929.11 and 2929.12 has no relation to the imposed penalty. Therefore, tho se factors are not relevant10. in this appeal and any analysis of the trial court’s compliance with those sections is likewise not appropriate for our review in this case. {¶ 19} I believe the appropriate standard of review of the trial court ’s decision is under an abuse of discretion standard. The General Assembly ha s granted “broad discretion to trial courts in imposing community control sancti ons.” Id. Therefore, “[w]e review the trial court’s imposition of community-control sancti ons under an abuse of

discretion standard.” Id. “An abuse of discretion implies that the trial court’s attitu de is unreasonable, arbitrary, or unconscionable.” State v. Clement, 6th Dist. Lucas No. L-12-1249, 2013-Ohio-3554, ¶ 5, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A review of the record under this corr ect standard establishes the trial court did not abuse its discretion in imposing the 18 0-day jail term as a penalty for appellant’s violation of his community control. {¶ 20} The jail term to be imposed as a sanction for violating the con ditions of community control is established under R.C. 2929.16(A)(6). A s ix-month jail term is specifically identified as a possible residential sanction to b e imposed on an offender that has violated previously imposed community control conditions. Appellant makes no argument and cites to no authority which shows the trial court’ s chosen penalty was unreasonable, arbitrary, or unconscionable. The penalty was au thorized by statute and imposed only after appellant admitted to his violations. Under these facts, it is clear the

trial court did not abuse its discretion and I would affirm the judgment of the trial court.11. {¶ 21} Because the majority’s conclusion is premised solely under a fe lony sentencing analysis, I agree only with their conclusion, not th e manner in which it was reached. While I disagree with the majority’s analysis, I conc ur in the decision reached and would affirm the judgment of the trial court.

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.