[Cite as State v. Wiggins , 2022 - Ohio - 2718.]

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

STATE OF OHIO, PLAINTIFF - APPELLEE, CASE NO. 3 - 21 - 25
v. CARL W. WIGGINS, O P I N I O N DEFENDANT - APPELLANT.

Appeal from Crawford County Common Pleas Court

Trial Court No. 20 - CR - 0349 Judgment Affirmed Date of Decision: August 8, 2022

APPEARANCES: 

### Howard A. Elliott for Appellant 

### Daniel J. Stanley f

or AppelleeCase No. 3

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MILLER , J. {¶1} Defendant

- appellant, Carl W. Wiggins, appeals the November 16, 2021 judgment of the Crawford County Court of Common Pleas revoking his judicial release and reimposing the balance of his 48

- month prison term. For the reasons that follow, we affirm. I. Background {¶2} On September 29, 2020, the Crawford County Grand Jury indicted Wiggins on Count One of having weapons while under disability in violation of R.C. 2923.13(A)(2), a third

- degree felony, and Count Two of possession of drugs in violation of R.C. 2925.11 , a fifth

- degree felony. On November 23, 2020, Wiggins pleaded guilty to both counts of the indictment. The trial court proceeded i mmediately to sentencing. Following a joint sentencing recommendation between Wiggins and the St ate, the trial court sentenced Wiggins to 36 months in prison on Count One and 12 months in prison on Count Two, to be served consecutively for an aggregate term of 48 months in prison . As part of the arrangement , the State agreed to recommend judicial re lease after Wiggins serv ed a portion of his prison term. {¶3} On February 19, 2021 , Wiggins filed a motion for judicial release, which the trial court granted on March 31, 2021. The trial court placed Wiggins onCase No. 3

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community

- control supervision for a period of five years “under the standard conditions and terms of the Crawford County Prob ation Department.” {¶4} On August 16, 2021, the State filed a motion for Wiggins to show cause why his judicial release should not be revoked. In its motion, the State alleged that Wiggins had violated the conditions of his community

- control supervision by fai ling to report to his supervising officer on June 1, 2021, testing positive for THC, amphetamine, and me thamphetamine, and admitting to having consumed marijuana and methamphetamine. Wiggins , who had been arrested pursuant to a warrant issued after he fai led to meet with his supervising officer, was released on bond on September 5, 2021 . Thereafter, on September 27, 2021, Wiggins failed to appear for a sc h eduled drug test and visit with his supervising officer . A warrant was again issued for Wiggins’s ar rest, and when Wiggins was taken into custody on October 6, 2021 , he re fused to submit to drug testing or sign a refused drug test form
. {¶5} At a revocation hearing on November 10, 2021, Wiggins admitted to viola ting the terms of his community

- control supervision . The trial court then turned to decide whether to cont inue Wiggins’s judicial release . Based on Wiggins’s crimina l history, including a 2005 conviction for felonious assault and a 2013 conviction for having weapons while under disability , an d the nature of his violations, the trial court elected to revoke Wiggins’s judicial release and reimposeCase No. 3

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the balance of his prison sentence. The trial court filed a judgment entry to this effect on November 16, 2021. II. Assignment of Error {¶6} On December 2 3, 2021 , Wiggins filed a notice of appeal. 1 He raises the following assignment of error for our review: At a hearing on revocation of judicial release, the trial court abused its discretion by examining the sentences [sic] factors of Ohio Revised Code Se ction 2929.12, 2929.13, 2929.14, by ignoring that the defendant - appellant had long standing issues for substance abuse for which the conditions of community control imposed when judicial release was granted, failed to address or refer the defendant - appella nt to treatment. III. Discussion {¶7} In his assignment of error, Wiggins argues that the trial court abused its discretion by revoking his judicial release. Specifically, he maintains that it was unreasonable for the trial court to revoke his judicial releas e because the trial court did not require him to attend and complete a drug treatment program as a c ondition of his community

- control supervision . Wiggins argues the trial court “set up a self

fulfilling prophecy and set [him] up to fail” when it released him from prison without ordering drug treatment, and he asserts that the trial court should have continued his judicial release, with an added drug

- treatment condition, rather than return him to prison.

1 Although untimely filed, we granted Wiggins leave to file a delayed appeal on January 13, 2022.Case No. 3

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{¶8} Ohio’s judicial release statute, R.C. 2929.20, provi des in relevant part: If the court grants a motion for judicial release under this section, the court shall order the release of the eligible offender, shall place the eligible offender under an appropriate community control sanction, under appropriate con ditions, 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. If the court reimposes the reduced sentence, it may do so eithe r concurrently with, or consecutive to, any new sentence imposed upon the eligible offender as a result of the violation that is a new offense. R.C. 2929.20(K). “[W]hen a defendant is granted judicial release, he or she has already served a period of incarceration, and the remainder of that prison sentence is suspended pending either the successful completion of a period of comm unity control or the defendant’ s violation of a community control sanction.” State v. Alexander , 3d Dist. Union No. 14

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- 1485, ¶ 7. “While out on judicial release, if ‘an offender violates his community control requirements, the trial court may reimpose the original prison sentence and require the offender to serve the balance remaining on the original term.’” S tate v. Phipps , 3d Dist. Crawford No. 3

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- 258, ¶ 22, quoting State v. Mann , 3d Dist. Crawford No. 3

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- 4703, ¶ 8. However, “[t]he trial court may not alter the defendant’s original sentence except to reimpose the sentence
cons ecutively to or concurrently with a new sentence it imposes as a result of the judicial release violation that is a new criminal offense.” State v. Jones , 3d Dist. Mercer Nos. 10

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- 2117, ¶ 15.Case No. 3

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{¶9} A trial court’s decision to revoke a defendant’s judicial release based on a violation of the cond itions of his or her community

- control supervision will not be disturbed absent an abuse of discretion. State v. Arm , 3d Dist. Union Nos. 14

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- 3771, ¶ 22. An abus e of discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams , 62 Ohio St.2d 151, 157

- 158 ( 1980). {¶10} Here, Wiggins argues that the trial court abused its discretion by revoki ng his judicial release because the trial court did not tailor the con ditions of his community

- control supervision to address the issues underlying his criminal behavior. He essentially argues that in the absence of a drug

- treatment condition, it was inevitable that he would vio late the co nditions of his community

- control supervision
. We do not accept this argument. While it might have been prude nt for the trial court to include a drug

- treatment condition when it granted Wiggins judicial release, it had no duty to do so. State v. Webb , 3d Dist. Crawford No. 3

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- 2637, ¶ 11. Irrespective of the steps the trial court took to aid Wiggins in addressing his drug use, Wiggins had a freestanding obligation to refrain from using drugs. Nothing precluded Wiggins from see king out and entering a drug treatment program of his own volition. Rather than doing so, Wiggins failed to report to his supervising officer , admitted us ing drugs, and refused to submit to dr ug testing . These infractions, c oupled with Wiggins’s fairly e xtensive criminal history,Case No. 3

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amply support the trial court’s decision to revoke Wiggins’s judicial release and reimpose the balance of his prison term. Accordingly, we conclude that the trial court did not abuse its discretion. {¶11} Wiggins’s assignment of error is overruled. IV. Conclusion {¶12} For the foregoing reasons, Wiggins’s assignment of error is overruled. Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the Crawford County Court of C ommon Pleas. Judgment Affirmed ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur. /jlr