State v. Chappell
| Decision Date | 13 November 2008 |
| Docket Number | No. 2008-CR-338.,2008-CR-338. |
| Parties | The STATE of Ohio, Plaintiff, v. CHAPPELL, Defendant. |
| Court | Ohio Court of Common Pleas |
Stephen K. Haller, Greene County Prosecuting Attorney, and David D. Hayes, Assistant Prosecuting Attorney, for plaintiff.
Daniel E. Brinkman, Dayton, for defendant.
{¶ 1} Because of the novelty of the issue raised in the case in which a probationer is charged with escape, the court issues this detailed opinion. First the facts behind the charge and the relevant statutes will be explained. The fact that parolees can now be prosecuted for escape after a change in the law will be recounted along with how this case is unique. Methods of interpreting statutes, legislative history, and the canons of construction will be discussed in connection with their use in analyzing the laws at issue here and the statutory definition of "detention." Next the court will consider the state's theory that the defendant was under arrest at the time he left the probation department. Last, the court will sum up the reasons for its verdict.
{¶ 2} Defendant, Derron James Chappell, pleaded guilty to one count of aggravated robbery in violation of R.C. 2913.01(A)(1) in 2005.1 This court sentenced him to four years' imprisonment.
{¶ 3} While incarcerated, the defendant worked on improving himself, earning a GED diploma, completing a drug and alcohol rehabilitation program, and taking community-college classes. Based on this positive record, the defendant requested and received a suspension of the remainder of his prison sentence under R.C. 2920.20.
{¶ 4} The court, in October 2006, sentenced the defendant to five years of community control, i.e., probation.2 Among other terms, the defendant was required to submit to basic probation supervision and urinalysis to ensure that he did not use illegal drugs. The order specifically noted that violations of the terms of his release could result in his being returned to prison to complete his original sentence. The defendant was aware of these terms and signed them.
{¶ 5} Nine months later came the events that led to this prosecution. The state and the defendant have stipulated to the facts in the report of Greene County Probation Officer Matthew S. Johnson.
{¶ 6} The defendant appeared for his weekly reporting at the office of the Greene County Probation Department on the third floor of the County Courthouse in Xenia around 4:00 p.m. on July 16, 2007.
{¶ 7} Officer Johnson informed the defendant that he would undergo a drug test that day. The officer had the defendant sign a form acknowledging that he was subject to a drug test and offering, in about 20-point type and all capital letters, this warning: "YOU ARE HEREBY INFORMED THAT `YOU ARE BEING DETAINED FOR A DRUG TEST, IF YOU TRY TO ESCAPE OR LEAVE THE BUILDING, YOU WILL BE CHARGED WITH ESCAPE, PUNISHABLE BY UP TO 5 YEARS IN PRISON AND A $10,000.00 FINE.'" The court notes that the language used in the warning is not controlling in this case. The probation department cannot define the law. "It is emphatically the province and the duty of the judicial department to say what the law is."3
{¶ 8} The defendant produced a urine sample and the officer conducted the test. These tests are conducted by means of a card infused with chemicals that react to the presence of illegal drugs such as marijuana and cocaine. The card indicates the presence of these controlled substances with a series of colored lines, reacting like a home pregnancy test does to certain hormones. The results are swift, and the testing cards do not need to be sent to a laboratory—though a subject who disputes the initial test can have his urine sample sent to a laboratory for a confirming analysis. The card does not show the level of the controlled substance, only that a detectable quantity of it is present.
{¶ 9} The defendant's test indicated the presence of marijuana. The defendant asked the officer if the level had gone down from his last test, also positive, and the officer told him the testing card did not reflect levels of the controlled substances in the urine, only a positive or negative result. The defendant said he had not consumed marijuana since his last drug test. The officer told the defendant to remain in "the pit," one of the waiting rooms of the probation department, while he went to consult his files. The defendant was not in handcuffs or other restraints, nor was he told that he was under arrest.
{¶ 10} "The pit," also known as "the commons," is a small area on the third floor off of the main corridor. It is between the window for the probation department's receptionist and the Greene County Law Library and is separated by a wall from the main waiting area—this being just a wide place of the central corridor where the elevator is found. The pit is down an eight-step set of stairs from the main corridor. It is not behind doors or any checkpoint. Any member of the public, once admitted to the courthouse, would be able to access this area. If one uses the stairs, the only door between "the pit" and the open air is the exterior door of the courthouse on the first floor.
{¶ 11} When the officer returned, the defendant was not there. Having failed to find the defendant elsewhere on the third floor, the officer checked with the sheriff's deputies at the security checkpoint, the only access in and out of the building. The deputies said the defendant had passed them and left the courthouse.
{¶ 12} After considering the report filed by the officer, this court issued an arrest warrant for the defendant for violating the terms of his sentence. He was arrested and held in the Greene County Jail. The court conducted a hearing and found that the violations alleged by the officer were substantiated. The court ordered the defendant to complete the four-year term to which he was originally sentenced. The defendant was returned to the custody of the Department of Rehabilitation and Correction and is presently an inmate at the Lebanon Correctional Institution in Turtlecreek Township, Warren County.
{¶ 13} While in the county jail awaiting his hearing on revoking his community control, the grand jury returned an indictment charging
DERRON J. CHAPPELL, on or about July 16, 2007, in Greene County, Ohio, * * * knowing oneself to be under detention or being reckless in that regard, did purposely break or attempt to break the detention * * * contrary to and in violation of Section 2921.34 of the Ohio Revised Code, and against the peace and dignity of the State of Ohio. (Escape, a felony of the second degree.)
{¶ 14} That is the charge in the present case. The defendant waived his right to a trial by jury and a bench trial was conducted on the escape charge on September 10, 2008. Neither the state nor the defendant called any witnesses. The evidence in the record is Officer Johnson's narrative report, the "drug-test notification" sign-in sheet, and a copy of this court's entry in case No. 2005-CR-003, which contains the terms of the defendant's probation in the earlier action. All were stipulated to by both parties.
{¶ 15} The defendant filed a posttrial brief to which the state filed a reply. The state argues in it that when the officer told the defendant to remain in the waiting room, his instruction was the equivalent of "a formal arrest, and as such, the defendant was under `detention.'"
{¶ 16} Two sections of the Revised Code are key to this case. The first is the escape statute, R.C. 2921.34:
(A)(1) No person, knowing the person is under detention or being reckless in that regard, shall purposely break or attempt to break the detention, or purposely fail to return to detention, either following temporary leave granted for a specific purpose or limited period, or at the time required when serving a sentence in intermittent confinement * * *
(B) Irregularity in bringing about or maintaining detention, or lack of jurisdiction of the committing or detaining authority, is not a defense to a charge under this section if the detention is pursuant to judicial order or in a detention facility. In the case of any other detention, irregularity or lack of jurisdiction is an affirmative defense only if either of the following occurs:
(1) The escape involved no substantial risk of harm to the person or property of another.
(2) The detaining authority knew or should have known there was no legal basis or authority for the detention.
(C) Whoever violates this section is guilty of escape.
{¶ 17} The second is the Revised Codes lengthy definition of "detention," which is found in R.C. 2921.01(E):
"Detention" means arrest; confinement in any vehicle subsequent to an arrest; confinement in any public or private facility for custody of persons charged with or convicted of crime in this state or another state or under the laws of the United States or alleged or found to be a delinquent child or unruly child in this state or another state or under the laws of the United States; hospitalization, institutionalization, or confinement in any public or private facility that is ordered pursuant to or under the authority of section 2945.37, 2945.371, 2945.38, 2945.39, 2945.40, 2945.401, or 2945.402 of the Revised Code; confinement in any vehicle for transportation to or from any facility of any of those natures; detention for extradition or deportation; except as provided in this division, supervision by any employee of any facility of any of those natures that is incidental to hospitalization, institutionalization, or confinement in the facility but that occurs outside the facility; supervision by an employee of the department of rehabilitation and correction of a person on any type of release from a state correctional institution; or confinement in any vehicle, airplane, or place while being...
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State v. Harvey, 2009 Ohio 1534 (Ohio App. 3/31/2009), Court of Appeals No. E-08-009.
... ... {¶ 26} Recently, in State v. Chappell, 149 Ohio Misc.2d 80, 2008-Ohio-6416, Judge Wolaver of the Green County Court of Common Pleas considered a similar question, regarding whether a defendant who was on probation could "escape" during a drug test. In an extremely well-written and well-reasoned opinion, he concluded that the amended ... ...
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State v. Lazier, 2009 Ohio 5928 (Ohio App. 11/9/2009)
... ... This is insufficient to support the requisite intent element necessary for an arrest. See In re M.D., 2004-Ohio-5904 at ¶16; State v. Chappell, 149 Ohio Misc.2d 80, 2008-Ohio-6416, ¶57-58. As a result, because there was no evidence to establish appellant was under arrest, and therefore no evidence that she was under detention, an essential element to the crime charged, the trial court erred by finding appellant guilty of escape ... ...