State v. Nelson

• Decision Date: 30 November 2018
• Docket Number: No. 2018-CA-5,2018-CA-5
• Parties: STATE of Ohio, Plaintiff-Appellee v. John Edward NELSON, Defendant-Appellant
• Court: Ohio Court of Appeals

124 N.E.3d 450

2018 Ohio 4763

STATE of Ohio, Plaintiff-Appellee

v.John Edward NELSON, Defendant-Appellant

No. 2018-CA-5

Court of Appeals of Ohio, Second District, Champaign County.

Rendered November 30, 2018

JANE A. NAPIER, Atty. Reg. No. 0061426, Champaign County Prosecutor's Office, Appellate Division, 200 N. Main Street, Urbana, Ohio 43078, Attorney for Plaintiff-Appellee.

JAMES S. SWEENEY, Atty. Reg. No. 0086402, 97 S. Liberty Street, Powell, Ohio 43065, Attorney for Defendant-Appellant.

OPINION

DONOVAN, J.

{¶ 1} This matter is before the Court on the February 15, 2018 Notice of Appeal of John Edward Nelson. Nelson appeals from the trial court's January 22, 2018 judgment entry, issued after a community control violation hearing, which found that Nelson violated his community control sanctions and imposed an aggregate sentence of 34 months. We hereby affirm the judgment of the trial court.

{¶ 2} On May 5, 2016, Nelson was indicted on two counts of forgery (Counts One and Two), felonies of the fifth degree; one count of possession of cocaine, a felony of the fifth degree (Count Three); one count of illegal use or possession of drug paraphernalia (Count Four), a misdemeanor of the fourth degree; one count of trafficking in cocaine (Count Five), a felony of the fourth degree; one count of aggravated trafficking in drugs (Count Six), a felony of the third degree; and two counts of corrupting another with drugs (Counts Seven and Eight), felonies of the fourth degree.

{¶ 3} On May 23, 2016, Nelson entered pleas of not guilty. On July 14, 2016, Nelson withdrew his pleas of not guilty and pled guilty to trafficking in cocaine (Count Five), in violation of R.C. 2925.03(A)(1) and (C)(4)(b), and two counts of corrupting another with drugs (Counts Seven and Eight), in violation of R.C. 2925.02(A)(4)(a) and (C)(3). Nelson also entered a guilty plea to Count Six, which was amended to attempted aggravated trafficking in drugs, in violation of R.C. 2923.02(A) and R.C. 2925.03(A)(1)(C)(1)(b), a felony of the fourth degree.

{¶ 4} On August 15, 2016, the court imposed a term of community control for a period of four years, including standard and special conditions. Nelson's judgment entry of conviction provided in part:

REVOCATION OF COMMUNITY CONTROL

If Defendant violates Community Control and Community Control is revoked, the Court will impose the following terms of imprisonment upon the Defendant:

Count Five - Imprisonment of seventeen (17) months to the [ODRC]¹

Count Six - Imprisonment of seventeen (17) months to the [ODRC]

Count Seven - Imprisonment of seventeen (17) months to the [ODRC]

Count Eight - Imprisonment of seventeen (17) months to the [ODRC]

The sentences imposed in Counts Five and Six shall be served CONCURRENTLY to one another. The sentences imposed in Counts Seven and Eight shall be served CONCURRENTLY to one another. The sentences imposed in Counts Five and Six shall be served CONSECUTIVELY to the sentences imposed in Counts Seven and Eight making a TOTAL SENTENCE OF THIRTY-FOUR (34) MONTHS .

{¶ 5} On August 17, 2016, the court issued a "Journal Entry Attaching Community Control Conditions to the Journal Entry of Judgment, Conviction, and Sentence," which provided that the "Court hereby attaches the signed Standard and Special Conditions of Community Control Supervision to this Entry. The Court incorporates by reference the community control conditions and Defendant's acceptance thereto by reference as if fully rewritten into the Journal Entry of Judgment, Conviction and Sentence." One of the attached conditions required Nelson to "follow all orders given to me by my supervising officer or other authorized representatives of the Court or the Department of Rehabilitation and Correction."

{¶ 6} On January 2, 2018, the court scheduled an arraignment at the request of Nelson's probation officer. The following day, the court issued a "Notice of Supervision Violation," which provided:

Now comes Herbert Nicholson Jr. , State Parole / Probation Officer, and says that the Defendant has violated community control supervision in the following manner:

1. Violation of Standard Condition of Supervision rule # 1: I will obey federal, state and local laws and ordinances, including those related to illegal drug use and registration with authorities. To wit:

On or about 12/23/17, you did cause damage to property at 445 East Ward Street, Urbana, Ohio.

2. Violation of Standard Condition of Supervision rule # 2: I will follow all orders given to me by my supervising officer or other authorized representatives of the Court or the Department of Rehabilitation and Correction. To wit:

Since on and after 12/1/17, you have had contact with [J.] Elliott in and around Champaign County, Ohio.

3. Violation of Standard Condition of Supervision rule # 5: I agree to conduct myself as [a] responsible, law abiding citizen. To wit:

On or about 12/23/17, you acted in a disorderly manner in and around Champaign County, Ohio.

{¶ 7} On January 9, 2018, the court filed an entry stating that Nelson "did not contest the existence of probable cause, and the Court found that probable cause existed to hold a Community Control Violation hearing."

{¶ 8} At the start of the January 19, 2018 hearing, the prosecutor raised the following question with respect to revocation of Nelson's community control sanctions: "does the Court believe that because the basis of the community control violations are [a] misdemeanor conviction and misdemeanor conduct[,] that the Court is only able to sentence the Defendant to prison for 180 days?" After reviewing R.C. 2929.15, the court concluded as follows:

* * * The Defendant's sentence is not for a felony four or a felony five. The Defendant's sentence is for multiple felonies. And those felonies have been run, some of them, consecutive to each other for a total sentence of 34 months. So I believe that that technical violation part of the statute in 2929.15(B)(1)(c) is not applicable.

So if the Court were to find the Defendant guilty of sanctioned behavior as alleged and if the Court were to revoke his community control, the Court believes that he would be subject to the full 34 months. * * *

Defense counsel objected to the court's determination.

{¶ 9} Parole Officer Herb Nicholson testified that he supervised Nelson. Nicholson testified that he verbally advised Nelson that "he could not have any contact with [J. Elliott] due to the fact that she was drinking. And we also had a discussion that she was also being supervised outside of this county." Nicholson stated that he subsequently learned Nelson was in contact with Elliott. He further testified that on December 23, 2017, Nelson was arrested after he kicked in the rear entrance door at 445 East Ward Street in Urbana, which was a residence Nelson shared with his aunt. Nicholson identified a written statement that Nelson provided to him at the Tri-County Regional Jail on January 2, 2018, in which Nelson admitted having contact with Elliott, drinking, arguing with his aunt about his drinking, and kicking in the door at the East Ward Street address.

{¶ 10} Nelson's aunt testified that she called the police after the altercation with Nelson on December 23, 2017. She stated that Nelson had "been gone for a couple of days because I don't allow drinking. * * * [H]e came back that afternoon and he was highly intoxicated." She stated that Nelson was "yelling profanity" to be let into the home, and that she "didn't get to the door fast enough and he kicked it in."

{¶ 11} Nelson testified, and he acknowledged that Nicholson instructed him not to have any contact with Elliott. Regarding the door at the East Ward Street residence, Nelson testified that he "kicked it. But my intent was not to kick it in." He stated that his "hands were frozen so I was kicking the door with my feet. Nobody was answering so I kicked it hard." Nelson stated that he did not remember yelling profanities because he was "pretty intoxicated." Nelson testified that he no longer used cocaine, and that he smoked "marijuana here and there. But drinking is my main concern. That is what turns me evil. To me, that is my gateway. I start drinking and that opens the door to everything else."

{¶ 12} The following exchange occurred on cross-examination by the prosecutor:

Q. Mr. Nelson, you agree with me that back in June of 2017 Officer Nicholson told you not to have contact with [J.] Elliott?

A. Yes, sir.

* * *

Q. He explained that he believed Ms. Elliott was a bad influence in your life?

A. Yes, sir.

Q. And you chose to disregard that order and to continue to have a relationship with Ms. Elliott?

A. Yes, sir.

* * *

Q. * * * And because of that emotional attachment you made the choice to disregard your probation officer's order and chose Ms. Elliott over abiding community control; is that a fair statement?

A. Yes, sir, it is.

Q. And with regard to the conduct that took place on December 23, Ms. Elliott and you had been drinking that day; is that correct?

A. Yes, sir.

Q. So Ms. Elliott, you would agree with me then, was contributing to your violation of community control and that she was around you and was continuing to use alcohol and you were continuing to use alcohol?

A. That's correct.

Q. And you agree that alcohol was a contributing factor to your decision to go to 445 East Ward that day after you were told to leave?

A. Yes, sir.

Q. In fact, you were told to leave by [your aunt] because you were drinking; isn't that true?

A. Yes.

Q. And you are not disputing the fact that you were the one that caused damage to that door?

A. No sir, I accept responsibility for my actions.

Q. And you accepted responsibility in the Champaign County Municipal Court, didn't you?

A. Yes, sir.

Q. And you were convicted of criminal damaging related to that incident that took place on December 23; is that true?

A. Yes, sir.

Q. And you are not saying that you didn't yell and scream obscenities that day. You're just saying, because of your state of intoxication, you can't recall whether you

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