State v. Ohly

• Decision Date: 12 May 2006
• Docket Number: No. E-05-052.,E-05-052.
• Parties: The STATE of Ohio, Appellee, v. OHLY, Appellant.
• Court: Ohio Court of Appeals

853 N.E.2d 675

166 Ohio App.3d 808

2006-Ohio-2353

The STATE of Ohio, Appellee, v. OHLY, Appellant.

No. E-05-052.

Court of Appeals of Ohio, Sixth District, Erie County.

Decided May 12, 2006.

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Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee.

Madry L. Ellis, for appellant.

HANDWORK, Judge.

{¶ 1} This case is before the court on appeal from the judgment of the Erie County Court of Common Pleas that, on June 10, 2005,¹ found appellant, Robert Ohly, to be in violation of the terms and conditions of his community sanctions and ordered appellant to serve his original prison term. Appellant's sentence, however, was modified to be served concurrently, rather than consecutively, for a total of four years of incarceration, with credit for time served.

{¶ 2} On July 11, 2005, appellant appealed his probation revocation and raises the following assignments of error:

{¶ 3} "1. The trial court erred when it revoked appellant's community control in violation of the state and federal constitutional standards for revocation hearings.

{¶ 4} "2. The trial court erred when it revoked appellant's community control based on insufficient evidence."

{¶ 5} On April 2, 2003, appellant Robert Ohly pleaded guilty to two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), each a felony of the third degree. On June 24, 2003,² appellant was found to be a sexually oriented offender and was sentenced to community sanctions on each count for a period of five years, to be served concurrently. The trial court further ordered that a prison term of four years would be imposed on each count, to be served consecutively, if appellant failed to comply with his community sanctions. Appellant's community sanctions included the following conditions: he was to (1) comply with the conditions of community sanctions and the conditions of probation as filed in the court, (2) serve six months in the Erie County Jail, (3) "have absolutely no contact with the victims, * * *, their parents and/or any of their siblings," (4) "have no unsupervised contact with anyone under the age of eighteen," and (5) "be referred for sex offender counseling in Lorain County as approved by the Adult Probation Department" and successfully complete any program, including aftercare, that is recommended.

{¶ 6} Based on allegations of probation violations, dated January 27, 2005, the trial court held a probation-violation hearing on June 9, 2005. Marley Lamey, probation officer with the Erie County Adult Probation Department, testified that appellant was her probationer since July 29, 2004. Lamey testified that appellant violated his probation by having unsupervised contact with children under the age of 18, by failing to complete an approved program of sex offender counseling, and by failing to register with the sheriff's department as a sex offender in January 2005, after moving into a new residence.

{¶ 7} According to Lamey, Patricia Jacobs, at the Lorain County Domestic Relations Court, Juvenile Division, informed Lamey that appellant was living with children under the age of 18, and that their mother, appellant's daughter, worked some nights and weekends, during which appellant was alone with the children. Lamey testified that although she knew that appellant lived with his daughter, she believed the children in the home were over the age of 18. Lamey testified that Jacobs's information was obtained from one of the children in the household; however, the information was never verified by Lamey, and neither Jacobs nor any of the children testified at appellant's hearing. When this information came to Lamey's attention, in November 2004, she instructed appellant to move out of his daughter's home.

{¶ 8} Appellant obtained different housing in January 2005. Lamey testified that appellant told her he had registered his new address with the sheriff's department; however, this information was not true. As it turned out, appellant's residence was too close to a school, and he had to move again. Appellant moved into a third residence on February 1, 2005, and registered that address with the sheriff's department on February 2, 2005.

{¶ 9} Lamey further testified that as part of appellant's probation, he was required to attend and successfully complete a sex-offender counseling program, as approved by the probation department. Since being released from jail, in approximately October 2003, appellant attended three sex-offender counseling sessions at the Giving Tree in Port Clinton, Ohio, the last session being on November 29, 2004. Appellant was terminated from that program due to his failure to attend. Lamey testified that, normally, the Giving Tree sex-offender program lasts six months to a year.

{¶ 10} Lamey was aware that appellant was having problems getting to his sessions at the Giving Tree due to lack of transportation, and she testified that in July 2004 and January 2005, she told appellant that he could seek sex-offender counseling in Lorain County, where he lived. Lamey testified that she told appellant to "let [her] know what program he was going to do and [she] would look into it."

{¶ 11} Prior to the June 9, 2005 probation-violation hearing, appellant informed Lamey that he was attending counseling. Lamey testified that she had no information concerning the alleged program and asked appellant to bring information concerning his counseling program to the probation-violation hearing. Lamey testified that although appellant may have been enrolled in another counseling program, she had no personal knowledge of it, never approved it, and did not even know whether it was a sex-offender program. Lamey also testified that the probation department had not been contacted by appellant's counseling service, and because appellant did not tell her where he was obtaining counseling, appellant's counseling program never obtained or received a copy of the presentence investigation report. Therefore, the counseling program had only the information that appellant disclosed to it regarding the nature of his conviction. Lamey stated that until she could find out more about this new program, she considered appellant to be in violation of the counseling condition.

{¶ 12} Appellant testified that he was very familiar with "every specific" condition of his probation and that "to the best of [his] knowledge [he] [hadn't] broken any." Regarding his living arrangements, appellant testified that he had been living in his daughter's home with minor children the entire time he had been on probation and that the residence had been checked out by the Lorain County Sheriff. Appellant first denied, and then admitted, that his daughter worked some nights and weekends, but testified that another adult was always present at those times, e.g., either his 20-year-old granddaughter, who also lived in the home, or one of his other daughters. Appellant testified that, when it was necessary, he would "walk down the street and ma[k]e sure [he] wouldn't come back until there was someone there."

{¶ 13} Regarding registering his address in January 2005 with the sheriff's department, appellant testified that he intended the move to be permanent, but had to move again after discovering that it was too close to a school. Appellant did not register this address, but stated that he properly registered his new address on February 2, 2005. Appellant testified that he did not recall telling Lamey that he had registered under his January address.

{¶ 14} Regarding his counseling requirements, appellant cites scheduling conflicts, health problems, and expense problems for his failure to meet the counseling requirement. Appellant testified that he did not attend a January 10, 2005 appointment at the Giving Tree because of the cost of his moves. Appellant testified that he talked to Lamey about this and she said "that's okay," because, as he understood it, the move was more important than the counseling.

{¶ 15} Appellant testified that he met with a counselor at Forensic Consulting Services in Elyria, Ohio, starting on April 9, 2005. In a letter dated April 26, 2005, the counselor gave an evaluation of appellant based on his "self-disclosure" and recommended that he come to them for treatment on a weekly basis. The letter documented three visits between April 9 and April 26, 2005, and referred the counselor's awareness of appellant's "conviction on two charges of Gross Sexual Imposition." Appellant testified that he continued to meet with this counselor every week since then. Appellant testified that he did not know if this was a sex-offender counseling program, but said that he had "gotten a much [more] thorough training and programming there than [he] did at the Giving Tree." Appellant testified that he spoke to Lamey on or about June 1, 2005, regarding this new counseling service and was told to bring the information to the probation-violation hearing.

{¶ 16} The trial court found that there "may be some sketchiness" to the allegation of unsupervised contact with children. However, based upon appellant's contradictory testimony that his daughter did not, and then that she did, work some nights and weekends, the trial court found appellant's testimony to lack credibility. Also, the trial court found that if appellant was not having unsupervised contact with children while in his daughter's home, then appellant would have told Lamey when she asked him to move out of his daughter's house that he was not in violation of his probation; however, he said nothing.

{¶ 17} Regarding the requirement that appellant successfully complete sex-offender counseling, the trial court found that because appellant was very familiar with his conditions of community sanctions, he was aware that any program had to be approved by the probation department. However, rather than contacting Lamey...