[Cite as State v. Arm, 2014-Ohio-3771.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-14-03
v.
ROBERT L. ARM, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-14-04
v.
ROBERT L. ARM, OPINION
DEFENDANT-APPELLANT.
Appeals from Union County Common Pleas Court
Trial Court Nos. 09-CR-0191 and 10-CR-0059
Judgments Affirmed
Date of Decision: September 2, 2014
APPEARANCES:
Alison Boggs for Appellant
Terry L. Hord for Appellee
Case No. 14-14-03, 14-14-04
SHAW, J.
{¶1} Defendant-appellant Robert L. Arm (“Arm”) appeals the January 24,
2014 judgment of the Union County Common Pleas Court revoking Arm’s
community control1 for various admitted violations and sentencing Arm to prison
for the remainder of his 28 month prison sentence in trial court case number 09-
CR-0191, and the remainder of his 36 month prison sentence in trial court case
number 10-CR-0059, with credit for time served on both cases.
{¶2} The facts relevant to this appeal are as follows. On October 23, 2009,
Arm was indicted in trial court case number 09-CR-0191 for Complicity to
Aggravated Trafficking in Drugs in violation of R.C. 2923.03(A)(2) and R.C.
2925.03(A)(1),(C)(1)(a), a felony of the fifth degree, and Aggravated Trafficking
in Drugs in violation of R.C. 2925.03(A)(1),(C)(1)(b), a felony of the fourth
degree.
{¶3} On December 21, 2009, Arm entered a written negotiated guilty plea
to both counts, in exchange for the State agreeing to a joint sentencing
1
We have referred to the revocation of community control because that is the term used by the trial court
and the parties’ counsel. However, we recognize that Appellant was actually on judicial release pursuant to
R.C. 2929.20. While community control sanctions are imposed when judicial release is granted, judicial
release is different from and not synonymous with community control. State v. Jenkins, 4th Dist. Scioto
No. 10CA3389, 2011-Ohio-6924, ¶¶ 1, 14-16 (“Courts have consistently found that R.C. 2929.15 and R.C.
2929.20 are independent statutes and serve different purposes.); State v. Briggs, 8th Dist. Cuyahoga No.
99980, 2014-Ohio-705, ¶ 14; State v. Franklin, 5th Dist. Stark No. 2011-CA-00055, 2011-Ohio-4078, ¶¶
14-16; see also State v. Wiley, 148 Ohio App. 3d 82, 2002-Ohio-460, ¶ 11 (9th Dist.) (“Although the
language of R.C. 2929.20([K]) contains the term ‘community control’ in reference to the status of an
offender when granted judicial release, R.C. 2929.15(B) unmistakably includes only those offenders who
were initially sentenced to community control.”).
-2-
Case No. 14-14-03, 14-14-04
recommendation wherein, inter alia, Arm would be sentenced to serve 11 months
in prison on each count, consecutive to each other, for an aggregate prison
sentence of 22 months. (09-CR-0191, Docket Nos. 19, 20). The court accepted
Arm’s pleas, found him guilty, and ordered a pre-sentencing investigation. The
matter was set for a sentencing hearing at a later date.
{¶4} On January 7, 2010, the State filed a motion to revoke Arm’s OR
bond, arguing that Arm had failed to appear for his pre-sentence investigation and
that he was not residing at the residence he had reported to the court. (09-CR-
0191 Docket No. 23).
{¶5} On February 11, 2010, Arm’s sentencing hearing was held. Arm was
sentenced to serve 11 months in prison for Complicity as it relates to Aggravated
Trafficking in Drugs, a violation of R.C. 2925.03(A)(1),(C)(1)(a), a felony of the
fifth degree, and 17 months in prison for Aggravated Trafficking in drugs, a
violation of R.C. 2925.03(A)(1),(C)(1)(b), a felony of the fourth degree. (09-CR-
0191 Docket No. 25). The sentences were ordered to be served consecutively for
an aggregate prison term of 28 months. (Id.)
{¶6} On March 23, 2010, Arm was indicted in another Union County case,
trial court case number 2010-CR-0059, for Grand Theft in violation of R.C.
2913.02(A)(1),(B)(4), a felony of the third degree, and Receiving Stolen Property
-3-
Case No. 14-14-03, 14-14-04
in violation of R.C. 2913.51(A),(C), a felony of the fourth degree. (2010-CR-0059
Docket No. 1). The crimes allegedly occurred on August 17, 2009. (Id.)
{¶7} Arm entered a written negotiated guilty plea wherein he agreed to
plead guilty to Grand Theft as charged in the indictment in exchange for the State
agreeing to dismiss the remaining count. (2010-CR-0059 Docket No. 18). The
parties also agreed to a joint sentencing recommendation of three years in prison,
and that the State would not oppose judicial release for Arm. (2010-CR-0059
Docket No. 13).
{¶8} On August 20, 2010, the court held a sentencing hearing on trial court
case 2010-CR-0059. (2010-CR-0059 Docket No. 24). Ultimately the court
followed the parties’ sentencing recommendation and sentenced Arm to serve 36
months in prison on the Grand Theft charge, which was to be served consecutive
to Arm’s prison terms from trial court case 09-CR-0191. (Id.)
{¶9} On October 20, 2010, Arm filed a motion for judicial release in trial
court case 09-CR-0191. (09-CR-0191 Docket No. 31). As part of the
memorandum in support, Arm requested that he be referred to “West Central
CBCF for evaluation for his acceptance into that program.” (Id.) The motion
further stated that Arm would need to serve the “required time in case #2010-CR-
0059 and apply for judicial release at the appropriate time, as that case was
ordered to be served consecutive to this case.” (Id.)
-4-
Case No. 14-14-03, 14-14-04
{¶10} On October 25, 2010, the State filed a memorandum stating that even
though Arm had multiple “conduct reports” and was in “disciplinary
confinement,” the State did not oppose judicial release. (09-CR-0191 Docket No.
32).
{¶11} On November 23, 2010 a hearing was held on Arm’s motion for
judicial release in case number 09-CR-0191. (09-CR-0191 Docket No. 36).
Arm’s motion was ultimately granted, and he was placed on community control
sanctions for three years in that case. (Id.) As part of Arm’s community control
sanctions, the court ordered various conditions including that Arm should not
violate any laws, that he should undergo random drug screens and participate in
additional alcohol/drug/mental health programs as his community control officer
determined. (Id.)
{¶12} On May 5, 2011, Arm filed a motion for judicial release in trial court
case 2010-CR-0059. (10-CR-0059 Docket No. 29). The State similarly did not
oppose Arm’s motion, despite Arm’s multiple “conduct reports” while
incarcerated. (10-CR-0059 Docket No. 30). On June 30, 2011, Arm’s motion for
judicial release in 2010-CR-0059 was granted and Arm was placed on five years
of community control sanctions in that case. (10-CR-0059 Docket No. 37).
-5-
Case No. 14-14-03, 14-14-04
{¶13} On March 15, 2013, the State filed a “Notice of Alleged Community
Control Violations” in each of the two trial court cases. (Doc. 42)2; (Doc. 41).
The notices of alleged violations included five allegations: 1) Arm violated the
written order of his supervising offer to have no contact with Charity Kandel, 2)
Arm used heroin, 3) Arm had in his “control instruments used to administer illegal
drugs,” 4) Arm failed to comply with his court-ordered financial obligations, and
5) Arm failed to complete his community service hours as ordered. (Id.); (Id.)
{¶14} On April 9, 2013, a hearing was held on the alleged community
control sanction violations. (Doc. 52); (Doc. 48). Arm admitted to all of the
violations alleged by the State. (Id.); (Id.)
{¶15} The matter was continued for sentencing to June 13, 2013, where
Arm’s community control was ultimately continued in both trial court cases,
though more terms were added to those previously imposed. These terms included
that Arm attend and complete “Thinking for a Change,” that Arm attend 90
AA/NA meetings in 90 days, and that Arm participate in one-on-one meetings “as
directed by either Dr. Float or John Schott.” (Id.); (Id.) Arm was advised that if
he had any further violations of community control, the remainder of his sentences
would be imposed in case number 09-CR-0191, and on case number 10-CR-0059.
2
Where both Docket’s are cited together, the first number refers to trial court case number 09-CR-0191 and
the second refers to 10-CR-0059.
-6-
Case No. 14-14-03, 14-14-04
{¶16} On October 31, 2013 a second “Notice of Alleged Community
Control Violations” was filed in each trial court case. (Doc. 58); (Doc. 54). This
notice alleged that Arm had again violated his community control sanctions in five
ways, which included that 1) Arm had taken jewelry from another without the
consent of the owners, 2) Arm failed to inform his supervising officer as to a
change in his residency, 3) Arm was unsuccessfully terminated from “Thinking for
a Change,” 4) Arm failed to participate in the ordered one-on-one meetings, and 5)
Arm failed to provide proof of attendance of 90 AA/NA meetings in 90 days as
ordered. (Id.); (Id.).
{¶17} On November 27, 2013, a hearing was held on the alleged violations
of community control sanctions. Arm admitted to violations 3, 4, and 5, and the
State asked that the matter be continued for a full hearing on counts 1 and 2.
(Doc. 62); (Doc. 58).
{¶18} On December 17, 2013, a hearing was held on the remaining alleged
violations, and the State moved to withdraw those violations. (Doc. 68); (Doc.
64). Based on the three previously admitted violations, the State requested that the
trial court impose the balance of Arm’s sentences in the two trial court cases.
(Id.); (Id.) Arm requested that his community control sanctions in each instance
be further continued. (Id.); (Id.)
-7-
Case No. 14-14-03, 14-14-04
{¶19} After hearing the arguments of the State, Arm’s counsel, and Arm,
the court revoked Arm’s community control and imposed the balance of his prison
sentence in trial court case number 09-CR-0191, an aggregate term of 28 months,
with Arm getting credit for 571 days previously served and 64 days currently
served. (Id.) The court also revoked Arm’s community control in trial court case
number 10-CR-0059 and imposed the remainder of his 36 month prison sentence
for grand theft, with prior credit of 219 days served. (Id.); (Id.).
{¶20} An entry memorializing Arm’s sentence in both cases was filed
January 24, 2014. It is from this judgment that Arm appeals, asserting the
following assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT’S DECISION TO REVOKE
APPELLANT’S COMMUNITY CONTROL WAS AN ABUSE
OF DISCRETION.
{¶21} In Arm’s assignment of error, he contends that the trial court abused
its discretion in deciding to revoke Arm’s “community control”3 and sentence
Arm to prison. Specifically, Arm argues that there were alternatives to sending
him back to prison, and that Arm was making progress in complying with his
community control sanctions.
{¶22} The decision of a trial court to revoke a defendant’s judicial release
based on a violation of his community control sanctions imposed under R.C.
3
Again we note that the trial court actually revoked Arm’s judicial release for Arm’s violation of
community control sanctions.
-8-
Case No. 14-14-03, 14-14-04
2929.20(K) will not be disturbed absent an abuse of discretion. State v. Jenkins,
4th Dist. Scioto No. 10CA3389, 2011-Ohio-6924, ¶ 9. An abuse of discretion
constitutes more than an error of law or judgment and implies that the trial court
acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, a
reviewing court may not simply substitute its judgment for that of the trial court.
Id.
{¶23} In this case, Arm was granted judicial release on two separate trial
court cases and placed on community control sanctions in each of those respective
cases. Arm subsequently admitted to violating his community control sanctions in
both cases in five ways, which included using drugs and failing to complete
community service hours. Notwithstanding Arm’s admitted violations of his
community control sanctions, the trial court continued his community control
sanctions in both cases, merely adding more conditions.
{¶24} Only four months after the court elected to continue Arm’s
community control sanctions, Arm had again violated his sanctions. The second
time, Arm admitted to three violations, which included Arm’s failure to complete
“Thinking for a Change,” and failing to attend the required number of AA/NA
meetings. These conditions had been added to Arm’s community control
sanctions after his original violations. Even though the trial court had already
-9-
Case No. 14-14-03, 14-14-04
given Arm a second chance, he still failed to follow through with his community
control sanctions.
{¶25} Arm contends on appeal that the trial court abused its discretion in
revoking his community control in both trial court cases. Arm argues that he was
making progress and staying off of drugs and that there were alternatives to
sending him back to prison such as drug court, which may have been good for
Arm.
{¶26} Nevertheless, despite Arm’s arguments, we cannot find under the
facts and circumstances of this case that the trial court abused its discretion in
revoking Arm’s judicial release in both trial court cases where Arm admittedly
violated five provisions of his community control sanctions, then was given a
second chance and admittedly violated three more provisions of his community
control sanctions.4 Moreover, while Arm argues that drug court may have been
appropriate for him, Arm had failed to demonstrate that he could comply with
completing “Thinking for a Change” or attending the required number of AA/NA
meetings, indicating that perhaps he was not amenable to further community
control sanctions. Accordingly, Arm’s assignment of error is overruled.
4
The State ultimately did not proceed with one of the more serious alleged violations, which was that Arm
had another pending charge in Delaware County.
-10-
Case No. 14-14-03, 14-14-04
{¶27} For the foregoing reasons Arm’s assignment of error is overruled and
January 24, 2014 judgments of the Union County Common Pleas Court are
affirmed.
Judgments Affirmed
ROGERS and PRESTON, J.J., concur.
/jlr
-11-