Opinion
CASE NO. CA2011-03-008
04-30-2012
STATE OF OHIO, Plaintiff-Appellee, v. WILLIAM M. HART, Defendant-Appellant.
Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 200 East Cherry Street, Georgetown, Ohio 45121, for plaintiff-appellee Thomas G. Eagle, 3386 North State Route 123, Lebanon, Ohio 45036, for defendant-appellant
OPINION
CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
Case No. 2010-2114
Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 200 East Cherry Street, Georgetown, Ohio 45121, for plaintiff-appellee
Thomas G. Eagle, 3386 North State Route 123, Lebanon, Ohio 45036, for defendant-appellant
HENDRICKSON , J.
{¶ 1} Defendant-appellant, William Hart, appeals his conviction and sentence in the Brown County Court of Common Pleas for one count of unlawful restraint.
{¶ 2} On January 14, 2011, appellant was found guilty of unlawful restraint in violation of R.C. 2905.03(A). The charges stemmed from an ongoing dispute between appellant and the Brown County Commissioners' office regarding its alleged failure to enforce animal control laws. Appellant, the owner of a bicycle rental shop, alleged that his customers were attacked by several dogs due to the commissioners' decision not to ticket the owners for failing to confine the animals. On July 21, 2010, appellant approached County Commissioner Ralph Jennings at the United Dairy Farmers convenience store, located in Georgetown, Ohio, with the intent of discussing the commissioners' inaction.
{¶ 3} According to Jennings, appellant approached his parked vehicle as he was preparing to leave UDF. Jennings testified he had just fastened his seatbelt when he discovered appellant standing inside his driver's side door, which was still ajar. Appellant had his hand on top of Jennings' door, making it impossible for Jennings to shut it without injuring appellant. At that point, appellant began yelling at Jennings, calling him "immoral, corrupt, and criminal," and demanding that Jennings "do [his] job" as commissioner. Jennings repeatedly asked appellant to step away from his vehicle so that he could leave, but appellant refused and continued yelling. After approximately 15 minutes, a UDF employee, Rita Planck, came outside to investigate the commotion. Planck stated that appellant was holding Jennings' car door open and would not allow Jennings to close it, despite his continued efforts to do so. When appellant refused Planck's request to leave, she went inside to call the police because she feared for Jennings' safety.
{¶ 4} After Planck retreated inside, a former police officer, Mike Bullis, diverted appellant's attention and led him away from Jennings' vehicle to discuss the situation. Bullis asked appellant to let Jennings leave because appellant was "intimidating" Jennings by standing in his doorway. Shortly after appellant spoke to Bullis, the police arrived and escorted appellant off the property.
{¶ 5} Appellant was arrested on July 21, 2010, and bonded out of jail the following day. He was then hospitalized for a court-ordered psychiatric evaluation until July 27, when he was returned to jail. On July 29, 2010, appellant was charged with one count of intimidation, a third-degree felony in violation of R.C. 2921.03(A), and one count of unlawful restraint, a third-degree misdemeanor in violation of R.C. 2905.03(A). Based upon information the state received during its investigation, the state believed appellant may not have been competent to stand trial. Thus, on August 2, 2010, the state filed a suggestion of incompetency and requested a competency evaluation. Over appellant's objection, the trial court granted the state's request and tolled the time for trial while appellant was evaluated. See R.C. 2945.72(B) and (H).
{¶ 6} During a competency hearing on September 21, 2010, the court found appellant was competent to stand trial. The court then released appellant on bond and scheduled a jury trial for January 12, 2011. Prior to trial, appellant moved to dismiss the case on speedy-trial grounds. The court denied the motion, and appellant was subsequently found not guilty of intimidation, but guilty of unlawful restraint. The court sentenced appellant to 60 days in jail, with credit for 63 days already served. The court also ordered appellant to have no contact with Jennings, other than in an official setting, and payment of court costs.
{¶ 7} Appellant timely appeals, raising three assignments of error.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED IN NOT DISMISSING THE CHARGES FOR VIOLATION OF THE SPEEDY TRIAL STATUTES.
{¶ 10} In his first assignment of error, appellant raises three issues for review. We will address each issue in turn.
Statutory Right to a Speedy Trial
{¶ 11} Appellant first argues the trial court erred by not dismissing his charges on speedy-trial grounds.
{¶ 12} The right to a speedy trial is guaranteed to all state criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution. State v. Noble, 12th Dist. No. CA2007-03-008, 2008-Ohio-355, ¶ 7. To preserve this right, the legislature enacted Ohio's speedy-trial statutes. Id.
{¶ 13} R.C. 2945.71(D) provides:
A person against whom one or more charges of different degrees, whether felonies, misdemeanors, or combinations of felonies and misdemeanors, all of which arose out of the same act or transaction, are pending shall be brought to trial on all of the charges within the time period required for the highest degree of offense charged * * *.
{¶ 14} Here, the highest degree of offense facing appellant was a third-degree felony. Pursuant to R.C. 2945.71(C)(2), a criminal defendant who is charged with a felony must be brought to trial within 270 days after his arrest. See State v. Barnett, 12th Dist. No. CA2002-06-011, 2003-Ohio-2014, ¶ 8. For the purposes of speedy-trial calculation, each day that a defendant is incarcerated in lieu of bail solely on the pending charge counts as three days. R.C. 2945.71(E); State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, ¶ 7. However, R.C. 2945.72 provides circumstances that extend or toll the time within which a defendant must be brought to trial. See State v. Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823, ¶ 17. Pertinent to this appeal, R.C. 2945.72(B) tolls speedy-trial time for "[a]ny period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial * * *."
{¶ 15} On August 2, 2010, the trial court granted the state's request for a competency evaluation, and subsequently found appellant competent to stand trial on September 21, 2010. Appellant argues that this time was not tolled under R.C. 2945.72(B) because the state, rather than the accused, requested the evaluation. Thus, according to appellant, the 50 days he spent in jail between August 2 and September 21, 2010, should be charged to the state under the triple-count provision of R.C. 2945.71(E). We disagree with appellant, as R.C. 2945.37(B) specifically states:
In a criminal action in a court of common pleas, a county court, or a municipal court, the court, prosecutor, or defense may raise the issue of the defendant's competence to stand trial. If the issue is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court's own motion.(Emphasis added.)
{¶ 16} Pursuant to the express language of the statute, a prosecutor may raise the issue of a defendant's competency to stand trial. Moreover, nothing in R.C. 2945.72(B) restricts the tolling provision to motions filed by the accused. "Had the Ohio General Assembly intended to apply this tolling provision solely to defense competency motions, it could have written the statute in that manner." Smith v. Warden, Lebanon Corr. Inst., S.D.Ohio No. 1:10-CV-673, 2011 WL 6817822, * 16 (Dec. 28, 2011); State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, ¶ 24, 30. Thus, the state properly requested that appellant undergo a competency evaluation on August 2, 2010, at which time the tolling provision in R.C. 2945.72(B) took effect. See State v. Blessing, 5th Dist. No. 02 CA 13, 2004-Ohio-190, ¶ 3, 10. Moreover, the tolling period continued until the trial court made its competency determination 50 days later, on September 21, 2010. State v. Palmer, 84 Ohio St.3d 103, 106-107 (1998); State v. Duncan, 9th Dist. No. 3117-M, 2001 WL 1044206, * 5 (Sept. 12, 2001).
In his statement of facts, appellant notes that the competency examiner failed to issue a report within the 30-day time limit imposed by R.C. 2945.371(G). However, "the tolling effect of R.C. 2945.72(B) cannot be cut short by an examiner's failure to file a competency report within the prescribed time frame." Palmer, 84 Ohio St.3d at 107.
{¶ 17} Thus, out of the 63 days appellant was held in jail in lieu of bail prior to trial, 50 of those days were tolled and only 13 were subject to the triple-count provision in R.C. 2945.71(E). Thus, as of the competency determination on September 21, 2010, only 39 days were chargeable to the state. R.C. 2945.71(C)(2). Between September 21, 2010 and trial on January 12, 2011, an additional 113 single-count days had elapsed. Thus, at the time of trial, only 152 days were chargeable to the state out of the 270 days allotted under R.C. 2945.71(C)(2). Because appellant was brought to trial in a timely manner, the trial court did not err in denying appellant's motion to dismiss on speedy-trial grounds.
Evidence Warranting the Competency Evaluation
{¶ 18} Appellant next argues the trial court abused its discretion by ordering his competency evaluation.
{¶ 19} "Fundamental to our adversarial system of justice is the due process right of a criminal defendant who is legally incompetent not to be subjected to trial." State v. Were, 94 Ohio St.3d 173, 174 (2002). The United States Supreme Court has defined the test for competency to stand trial as whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788 (1960).
{¶ 20} In R.C. 2945.37, the General Assembly codified a criminal defendant's right to a competency hearing and set forth the test to determine competency as follows:
(B) In a criminal action in a court of common pleas or municipal court, the court, prosecutor, or defense may raise the issue of the defendant's competence to stand trial. If the issue is raised before trial, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court's own motion.
* * *
(G) A defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant's present mental
condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense, the court shall find the defendant incompetent to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code.
{¶ 21} Here, the state filed a pretrial motion requesting a competency evaluation on August 2, 2010. See, e.g., State v. Hinkston, 182 Ohio App.3d 232, 2009-Ohio-2631, ¶ 11 (4th Dist.). Thus, in accordance with R.C. 2945.37(B), the trial court was required to hold a hearing in order to determine appellant's competency. Further, once the issue of a defendant's competency is raised, R.C. 2945.371(A) provides that the court "may order one or more evaluations of the defendant's present mental condition * * *." Under these circumstances, we cannot say the trial court abused its discretion by ordering appellant's competency evaluation and by holding a subsequent hearing on the issue. See State v. Bock, 28 Ohio St.3d 108, 109 (1986).
{¶ 22} Appellant also argues the state lacked evidentiary support to warrant its suggestion of incompetency. It appears the crux of this argument is that the state used its request as a pretext to circumvent appellant's speedy-trial rights. We disagree with this argument.
{¶ 23} In requesting the competency evaluation, the state relied on the following evidence, which the court had in its possession on August 2, 2010: (1) a report by a licensed social worker at the Talbert House, (2) a letter from a concerned family member, and (3) an assessment from Clermont Mercy Hospital, where appellant was held for five days and evaluated by Dr. Larry Graham, a licensed psychiatrist. After reviewing the documents, the court concluded,
there are some indications, in [the Talbert House] report, potential dangerousness manifested by some of the comments and * * * there is some concern in the attachments to the report, and then we have Dr. Graham, [who] says "[t]he patient really has no ability to understand his dilemma and his perspective,
from other points of view, and I believe his rigidity reflects more on his personality * * *."
{¶ 24} The court further noted that the Talbert House report referenced the same "personality" issues, which led the social worker to conclude that appellant presented "a substantial risk of physical harm to others as well as, somewhat, to himself."
{¶ 25} Upon review, we cannot say this was an improper basis for the state to doubt appellant's competence to stand trial. In addition to appellant's apparent inability to understand his "dilemma," he underwent two medical evaluations, which included a five-day stay in a psychiatric ward immediately following his arrest. See Pate v. Robinson, 383 U.S. 375, 387, 86 S.Ct. 836 (1966) ("[i]n the event a sufficient doubt exists as to [the offender's] present competence[,] such a hearing must be held"); State v. Berry, 72 Ohio St.3d 354, 359 (1995). Moreover, while counsel for appellant made a somewhat muddled argument as to the relative significance of the evaluations, he ultimately admitted, "there is enough evidence there in the Talbert House report to more than support the State's position, if they want a competency evaluation." Under these specific circumstances, we find the state's request for the evaluation was not a pretext, but rather an exercise in precaution to preserve appellant's due process right to a fair trial. Robinson, 383 U.S. at 378.
{¶ 26} Lastly, we reject appellant's argument that competency evaluations are not warranted absent a finding of very specific criteria, including evidence of "irrational" behavior, defiant demeanor at trial, or counsel's doubts as to one's competency. Appellate courts are not limited to such criteria in evaluating the basis for a competency evaluation.
{¶ 27} Accordingly, we reject appellant's second sub-argument.
Maximum Incarceration for a Misdemeanor
{¶ 28} In his third sub-issue, appellant claims he could not be convicted of unlawful restraint, a third-degree misdemeanor, because he had been held in jail for 63 days prior to trial, three days longer than the maximum term of imprisonment for the offense. Appellant argues he was therefore entitled to discharge on the misdemeanor pursuant to R.C. 2945.73(C), which states:
Regardless of whether a longer time limit may be provided by sections 2945.71 and 2945.72 of the Revised Code, a person charged with misdemeanor shall be discharged if he is held in jail in lieu of bond awaiting trial on the pending charge:
For a total period equal to the maximum term of imprisonment which may be imposed for the most serious misdemeanor charged * * *.
{¶ 29} When an accused is discharged pursuant to R.C. 2945.73(C), the discharge bars any further criminal proceedings against him based on the same conduct. R.C. 2945.73(D).
{¶ 30} The state argues R.C. 2945.73(C) does not apply here because appellant was charged with not only a misdemeanor, but a felony, as well. We agree.
{¶ 31} By its explicit terms, subsection (C) limits discharge to offenders charged solely with misdemeanors. See State v. Williams, 2nd Dist. No. 20104, 2004-Ohio-5273, ¶ 20. The statute is not ambiguous in this regard, and we may not ignore the plain language or insert words not used. See, e.g., State v. Teamer, 82 Ohio St.3d 490, 491 (1998). Had the legislature intended for R.C. 2945.73(C) to apply to a combination of felonies and misdemeanors, it presumably would have stated as such in the statutory language. Thus, because appellant was charged with a felony as well as a misdemeanor, he was not entitled to discharge under R.C. 2945.73(C).
{¶ 32} Because R.C. 2945.73(C) did not apply, appellant remained subject to the requirements of R.C. 2945.71(D), which provides, in pertinent part:
A person against whom one or more charges of different degrees, whether felonies, misdemeanors, or combinations of felonies and misdemeanors, all of which arose out of the same act or transaction, are pending shall be brought to trial on all of
the charges within the time period required for the highest degree of offense charged, as determined under divisions (A), (B), and (C) of this section.
{¶ 33} Thus, when an accused faces a combination of felony and misdemeanor charges arising from the same act, he must be brought to trial "within the time period required for the highest degree of offense charged * * *." Id. Because appellant was charged with a felony, the state had 270 days to bring him to trial on all charges, including the misdemeanor. Id.; R.C. 2945.71(C)(2).
{¶ 34} The cases appellant cites do not change our position, where, in each case, the offenders entitled to discharge under R.C. 2945.73(C) were indicted solely for misdemeanors. State v. Skaggs, 10th Dist. No. 05AP-554, 2006-Ohio-1476; Columbus v. Bryan, 10th Dist. No. 03AP-1136, 2004-Ohio-3885; State v. Brown, 5th Dist. No. 1996CA00300, 1997 WL 115846 (Feb. 24, 1997). These cases are inapposite, as this case involves a felony charge in addition to the misdemeanor.
{¶ 35} Lastly, we reject appellant's contention that R.C. 2945.73(C) supersedes R.C. 2945.71(D). In 1999, the General Assembly amended R.C. 2945.71(D) to instruct how the speedy-trial statutes apply to offenders charged with a combination of felonies and misdemeanors arising from the same act. In doing so, the General Assembly reflected its intent to extend the time to try the misdemeanors within the limits for the highest felony offense. Inasmuch as "combination" offenses are now addressed in R.C. 2945.71(D), but not R.C. 2945.73(C), it is clear the General Assembly did not intend R.C. 2945.73(C) to impact R.C. 2945.71(D) in this regard. Compare Mansfield v. Budea, 5th Dist. No. CA-2889, 1992 WL 28856, * 2 (Feb. 6, 1992) ("[t]o hold that defendant must be tried within the time that remains from the lesser misdemeanor period would place an unduly severe burden on the prosecution").
{¶ 36} Accordingly, we reject appellant's third sub-argument and overrule the first assignment of error.
{¶ 37} Assignment of Error No. 2:
{¶ 38} THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANT OF UNLAWFUL RESTRAINT.
{¶ 39} Once again, appellant raises several sub-arguments within his assignment of error. First, appellant challenges the sufficiency and manifest weight of the evidence supporting his conviction. He also argues his conviction violated his First Amendment right to free speech.
Manifest Weight and Sufficiency of the Evidence
{¶ 40} Appellant first contends his unlawful restraint conviction was supported by insufficient evidence and was against the manifest weight of the evidence. This argument lacks merit.
{¶ 41} When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would support a conviction. State v. Graham, 12th Dist. No. CA2008-07-095, 2009-Ohio-2814, ¶ 65. When addressing sufficiency, the relevant inquiry is whether, "after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 42} In determining whether a conviction is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the tier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Graham at ¶ 66; State v. Cummings, 12th Dist. No. CA2006-09-224, 2007-Ohio-4970, ¶ 12.
{¶ 43} Because sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency. Graham at ¶ 67. "Thus, a determination that a conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency." Id.
{¶ 44} Here, appellant was convicted of unlawful restraint in violation of R.C. 2905.03(A), which states, "[n]o person, without privilege to do so, shall knowingly restrain another of the other person's liberty." A person acts knowingly, "regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B). "Privilege" is defined as "an immunity, license, or right conferred by law, bestowed by express or implied grant, arising out of status, position, office, or relationship, or growing out of necessity." R.C. 2901.01(A)(12).
{¶ 45} The term "restraint" implies a "limitation in some form on progress or advancement which otherwise might occur." State v. Combs, 2nd Dist. No. 98CA137, 2000 WL 84563, * 4 (Jan. 28, 2000). As commonly used in R.C. 2905.03, restraint requires proof that the victim was "compelled to remain where he does not wish to remain or go where he does not wish to go, and that person be restrained of his liberty without sufficient complaint or authority." State v. Williams, 75 Ohio App.3d 293, 298 (8th Dist.1991). "Proof of the restraint of another's liberty does not need to show that such restraint was of a particular duration * * * or was accomplished in a particular manner." (Internal citations omitted.) State v. Martin, 10th Dist. Nos. 02AP33, 02AP34, 2002-Ohio-4769, ¶ 32. This court has previously found sufficient evidence establishing the element of restraint where there is a "real" or "material" interference with another's liberty, as contrasted with a "petty annoyance, or a slight inconvenience, or an imaginary conflict." State v. Swearingen, 12th Dist. No. CA2001-01-005, 2001 WL 950671, * 2 (Aug. 20, 2001).
{¶ 46} During trial, Jennings testified he had just buckled his seatbelt when appellant appeared in his open doorway and placed his hand on top of the door, which prevented Jennings from shutting it. Jennings testified he was "trapped" and could not back out of his parking space without injuring appellant. Over the course of 15 minutes, Jennings made numerous requests to leave, all of which appellant ignored. Curiously, appellant recorded the entire conversation, which only corroborates Jennings' account. For example, the following exchange took place:
APPELLANT: Why don't you do your job is my question. Why do I have to ask you to do your job * * * are you proud of the fact that you don't do your job? You think you're some sort of righteous guy who can decide to hand out justice according to you instead of the law? What makes you above the law? Nothing. * * * Stand up and be a man is what I'm telling you * * * do your job. Why won't you do your job? * * * You're immoral, you will not do your job, you're a politician, you don't care about the law.
JENNINGS: Michael, I'm gonna head to work * * *.
* * *
APPELLANT: When will you do your job? You don't have the balls to do your job, is that it? * * * When are you gonna do your job?
* * *
JENNINGS: Michael, I'm gonna leave, okay?
APPELLANT: No, you're gonna tell me why you will not do your job.
JENNINGS: I'm gonna leave, okay?
APPELLANT: When are you gonna do your job?
* * *
JENNINGS: I don't have any more to say to you * * * I'm trying to leave here * * *.
APPELLANT: Yeah, I know, but I'm trying to get an answer. * *
* When are you gonna uphold the law?
JENNINGS: Can you step back from my door, so I can * * * I'm ready to leave, Michael.
APPELLANT: I'm ready to get justice * * * When does justice happen, Ralph? * * * Why don't you have an answer?
* * *
JENNINGS: Could you step back * * *.
APPELLANT: No, sir.
* * *
JENNINGS: You and I are done talking.
APPELLANT: No we're not, sir you work for me, that's where you get confused. You need to do your job. It's not that simple. Didn't I tell you I was gonna not go away? * * *
JENNINGS: I want to leave here, Michael.
APPELLANT: But you gotta do your job. You swore to do your job, and now I'm confronting you because you haven't, and you don't have a reason. Why is that?
JENNINGS: I'm done with you today, Michael. APPELLANT: I'm not done, you haven't done your job. JENNINGS: I'm done, Michael, bye bye.
APPELLANT: No, you're not.
{¶ 47} Moreover, a UDF employee, Rita Planck, testified that when she went outside, she saw appellant standing in Jennings' doorway, preventing him from shutting the door. Planck testified she feared for Jennings because appellant was "very mad, screaming, [and] hollering * * *." After Planck went inside to call the police, Mike Bullis, a former police officer, approached appellant to inform him that he was "intimidating" Jennings by standing in front of Jennings' open door.
{¶ 48} Upon review, we find there was credible evidence that appellant knowingly blocked Jennings in his vehicle against his will while appellant attempted to get an "answer." Thus, we cannot say the jury clearly lost its way or created a manifest miscarriage of justice in finding appellant guilty of unlawful restraint. Having found appellant's conviction was not against the manifest weight of the evidence, it follows that the evidence was sufficient to support the conviction.
First Amendment Right to Free Speech
{¶ 49} Appellant next argues his conviction violated his right to free speech under the First Amendment to the United States and Ohio Constitutions. He argues the simple act of "insisting" that an elected official hear his grievances was privileged free speech and could not support the conviction for unlawful restraint.
{¶ 50} We do not dispute that a person has a constitutionally protected right of free speech and freedom to petition for redress of grievances. See, e.g., State v. Scott, 123 Ohio App.3d 331, 338 (2nd Dist.1997). However, the First Amendment does not require "that a person exercising the right of free speech be guaranteed the opportunity to communicate with any other person, under any circumstances, but rather that the speaker be afforded a reasonable opportunity to make his views known in a public forum." Id. at 339. See also State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953, ¶ 31 (1st Dist.).
{¶ 51} Here, appellant's conviction does not evoke concerns of free speech or freedom of expression. A person may be found guilty of unlawful restraint only if their conduct interferes with another's liberty in a "real" or "material" way that is not privileged. See Swearingen, 2001 WL 950671 at *2. Appellant's hostile language, coupled with his conduct that "trapped" Jennings in his vehicle over his clear objection, went beyond the bounds of reasonableness, and crossed the line into criminal behavior. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 501-502, 69 S.Ct. 684 (1949) ("[s]tates cannot consistently with our Constitution abridge those freedoms [of speech] to obviate slight inconveniences or annoyances"). We believe appellant's right to free speech does not justify his behavior, and that the evidence, if believed, was sufficient to convince the average mind of appellant's guilt beyond a reasonable doubt. See State v. Rajeski, 12th Dist. No. CA2002-11-120, 2003-Ohio-2783, ¶ 8 ("[defendant's] invocation of his right to free speech does not excuse or justify his boorish behavior").
{¶ 52} We note this holding is in line with the United States Supreme Court precedent "which has rejected the contention that the First Amendment extends to speech that is incidental to or part of a course of criminal conduct * * *." State v. Worst, 12th Dist. No. CA2004-10-270, 2005-Ohio-6550, ¶ 55, quoting State v. Tarbay, 157 Ohio App.3d 261, 2004-Ohio-2721, ¶ 16 (1st Dist.). See also Giboney; Cincinnati v. Thompson, 96 Ohio App.3d 7, 22 (1st Dist.1994).
{¶ 53} Appellant's second assignment of error is overruled.
{¶ 54} Assignment of Error No. 3:
{¶ 55} A TRIAL COURT ERRED IN SENTENCING THE APPELLANT.
{¶ 56} Appellant asserts two sub-issues in his final assignment of error, which we will address in turn.
Misdemeanor Sanctions
{¶ 57} Appellant first argues the trial court erroneously added an additional sanction to his sentence that prohibited him from having contact with Jennings outside of formal settings. Appellant claims this sanction is overbroad because of its unlimited duration and that it was not properly imposed under R.C. 2929.25, which governs misdemeanor community control sanctions.
{¶ 58} R.C. 2929.25(A)(1) states:
Except as provided in sections 2929.22 and 2929.23 of the Revised Code or when a jail term is required by law, in sentencing an offender for a misdemeanor, other than a minor
misdemeanor, the sentencing court may do either of the following:
Directly impose a sentence that consists of one or more community control sanctions authorized by section 2929.26, 2929.27, or 2929.28 of the Revised Code. The court may impose any other conditions of release under a community control sanction that the court considers appropriate. If the court imposes a jail term upon the offender, the court may impose any community control sanction or combination of community control sanctions in addition to the jail term.
Impose a jail term under section 2929.24 of the Revised Code from the range of jail terms authorized under that section for the offense, suspend all or a portion of the jail term imposed, and place the offender under a community control sanction or combination of community control sanctions authorized under section 2929.26, 2929.27, or 2929.28 of the Revised Code.
{¶ 59} Thus, under the statute, a court has two choices: (1) it may directly impose community control sanctions, including jail time, or (2) it may impose a jail term, suspend all or part of the jail term, and impose community control sanctions. Regardless of the choice that is made, R.C. 2929.25(A)(2) provides that the duration of all community control sanctions in effect at any time cannot exceed five years.
{¶ 60} R.C. 2929.25(A)(3) requires a trial court to notify an offender of the possible sanctions for violating community control at the sentencing hearing. Specifically, R.C. 2929.25(A)(3) states:
At sentencing, if a court directly imposes a community control sanction or combination of community control sanctions pursuant to division (A)(1)(a) of this section, the court shall state the duration of the community control sanctions imposed and shall notify the offender that if any of the conditions of the community control sanctions are violated the court may do any of the following:
Impose a longer time under the same community control sanction if the total time under all of the offender's community control sanctions does not exceed the five-year limit specified in division (A)(2) of this section;
Impose a more restrictive community control sanction under
section 2929.26, 2929.27, or 2929.28 of the Revised Code, but the court is not required to impose any particular sanction or sanctions;
Impose a definite jail term from the range of jail terms authorized for the offense under section 2929.24 of the Revised Code.
{¶ 61} In the present case, the trial court imposed a 60-day jail term, but credited the entire jail sentence based on the 63 days appellant had served prior to trial. The court then discussed the consequences of violating community control, stating,
I did some research * * * and it appears that there are a couple of options the Court would have in the event any Defendant violated misdemeanor sanctions. And the primary ones would be, number one, to extend the period of the sanctions or to impose more restrictive sanctions, and secondly, to impose any appropriate jail sentence, up to the maximum sentence that is permissible, which, in this case, would be 60 days. Mr. Hart has already done that 60 days * * * [so] it may be an order without any teeth to really back it up, if I were to place Mr. Hart under sanctions, so I'm not going to do so.
{¶ 62} However, despite this statement, the court ordered appellant to have "no contact" with Jennings outside of his formal position as county commissioner, but failed to specify the duration of the order. As such, appellant argues the court failed to comply with R.C. 2929.25(A)(3). We agree.
{¶ 63} As an initial matter, we find the no contact order was effectively a community control sanction, which we have recognized is a legitimate sanction in the past. State v. Miller, 12th Dist. No. CA2010-12-336, 2011-Ohio-3909, ¶ 21. See also State v. Hosler, 3rd Dist. No. 16-09-21, 2010-Ohio-980, ¶ 19. We also find this was a "direct" imposition of community control under R.C. 2929.25(A)(1)(a), as it was impossible to "suspend" jail time that appellant had already served. See R.C. 2929.25(A)(1)(b). See also R.C. 2929.25(D)(3).
{¶ 64} Under R.C. 2929.25(A)(3), the trial court was then required to notify appellant of, among other things, the duration of the no contact order. It is clear from the record that the court did not comply with this requirement during the sentencing hearing. See State v. Fisher, 12th Dist. No. CA2006-01-008, 2006-Ohio-6079, ¶ 16 (notification required by R.C. 2929.25(A)(3) must occur at the sentencing hearing). This error requires us to reverse and remand the matter to the trial court for resentencing. See State v. Hildebrand, 4th Dist. No. 08CA864, 2008-Ohio-6526, fn. 1; State v. Sims, 4th Dist. No. 04CA2779, 2006-Ohio-528, ¶ 16.
Appellant also suggests the court failed to notify him of the consequences of a community control violation, but as quoted above, this is not the case. See R.C. 2929.25(A)(3)(a)-(c).
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{¶ 65} Thus, on remand, the trial court must advise appellant of what portion of his original community control sanction, if any, remains in effect. The court must then provide the proper notice required by R.C. 2929.25(A)(3), including the duration of the no contact order, even though it is implicitly five years or less under R.C. 2929.25(A)(2). See State v. Shugart, 7th Dist. No. 08 MA 197, 2009-Ohio-2635, ¶ 37. Lastly, since appellant has already served the maximum jail term for his misdemeanor conviction, on remand, the court cannot impose additional jail time, either as a condition of appellant's sentence or punishment for a community control violation. See R.C. 2929.25(D)(3).
{¶ 66} To this extent only, appellant's third assignment of error is sustained.
Overbreadth and Vagueness
{¶ 67} Because the trial court could consider the same community control sanction on remand, we will address appellant's final challenge to the sanction. Here, appellant argues that the no contact provision is overbroad and void for vagueness. According to appellant, the sanction infringes on his "constitutional right to petition his government for redress of grievances, and to express his opinions."
{¶ 68} When imposing community control, trial courts may fashion additional conditions or requirements "[i]n the interests of doing justice, rehabilitating the offender, and ensuring the offender's good behavior * * *." R.C. 2929.25(C)(2). In State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, the Supreme Court of Ohio adopted a test to determine the reasonableness of community control conditions. Under the test, courts should consider whether the condition "is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation." Id. at ¶ 12. However, the community control conditions cannot be overly broad so as to unnecessarily impinge upon the offender's liberty. Id. at ¶ 13. We review the trial court's imposition of community control sanctions under an abuse-of-discretion standard. Id. at ¶ 10.
{¶ 69} During the sentencing hearing, the trial court described the no contact order as follows:
I am also gonna order that, Mr. Hart, you will have no undue or inappropriate contact with the Brown County Commissioners and Ralph Jennings, in particular, outside of their formal setting as commissioners of this county. This does not preclude nor foreclose you from attending a meeting to set forth your petitions or requests. * * * [A]gain, I'm just ordering that you not have any undue or inappropriate contact with them, outside the setting, and, specifically, with Commissioner Jennings.
{¶ 70} Moreover, the sentencing entry states appellant may have "no contact with County Commissioners, other than attending formal meetings, specifically Ralph Jennings." (Emphasis added.)
{¶ 71} We find that under these facts, the trial court did not abuse its discretion when it prohibited appellant from "specifically" contacting Jennings outside of his capacity as a county commissioner. (Emphasis added.) First, the no contact provision is reasonably related to appellant's rehabilitation and bears some relation to the crime, as it restricts appellant's access to the elected officials who incited his hostile behavior in the first place. See Talty, 2004-Ohio-4888 at ¶ 12. Moreover, the condition is reasonably related to appellant's future criminality, where it helps to maintain some degree of control over him and helps protect Jennings from similar contact with appellant in the future. Contrary to appellant's opinion, this is not a blanket ban on his right to petition the government. The court specifically stated it was not prohibiting appellant from approaching the commissioners in their formal setting, in an appropriate manner, and for a "legitimate purpose." See Shugart, 2009-Ohio-2635 at ¶ 32.
{¶ 72} For these reasons, we find the no contact condition of appellant's sentence is not overly broad or impermissibly vague.
{¶ 73} Judgment affirmed in part, reversed in part, and remanded for resentencing only.
POWELL, P.J., and RINGLAND, J., concur.