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Date: 06-04-2021
Case Style:
STATE OF OHIO v. ERIC WOLFE
Case Number: 28925
Judge: Jeffrey M. Welbaum
Court: IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
Plaintiff's Attorney: ANDREW T. FRENCH
Defendant's Attorney:
Description:
Springfield, OH - Criminal defense attorney represented Eric Wolfe with a domestic violence charge.
On May 29, 2020, an indictment was filed in the trial court charging Wolfe
with having committed domestic violence against Teri S. Because Wolfe had two prior
domestic violence convictions (in July 2002 and in August 2019), the offense was
elevated to a third-degree felony. Wolfe pled not guilty to the charge, counsel was -3-
appointed, and bond was set at $15,000 (surety bond). On June 19, 2020, Wolfe’s initial
counsel was granted leave to withdraw due to the Covid pandemic and counsel’s inability
to visit with Wolfe in jail. New counsel was appointed for Wolfe the same day.
{¶ 6} On June 25, 2020, Wolfe filed a motion for a bond reduction, but the court
continued the bond as previously set. Subsequently, on July 9, 2020, Wolfe appeared
in court and pled guilty, based on the State’s agreement to reduce the charge to the lesser
included offense of domestic violence with one prior conviction, a felony of the fourth
degree. During the plea hearing, the court advised Wolfe of his constitutional rights and
also fully complied with the requirements of Crim.R.11(C)(2) for accepting pleas. After
accepting Wolfe’s guilty plea, the court found him guilty of the offense as charged and
ordered that a PSI be conducted. Transcript of Proceedings (“Tr.”), Plea Hearing, p. 3-
10. An entry of waiver and plea was then filed on July 13, 2020.
{¶ 7} The sentencing hearing was held on July 23, 2020, at which time the court
sentenced Wolfe to up to five years of community control sanctions (CCS), conditioned
on Wolfe’s compliance with several conditions. Tr., Sentencing Hearing, at p. 14-15.
These conditions included that Wolfe would: (1) comply with the court’s general conditions
for probationers; (2) undergo intensive supervision with a domestic violence specialist for
a period not to exceed five years; (3) complete treatment at Nova House and comply with
the agency’s further recommendations; (4) obtain and maintain verifiable employment or
provide verification of inability to work; (5) have no contact with the victim, Teri S., or come
within 1,000 feet of her person, residence, or place of employment; (6) attend and
complete the Stop the Violence program; (7) attend and complete domestic violence
counseling as the probation officer deemed appropriate; (8) abstain from the use of illegal -4-
drugs of abuse and alcohol; and (9) not be in places where he had reasonable cause to
know that illegal drugs, stolen property, or firearms were present. Id. The court also
warned Wolfe that if he violated any sanction or left the state without permission, the court
could impose a longer time under the same sanction, impose more restrictive sanctions,
impose 12 months in jail or the MonDay Program, or impose a prison term of 18 months.
Id. at p. 16.
{¶ 8} The judgment entry, which included the community control sanctions and
potential prison sentence, was filed on July 24, 2020. Wolfe did not appeal from the
judgment.
{¶ 9} On July 27, 2020 (or only four days after the sentencing hearing), the court
filed an order suspending the probationary period for community control and ordering a
capias for Wolfe. In the order, the court noted that Wolfe’s probation officer had
represented that Wolfe’s whereabouts had been unknown since July 23, 2020. The
police then arrested Wolfe on July 30, 2020, and filed a return of warrant the following
day.
{¶ 10} On August 9, 2020, a Notice of CCS Revocation Hearing and Order was
filed, and Wolfe was ordered to appear on August 13, 2020. The notice alleged that
upon being released from jail, Wolfe went to Teri S.’s residence and damaged her
property, a violation of Sanction #6. The notice further alleged that Wolfe had failed to
report to the probation department as ordered and was declared an absconder on July
27, 2020. The trial court then held hearings on August 13, 2020 and September 3, 2020.
During the first hearing, Wolfe acknowledged receipt of the revocation notice, waived the
formal reading of the notice, waived the probable cause hearing, and entered a general -5-
denial. Tr. at p. 17.
{¶ 11} On September 3, 2020, Wolfe acknowledged receipt of the revocation
notice, waived the formal reading of the notice, waived the probable cause hearing, and
admitted that he had violated Rules #5 and #6, with the understanding that he would be
receiving a sanction of attending the MonDay Program. Tr. at p. 29. At that time, Wolfe
had been accepted into the program. Id. After finding that Wolfe had knowingly,
intelligently, and voluntarily admitted to the violations, the court held that a violation had
occurred and added the MonDay Correctional Institution as a sanction. Id. at p. 21. The
court then filed an order on September 8, 2020, modifying the community control
sanctions to require that Wolfe attend the MonDay program.
{¶ 12} Shortly thereafter, on September 21, 2020, the court filed another Notice of
CCS Revocation Hearing and Order. This time, the notice alleged that Wolfe had
violated Sanction #10 by failing to complete the MonDay program. Specifically, Wolfe
self-terminated from the program on September 16, 2020. Id. at p. 1. The court again
held a hearing, during which Wolfe acknowledged receipt of the revocation notice, waived
the probable cause hearing, and entered an admission that he had violated Sanction #10.
Tr. at p. 22. During the hearing, Wolfe expressed agreement with serving a 12-month
prison sentence, with jail credit of 121 days. Id. Wolfe further agreed that his admission
to the violation was being made knowingly, voluntarily, and intelligently. Id.
{¶ 13} The trial court then found, by a preponderance of the evidence, that Wolfe
had violated the terms and conditions of community control. Id. at p. 23. The court
therefore revoked community control, sentenced Wolfe to 12 months in prison, and gave
Wolfe 121 days of jail credit for time served. Id. at p. 23-24. The court then filed a -6-
termination entry on September 27, 2020, revoking Wolfe’s community control and
sentencing him to 12 months in prison, with jail credit of 121 days. Wolfe timely appealed
from the judgment on September 30, 2020.
II. Discussion and Conclusion
{¶ 14} In an Anders review, we are required to decide “after a full examination of
all the proceedings,” whether an appeal is “wholly frivolous.” Anders, 386 U.S. at 744,
87 S.Ct. 1396, 18 L.Ed.2d 493. See also Penson v. Ohio, 488 U.S. 75, 84-85, 109 S.Ct.
346, 102 L.Ed.2d 300 (1988). Issues are not frivolous simply because the State “can be
expected to present a strong argument in reply.” State v. Pullen, 2d Dist. Montgomery
No. 19232, 2002-Ohio-6788, ¶ 4. Instead, an issue will lack arguable merit “if on the
facts and law involved, no responsible contention can be made that it offers a basis for
reversal.” Id.
{¶ 15} After conducting an independent review of the record pursuant to Anders,
we agree with Wolfe’s appellate counsel that, based on the facts and relevant law, there
are no issues with arguable merit to present on appeal. Specifically, Wolfe stipulated to
both violations of community control and was sentenced to a prison term that he had been
warned of after he refused to comply with community control sanctions. Wolfe’s defiance
of the sanctions was obvious, and it occurred in both cases almost immediately after the
sanctions were imposed.
{¶ 16} As indicated, Wolfe’s counsel raised a potential assignment of error
concerning whether the sentence was contrary to law, but found no merit in this claim.
Again, we agree. -7-
{¶ 17} “A sentence is contrary to law when it does not fall within the statutory range
for the offense or if the trial court fails to consider the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.”
State v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.), citing State v. Pawlak,
8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58. Accord State v. Derrick, 2d Dist.
Montgomery No. 28878, 2021-Ohio-1330, ¶ 22.
{¶ 18} Here, the 12-month sentence was within the statutory range of six to 18
months for a fourth-degree felony and was below the maximum penalty. R.C.
2929.14(A)(4). The trial court also complied with the requirement of considering the
purposes and principles of felony sentencing in R.C. 2929.11 and the sentencing factors
in R.C. 2929.12. See Sentencing Tr. at p. 23. While the court did not specifically make
findings or give reasons for imposing more than a minimum sentence, there was no
requirement to do so. E.g., State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d
Dist.). .
{¶ 19} Furthermore, the PSI report revealed that Wolfe had a very long history of
criminal offenses dating back to the early 1980s. These crimes involved 16 alcohol and
drug-related misdemeanor convictions as well as a 2017 felony conviction for aggravated
possession of drugs. Wolfe’s criminal history also included convictions for domestic
violence, menacing, and trespassing, among others. Many of the convictions resulted in
suspension of most of Wolfe’s jail time, which obviously did not work to prevent future
crime. In fact, in November 2019, Wolfe was convicted of menacing (reduced from
aggravated menacing) in a case involving the victim here, Teri S. Any prior sanctions
clearly did not deter Wolfe from committing domestic violence against Teri S. several -8-
months later in 2020, nor did the sanctions imposed in this case deter Wolfe from
returning to Teri S.’s residence the same day that he was released from jail. There is no
doubt that community control sanctions did not prevent Wolfe from committing crimes.
Outcome: Based on the preceding discussion, the judgment of the trial court is
affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: