State v. Clemons

[Cite as State v. Clemons, 

.]


                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                Plaintiff-Appellee,                 :
                                                             No. 111561
                v.                                  :

MONIQUE CLEMONS,                                    :

                Defendant-Appellant.                :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: REVERSED IN PART; VACATED IN PART;
                          AND REMANDED
                RELEASED AND JOURNALIZED: December 8, 2022


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR-21-660495-A


                                              Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Eamonn McDermott, Assistant Prosecuting
                Attorney, for appellee.

                Cullen Sweeney, Cuyahoga County Public Defender, and
                Noelle A. Powell, Assistant Public Defender, for appellant.


FRANK DANIEL CELEBREZZE, III, P.J.:

                Defendant-appellant, Monique Clemons, appeals the terms of her

sentence to community-control sanctions. Pursuant to Loc.App.R. 16(B), plaintiff-
appellee, state of Ohio, concedes this error. After a thorough independent review of

the record and law, we reverse in part, vacate in part, and remand.

                       I. Factual and Procedural History

             This incident stems from a traffic stop where Clemons was found to

have a loaded, concealed, and readily available handgun in her possession. A

Cuyahoga County Grand Jury indicted Clemons on three counts: having weapons

while under disability (Count 1), carrying a concealed weapon (Count 2), and

improper handling of firearms in a motor vehicle (Count 3).

             Clemons accepted a plea deal and entered a guilty plea to Count 2 and

agreed to forfeit the weapon to the Cleveland Police Department. Counts 1 and 3

were nolled.    The trial court ordered Clemons to comply with a presentence

investigation prior to sentencing.

             During her sentencing hearing, Clemons was sentenced to community-

control sanctions for a period of five years. At issue in this appeal is the following

portion of the trial court’s order, pertinently ordering:

      Do not patronize any location where drugs and/or alcohol are sold,
      served, or used. This includes but is not limited to restaurants, bars,
      sporting venues, concerts, family weddings, backyard barbeques,
      private parties, political events, etc.

      The defendant must submit to random testing. When requested, the
      defendant must know the hours of the lab and when specimens are
      taken. The Defendant has a grace period of testing positive for
      marijuana till 05/28/2022.

      You must attend a 12-step program meeting every day for 90 days,
      thereafter, Sundays off and every other day Monday-Wednesday-
      Friday or Tuesday, Thursday, Saturday, not three times a week.
      Must have a same-sex sponsor within 30 days and must give his/her
      name and number to your probation officer. Sponsor must have 10
      years of sobriety. No family, friends, or relatives allowed.

             From this order, Clemons assigns a single assignment of error for our

review:

      When there was no connection between the crime for which Ms.
      Clemons was being sentenced and substance use the trial [court]
      abused its discretion in prohibiting Ms. Clemons from any place or
      event in which alcohol is being consumed; requiring the random testing
      of Ms. Clemons for alcohol or drug consumption; and requiring Ms.
      Clemons’ participation in AA.

                               II. Law and Analysis

             R.C. 2929.15(A)(1) enables a trial court to impose a community-control

sanction in lieu of a prison sentence. When sentencing a felony offender, the trial

court may impose community-control sanctions that are residential, nonresidential,

and financial so long as they are authorized by R.C. 2929.16, 2929.17, and 2929.18.

R.C. 2929.15(A)(1). Additionally, “[t]he court may impose any other conditions of

release under a community control sanction that the court considers appropriate

* * * .” R.C. 2929.15(A)(1).

            Because the statute allows broad discretion in imposing community-

control conditions, we review community-control conditions for an abuse of

discretion. State v. Minarik, 

, 

 (8th Dist.),

citing State v. Talty, 

, 

, 

.

An abuse of discretion occurs when a court exercises its judgment in an unwarranted

way regarding a matter over which it has discretionary authority. Johnson v.
Abdullah, 

, 

, 

. Such an

abuse “‘“implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.”’” State v. Montgomery, Slip Opinion No. 

,

quoting Blakemore v. Blakemore, 

, 

 (1983),

quoting State v. Adams, 

, 

 (1980).

             Community-control conditions must reasonably relate to the goals of

community control: “‘rehabilitation, administering justice, and ensuring good

behavior.’” State v. Mahon, 8th Dist. Cuyahoga No. 106043, 

, ¶ 7,

quoting Talty at ¶ 16. In State v. Jones, 

, 

 (1990),

the Ohio Supreme Court set forth a test for determining whether community-control

conditions reasonably relate to these goals. The trial court must consider whether

the condition is (1) 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. 

 “All three prongs of the Jones test must be satisfied

for the reviewing court to find that the trial court did not abuse its discretion.”

Mahon at ¶ 8, citing State v. White, 10th Dist. Franklin No. 14AP-1027, 2015-Ohio-

3844, ¶ 10. Further, the conditions “‘cannot be overly broad so as to unnecessarily

impinge upon the [offender’s] liberty.’” Talty at ¶13, quoting 

.

             Clemons argues that the second factor of the Jones test is not met

because the crime from which this sentence was imposed, carrying a concealed

weapon, is not a drug or alcohol related offense. Clemons also notes that pursuant
to the first factor, drug- and alcohol-based community-control conditions are

irrelevant to her rehabilitation. Finally, Clemons also argues that under the third

factor, there is nothing in the record suggesting that her substance use is related to

her current or future criminality.

              In response, the state filed a notice of conceded error stating that

      the [s]tate recognizes also that the second prong of the Jones test is not
      satisfied because the prohibition against alcohol, random drug testing,
      and AA participation is not related to [a]ppellant’s conviction of
      attempted carrying a concealed weapon. Further, [a]ppellant’s lack of
      criminal history (no prior adult felony convictions) did not establish
      that she had a substance abuse issue. Therefore, [a]ppellee joins
      [a]ppellant’s request to reverse, and remand to trial court for further
      proceedings.

             Pursuant to the second Jones factor, this court, in Mahon, 8th Dist.

Cuyahoga No. 106043, 

, noted that several Ohio courts require some

nexus between an offender’s crime and drug and/or alcohol use or abuse to uphold

community-control conditions. Id. at ¶ 9, citing Strongsville v. Feliciano, 8th Dist.

Cuyahoga No. 96294, 

; accord State v. Brown, 8th Dist. Cuyahoga

No. 111173, 

.

              In Mahon, the defendant was convicted of unlawful use of

telecommunications device. The terms of his community control forbade him from

using drugs or alcohol and attending any place or function where alcohol or drugs

were sold, used, or served. This court ultimately found that these conditions did

not satisfy the Jones test because the conditions were totally unrelated to the crime

for which he was convicted, stating that “[t]he record contains no mention
whatsoever of drugs or alcohol having been involved in the incident for which

Mahon was convicted.” Id. at ¶ 11.

              In Feliciano, the defendant was convicted of domestic violence. The

terms of his community control included random drug and alcohol testing. After

applying the Jones test, this court reversed, reasoning that “[t]he present record is

devoid of any indication that appellant’s crime was related to alcohol or drug use

* * *.” Feliciano at ¶ 11.

               In Brown, 8th Dist. Cuyahoga No. 111173, 

, the

defendant was convicted of criminal nonsupport. His community-control terms

forbade him from going anywhere where drugs and/or alcohol are sold, served, or

used. This court reversed, reasoning that “there is no nexus between Brown’s

conviction for criminal nonsupport and a prohibition on being near alcohol.

Neither indictment here contains any reference to drugs or alcohol, and our review

of the record reveals no connection between alcohol and Brown’s convictions.”

Brown at ¶ 13.

              In the instant matter, the record indicates that Clemons had a small

amount of marijuana in her possession at the time that the officers found the

weapon. Officers searched the vehicle and did not find any additional marijuana

or drugs. Despite this, the underlying indictment did not include any charges

relating to the marijuana.    Further, nothing in the record substantiates that

Clemons’s possession of the gun had any nexus to her possession of this small

amount of marijuana.
                 The record also indicates that this offense bears no relation to

alcohol. Consistent with this court’s holdings in Mahon, Feliciano, and Brown, we

find that the prohibitions pertaining to alcohol including not patronizing any

establishment where alcohol is used, sold, or served, and attending 12-step

program meetings are not reasonable under the second factor of the Jones test.

The failure to meet this factor is dispositive of this appeal.

               We also note that despite Clemons possessing a small amount of

marijuana, the record does not indicate that Clemons has any substance abuse

issues suggesting that she needs rehabilitation. The following exchange occurred

at sentencing:

      THE COURT: * * * Okay. So according to what you told our
      investigator, you stopped drinking at one point but you’ve gone back to
      drinking, correct?

      [CLEMONS]: I just drink socially. I stopped drinking for most of my
      adult life actually.

      THE COURT: And you used marijuana, correct?

      [CLEMONS]: Not so much anymore.

      THE COURT: But if you test positive for alcohol or any drug that is not
      properly prescribed for you, you will be violating my probation.

(Tr. 22-23.)

               Further, Clemons’s presentence investigation report indicates that

she struggled with alcohol use before turning 18 and completely abstained from

alcohol between ages 18 through 31. She now drinks socially and does not feel it
poses a problem. The record supports this, and the state concedes that Clemons

does not appear to have a substance abuse problem.

               We also note that it does not appear that drugs or alcohol play a role

in Clemons’s current or future criminality. This is her first adult felony. Clemons

was adjudicated delinquent in a juvenile matter from 2006 on robbery and assault

charges. Three months prior to this case, she was charged with having weapons

while under disability, but the case was dismissed. Her own explanation at

sentencing was that

       [CLEMONS]: Well, actually I was wrongfully identified as someone
       else. Apparently some girls — some women, they robbed a liquor store
       in Independence. I look nothing like them. One was extremely light
       and one was extremely darker. I was only there for like three hours.

(Tr. 21.)

               The record before us does not indicate that the instant matter bore

any relation to drugs and/or alcohol. Even though a small amount of marijuana

was found in Clemons’s possession, it is not clear that the marijuana bears any

relationship to her possession of a weapon, and the underlying indictment did not

include any charges relating to Clemons’s marijuana possession. We further note

that the record does not establish that Clemons has a substance abuse problem

warranting rehabilitation and, further, the small amount of marijuana does not

appear to relate to the criminal conduct nor does it appear to pose a risk for future

criminality.
                                 III. Conclusion

             Clemons’s sole assignment of error is sustained because factor two of

the Jones test was not met. Further, the state concedes the error in full. We vacate

the portions of the sentencing entry requiring Clemons to refrain from patronizing

places and events where drugs and alcohol are served, sold, and used; submit to

random drug and alcohol testing; and attend 12-step program meetings and retain

a sponsor.

              Judgment reversed in part, vacated in part, and remanded for

proceedings consistent with this opinion.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR