State v. Graham , 2022 Ohio 1770 ( 2022 )

[Cite as State v. Graham, 2022-Ohio-1770.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 21CA0031
:
CELIA D. GRAHAM :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 20CR121
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 25, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
WILLIAM HAYES KIMBERLYN SECCURO
LICKING CO. PROSECUTOR 720 South High Street
DARREN M. BURGESS Columbus, OH 43206
20 South Second St., Fourth Floor
Newark, OH 43055
[Cite as State v. Graham, 2022-Ohio-1770.]
Delaney, J.
{¶1} Appellant Celia D. Graham appeals from the April 16, 2021 Judgment Entry
of the Licking County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
Violation of protection order and community-control sanction
{¶2} This case arose on November 13, 2019, when victim Jane Doe went to the
Newark Police Department to report a violation of a protection order. Doe reported that
on November 12, 2019, she received a call from a phone number she didn’t recognize.
Upon answering the call, she recognized the voice of appellant. Doe has a civil protection
order against appellant in the Licking County Court of Common Pleas, Case Number 19
CV 277.
{¶3} Appellant has a prior conviction for violation of a protection order, to wit,
Franklin County Municipal Court Case Number 19 CRB 12464.
{¶4} Appellant was charged by indictment with one count of violating a protection
order pursuant to R.C. 2919.27(A)(1), a felony of the fifth degree.
{¶5} On October 5, 2020, appellant appeared before the trial court and changed
her previously-entered plea of not guilty to one of guilty to the offense as charged. Also
on that date, the trial court imposed a community-control term of three years and a jail
term of 30 days. Appellant was advised that if she violated the terms of community
control, she would serve a prison term of 12 months. The trial court also imposed a term
of 3 years of post-release control.
{¶6} Attached to the judgment entry of conviction and sentence is Exhibit A,
which contains the terms of appellant’s community control. Her residential sanctions
[Cite as State v. Graham, 2022-Ohio-1770.]
included a 30-day jail term and her non-residential sanctions included, e.g., drug and
alcohol assessments, mental health treatment, community service, and no contact with
the victim.
Probation revocation proceedings
{¶7} On February 4, 2021, appellee filed a Motion to Revoke Community Control
citing three alleged violations: 1) she was indicted on January 7, 2021 for escape, a felony
of the third degree; 2) she failed to enter or verify enrollment in an approved mental health
and anger management treatment program; and 3) on February 2, 2021, the victim filed
a police report stating appellant contacted her.
{¶8} A magistrate’s order dated February 5, 2021 states a first-stage hearing
was held upon the motion to revoke and the court found probable cause to believe
appellant violated terms of her community control.
{¶9} On February 9, 2021, appellee filed an Amended Motion to Revoke
Community Control alleging one additional violation: when appellant was arrested on
February 4, 2021, she would not follow commands and resisted arrest verbally and
physically.
{¶10} Counsel was appointed for appellant and a second-stage hearing was
scheduled for February 26, 2021.
{¶11} On February 23, 2021, appellant’s counsel moved to continue the hearing
because counsel had a conflict and appellee did not object to the motion to continue. The
trial court granted the motion to continue and the matter was scheduled for March 19,
2021.
{¶12} On March 9, 2021, appellant filed a demand for discovery.
[Cite as State v. Graham, 2022-Ohio-1770.]
{¶13} On March 17, 2021, appellant filed a second motion to continue because
appellant was exposed to someone who tested positive for Covid and she was presently
under quarantine and experiencing Covid symptoms. Appellee did not object to the
motion to continue. The trial court granted the motion to continue and the hearing was
scheduled for April 16, 2021.
Second-stage evidentiary hearing on probation revocation
{¶14} The matter proceeded to evidentiary hearing on April 16, 2021. The
following evidence is adduced from the record of the hearing.
{¶15} At the opening of the hearing, defense trial counsel moved for a third
continuance, arguing counsel demanded discovery on March 8, 2021 and April 8, 2021,
but appellee did not respond to the demand.
{¶16} Appellee responded that pursuant to State v. Shuman, 5th Dist. Stark No.
2009CA00271, 2010-Ohio-3957, ¶ 22, community control revocation hearings are not
“criminal proceedings” for the purpose of Crim.R. 16.1 Further, appellant’s right to due
process was not violated because she was served with the motion to revoke containing
the allegations against her and naming the pertinent witness.
1 In State v. Shuman, 5th Dist. Stark No. 2009CA00271, 2010-Ohio-3957, ¶ 22, we stated
the following in pertinent part:
It is well settled that community control revocation hearings are not
criminal proceedings. State v. Stafford (Aug. 16, 2001), Tuscarawas App.
No.2000 AP 12 0095. Because a community control revocation proceeding
is not a criminal proceeding, it has been held that the discovery procedures
outlined in Crim.R. 16 are inapplicable to the revocation process. State v.
Stafford, supra, citing State v. Parsons (Nov. 15, 1996), Greene App. No.
96 CA 20. However, even though Crim.R. 16 is inapplicable to the
community control revocation proceedings, Appellant is entitled to some
minimum due process rights as stated in Gagnon, supra: disclosure to the
(probationer or) parolee of evidence against him.
[Cite as State v. Graham, 2022-Ohio-1770.]
{¶17} Defense trial counsel responded that he spoke to the probation officer [Toni
Offenburger] by telephone and was aware of the allegations, but did not know what
evidence appellee intended to use at the hearing, such as witnesses or exhibits.
{¶18} The trial court ruled appellant had notice of the allegations and denied the
motion to continue.
{¶19} Probation Officer Toni Offenburger testified appellant began supervision
with her on November 3, 2020, and signed conditions of supervision. On February 9,
2021, Offenburger filed an amended motion to revoke community control because she
learned appellant was indicted upon one count of escape; the victim reported to police
that appellant contacted her despite the no-contact order; and appellant was repeatedly
told to enroll in mental health treatment and anger management counseling but failed to
do so.
{¶20} Offenburger testified that appellant violated the conditions of community
service as follows. Condition No. 1 states appellant will abide by all federal, state, and
local laws, and that she will personally contact the probation officer by the next day if she
is arrested, cited, or questioned by any law enforcement officer. Appellee offered State’s
Exhibit One in support of this argument, a copy of appellant’s indictment upon one count
of escape.
{¶21} Offenburger testified about the circumstances of appellant’s arrest on
February 4, 2021, which Offenburger had personally effectuated. Upon her arrival at the
probation office, Offenburger told appellant she was under arrest and asked her to turn
around and place her hands behind her back. Appellant immediately “started yelling
[Cite as State v. Graham, 2022-Ohio-1770.]
and screaming and wouldn’t comply * * *.” T. 16. Appellant dropped to the floor, kicking
and screaming, requiring four officers to cuff her. She then refused to walk or cooperate.
{¶22} Offenburger testified appellant knew she was filing a motion to revoke
based upon appellant’s failure to comply with mental health treatment. Appellant also
knew in advance she would have a bond hearing at 1:00 on February 4. However,
Offenburger received the police report about contact with the victim in the meantime.
Thus, as appellant walked in the door Offenburger told her she was aware of the latest
allegations of contact, and appellant screamed “I’m going to kill that bitch.” T. 20.
{¶23} Offenburger rode in the cruiser with appellant to the Justice Center;
appellant continued to resist, kicking the cage in the cruiser and repeating her threats to
the victim. Appellant was carried into booking, placed in a restraint chair, and a spit guard
was placed over her head.
{¶24} After appellant’s arrest, she told Offenburger she started mental health
treatment but didn’t like the counselor. Offenburger attempted to verify this information
and learned it was false; appellant did get assessed, but failed to attend a recent
appointment.
{¶25} Upon cross-examination, Offenburger agreed that appellant wasn’t required
to see any particular counselor; that she and the victim have an extensive history; and
she assured appellant before February 4 that she would not be arrested, although that
changed.
{¶26} Jane Doe, the victim in the instant case, also testified. Doe has a civil
protection order (CPO) against appellant. On February 1, 2021, appellant called Doe on
the telephone and said Doe and her mother were going to die for what they did to
[Cite as State v. Graham, 2022-Ohio-1770.]
appellant, and she was on her way to kill Doe. Doe recognized appellant’s voice and
reported the call to police. Doe also testified to multiple other contacts by appellant prior
to the phone call.
{¶27} Upon cross-examination, Doe acknowledged appellant has a CPO against
Doe and that appellant was acquitted in one trial for an alleged violation of Doe’s CPO.
{¶28} Appellant testified on her own behalf and said she had a “mental health
breakdown” on February 4 when she learned she was about to be arrested. Appellant
stated she advised Offenburger of a false police report Doe made against her, and that
she obtained “a couple of” mental health evaluations.
{¶29} At the conclusion of the hearing, the trial court ruled from the bench that
appellant did not violate the first condition of her probation because she was not yet
convicted of escape. However, in light of her conduct in resisting arrest, failing to obtain
mental health treatment, and contacting Jane Doe, she was in violation of other terms of
community control. The trial court revoked appellant’s community-control term and
imposed the suspended sentence of 12 months in the Licking County Jail.
{¶30} The trial court entered a Judgment Entry dated April 16, 2021, finding
appellant violated the terms of community control, was not amenable to an available
community control sanction, and imposing the 12-month jail term.
{¶31} Appellant now appeals from the trial court’s Judgment Entry of April 16,
2021.2
{¶32} Appellant raises three assignments of error:
2Appellant’s original appellate counsel withdrew from the instant case and new counsel
was appointed.
[Cite as State v. Graham, 2022-Ohio-1770.]
ASSIGNMENTS OF ERROR
{¶33} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
GRAHAM’S MOTION FOR A CONTINUANCE, IN VIOLATION OF HER DUE PROCESS
RIGHTS PURSUANT TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.”
{¶34} “II. THE PROSECUTOR’S MISCONDUCT DENIED GRAHAM A FAIR
TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF HER FIFTH, SIXTH, AND
FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES
CONSTITUTION.”
{¶35} “III. THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING
GRAHAM’S COMMUNITY CONTROL.”
ANALYSIS
I., II., III.
{¶36} Appellant’s three assignments of error are related and will be addressed
together and out of order for clarity. Appellant contends the trial court should have
continued the revocation hearing based upon the prosecutor’s alleged misconduct in
failing to provide discovery; we disagree. Appellant further argues the trial court abused
its discretion in revoking her community control; we disagree.
{¶37} In the instant case, the trial court revoked appellant’s community-control
sanction upon finding she violated several conditions, to wit: to obtain mental health
treatment and to have no contact with the victim. We begin by reviewing the nature of
revocation proceedings in general.
[Cite as State v. Graham, 2022-Ohio-1770.]
{¶38} A community-control revocation hearing is not a criminal trial; therefore, the
state is not required to establish a violation of the terms of community control “beyond a
reasonable doubt.” State v. Middlebrooks, 5th Dist. Tuscarawas No. 2010 AP 08 0026,
2011-Ohio-4534, ¶ 14, citing State v. Pavlich, 6th Dist. Erie No. E–10–011, 2011–Ohio–
802, ¶ 7, internal citations omitted. Instead, appellee must show “substantial” proof that
the offender violated the terms of his or her community control sanctions. Id., citing State
v. Ryan, 3d Dist. Union No. 14–06–55, 2007–Ohio–4743, ¶ 7. “Substantial evidence” is
akin to a preponderance-of-the-evidence burden of proof. State v. Ohly, 166 Ohio App.3d
808, 2006–Ohio–2353, 853 N.E.2d 675, at ¶ 18 (6th Dist.), internal citation omitted.
Substantial evidence is more than a mere scintilla of evidence, but somewhat less than a
preponderance. Middlebrooks, supra, 2011-Ohio-4534 at ¶ 14, citing State v. Gomez,
11th Dist. No. 93–L–080 (Feb. 18, 1994).
{¶39} Appellee is required to establish substantial evidence that appellant violated
any one of the conditions of her community-control sanction. “Probation rests upon the
probationer's compliance with the probation conditions and any violation of those
conditions may properly be used to revoke the privilege.” State v. Bell, 66 Ohio App.3d
52, 57, 583 N.E.2d 414 (5th Dist.1990). Once a court finds that a defendant violated the
terms of his community-control sanction, the court's decision to revoke community control
may be reversed on appeal only if the court abused its discretion. State v. Shuman, 5th
Dist. Stark No. 2009CA00271, 2010-Ohio-3957, ¶ 27, citing Columbus v. Bickel, 77 Ohio
App.3d 26, 38, 601 N.E.2d 61 (1991). An abuse of discretion connotes more than an error
in law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable. State v. Maurer, 15 Ohio St.3d 239, 253, 473 N.E.2d 768 (1984).
[Cite as State v. Graham, 2022-Ohio-1770.]
{¶40} In order to comport with due process, a trial court must adhere to the
following conditions when ruling on a defendant's guilt in relation to a community control
violation: “(a) written notice of the claimed violations; (b) disclosure of evidence against
the defendant; (c) the opportunity to be heard in person and to present witnesses and
documentary evidence; (d) the right to confront and cross-examine adverse witnesses;
(e) a neutral and detached hearing body; and (f) a written statement by the fact finders
as to the evidence relied on and reasons for revocation.” Middlebrooks, supra, 5th Dist.
Tuscarawas No. 2010 AP 08 0026, 2011-Ohio-4534, ¶ 16, citing Pavlich, supra, at ¶ 25,
internal citations omitted.
No prosecutorial misconduct
{¶41} Appellant asserts the prosecutor committed misconduct in “refus[ing] to
provide Graham all of the information about her community control revocation
proceeding.” Appellant fails to reveal what information was missing, and concedes
Crim.R. 16 discovery rules did not apply to the proceeding in the instant case. Brief, 3.
Nor does appellant reveal which of her rights was prejudiced by the alleged omission.
Brief, 4. Because a community-control revocation proceeding is not a criminal
proceeding, we have held that the discovery procedures outlined in Crim.R. 16 are
inapplicable to the revocation process. State v. Stafford, 5th Dist. Tuscarawas No.2000
AP 12 0095 (Aug. 16, 2001), citing State v. Parsons, Greene App. No. 96 CA 20 (Nov.
15, 1996). Even though Crim.R. 16 is inapplicable to revocation proceedings, appellant
is entitled to some minimum due process rights including disclosure to the probationer of
the evidence against her. State v. Shuman, supra, 2010-Ohio-3957 at ¶ 22.
[Cite as State v. Graham, 2022-Ohio-1770.]
{¶42} As noted supra, appellant does not reveal what pertinent evidence appellee
failed to reveal before the hearing. We find appellant's due process rights were not
violated in regard to the disclosure of evidence; appellant received notice of the violations;
a first-stage hearing was held upon the motion to revoke and the court found probable
cause to believe appellant violated terms of her community control; finally, at the full
evidentiary hearing, appellant had the opportunity to confront and cross-examine
witnesses and to present her own witnesses and documentary evidence. Shuman, supra,
¶ 23.
{¶43} Accordingly, we find no due process violation as to the disclosure of
evidence against appellant.
Denial of continuance not an abuse of discretion
{¶44} Next, appellant argues the trial court should have granted defense trial
counsel’s motion to continue the revocation hearing. The granting of a continuance rests
in the trial court's sound discretion. State v. Harden, 5th Dist. Fairfield No. 02CA27, 2002-
Ohio-4673, ¶ 8, citing State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981). In order
to find an abuse of that discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). We note
the revocation hearing was continued twice upon appellant’s motion. Appellant argues,
though, she was entitled to another continuance to review appellee’s “discovery.” We
have already determined appellant was not entitled to discovery; moreover, the
information was contained in the amended motion to revoke which was served upon her.
[Cite as State v. Graham, 2022-Ohio-1770.]
{¶45} The trial court did not abuse its discretion in refusing to continue the
revocation hearing. See, State v. Harden, supra, 5th Dist. Fairfield No. 02CA27, 2002-
Ohio-4673 [trial court does not abuse its discretion in refusing to continue revocation
hearing, especially when revocation is not premised upon information unknown to
appellant].
Findings of violations not abuse of discretion
{¶46} Finally, appellant contends the trial court’s findings that she failed to comply
with conditions is an abuse of discretion. We note the weight to be given to the evidence
and the credibility of the witnesses are issues for the trier of fact in a revocation
proceeding. Shuman, supra, 2010-Ohio-3957, ¶ 27, citing State v. Jamison, 49 Ohio St.3d
182, 552 N.E.2d 180 (1990), certiorari denied, 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d
183 (1990). Reviewing courts should accord deference to the trial court's decision
because the trial court has had the opportunity to observe the witnesses' demeanor,
gestures, and voice inflections, which cannot be conveyed to us through the written
record. Id.{¶47} A review of the record does not support a finding that the trial court abused
its discretion.
{¶48} Appellant argues she was found not guilty of violation of a civil protection
order; as Jane Doe testified, though, the telephone call she reported to police was a
different incident in the lengthy history between the two. Appellant further argues she
wasn’t charged with resisting arrest for her conduct on February 4th, 2021, so the trial
court should not have held that conduct against her. Appellant need not be charged with
a criminal offense to have violated a condition of her community control. Appellant further
[Cite as State v. Graham, 2022-Ohio-1770.]
argues she did obtain mental health assessments as ordered; she was still within her
period of community control and should not be penalized for failing to complete mental-
health recommendations. The trial court advised appellant, though, that she did not have
three years to complete her mental health recommendations; she doesn’t get to shop
around until she finds a provider that suits her. T. 59.
{¶49} The trial court’s findings are not an abuse of discretion and we agree
appellee presented substantial proof appellant violated terms of her community control.
{¶50} Appellant’s three assignments of error are overruled.
CONCLUSION
{¶51} Appellant’s three assignments of error are overruled and the judgment of
the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Baldwin, P.J. and
Hoffman, J., concur.