State v. Hurley , 2010 Ohio 3668 ( 2010 )

[Cite as State v. Hurley, 2010-Ohio-3668.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO, CASE NO. 6-10-02
PLAINTIFF-APPELLEE,
v.
KELLIE M. HURLEY OPINION
aka KELLIE M. BAILEY,
DEFENDANT-APPELLANT.
STATE OF OHIO, CASE NO. 6-10-03
PLAINTIFF-APPELLEE,
v.
KELLIE M. HURLEY, OPINION
aka KELLIE M. BAILEY,
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court Nos. 20082120 CRI, 20082127 CRI
Judgment Affirmed
Date of Decision: August 9, 2010
APPEARANCES:
Todd A. Workman, for Appellant
Maria Santo, for Appellee
Case No. 6-09-02, 03
WILLAMOWSKI, P.J.,
{¶1} Defendant-Appellant, Kellie M. Hurley, aka Kellie M. Bailey
(hereinafter “Appellant”), appeals the judgment of the Hardin County Court of
Common Pleas finding her in violation of conditions of her community control
sanctions and, accordingly, revoking her community control. For the reasons set
forth below, the judgment is affirmed.
{¶2} On June 11, 2008, in Case No. 20082120 (“Case 1”), the Hardin
County Grand Jury indicted Appellant on one count of breaking and entering, in
violation of R.C. 2911.13(B), a felony of the fifth degree; and one count of grand
theft of a motor vehicle, in violation of R.C.2913.02(A)(1),(B)(2), a felony of the
fourth degree. In another case, on July 8, 2008, Case No. 20082127 (“Case 2”),
the Hardin County Grand Jury indicted Appellant on one count of burglary in
violation of R.C. 2911.12(A)(2), a felony of the second degree; one count of grand
theft, in violation of R.C.2913.02(A)(1),(B)(2), a felony of the fourth degree; one
count of criminal damaging, in violation of R.C. 2909.06(A)(1), a misdemeanor of
the second degree; fourteen counts of grand theft of a firearm with a firearm
specification, in violation of R.C. 2913.02(A)(1),(B)(4) and R.C 2941.141(A),
felonies of the third degree; and one count of engaging in a pattern of corrupt
activity, in violation of R..C. 2923.32(A)(1),(B)(1), a felony of the first degree.
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Case No. 6-09-02, 03
{¶3} On January 21, 2009, pursuant to a plea agreement, Appellant
entered a plea of guilty to the grand theft of a motor vehicle count in Case 1.
Appellant also pled guilty to the burglary count and the fourteen counts of grand
theft of firearms, without the specifications, in Case 2.
{¶4} The combined sentencing hearing on the two cases was held on May
19, 2009. In Case 1, the trial court placed Appellant on three years of community
control, but informed her that a violation of any of the terms of supervision could
lead to a more restrictive sanction, a longer sanction, or a definite prison term of
seventeen months. In Case 2, the trial court also placed Appellant on three years
of community control for each of the fifteen counts, with the same warning that
any violation of the terms of supervision could result in increased sanctions or a
definite prison term (of two years in prison for the burglary, and one year in prison
for each of the fourteen firearm thefts). The trial court informed Appellant that if
she violated the terms of her community control, the sentences for each count of
Case 2 were to run consecutively to each other and were also to run consecutively
to the term in Case 1, for a total of seventeen years and five months in prison.
{¶5} On December 29, 2009, the State filed a motion to revoke
supervision alleging that Appellant had tested positive for opiates, which was lab
verified as heroin. This was in violation of community control provision number
one, requiring that she “obey federal, state, and local laws and all court orders, and
agree to conduct [herself] as a responsible law abiding citizen.” It was also a
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violation of condition of supervision number six, that she “not purchase, use, or
have under [her] control any controlled substance or illegal drug ***” and that she
further agrees to submit to drug testing.
{¶6} On January 12, 2010, a revocation hearing was held and Katie Baier
(“Baier”), Appellant’s community control officer, testified concerning the results
of the drug test and answered other questions concerning Appellant’s conduct
during the seven months that she had been under community control. In addition
to testimony concerning the drug test, Baier also testified that Appellant had not
paid anything towards the ordered restitution and court costs; that Appellant would
sometimes go months at a time without personally reporting as required; and that
Appellant had been picked up in Kenton for transporting heroin. Although the
disposition of the case for transporting heroin was still pending, Appellant was in
violation for not reporting this arrest. Baier testified that Appellant claimed she
was unable to appear for several of her reporting dates because she was ill.
Appellant apparently had a pattern of going to the emergency room the day before
a reporting date and then calling to reschedule because of illness. There was also
testimony that Appellant had been charged with transporting a controlled
substance into a prison or lock-down facility in Marion County, although that
offense had been committed prior to the beginning of community control but while
she was on bond pending sentencing in these cases. The community control
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Case No. 6-09-02, 03
officer testified that, in her professional option, Appellant was not amenable to any
future community control.
{¶7} The trial court found that Appellant had violated the rules of
supervision and that she was not amenable to continued community control
sanctions. The trial court then proceeded to impose the prison sentences that had
previously been specified in the two cases, ordering Appellant to serve a total of
seventeen years and five months in prison. The sentence was journalized on
January 14, 2004. It is from this judgment that Appellant now appeals, setting
forth the following three assignments of error for our review.
First Assignment of Error
Defendant-Appellant was denied of Due Process when the state
submitted evidence of community control violations without
previously providing Defendant-Appellant written notice of the
alleged violations and without providing disclosure of the
evidence against her.
Second Assignment of Error
Defendant-Appellant was denied of Due Process when the trial
court failed to make written findings of facts and conclusions of
law.
Third Assignment of Error
Defendant-Appellant was denied effective assistance of counsel
at all stages of the criminal proceedings against her.
{¶8} In the first assignment of error, Appellant complains that she was
denied her due process rights because the State’s affidavit/motion merely cited one
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Case No. 6-09-02, 03
violation, that Appellant had tested positive for opiates, but that the State admitted
evidence of several other violations at the hearing, namely criminal/drug-related
activities in Hardin and Marion County; payment history of fines, costs, and
restitution; reporting history; and community service compliance. Appellant
complains that she did not receive notice of these additional allegations and that
the State failed to disclose evidence of the additional violations prior to the
hearing.
{¶9} This Court has held that while a revocation proceeding must
comport with the requirements of due process, it is not a criminal proceeding.
State v. Ryan, 3d Dist. No. 14-06-55, 2007-Ohio-4743, ¶8, citing Gagnon v.
Scarpelli (1973), 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656. Therefore,
the minimum due process requirements afforded a defendant in a probation
revocation proceeding differ from those in a criminal trial. State v. McKeithen,
3rd Dist. No. 9-08-29, 2009-Ohio-84, ¶22. The minimum due process
requirements for revocation hearings are: (a) Written notice of the claimed
violations; (b) disclosure of evidence against him or her; (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. Id., quoting State v. Miller (1975), 42 Ohio
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Case No. 6-09-02, 03
St.2d 102, 104, 326 N.E.2d 259, quoting Morrissey v. Brewer (1972), 408 U.S.
471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484.
{¶10} At the revocation hearing, Appellant did not admit that she had
violated any of the terms of her community control, so the State called her
community control officer to testify. After questioning the officer about
Appellant’s positive drug test, the State continued to ask questions concerning
Appellant’s compliance with the terms of her supervision during the seven months
she had been on community control. During this time, the information concerning
Appellant’s other areas of noncompliance were revealed. At the beginning of
cross-examination, Appellant’s counsel questioned the witness as to why the other
violations were not listed as part of her affidavit in support of the motion to
revoke. The officer stated that, at the time, the immediate matter was that
Appellant had tested positive for heroin and the officer wanted her in custody as
soon as possible so that she could no longer use. Appellant’s counsel then
proceeded to cross-examine the officer about the various incidents and allegations.
{¶11} Although Appellant’s counsel raised the issue to the trial court
concerning the propriety of admitting evidence of the additional violations, he did
not object to the officer’s testimony, and therefore, that matter was before the
court. Appellant has waived the issue except for plain error.
{¶12} However, while the trial court commented that evidence was
admitted without objection, the record clearly shows that the trial court was
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cognizant of the fact that the only two issues that were properly before the court
for purposes of determining revocation were the two violations associated with the
positive drug test that were stated in the affidavit. The remaining violations that
were discussed during the officer’s testimony went to the matter of disposition and
Appellant’s amenability to community control. The trial court stated:
The Court agrees with [Appellant’s attorney] that the matter is
coming before the Court on a limited basis as to allegations in the
motion—affidavit in that she tested positive for opiates which
was verified, and that was a violation of condition of supervision
one: I will obey federal, state, and local laws and all court
orders, and agree to conduct myself as a responsible law abiding
citizen. Also two, violation of condition of supervision six: Will
not purchase, use, or have under my control any controlled
substance or illegal drug ***. On December 8th the Defendant
did test positive to opiates which was lab verified as heroin. ***
And [Appellant’s attorney] accurately states that’s why we’re
here today -- these two allegations. *** The Court would have to
find based upon the evidence before the Court that the
Defendant has willfully violated the two conditions as alleged in
the affidavit, it would find that she has, in fact, violated the rules
of supervision.
(Jan. 12, 2010 Transcript of Hearing on Supervision, pp. 25-26, emphasis added.)
Concerning the evidence of additional violations, the trial court stated that
“[w]hether we use it for purposes of disposition or whether we use it for purposes
of showing a particular pattern in this particular Defendant’s life is totally
immaterial to this Court ***.” Id.{¶13} If the conditions of community control are violated, R.C. 2929.15(B)
provides the trial court a great deal of latitude in sentencing the offender. State v.
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Case No. 6-09-02, 03
Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶20. “The
privilege of 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. Ohly, 16 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d
675, ¶19.
{¶14} It is evident from the record that the trial court distinguished
between the evidence that determined whether Appellant violated the terms of
supervision and the evidence that was used for disposition and to determine
whether Appellant was amenable to further community control sanctions.
Appellant has failed to establish any due process violation.
{¶15} Even if this was not the case, it still would not have amounted to
plain error because Appellant failed to demonstrate that the outcome of the
revocation proceeding would have been any different. Once it had been
determined that Appellant had violated the terms of her supervision, it was within
the trial court’s sound discretion to revoke her community control. See State v.
South, 3d Dist. No. 14-07-40, 2010-Ohio-983, ¶8. Her sentence was within the
statutory range for the underlying offenses and Appellant was properly notified of
the consequences of violating her community control sanctions. See id. at ¶7.
Appellant’s first assignment of error is overruled.
{¶16} In her second assignment of error, Appellant claims that she was
denied due process because the trial court revoked Appellant’s community control
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Case No. 6-09-02, 03
without providing a written statement as to the evidence relied upon for revocation
and the reasons why the trial court determined that she was no longer amenable to
continued community control. A written statement by the fact finders as to the
evidence relied on and reasons for revocation is one of the due process rights
afforded defendants at revocation hearings. See McKeithen, supra, quoting State
v. Miller, supra.
{¶17} The judgment entries in Case 1 and Case 2 did not provide detailed
reasoning, but stated:
The Court hereby finds, based upon the evidence adduced, that
Defendant has violated the terms of her Community Control
Sanctions, and after giving Defendant the opportunity to speak,
further finds that a prison sentence for such violations is
consistent with the purposes and principles of sentencing under
R.C. 2929.11 because a prison sentence is reasonably necessary
to punish the offender and to deter, rehabilitate, and
incapacitate the offender in order to protect the public from
future crime ***.
The Court finds that the offender is not presently amenable to
any available combination of community control sanctions and
that continued use of such sanctions would demean the
seriousness of her misconduct while under community control.
{¶18} This Court has previous addressed what meets the requirement of a
“written statement.” See McKeithen, 2009-Ohio-84, at ¶23-24, quoting State v.
Ferguson (1991), 72 Ohio App.3d 714, 595 N.E.2d 1011:
We found that “[t]he trial court at the hearing and in its
judgment entry stated that upon hearing all the evidence in the
case *** probable cause existed to find Appellant violated the
terms of his probation. We concluded appellant was sufficiently
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Case No. 6-09-02, 03
informed of the reason his probation was revoked.” State v.
Ferguson, 72 Ohio App.3d at 719, 595 N.E.2d 1011.
The Ohio Supreme Court noted, in State v. Delaney (1984), 11
Ohio St.3d 231, 465 N.E.2d 72, that oral explanations of the
violation may satisfy this requirement. The Court found [at 235]
that:
“Although we do not condone the use of oral ‘explanations’ in
lieu of written statements detailing the basis for a trial court's
determination in revocation proceedings, we find that, in this
case, the trial court's statement sufficiently informed Appellant
of the reasons for which his probation was being revoked, while
also providing an adequate record for review on appeal.”
{¶19} The detailed reasons for revoking Appellant’s community control
were articulated at the revocation hearing, as quoted above in paragraph 12, and
definitively informed Appellant of the exact reasons why her community control
was being revoked. Furthermore, the trial court also discussed several reasons
why she was not amenable to further community control. Additionally, when
Appellant was given an opportunity to speak before disposition, she apologized
and promised she would do whatever the court wanted her to do and there would
not be “any more problems.” The trial court responded:
This could almost be a replay couldn’t it Ms. Bailey? Didn’t you
say the exact same thing back on May 19th when I sentenced you
on these matters? And I informed you of all the possibilities of
the total time in prison you were gonna serve, and you assured
me that you were gonna do everything you could to stay out of
prison. Do you remember that conversation?
***
So, I’m not hearing anything different today ma-am. ***
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Case No. 6-09-02, 03
(Jan. 12, 2010 Transcript of Hearing on Supervision, p. 30.)
{¶20} We find that the detailed reasons articulated in open court, along
with the statements made in the judgment entry, are sufficient to satisfy
Appellant’s due process rights to be informed of the basis for the revocation of
community control. The second assignment of error is overruled.
{¶21} In the third assignment of error, Appellant complains that she was
denied effective legal assistance because her counsel failed to object to testimony
he knew to be improperly submitted and detrimental to his client and he failed to
bifurcate the hearings so that he could better prepare for the evidence of the
additional violations, beyond what was alleged in the affidavit. He also did not
offer any evidence at the disposition.
{¶22} The Supreme Court of Ohio has established a two-part test to
determine if trial counsel was ineffective. First, the defendant must show that
counsel's performance fell below objective standards of reasonable representation,
and second, the defendant must show resulting prejudice. State v. Bradley (1989),
42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. To show
prejudice, the defendant must prove that there existed a reasonable probability
that, but for counsel's errors, the outcome at trial would have been different.
Bradley, at paragraph three of the syllabus.
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{¶23} A defendant must also overcome the presumption that counsel is
competent and must show that counsel's decisions were “not trial strategies
prompted by reasonable professional judgment.” State v. Dickinson, 3d Dist. No.
11-08-08, 2009-Ohio-2099, ¶21, citing Strickland v. Washington (1984), 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Even unsuccessful tactical or strategic
decisions will not constitute ineffective assistance of counsel. State v. Carter, 72
Ohio St.3d 545, 558, 1995-Ohio-104, 651 N.E.2d 965. An appellate court must
review the totality of the circumstances and not isolated instances of an allegedly
deficient performance. State v. Stacy, 3d Dist. No. 13-08-44, 2009-Ohio-3816,
¶20.
{¶24} This court has previously held that trial counsel's failure to object
does not establish ineffective assistance of counsel. Id. at ¶21; State v. Turks, 3d
Dist. No. 1-08-44, 2009-Ohio-1837, ¶43, citing State v. Conway, 109 Ohio St.3d
412, 2006-Ohio-2815, 848 N.E.2d 810, ¶103. Trial counsel's failure to object is
generally viewed as trial strategy and does not, by itself, establish ineffective
assistance. State v. Gumm, 73 Ohio St.3d 413, 428, 1995-Ohio-28, 653 N.E.2d
253.
{¶25} Appellant’s counsel did not object to the community control
officer’s statements at the time they were made, but he did raise the issue to the
trial court, and the record demonstrates that the trial court agreed with Appellant’s
counsel and only considered the evidence that pertained to the violations stated in
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the affidavit/motion. See discussion re first assignment of error, supra (“The
Court agrees with [Appellant’s attorney] that the matter is coming before the Court
on a limited basis as to allegations in the motion—affidavit ***.”) Appellant’s
counsel thoroughly cross-examined the witness and strongly advocated on
Appellant’s behalf. When questioned directly by the trial court, Appellant herself
admitted to some of the transgressions. Appellant’s counsel’s failure to object did
not prejudice Appellant.
{¶26} Likewise, as to the bifurcation issue, there is nothing in the record
which demonstrates that the trial court would have found that Appellant was still
amenable to community control if the officer’s testimony had been admitted at a
separate disposition proceeding. Appellant’s counsel cross-examined the
community control officer, Appellant had an opportunity to speak on her behalf,
and there was no indication that there was any evidence that Appellant’s counsel
could have admitted that would have changed the outcome of the proceeding.
Appellant’s third assignment of error is overruled.
{¶27} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jnc
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