State v. Zeger , 2022 Ohio 1202 ( 2022 )

[Cite as State v. Zeger, 2022-Ohio-1202.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
CASE NO. 3-21-14
PLAINTIFF-APPELLEE,
v,
CODY JACOB ZEGER, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 21-CR-0114
Judgment Affirmed
Date of Decision: April 11, 2022
APPEARANCES:
Howard A. Elliott for Appellant
Daniel J. Stanley for Appellee
Case No. 3-21-14
WILLAMOWSKI, J.
{¶1} Defendant-appellant Cody Zeger (“Zeger”) brings this appeal from the
judgment of the Court of Common Pleas of Crawford County revoking Zeger’s
community control and sentencing him to eight months in prison. On appeal, Zeger
claims that the trial court erred in revoking his community control and in failing to
explain the rights Zeger was waiving by admitting to the violations. For the reasons
set forth below, the judgment is affirmed.
{¶2} On May 10, 2021, Zeger entered a plea of guilty to one count of
domestic violence in violation of R.C. 2919.25(A),(D)(3), a felony of the fourth
degree. Doc. 14. The trial court sentenced Zeger to five years of community control
and advised Zeger that if he failed to successfully complete community control, he
was subject to a prison sentence of 18 months. Doc. 15.
{¶3} On August 4, 2021, Chris Heydinger (“Heydinger”), a Crawford
County Probation Officer, filed a “motion” to revoke Zeger’s community control.
Doc. 17. The “motion” alleged that Zeger tested positive for amphetamines,
marijuana, and methamphetamines on May 11 and August 3, 2021, and that Zeger
admitted to his drug usage. Doc. 17. Zeger also tested positive for consumption of
alcohol on those same dates and admitted to the consumption. Doc. 17. Heydinger
alleged that the usage of drugs and alcohol violated rules 7 and 13 of Zeger’s
community control sanctions. Doc. 17. A hearing was held on September 8, 2021,
at which Zeger admitted the violations and the trial court found him to have violated
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the terms of his community control. Doc. 21. The trial court then revoked Zeger’s
community control and sentenced him to eight months in prison with 40 days of jail
time credit granted. Doc. 21. Zeger appealed from this judgment. Doc. 23. On
appeal, Zeger raises the following assignments of error.
First Assignment of Error
The trial court acts improperly when [it] uses an unconfirmed
positive drug screen to [sic] as a basis of finding of a community
control violation, and in doing so it must be reversed.
Second Assignment of Error
The trial court’s finding of a criminal community control
violation based upon the sole testimony of the supervising officer
and an unconfirmed positive drug screen is not supported by the
sufficiency of the evidence and must be set [sic] vacated.
Third Assignment of Error
Where the trial court fails to adequately explain to the defendant
the rights being surrendered by waiving a full hearing on an
alleged community control violation and relies upon hearsay to
establish the violation[,] a knowing, intelligent, and voluntary
waiver of the right to hearing has not taken place and the Court
finding of a community control violation must be set aside.
In the interest of clarity, we will address the third assignment of error first.
{¶4} In the third assignment of error, Zeger appears to be arguing that his
waiver of a hearing was not voluntary. Zeger bases his argument on the holding of
the fourth district in the case of In re Z.M.W. 4th Dist. Athens No. 11CA24, 2012-
Ohio-1785. However, this case is not applicable because it was a juvenile matter
and the appellate court reversed on the grounds that the trial court failed to comply
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with Juvenile Rule 29(D). The matter before us is not a juvenile matter and thus the
juvenile rules are inapplicable.
{¶5} Before revoking community control, a trial court is required to hold “a
hearing at which the defendant shall be present and apprised of the grounds on which
action is proposed.” Crim.R. 32.3(A). This Court has previously indicated that a
defendant is entitled to both a preliminary and a final revocation hearing. State v.
Knerr, 3d Dist. Auglaize Nos. 2-14-03 and 2-14-04, 2014-Ohio-3988, ¶ 14.
Although a revocation hearing must comply with due process requirements, it is not
a criminal proceeding. State v. Grow, 3d Dist. Logan Nos. 8-20-27, 8-20-28, and
8-20-29, 2021-Ohio-641, ¶ 8. The due process requirements for a revocation
hearing are 1) written notice of the claimed violations, 2) disclosure of evidence
against him, 3) an opportunity to be heard and to present evidence, 4) the right to
confront and cross-examine adverse witnesses, 5) a neutral and detached hearing
body, and 6) a written statement by the fact finders setting forth the evidence relied
on and the reasons for the revocation. Id. Additionally, a defendant in a community
control violation hearing is not entitled to all of the same rights as a defendant in a
criminal prosecution and the requirements of Criminal Rule 11(C)(2) do not apply.
Id. at ¶ 10. Instead, the requirements for a community control revocation hearing
are set by Criminal Rule 32.3. Id. at ¶ 11. This rule requires in pertinent part 1) that
the court hold a hearing at which the defendant was present and was informed of the
grounds for the alleged violations and 2) that the defendant has the right to counsel.
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Case No. 3-21-14
Crim.R. 32.3(A),(B). When reviewing a record to determine if the due process
requirements were met for a community control revocation hearing, “the relevant
consideration is not whether the record proves that [a defendant] understood the
rights he [is] waiving; it is whether the record in some way indicates that he did not
understand the rights he [is] waiving.” Grow, supra at ¶ 12.
{¶6} In this case, Zeger was given written notice specifying the basis for the
“motion” to revoke his community control and disclosed the evidence against him
via the “motion” to revoke his community control. An initial hearing was conducted
on August 4, 2021, at which the trial court found there was probable cause to
proceed to a final-revocation hearing. Doc. 19. Zeger was represented by counsel
at this hearing and a denial was entered on his behalf. Doc. 19. The final hearing
was held on September 8, 2021, at which Heydinger recited the evidence against
Zeger. Tr. 3-4. Zeger was present and represented by counsel at this hearing. The
trial court advised Zeger as to the potential sentence if the community control was
revoked. Tr. 5. The trial court then personally addressed Zeger and asked if he
admitted to the allegations and if he admitted to violating the terms of his
community control. Tr. 5. Both times, Zeger responded that he wished to make the
admissions. Tr. 5. Additionally, Zeger was provided with a written statement of
the alleged violations and disclosure of the evidence against him prior to the trial,
was given the opportunity to be heard and present witnesses, the right to question
the statements by Heydinger, the trial judge appeared neutral at the hearing (even
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imposing a sentence lower than that requested by the State), and the trial court’s
judgment entry set forth the basis for his finding that a violation occurred (the
admission by Zeger). Since all of the due process requirements were satisfied, the
third assignment of error is overruled.
{¶7} Zeger’s first assignment of error challenges the testimony of Heydinger
that Zeger failed two drug screens because there was no evidence of reliability of
the test. This assignment of error ignores the fact that the reliability of the test was
established when Zeger admitted that he had violated terms of his community
control. When speaking to the trial court, Zeger admitted the offenses in detail. Tr.
9-12. At no time did Zeger dispute the fact that he had violated the terms of his
community control. Although Zeger disputed that he had intentionally used
methamphetamines, he admitted to voluntarily using marijuana on at least two
occasions. The second instance happened even after he knew that he had previously
tested positive for marijuana and methamphetamines. Given the admissions, the
trial court did not abuse its discretion in finding that Zeger had violated the terms of
his community control. The first assignment of error is overruled.
{¶8} In the second assignment of error, Zeger claims that the trial court’s
determination that he had violated his community control sanctions was not
supported by sufficient evidence. When reviewing whether the evidence was
sufficient, the question is whether, viewing the evidence in a light most favorable to
the prosecution, a rational trier of fact could have found the elements proven beyond
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a reasonable doubt. State v. Hulbert, 3d Dist. Van Wert No. 15-19-07, 2021-Ohio-
2298, ¶ 5. The State need only show in a community control revocation hearing
that there was “substantial” evidence that the offender violated the terms of the
community control sanctions. State v. Sandlin, 3d Dist. Crawford Nos. 3-21-10, 3-
21-11, 2022-Ohio-570, ¶ 16. “Substantial evidence” consists of “more than a mere
scintilla [of] evidence, but somewhat less than a preponderance.” Id. quoting State
v. Herald, 3d Dist. Defiance No. 4-16-09, 2016-Ohio-7733, ¶ 27. The essential
element of whether one violated a term of community control would be to determine
whether a defendant’s actions were prohibited by the community control sanctions.
Here, Zeger admitted that he violated the terms of the community control sanctions.
Even if he had not admitted it, the evidence showed that on two separate occasions,
Zeger failed drug screens and had alcohol in his system, despite both substances
being prohibited by the terms of his community control. Thus, the evidence was
sufficient to support the trial court’s finding that Zeger violated the terms of his
community control. The second assignment of error is overruled.
{¶9} Having found no error prejudicial to appellant in the particulars
assigned and argued, the judgment of the Court of Common Pleas of Crawford
County is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J., concur.
/hls
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