State v. Brown , 2015 Ohio 468 ( 2015 )

[Cite as State v. Brown, 2015-Ohio-468.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-14-04
v.
DEWAYNE L. BROWN, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 13-06-0165
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: February 9, 2015
APPEARANCES:
Marc S. Triplett and Jacob A. Estes for Appellant
Eric C. Stewart for Appellee
Case No. 8-14-04
{¶1} Defendant-appellant Dewayne L. Brown (“Brown”) appeals the
March 7, 2014 judgment of the Logan County Common Pleas Court revoking
Brown’s community control and sentencing Brown to serve twelve months in
prison for Trafficking in Heroin in violation of R.C. 2925.03(A)(1), a felony of the
fifth degree.
{¶2} The facts relevant to this appeal are as follows. On July 9, 2013,
Brown was indicted for one count of Trafficking in Heroin in violation of R.C.
2925.03(A)(1), a felony of the fifth degree. (Doc. 5).
{¶3} On July 22, 2013, Brown was arraigned and pled not guilty to the
charge. (Doc. 13).
{¶4} On October 7, 2013, a change of plea hearing was held. At the
hearing, the parties announced that the State and Brown had entered into a written
negotiated plea agreement wherein Brown agreed to plead guilty to the charge as
indicted in exchange for the State dismissing another separate criminal case.
(Doc. 20). Brown was then advised of his rights by the trial court and he
knowingly, intelligently, and voluntarily entered a guilty plea to Trafficking in
Heroin in violation of R.C. 2925.03(A)(1), a felony of the fifth degree. Brown
was subsequently found guilty by the trial court and sentencing was set for a later
date.
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{¶5} On November 18, 2013, a sentencing hearing was held. At the
hearing, the State recommended that Brown be sent to prison based on a prior
history of felony drug offenses. Brown’s attorney recommended that Brown be
placed on community control. (Nov. 18, 2013, Tr. at 3). After hearing the
arguments of the parties Brown was sentenced to five years of community control.
As a condition of Brown’s community control, Brown was ordered to enroll in the
West Central Community Correctional Facility for a residential program for up to
6 months. Brown was required to successfully complete the program. In addition,
Brown was advised that if he violated his community control sanctions the court
could impose more restrictive sanctions or the court would impose a prison term
of twelve months. (Doc. 27). An entry reflecting this sentence was filed
November 27, 2013.
{¶6} On February 4, 2014, the State filed a motion for Brown to show
cause why his community control should not be revoked on the basis that Brown
was “unsuccessfully terminated from West Central.” (Doc. 41).
{¶7} On February 5, 2014, the trial court conducted a hearing on the motion
but as Brown appeared without counsel, the trial court continued the matter so
Brown could consult with the attorney who had previously represented him.
{¶8} On February 10, 2014, the court held the hearing on the State’s motion
to revoke Brown’s community control. At the hearing, Officer Jeff Roman stated
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to the court that the motion to revoke Brown’s community control had been filed
because Brown “was ordered prior in his sentencing under this docket to West
Central, and as a result when he went to West Central he was kicked out
unsuccessfully, so that brought him back and I PV’d him. So that’s why we’re
here today, Your Honor.” (Tr. at 3). Defense counsel then spoke on Brown’s
behalf informing the court that Brown “wasn’t kicked out; he quit. And I don’t
know exactly how they look at things over in West Central, but to [Brown] there’s
a distinction.” (Tr. at 4).
{¶9} Officer Roman then gave the court an overview of the case, stating
that Brown entered the West Central facility on December 12, 2013, and remained
there until February 4, 2014, when he was unsuccessfully discharged. (Tr. at 5).
Next, Officer Roman narrated a list of Brown’s violations at West Central. After
Officer Roman finished his narration, the court asked Brown if he had anything he
wished to say and Brown said that he did not. (Tr. at 11).
{¶10} At the conclusion of the hearing, the court revoked Brown’s
community control and imposed its reserved twelve month prison sentence. On
March 7, 2014, a judgment entry reflecting this sentence was filed. (Doc. 46).
{¶11} It is from this judgment that Brown appeals, asserting the following
assignments of error for our review.
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ASSIGNMENT OF ERROR 1
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
REVOKED APPELLANT’S COMMUNITY CONTROL.
ASSIGNMENT OF ERROR 2
THE TRIAL COURT ERRED WHEN IT IMPOSED POST
RELEASE CONTROL.
First Assignment of Error
{¶12} In Brown’s first assignment of error, Brown makes various
arguments alleging that the trial court abused its discretion in revoking his
community control. Specifically, Brown argues that he did not admit to violating
community control, that the trial court did not advise him of his due process rights,
that the trial court violated Brown’s right to confront witnesses against him, that
the evidence did not support the trial court’s finding that Brown violated his
community control, and that Brown was denied effective assistance of counsel.
{¶13} At the outset we would note that, “ ‘A community control revocation
hearing is not a criminal trial[.]’ ” State v. Parsons, 4th Dist. Athens No. 09CA4,
2009-Ohio-7068, ¶ 11 quoting State v. Belcher, 4th Dist. Lawrence No. 06CA32,
2007-Ohio-4256, at ¶ 12. For that reason, a “defendant faced with revocation of
probation or parole is not afforded the full panoply of rights given to a defendant
in a criminal prosecution.” State v. Alexander, 1st Dist. Hamilton App. No. C-
070021, 2007-Ohio-5457, at ¶ 7; State v. Orr, 11th Dist. Geauga App. No.2008-G-
2861, 2009-Ohio-5515, at ¶ 21; State v. Malone, 6th Dist. Lucas No. L-03-1299,
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2004-Ohio-5246, at ¶¶ 13-14. More specifically, “the requirements of Crim.R.
11(C)(2) do not apply to a community-control-violation hearing.” Alexander at ¶
7; Orr at ¶ 21.
{¶14} Criminal Rule 32.3 governs the revocation of probation. It reads,
(A) Hearing
The court shall not impose a prison term for violation of the
conditions of a community control sanction or revoke probation
except after a hearing at which the defendant shall be present
and apprised of the grounds on which action is proposed. The
defendant may be admitted to bail pending hearing.
(B) Counsel
The defendant shall have the right to be represented by retained
counsel and shall be so advised. Where a defendant convicted of
a serious offense is unable to obtain counsel, counsel shall be
assigned to represent the defendant, unless the defendant after
being fully advised of his or her right to assigned counsel,
knowingly, intelligently, and voluntarily waives the right to
counsel. Where a defendant convicted of a petty offense is
unable to obtain counsel, the court may assign counsel to
represent the defendant.
{¶15} In his assignment of error, Brown makes numerous arguments that
his revocation hearing was inadequate. First, Brown argues that the court was
required to advise him of the consequences of admitting to a violation of
community control. Second, Brown argues that he was not informed of his right
to confront and cross-examine witnesses. However, in both instances, Crim.R.
32.3(A) contains no such requirements. See Parsons, supra; Alexander, supra.
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Those requirements, which are contained in Crim.R. 11(C)(2), do not pertain to a
hearing on a revocation of community control. Id.; Id. Criminal Rule 32.3(A)
merely requires a trial court to (1) hold a hearing, (2) where the defendant is
present, (3) and apprised of the grounds on which action is proposed. None of the
Crim.R. 11(C)(2) requirements are contained within the rule.
{¶16} In this case the trial court did fully comply with the requirements of
Crim.R. 32.3(A) and (B). The court held a hearing where Brown was present,
with counsel, and he was apprised of the grounds on which action was proposed.
Brown’s arguments to impose further requirements into the criminal rules at a
community control revocation hearing are not well-taken.
{¶17} Brown next argues that he did not admit that he was unsuccessfully
terminated from West Central and that the evidence did not support the trial
court’s finding that he was unsuccessfully terminated. However, Brown’s attorney
stated that Brown had “quit” West Central, admitting to the court that Brown had
not successfully completed the program. Brown’s contention that there is a
difference between him quitting the program and being unsuccessfully terminated
from the program is a distinction without a difference because in either event
Brown did not successfully complete the West Central program as he was required
to do under the terms of his community control. Moreover, the probation officer
who spoke at the hearing indicated multiple violations that Brown committed
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while at West Central and indicated that Brown had been unsuccessfully
terminated from the program. Thus Brown’s arguments on these issues are not
well-taken.
{¶18} Lastly, Brown argues that his counsel was ineffective for failing to
bring any of the previously discussed issues to the trial court’s attention. We have
found no error, so we cannot find counsel ineffective for failing to bring these
issues to the court’s attention. Furthermore, we would note that Brown had no
defense to the fact that he had violated his community control by failing to
complete West Central so even if there was somehow error, there certainly cannot
be any prejudice in this instance. Thus this argument is also not well-taken.
{¶19} Accordingly Brown’s arguments are not well-taken and his first
assignment of error is overruled.
Second Assignment of Error
{¶20} In Brown’s second assignment of error he argues that the trial court
erred when it “imposed” post-release control. Specifically, Brown argues that the
trial court did not inform him at the sentencing hearing or at the community
control hearing when his community control was revoked that he could be subject
to post-release control.
{¶21} The State actually concedes that the trial court did not adequately
notify Brown that he could be subject to post-release control upon being released
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from prison at the sentencing hearing or at the community control revocation
hearing. However, the State argues that the point is actually moot because Brown
has now been released from prison and he has not been placed on post-release
control. While that point may be valid, such information is not contained in the
record before us.
{¶22} Our own review of the record illustrates that there was no mention of
post-release control at Brown’s original sentencing hearing or in the original
sentencing entry of November 17, 2013, when Brown was sentenced to
community control. When Brown violated community control, the trial court
similarly did not notify Brown of the potential length he could be placed on post-
release control. Rather, the court simply stated “I would suggest that the state is
not likely to place you on post-release control.” (Tr. at 13). The March 7, 2014
sentencing entry revoking Brown’s community control and sending him to prison
indicated that the court did notify Brown that he could be subject to three years of
post-release control; however, that was incorrect as Brown was not notified at the
hearing. (Doc. 46). Thus the record does not establish that Brown was properly
notified of the potential of post-release control upon being released from prison
and does not establish that the point is moot because Brown was never placed on
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post-release control upon being released from prison.1 Accordingly, Brown’s
argument on this issue is sustained.
{¶23} For the foregoing reasons Brown’s first assignment of error is
overruled, and the second assignment of error is sustained. The judgment of the
Logan County Common Pleas Court is thus affirmed in part and reversed in part
and remanded to the trial court only to the extent necessary to deal with the issue
of post-release control.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
1
We specifically make no finding as to whether the State’s argument regarding the post-release control
notification being moot has any validity.
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