State v. Grow , 2021 Ohio 641 ( 2021 )

[Cite as State v. Grow, 2021-Ohio-641.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-20-27
v.
LACEY B. GROW, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-20-28
v.
LACEY B. GROW, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-20-29
v.
LACEY B. GROW, OPINION
DEFENDANT-APPELLANT.
Case Nos. 8-20-27, 8-20-28, 8-20-29
Appeals from Logan County Common Pleas Court
Trial Court Nos. CR 16 01 0015, CR 16 03 0078 and CR 17 07 0237
Judgments Affirmed
Date of Decision: March 8, 2021
APPEARANCES:
Samantha L. Berkhofer for Appellant
Sara J. Warren for Appellee
ZIMMERMAN, J.
{¶1} Defendant-appellant, Lacey B. Grow (“Grow”), appeals the June 2,
2020 judgment entries of the Logan County Court of Common Pleas revoking her
community control and imposing prison sentences. For the reasons that follow, we
affirm.
{¶2} The facts relevant to this appeal are as follows. On May 11, 2020, the
State filed a motion requesting that the trial court revoke Grow’s community control
in case numbers CR16-01-0015, CR16-03-0078, and CR17-07-0237 after Grow
violated the terms and conditions of her community control. (Case No. CR16-01-
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0015, Doc. No. 100); (Case No. CR16-03-0078, Doc. No. 82); (Case No. CR17-07-
0237, Doc. No. 56). It was alleged that Grow violated the condition of her
community control requiring her to “obey federal, state and local laws and
ordinances, including those related to illegal drug use” by possessing a “drug abuse
instrument” and using “opiates/fentanyl” and “cocaine” on April 1, 2020; by
possessing “drug abuse instruments” on April 23, 2020; and by operating a motor
vehicle while under the influence of alcohol or drugs of abuse (“OVI”) in
Bellefontaine, Ohio and in Miami County, Ohio on April 23, 2020. (Id.); (Id.); (Id.).
{¶3} After her preliminary-revocation hearing on May 21, 2020, the cases
proceeded to a final-revocation hearing on June 2, 2020 during which the trial court
concluded that Grow violated the terms and conditions of her community control
after Grow admitted that she violated the terms and conditions of her community
control. (Case No. CR16-01-0015, Doc. Nos. 104, 107); (Case No. CR16-03-0078,
Doc. Nos. 86, 89); (Case No. CR17-07-0237, Doc. Nos. 62, 67). At the final-
revocation hearing, the State recited the evidence against Grow. (See June 2, 2020
Tr. at 3-4). Accordingly, the trial court revoked Grow’s community control and
sentenced her to 12 months in prison in case number CR16-01-0015, 12 months in
prison in case number CR16-03-0078, and 12 months in prison in case number
CR17-07-0237. (Case No. CR16-01-0015, Doc. No. 107); (Case No. CR16-03-
0078, Doc. No. 89). The trial court ordered that Grow serve the prison term imposed
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in case number CR16-01-0015 concurrent to the prison term imposed in case
number CR16-03-007. (Id.); (Id.). The trial court further ordered that Grow serve
the concurrent prison terms imposed in case numbers CR16-01-0015 and CR16-03-
0078 consecutively to the prison term imposed in case number CR17-07-0237, for
an aggregate sentence of 24 months in prison. (Case No. CR17-07-0237, Doc. No.
67).
{¶4} Grow filed her notices of appeal on June 22, 2020 in case numbers
CR16-01-0015, CR16-03-0078, and CR17-07-0237, which were consolidated for
purposes of appeal. (Case No. CR16-01-0015, Doc. No. 115); (Case No. CR16-03-
0078, Doc. No. 97); (Case No. CR17-07-0237, Doc. No. 76). She raises one
assignment of error for our review.
Assignment of Error
Whether the Trial Court breached their duty by sentencing the
defendant to [sic] a community control sanction without the
defendant first admitting to the violation or being found in
violation by hearing.
{¶5} In her sole assignment of error, Grow argues that the trial court abused
its discretion by revoking her community control. Specifically, Grow argues that
the trial court erred by concluding that she violated the terms and conditions of her
community control because she did not knowingly, intelligently, or voluntarily
admit to violating the terms and conditions of her community control and because
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the trial court failed to “conduct a hearing on the merits prior to sentencing [her] to
a prison sentence for violations of community control.”1 (Appellant’s Brief at 10).
Standard of Review
{¶6} The decision of a trial court finding a community-control violation will
not be disturbed absent an abuse of discretion. State v. McKeithen, 3d Dist. Marion
No. 9-08-29, 2009-Ohio-84, ¶ 7, citing State v. Ryan, 3d Dist. Auglaize No. 14-06-
55, 2007-Ohio-4743, ¶ 7. An abuse of discretion suggests that a decision is
unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-
158 (1980).
Analysis
{¶7} “A defendant under community control 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, quoting State v. Kiser, 5th Dist. Tuscarawas,
No.2008 AP 030014, 2009-Ohio-1337, ¶ 12, citing Gagnon v. Scarpelli, 411 U.S.
778, 782, 93 S.Ct. 1756 (1973). The purpose of the preliminary hearing is to
determine if probable cause exists that the defendant violated the terms of his
probation or community control. Id., citing State v. Delaney, 11 Ohio St.3d 231,
233 (1984). “The purpose of the final revocation hearing is to give the defendant
1
In the body of her assignment of error, Grow argues that her trial counsel “failed to adequately represent
her during her probation violations * * * .” (Appellant’s Brief at 9). Because Grow did not separately assign
this issue as error, we will not address it. See State v. Glasser, 4th Dist. Athens No. 11CA11, 2012-Ohio-
3265, ¶ 23, citing App.R. 12(A)(2) and 16(A)(7).
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‘an opportunity to be heard and to show’ that he either did not violate his conditions
or that certain mitigating circumstances ‘suggest that the violation does not warrant
revocation.’” Id., quoting Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593(1972).
{¶8} “This Court has held that although a revocation proceeding must
comport with the requirements of due process, it is not a criminal proceeding.”
McKeithen at ¶ 22, citing Ryan at ¶ 8, citing Gagnon at 782. “Therefore, the
minimum due process requirements afforded a defendant in a probation revocation
proceeding differ from those in a criminal trial.” Id. 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, 42 Ohio St.2d 102, 104 (1975), quoting Morrissey at
489.
{¶9} Since a community-control-revocation hearing is not a criminal
proceeding, “the State is not required to prove a violation of the terms of community
control beyond a reasonable doubt.” Id. at ¶ 6, citing Ryan at ¶ 7. “The State must,
instead, show ‘substantial’ evidence that the offender violated the terms of his
community control sanctions.” Id.
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{¶10} On appeal, Grow argues that the trial court erred by concluding that
she violated the terms and conditions of her community control because she did not
knowingly, intelligently, or voluntarily admit to the violations. Specifically, Grow
contends that “[a] review of the transcripts reveals that indeed [she] did not admit
to any violation prior to being sentencing [sic] in the probation violation hearing.”
(Appellant’s Brief at 9). “‘As a general matter, an unknowing waiver of a
defendant’s right in a revocation hearing to present evidence and confront his
accusers is invalid.’” State v. Patton, 8th Dist. Cuyahoga No. 103737, 2016-Ohio-
4867, ¶ 11, quoting State v. Armstrong, 56 Ohio App.3d 105, 107 (8th Dist.1988).
However, because a community-control-revocation hearing is not a criminal trial,
“‘[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’ and ‘the
requirements of Crim.R. 11(C)(2) do not apply to a community-control-violation
hearing.’” Id., quoting State v. Parsons, 4th Dist. Athens No. 09CA4, 2009-Ohio-
7068, ¶ 11.
{¶11} Instead, Crim.R. 32.3 applies to community-control revocation
hearings. State v. Orr, 11th Dist. Geauga No. 2008-G-2861, 2009-Ohio-5515, ¶ 22.
That rule provides, in relevant part,
(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. * * *
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(B) Counsel. The defendant shall have the right to be represented by
retained counsel and shall be so advised.
Crim.R. 32.3(A), (B).
{¶12} Based on our review of the record, we conclude that the requirements
of Crim.R. 32.3 were satisfied. Indeed, the record reveals that Grow was apprised
of the grounds on which the revocation of her community control was proposed and
given the opportunity for the hearing at which she (represented by trial counsel)
indicated that she intended to enter an admission to the allegations. See State v.
Malone, 6th Dist. Lucas No. L-03-1299, 2004-Ohio-5246, ¶ 18. See also State v.
Brown, 3d Dist. Logan No. 8-14-04, 2015-Ohio-468, ¶ 16. Specifically, at 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.” Id. at ¶ 12. “Generally, without affirmative evidence in the record
indicating otherwise, we presume regularity in trial court proceedings.” Id., citing
State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, ¶ 19.
{¶13} Presuming regularity in this instance would require us to presume that
the trial court and the parties would not have proceeded past the evidentiary phase
of the proceedings without Grow indicating her willingness to admit to violating the
terms and conditions of her community control. See id. That is, the record reveals
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that Grow submitted a letter to the trial court in which she accepted responsibility
for her conduct as well as an exchange between Grow and the trial court in which
Grow expressed remorse for her actions and a desire to receive treatment. (See June
2, 2020 Tr. at 5-7). In other words, Grow did not dispute her probation officer’s
recitation of the conduct of which she was alleged to have committed in violation
of the terms and conditions of her community control. See Patton at ¶ 13 (noting
that “[t]he record shows that Patton was able to confront his probation officer during
the hearing” but that Patton failed to demonstrate “what evidence or witnesses he
might have proffered to combat the allegations against him”).
{¶14} Furthermore, the record reveals that Grow was familiar with the
community-control-revocation process since she had been subject to the revocation
of her community control on two previous occasions in these cases, and, as such,
Grow was aware of the effects of waiving the hearing and admitting to the
violations. Compare State v. Dye, 4th Dist. Athens No. 16CA17, 2017-Ohio-9389,
¶ 19 (“The record also reveals [Dye] was familiar with the revocation process,
having previously been through the community control revocation process”), citing
State v. Orr, 11th Dist. Geauga No. 2008-G-2861, 2009-Ohio-5515, ¶ 43 (noting
that because “Orr was familiar with community-control-revocation hearings,” he
“fully understood the effects of waiving the hearing and admitting to the
violations”).
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{¶15} Therefore, we conclude that the community-control-revocation
hearing comported with the requirements of due process and Crim.R. 32.3.
Accordingly, we conclude that the trial court did not abuse its discretion by revoking
Grow’s community control and overrule her assignment of error.
{¶16} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
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