State v. Freeman , 2018 Ohio 866 ( 2018 )

[Cite as State v. Freeman, 2018-Ohio-866.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27392
:
v. : T.C. NO. 15-CR-3063
:
ROBERT L. FREEMAN, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of March, 2018.
...........
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Blvd., Springboro,
Ohio 45066
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} Defendant-appellant Robert L. Freeman, Jr., appeals a decision of the
Montgomery County Court of Common Pleas, Criminal Division, revoking his community
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control and sentencing him to two years in prison for violating the terms of his supervision.
{¶ 2} On January 4, 2016, Freeman was charged by bill of information with one
count of burglary (occupied/criminal offense), in violation of R.C. 2911.12(A)(3), a felony
of the third degree. Shortly thereafter on January 11, 2016, Freeman pled guilty to the
burglary charge in exchange for receiving community control sanctions with a period of
local incarceration. On April 13, 2016, Freeman was sentenced to community control
sanctions including a term of intensive probation supervision not to exceed five years.
The trial court also ordered Freeman to serve ninety days of local jail time.
{¶ 3} Freeman began serving his ninety-day jail term on May 31, 2016. Although
his release date was originally scheduled for August 28, 2016, he was actually released
from the jail on or about August 24, 2016. On August 30, 2016, the trial court suspended
Freeman’s community control sanctions and ordered a capias for his arrest upon being
informed that he was an absconder. Freeman was arrested on September 13, 2016,
pursuant to an absconder warrant.
{¶ 4} On October 17, 2016, a notice of community control sanctions revocation
was filed alleging two rule violations, to wit: 1) that Freeman violated Rule 1 when he was
charged with violating a protection order in four separate cases and did not immediately
contact his probation officer if arrested or questioned by a police officer; and 2) that
Freeman violated Rule 5 when he failed to report to his probation officer upon being
released from jail on or about August 24, 2016. It is undisputed that Freeman did not
contact his probation officer, Michele Hoke, from the time that he was released from jail
on or about August 24, 2016, through September 13, 2016, when he was arrested
pursuant to the absconder capias issued by the trial court. In fact, Hoke testified that
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she did not hear from or speak to Freeman until she visited him in the Montgomery County
Jail on September 20, 2016. At that point, not only had Freeman been arrested and
jailed for absconding, he had also been charged with violating a protection order on
September 1, 2016, and September 12, 2016. The other two protection order violations
occurred on September 26, 2016, and October 7, 2016, while Freeman was in jail when
he illegally contacted the individual who had initially been issued the protection order.
{¶ 5} During an initial hearing held on October 24, 2016, Freeman acknowledged
receipt of the notice of revocation, waived the probable cause hearing, waived the reading
of the notice of revocation, entered a general denial to the alleged violations, and
requested an evidentiary hearing. On November 7, 2016, Freeman, represented by
counsel, appeared before the trial court for an evidentiary hearing. Initially, Freeman’s
counsel informed the trial court that he would be admitting to a violation of Rule 5 when
he failed to report to his probation officer upon being released from jail on or about August
24, 2016. After some discussion with the trial court, Freeman stated that he was not
“going to contest” that he violated Rule 5 of his community control sanctions. The trial
court then found that Freeman had violated Rule 5, but it continued disposition until
December 5, 2016, in order to determine the status of Freeman’s misdemeanor cases
and extradition to New Jersey.
{¶ 6} Nevertheless, after a continuance, the revocation hearing was held on
December 12, 2016. After hearing testimony from Michele Hoke, Freeman’s probation
officer, and Freeman, himself, the trial court found that he had violated the terms of
community control sanctions by failing to report to his probation officer after being
released from jail, and for his failure to notify his probation officer of the violation of the
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protection order charges. The trial court revoked Freeman’s community control and
sentenced him to two years in prison.
{¶ 7} It is from this judgment that Freeman now appeals.
{¶ 8} Freeman’s sole assignment of error is as follows:
{¶ 9} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REVOKED THE
DEFENDANT’S COMMUNITY CONTROL SANCTIONS AND SENTENCED THE
DEFENDANT TO TWO YEARS IN PRISON.”
{¶ 10} In his sole assignment, Freeman contends that the trial court abused its
discretion when it revoked his community control and sentenced him to two years in
prison. Specifically, Freeman argues that the trial court erred when it found that he was
an absconder for failing to report to his probation officer after being released from jail on
or about August 24, 2016. Secondly, Freeman argues that the State failed to adduce
any evidence that he violated the terms of his community control when he was charged
with four counts of violation of a protection order and did not notify his probation officer of
the charges.
{¶ 11} “The right to continue on community control depends upon compliance
with community control conditions and is a matter resting within the sound discretion of
the court. Accordingly, we review the trial court's decision to revoke a
defendant's community control for an abuse of discretion. Abuse of discretion has been
defined as an attitude that is unreasonable, arbitrary, or unconscionable.” (Internal
citations omitted.) State v. Lewis, 2d Dist. Montgomery No. 23505, 2010–Ohio–3652, ¶
11.
{¶ 12} A defendant is entitled to due process when his community control is
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revoked as the result of a violation of a condition imposed on that control. Gagnon v.
Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The due process
rights which must be observed in a community control revocation hearing are: (1) written
notice of the claimed violations of community control; (2) disclosure of evidence against
him; (3) an opportunity to be heard in person and to present witnesses and documentary
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 finder as to the
evidence relied upon and the reasons for revoking community control. See Gagnon at
786, quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484(1972); State v. Nallen, 2d Dist. Miami No. 2012 CA 24, 2013–Ohio–3284, ¶ 18.
{¶ 13} “[C]ommunity control revocation proceedings are not the same as a criminal
trial, and a revocation of community control punishes the failure to comply with the terms
and conditions of community control, not the specific conduct that led to the
revocation.” State v. Black, 2d Dist. Montgomery No. 24005, 2011–Ohio–1273, ¶ 17.
Upon revoking community control, the trial court may (1) lengthen the term of the
community control sanction; (2) impose a more restrictive community control sanction; or
(3) impose a prison term on the offender, provided that the prison term is within the range
of prison terms available for the offense for which community control had been imposed
and the term does not exceed the prison term specified in the notice provided to the
offender at the original sentencing hearing. R.C. 2929.15(B).
{¶ 14} Additionally, “[r]evocation hearings are not subject to the rules of evidence
***.” State v. Westrick, 196 Ohio App.3d 141, 2011–Ohio–1169, 962 N.E.2d 818, ¶ 24 (3d
Dist.), citing State v. Patierno, 3d Dist. Defiance No. 4–08–08, 2009–Ohio–410, ¶
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16; Evid.R. 101(C)(3). “The rationale for the exception is that, since a * * * revocation
hearing is an informal proceeding, not a criminal trial, the trier of fact should be able to
consider any reliable and relevant evidence to determine whether the [defendant] has
violated the conditions of his [supervision].” Columbus v. Bickel, 77 Ohio App.3d 26,
36, 601 N.E.2d 61 (10th Dist. 1991), citing State v. Miller, 42 Ohio St.2d 102, 106, 326
N.E.2d 259 (1975).
{¶ 15} As previously discussed, the trial court found the following: 1) that Freeman
violated Rule 1 when he was charged with violating a protection order in four separate
cases and did not immediately contact his probation officer if arrested or questioned by a
police officer; and 2) that Freeman violated Rule 5 when he failed to report to his probation
officer upon being released from jail on or about August 24, 2016.
{¶ 16} Rule 1 of Freeman’s community control sanctions states as follows:
I shall refrain from violation of any law (Federal, State, County and City). I
shall get in touch immediately with my probation officer if arrested or
questioned by a law enforcement officer.
{¶ 17} Freeman did not contact Hoke from the time that he was released from jail
on or about August 24, 2016, through September 13, 2016, when he was arrested
pursuant to the absconder capias issued by the trial court. Hoke testified that she did
not hear from or speak to Freeman until she visited him in jail on September 20, 2016.
At that point, not only had Freeman been arrested and jailed for absconding, he had also
been charged with violating a protection order on September 1, 2016, and September 12,
2016. Hoke testified that she discovered the two new charges by using Justice Web.
Hoke further testified that she later learned that Freeman was charged with two additional
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counts of violation of a protection order on September 26, 2016, and October 7, 2016, by
using Justice Web. The quantum of evidence necessary to support a trial court's
revocation of probation for a misdemeanor offense is not “beyond a reasonable doubt,”
but merely evidence of a substantial nature showing that the probationer has breached a
term or condition of probation. State v. Bender, 2d Dist. Champaign No. 2004 CA 11,
2005-Ohio-919, ¶ 17, citing State v. Mingua, 42 Ohio App.2d 35, 40, 327 N.E.2d 791 (10th
Dist.1974).
{¶ 18} At the time of the revocation hearing on December 12, 2016, all four of
Freeman’s misdemeanor protection order violation charges were still pending. Freeman
testified at the hearing. However, Freeman expressly declined to testify regarding any
of the pending misdemeanor charges which formed the basis for his violation of Rule 1 of
his community control sanctions. Conversely, Hoke testified that a protection order had
been issued against Freeman by his ex-girlfriend, J.A.
{¶ 19} Upon review, we agree with Freeman that the record does not establish the
dates that he was served with four misdemeanor complaints, nor does it establish when
or if he was questioned by the police regarding the protection order violations. Simply
put, the record fails to establish that Freeman had received notice of the filing of these
misdemeanor complaints. However, the evidence is uncontroverted that Freeman sent
a letter to J.A. on October 5, 2016, while he was in jail awaiting his revocation hearing, in
contravention of the protection order.
{¶ 20} Rule 5 of Freeman’s community control sanctions required that he “report
at such time and place as directed by [his] Probation Officer. If [his] Probation Officer is
unavailable, [he] shall report to the Officer-of-the-day, the Supervisor, the Manager or
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Deputy Court Administrator.”
{¶ 21} Hoke testified that she specifically informed Freeman when he was initially
placed in jail on May 31, 2016, that he needed to report within twenty-four hours of being
released. Hoke testified that she told Freeman that “if [for] any reason why you get
released or if you post bond on anything, you need to report to me within [twenty-four]
hours.”
{¶ 22} In addition to Hoke’s requirement that he report within twenty-four hours if
released from jail, the conditions of Freeman’s community control further required that he
report to his probation officer on a weekly basis. Freeman testified that he was aware
that he was required to report to Hoke on a weekly basis once he was released on or
about August 24, 2016, but acknowledged that he did not. As previously stated, the
evidence adduced at the revocation hearing established that Freeman never reported to
Hoke after he was released from jail on or about August 24, 2016, in direct violation of
the terms of his community control. Significantly, Freeman admitted this violation by
initially entering a no contest admission to a Rule 5 violation. Thus, we find that the trial
court did not abuse its discretion in revoking Freeman's community control.
{¶ 23} Freeman’s sole assignment of error is overruled.
{¶ 24} Freeman’s sole assignment of error having been overruled, the judgment of
the trial court is affirmed.
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HALL, J. and TUCKER, J., concur.
Copies mailed to:
Heather N. Jans
Marshall G. Lachman
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Hon. Timothy N. O’Connell