State v. Brooks , 2018 Ohio 2903 ( 2018 )

[Cite as State v. Brooks, 2018-Ohio-2903.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 17CA93
CHRISTOPHER BROOKS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Common
Pleas Court, Case NO. 2016-CR-707
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 13, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MIKE DEWINE JOHN C. O'DONNELL
Ohio Attorney General 10 West Newlon Place
By: MICAH R. AULT Mansfield, Ohio 44902
615 W. Superior Ave., 11th Floor
Cleveland, Ohio 44113
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Hoffman, P.J.
{¶1} Appellant Christopher Brooks appeals the judgment entered by the
Richland County Common Pleas Court finding him in violation of the terms of his
community control and sentencing him to fifteen months incarceration. Appellee is the
state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On April 25, 2017, Appellant was convicted of aggravated assault upon a
plea of guilty, and placed on four years community control. On August 28, 2017, his
probation officer filed notice of violation of the terms of his probation. The violation notice
included four counts: failing to notify his supervising officer of his residence; failing to pay
court costs, fines and supervision fees; missing fourteen office visits with his supervising
officer; and failing to report contact with police officers in July of 2017 when he was
assaulted.
{¶3} The case proceeded to trial in the Richland County Common Pleas Court.
Appellant admitted all violations except for failing to notify his probation officer of his
residence. Appellant testified he had been assaulted and underwent surgery on his leg
due to his injuries. He acknowledged not reporting the incident to his probation officer,
but claimed he believed the investigating officer reported the incident to his probation
officer. He testified he called his probation officer on May 5, 2017, to let him know, “I
really particularly wasn’t feeling doing probation[.]” Tr. 31. He testified his employer
would not allow him to come back to work until he was off probation, and “then that’s
when I had decided to stop reporting.” Tr. 34.
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{¶4} The trial court found Appellant had not committed the first charge of violation
of community control, failure to notify his probation officer of his residence. He found
Appellant had committed the remaining three violations.
{¶5} Counsel requested a prison sentence based on Appellant’s desire to not be
placed on probation. The trial court noted Appellant’s long criminal history, including four
assault and battery convictions, drug abuse, two driving while intoxicated convictions,
carrying a concealed weapon, receiving stolen property, theft, menacing, resisting arrest,
criminal trespass, dangerous ordnance, obstructing officers, four disorderly conduct
convictions, criminal damaging, two convictions of domestic violence, telecommunication
harassment, and attempted aggravated assault. He had twice been sent to prison, in 2000
and again in 2005. The trial court sentenced Appellant to fifteen months incarceration.
Immediately upon the court’s oral pronouncement of sentence, Appellant stated, “I would
like to appeal the sentence right now.” Tr. 42.
{¶6} It is from the October 3, 2017 judgment finding Appellant in violation of
community control and sentencing him to fifteen months incarceration Appellant
prosecutes this appeal, assigning as error:
“I. THE TRIAL COURT’S DECISION TO TERMINATE
DEFENDANT/APPELLANT’S COMMUNITY CONTROL WAS NOT BASED
ON ‘SUBSTANTIAL PROOF.’
“II. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION.”
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I.
{¶7} Appellant argues the finding he violated the terms of his community control
is against the manifest weight of the evidence. He argues his injuries from the June 24,
2017, assault rendered him unable to make office appointments. He further argues he
was unable to work, thus he was unable to pay court costs and fines. He also argues he
believed the investigating officer would notify his probation officer about the assault, and
therefore he was relieved of the responsibility for doing so.
{¶8} In State v. Taylor, 5th Dist. Richland No. 17CA29, 2017-Ohio-8996, ¶25, we
set forth the standard of review for revocation of community control:
A community control or probation revocation is not a criminal trial;
therefore, appellee is not required to establish a violation of the terms of
community control “beyond a reasonable doubt.” Ryan, supra, 2007–Ohio–
4743, ¶ 7, citing State v. Hylton, 75 Ohio App. 3d 778, 600 N.E.2d 821 (4th
Dist. 1991). Instead, the state must show “substantial” proof appellant
violated the terms of his community control sanctions. Id. Substantial
evidence is akin to a preponderance-of-the-evidence burden of proof. State
v. Ohly, 166 Ohio App. 3d 808, 2006–Ohio–2353, 853 N.E.2d 675, at ¶ 18,
citing State v. Hayes, 6th Dist. No. WD–00–075, unreported, 2001 WL
909291 (Aug. 10, 2001). “Substantial evidence is considered to consist of
more than a mere scintilla of evidence, but somewhat less than a
preponderance.” Id., citations omitted.
«Court» County, Case No. «Case_No» 5
{¶9} Appellant admitted missing fourteen visits with his probation officer,
admitted he had not paid court costs and fines, and admitted he failed to notify his
probation officer he had contact with police officers on the night of the assault. While he
now argues his injuries prevented him from complying with the terms of his community
control, Appellant testified on May 5, 2017, prior to the assault, he called his probation
officer to let him know he “wasn’t feeling doing probation.” Tr. 31. He further testified
upon contacting his old employer and finding out he would not be hired back while he
remained on probation, he “decided to stop reporting.” Tr. 34. He further admitted at the
time he was sentenced for the underlying offense, he wanted to go to prison rather than
being placed on probation. Tr. 24. Appellant’s testimony demonstrated he did not intend
to comply with the terms of his community control even before his injuries from the assault
potentially impaired his ability to do so. Appellant’s testimony alone provided substantial
proof he violated the terms of his community control.
{¶10} The first assignment of error is overruled.
II.
{¶11} In his second assignment of error, Appellant argues counsel was ineffective
for agreeing with Appellant in seeking a prison term rather than community control.
{¶12} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St. 3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel’s error, the result
of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,
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104 S. Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d
373 (1989). In other words, appellant must show that counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial cannot be relied upon as
having produced a just result. Id.
{¶13} Appellant testified he wanted to go to prison rather than be placed on
community control at the time of his original sentencing for aggravated assault. At
sentencing in the instant case, Appellant again stated he had repeatedly asked to be sent
to prison on the underlying offense. Appellant felt he was looking at a sentence between
six and nine months because it had been so long since he had been convicted of a crime.
Tr. 36. Counsel noted his history had been “benign” since 2004, and “by and large”
Appellant had managed to stay out of trouble. Tr. 40. Counsel stated, “During the
underlying case, he wanted prison is what I understand. So we are asking the court to
impose that now.” Tr. 40.
{¶14} Appellant relies on his immediate request for an appeal to argue while he
wanted a prison sentence on the underlying case, he did not agree with counsel’s request
for prison in the instant case. However, it is not clear if he was unhappy with a prison
sentence in lieu of probation, or with the length of the sentence imposed, as he believed
he would receive a sentence of six to nine months and received fifteen months. Further,
he did not express disagreement with counsel’s request for a prison sentence at the time
the request was made to the court.
{¶15} Appellant has not demonstrated had counsel argued for a community
control sanction, the request would have been granted. The court noted Appellant’s
lengthy criminal history, particularly of “assaultive-type violent crime.” Tr. 41. The record
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is replete with references to Appellant’s desire to be sentenced to prison rather than
community control on the underlying case, and he demonstrated an intention to not
comply with the terms of community control nearly from the beginning of his sentence in
April of 2017. In fact, when asked if he had the opportunity to work with Appellant, his
probation officer Dan Myers testified, “I had an opportunity for him to be on my case load.
I wouldn’t characterize it as being working with him.” Tr. 6-7. We find counsel was not
ineffective in failing to seek a further community control sanction, and instead attempting
to mitigate the length of the prison sentence imposed in this case.
{¶16} The second assignment of error is overruled.
{¶17} The judgment of the Richland County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur
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