State v. Wright , 2013 Ohio 2733 ( 2013 )

[Cite as State v. Wright, 2013-Ohio-2733.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
JOHN LEWIS WRIGHT : Case No. 2013CA00011
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No.
2007CR1228
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 25, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
JOHN D. FERRERO STEVEN A. REISCH
Prosecuting Attorney 201 Cleveland Aveue S.W.
Suite 104
By: RENEE M. WATSON Canton, OH 44702
Assistant Prosecuting Attorney
110 Central Plaza, South – Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2013CA00011 2
Baldwin, J.
{¶1} Defendant-appellant John Lewis Wright appeals from the December 31,
2012 Judgment Entry of the Stark County Court of Common Pleas revoking his Judicial
Release and reimposing sentence. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 20, 2007, the Stark County Grand Jury indicted appellant on
one count of felonious assault in violation of R.C. 2903.11(A)(1) and/or (A)(2), a felony
of the second degree. At his arraignment on August 24, 2007, appellant entered a plea
of not guilty to the charge.
{¶3} Thereafter, on November 13, 2007, appellant withdrew his former not
guilty plea and pled guilty to the charge contained in the indictment. Pursuant to a
Judgment Entry filed on December 27, 2007, appellant was placed on three (3) years of
community control under specified terms and conditions.
{¶4} On March 4, 2009, a Motion to Revoke Probation or Modify Former Order
was filed. As memorialized in a Judgment Entry filed on April 20, 2009, the trial court
found that appellant had violated the terms of his community control, revoked the same
and sentenced appellant to a four (4) year prison term.
{¶5} Subsequently, on October 8, 2009, appellant filed a Motion for Judicial
Release. Following a hearing held on November 2, 2009, appellant was granted judicial
release and placed on intensive probation for a period of three (3) years under specified
terms and conditions. A Judgment Entry memorializing the same was filed on
November 6, 2009.
Stark County, Case No. 2013CA00011 3
{¶6} On April 22, 2010, appellant’s probation officer, Dennis Williams, filed a
Motion to Revoke Probation or Modify Former Order. Williams, in such motion, alleged
that appellant had violated his probation by not taking care of a warrant issued by
Massillon Municipal Court after being told to do so several times, by testing positive for
cocaine on two dates, and by paying nothing towards his court costs or monitoring fees.
A probable cause hearing was scheduled for May 3, 2010. On such date, appellant
stipulated to probable cause and the court set an evidentiary hearing for May 10, 2010.
After appellant failed to appear on May 10, 2010, a capias was issued for his arrest.
Appellant remained an absconder for over two years.
{¶7} On November 27, 2012, the capias was returned after appellant was
arrested. On December 12, 2012, Shelley Wolf, a probation officer who had taken over
appellant’s file after his previous probation officer had retired, filed an addendum to the
Motion to Revoke Probation or Modify Former Order. Wolf, in her motion, alleged that
appellant had violated his probation by failing to appear for his May 10, 2010 court date,
causing the issuance of a capias, and by failing to contact the probation department.
An evidentiary hearing was held on December 17, 2012.
{¶8} At the hearing, Wolf testified that appellant had been on probation and
was being supervised by another probation officer, who had since retired, when he
disappeared over two years ago. Wolf testified that she took over appellant’s case.
She testified that, pursuant to the November 6, 2009 Judgment Entry granting him
judicial release, appellant was to follow any verbal order of the court or any
representative of the court, which would include an order to appear for the May 10,
2010 evidentiary hearing. She testified that it was her understanding that the
Stark County, Case No. 2013CA00011 4
evidentiary hearing was scheduled at the previous probable cause hearing. According
to Wolf, since the date the capias was issued, appellant had had no contact with the
probation department.
{¶9} On cross-examination, Wolf admitted that she had never had any contact
with appellant. She also admitted that she was not present on May 3, 2012, the last time
when appellant was in court, and thus did not know that he was actually informed of the
May 10, 2010 date.
{¶10} At the conclusion of the hearing the trial court found that appellant was
present on May 3, 2010 at the probable cause hearing and had stipulated to probable
cause. The trial court further found that appellant, on such date, was directed to appear
on May 10, 2010 for an evidentiary hearing but failed to do so and that appellant had
made no attempt to report to or contact the probation department. The trial court
revoked appellant’s judicial release and ordered that appellant serve out the remainder
of his four (4) year prison sentence. A Judgment Entry memorializing the trial court’s
decision was filed on December 31, 2012.
{¶11} Appellant now raises the following assignments of error on appeal:
{¶12} “I. THE TRIAL COURT'S FINDING THAT HE VIOLATED JUDICIAL
RELEASE WAS NOT BASED UPON SUFFICIENT EVIDENCE AND DENIED
APPELLANT DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.”
{¶13} “II. THE TRIAL COURT DENIED THE APPELLANT DUE PROCESS
BY NOT AFFORDING AN OPPORTUNITY TO CROSS-EXAMINATION OF A WITNESS
WITH DIRECT KNOWLEDGE OF THE ALLEGATIONS AGAINST HIM.”
Stark County, Case No. 2013CA00011 5
I, II
{¶14} Appellant, in his two assignments of error, argues that the trial court’s
finding that he had violated his judicial release/community control is not supported by
sufficient evidence because the evidence presented at the December 17, 2012 hearing
consisted entirely of hearsay testimony from Shelley Wolf, who was not appellant’s
original probation officer. Appellant contends he was deprived of due process because
of the alleged hearsay evidence presented during his revocation hearing.
{¶15} “Generally, probation revocation hearings are not subject to the rules of
evidence. The admission of hearsay evidence into a probation revocation hearing can
only be construed as reversible error when it constituted the sole, crucial evidence in
support of the probation violation determination. State v. Thompson, Wood App. No.
WD-06-034, 2007-Ohio-2665, ¶ 44, citing State v. Ohly, 166 Ohio App.3d 808, 853
N.E.2d 675, 2006-Ohio-2353. Additionally, in regard to any issues concerning the right
to confront witnesses as set forth in Crawford v. Washington (2004), 541 U.S. 36, 124
S.Ct. 1354, 158 L.Ed.2d 177, we have held that said case does not apply to community
control revocation hearings. See State v. Crace, Fairfield App. No. 05CA93, 2006-Ohio-
3027, ¶ 18.” State v. Redick, 5th Dist. Case No. 08 CA 73, 2009-Ohio-3850, ¶ 11.
{¶16} Because a community control revocation hearing is not a criminal trial, the
State does not have to establish a violation with proof beyond a reasonable doubt. State
v. Payne, 12th Dist. No. CA2001-09-081, 2002-Ohio-1916, citing State v. Hylton, 75
Ohio App.3d 778, 782, 600 N.E.2d 821 (4th Dist. 1991). Instead, the prosecution must
present “substantial” proof that a defendant violated the terms of his community control
Stark County, Case No. 2013CA00011 6
sanctions. Id., citing Hylton at 782. Accordingly, we apply the “some competent, credible
evidence” standard set forth in C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279,
376 N.E.2d 578 (1978), to determine whether a court's finding that a defendant violated
the terms of his community control sanction is supported by the evidence. See State v.
Puckett, 4th Dist. No. 96CA1712, 1996 WL 666660 (Nov. 12, 1996). This highly
deferential standard is akin to a preponderance of the evidence burden of proof. See
State v. Kehoe , 9th Dist. No. 2284-M, 1994 WL 189659 (May 18, 1994).
{¶17} In the case sub judice, we find that the revocation of appellant’s judicial
release/community control was supported by evidence independent of the hearsay
testimony from Wolf and that the revocation was not based solely on hearsay. The trial
court’s docket clearly shows that a capias was issued for appellant’s arrest on May 10,
2010 after appellant failed to appear for the evidentiary hearing on such date and did
not contact the probation department. The record further demonstrates that the capias
was not returned until November 27, 2012. Thus, appellant had absconded for over two
years. We concur with appellee that appellant has failed to establish that he was denied
due process in the revocation of his judicial release/community control and that the trial
court’s decision to revoke his judicial release/community control is supported by
sufficient evidence.
{¶18} Appellant’s two assignments of error are, therefore, overruled.
Stark County, Case No. 2013CA00011 7
{¶19} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Wise, P. J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY
CRB/dr
[Cite as State v. Wright, 2013-Ohio-2733.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff -Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOHN LEWIS WRIGHT :
:
Defendant - Appellant : CASE NO. 2013CA00011
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs
assessed to appellant.
HON. CRAIG R. BALDWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY