State v. Brown ( 2010 )

[Cite as State v. Brown, 2010-Ohio-6603.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 10 MA 34
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
DARRELL BROWN )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown
Municipal Court of Mahoning County,
Ohio
Case No. 09 TRD3270
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Joseph Macejko
Youngstown City Prosecutor
26 S. Phelps Street
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Richard J. Hura
WPA Memorial Building
132 S. Broad Street, Suite 204B
Canfield, Ohio 44406
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: December 29, 2010
WAITE, J.
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{¶1} Appellant Darrell Brown was convicted of driving under suspension and
was placed on probation. He violated the terms of his probation and probation was
revoked, resulting in a 180-day jail term. Appellant filed an appeal of the decision
revoking his probation. Counsel for Appellant has filed a no merit brief and a request
to withdraw as counsel pursuant to State v. Toney (1970), 23 Ohio App.2d 203, 52
O.O.2d 304, 262 N.Ed.2d 419. For the following reasons, counsel's motion to
withdraw is sustained and the judgment of the trial court is affirmed.
{¶2} Appellant was issued a traffic citation on July 25, 2009, charging him
with driving under suspension, failure to observe a traffic control device, and fleeing
and eluding. On September 9, 2009, Appellant appeared with court-appointed
counsel and entered a Crim.R. 11 plea agreement of no contest to one count of
driving under suspension, a first degree misdemeanor. The other two charges were
dismissed. On September 9, 2009, the court found Appellant guilty. The court
proceeded to sentence Appellant to the community control sanction of one year of
supervised probation. He was also ordered to pay $100 to reimburse costs for
community control, and was ordered to obtain a valid operator’s license. This
judgment entry was not appealed.
{¶3} On December 29, 2009, Appellant’s probation officer filed a notification
of probation violation, alleging that Appellant had not paid his financial sanction, and
had failed to report for probation, among other probation violations. A probable
cause hearing was held on January 28, 2010. Appellant, through counsel, stipulated
to the probation violation. On January 28, 2010, the trial court revoked Appellant’s
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probation and imposed a jail term of 180 days. The probation violation judgment
entry is now on appeal. The trial court subsequently granted a motion for stay of
execution of sentence on appeal.
{¶4} On May 24, 2010, appellate counsel filed a motion to withdraw as
counsel and submitted a no merit brief. Appellant was given 30 days to file any pro
se assignments of error, and nothing more has been filed. Transcripts were filed of
the original conviction and sentence, and the probation violation proceedings.
{¶5} Counsel is asking to withdraw pursuant to Anders v. California (1967),
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and pursuant to this Court's ruling in
Toney, supra. “ ‘It is well settled that an attorney appointed to represent an indigent
criminal defendant on his or her first appeal as of right may seek permission to
withdraw upon a showing that the appellant's claims have no merit. To support such
a request, appellate counsel must undertake a conscientious examination of the case
and accompany his or her request for withdrawal with a brief referring to anything in
the record that might arguably support the appeal. The reviewing court must then
decide, after a full examination of the proceedings, whether the case is wholly
frivolous.’ ” (Citations omitted.) State v. Odorizzi (1998), 126 Ohio App.3d 512, 515,
710 N.E.2d 1142.
{¶6} In Toney, we set forth the procedure to be used when counsel of record
determines that an indigent's appeal is frivolous:
{¶7} “3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent's appeal is frivolous and
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that there is no assignment of error which could be arguably supported on appeal, he
should so advise the appointing court by brief and request that he be permitted to
withdraw as counsel of record.
{¶8} “4. Court-appointed counsel's conclusions and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and the indigent
should be granted time to raise any points that he chooses, pro se.
{¶9} “5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the arguments pro se of
the indigent, and then determine whether or not the appeal is wholly frivolous.
{¶10} “6. Where the Court of Appeals makes such an examination and
concludes that the appeal is wholly frivolous, the motion of an indigent appellant for
the appointment of new counsel for the purposes of appeal should be denied.
{¶11} “7. Where the Court of Appeals determines that an indigent's appeal is
wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of
record should be allowed, and the judgment of the trial court should be affirmed.” Id.at syllabus.
{¶12} The question on appeal is whether there are any non-frivolous issues to
be reviewed regarding the revocation of Appellant’s community control sanction. The
community control sanction was one year of supervised probation, and the
punishment imposed on revocation of community control was 180 days in jail.
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.
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Delaine, 7th Dist. No. 08 MA 257, 2010-Ohio-609, ¶14; State v. Hylton (1991), 75
Ohio App.3d 778, 782, 600 N.E.2d 821. Instead, the prosecution must present
substantial proof that a defendant violated the terms of his community control
sanction. Id. at 782. Unless the decision amounts to an abuse of discretion, a
reviewing court will not reverse the trial court's decision revoking community control.
An abuse of discretion implies more than an error of law or judgment; it connotes that
the trial court's attitude was unreasonable, arbitrary, or unconscionable. State v.
Maurer (1984), 15 Ohio St.3d 239, 253, 473 N.E.2d 768.
{¶13} Crim.R. 32.3 reads, in pertinent part, that “[t]he 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.”
{¶14} Revocation of probation implicates two due process requirements. The
trial court is first required to conduct a preliminary hearing to determine whether there
is probable cause to believe that the defendant has violated the terms of his
probation. Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656;
Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. In this
case, there was a hearing and Appellant conceded that probable cause existed for
the probation violation.
{¶15} Secondly, the court is required to hold a final hearing to determine
whether probation should be revoked. At the final revocation hearing, the state must:
(1) provide the probationer with written notice of the alleged violations of probation;
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(2) disclose the evidence against him; (3) give the probationer an opportunity to be
heard in person and to present witnesses and documentary evidence; (4) allow him
to confront and cross-examine adverse witnesses; (5) afford him a neutral and
detached hearing body; and (6) provide the probationer with a written statement by
the factfinder as to the evidence relied upon and the reasons for revoking probation.
State v. Myers (June 21, 1996), 7th Dist. No. 95-CO-29, citing Morrissey, 408 U.S.
471, 92 S.Ct. 2593, 33 L.Ed.2d 484. These requirements apply to probation
revocation proceedings in municipal court as well as the court of common pleas.
State v. Smith, 7th Dist. No. 01 CA 187, 2002-Ohio 6710.
{¶16} In this case, Appellant was notified of the alleged probation violations
and was given a hearing. Appellant was represented by counsel at the hearing.
Appellant stipulated to probable cause for the probation violations and openly
admitted that he committed the violations.
{¶17} When imposing a community control sanction for a misdemeanor, the
court is required at sentencing to inform the defendant of the jail term that may be
imposed for violation of any of the conditions of community control. R.C.
2929.25(A)(3). The court in this case specifically told Appellant that he would be sent
to jail for six months if he failed to abide by the terms of probation.
{¶18} Counsel raises the possibility that there might be a claim of ineffective
assistance of counsel. In order to demonstrate ineffective assistance of counsel, a
defendant must show, first, that counsel's performance was deficient and, second,
that the deficient performance prejudiced the defense so as to deprive the defendant
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of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 142, 538 N.E.2d 373. The
record does not indicate any deficient performance by counsel. Appellant’s counsel
helped Appellant obtain a significant benefit in his original criminal proceeding by
arranging for two charges to be dropped and in obtaining a community control
sanction for Appellant rather than an immediate jail term. In the probation revocation
proceedings, counsel opted to stipulate to the probation violation and concentrate on
presenting mitigating circumstances to try and minimize the penalty. Reviewing
courts do not second guess trial tactics and strategy when addressing the issue of
ineffective assistance of counsel, and even debatable trial tactics generally do not
constitute a deprivation of effective counsel. State v. Clayton (1980), 62 Ohio St.2d
45, 49, 16 O.O.3d 35, 402 N.E.2d 1189.
{¶19} There are no possible issues for further review in this case. Appellant
was notified of the probation violation, a hearing took place, and the court listened to
Appellant’s excuses for not abiding by the terms of probation. The court then
imposed the six-month jail term that was described at the original sentencing hearing.
The judgment entry of January 28, 2010, correctly reflects that the maximum jail term
of 180 days was imposed for the community control violation. There is no abuse of
discretion indicated by the court’s actions, and there are no non-frivolous issues to
review on appeal. Because there are no meritorious issues for appeal, we find that
this appeal is wholly frivolous. Counsel's motion to withdraw is granted and the
judgment of the trial court is affirmed.
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Donofrio, J., concurs.
Vukovich, P.J., concurs; see concurring opinion.
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VUKOVICH, P.J., concurring:
{¶20} I write separately to voice my concern with the situation before us
where an indigent traffic defendant is jailed for 180 days because he violated a
condition of probation wherein he was to obtain employment for six months. While I
recognize that some courts have upheld such a condition as within a court’s broad
discretionary powers, see, e.g., State v. Owens, (1978), 78 Ohio App. 374, I am of
the opinion that such a requirement negates statutory requirements concerning an
indigent defendant’s nonpayment of any monetary fine imposed by the trial court.
{¶21} R.C. 2947.14 sets forth a procedure which requires a hearing to
determine if an offender has the ability to pay the fine imposed by the court, and
requires findings of fact if it is determined that the offender has the ability to pay.
{¶22} By putting an indigent defendant on probation with a condition that he
obtain employment, one of two things will happen. If the offender obtains
employment, he most likely will have the ability to pay a fine, and could be jailed upon
nonpayment. If the offender does not obtain employment, then the offender could be
jailed on a probation violation without any reference to or compliance with the
safeguards set out in the aforementioned R.C. 2947.12. Either way, the intent of the
General Assembly in enacting the statute is thwarted.
{¶23} Here, however, the aforementioned issue was not timely raised by
appellant. Objectionable terms or conditions of probation should be filed within thirty
days of the judgment which imposed them. Appellant’s failure to do so here
constitutes waiver. Accordingly, I reluctantly am forced to concur with the opinion of
my colleagues which affirmed the decision of the trial court.