State v. Thomas ( 2024 )

[Cite as State v. Thomas, 2024-Ohio-1499.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29884
:
v. : Trial Court Case No. 2019 CR 02932
:
BRAD THOMAS : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on April 19, 2024
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ROBERT L. SCOTT, Attorney for Appellant
MATHIAS H. HECK, JR., by SARAH H. CHANEY, Attorney for Appellee
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HUFFMAN, J.
{¶ 1} Defendant-Appellant Brad Thomas appeals from the trial court’s judgment
revoking his community control sanctions and sentencing him to prison. For the reasons
outlined below, we affirm the judgment of the trial court.
I. Factual and Procedural Background
{¶ 2} In October 2019, Thomas was indicted on one count of burglary, a felony of
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the second degree; he pled guilty on January 27, 2020. During his plea hearing, the trial
court conducted the required Crim.R. 11 plea colloquy. It advised Thomas that he was
eligible for community control sanctions, but that if he violated any of the sanctions, he
could be sent to prison for eight to twelve years. Thomas verbalized his understanding.
{¶ 3} In August 2020, Thomas was sentenced to community control sanctions with
the following conditions: that he comply with the general conditions of the court for
probation assuring intensive probation supervision for a period not to exceed five years,
which included reporting to his probation officer as ordered; that he not have contact with
the victim; that he pay restitution; that he receive a substance abuse assessment with
Nova Behavioral Health and complete treatment as recommended; that he establish
contact with Miami Valley Works Program and comply with any recommendations made
by that agency; that he provide verification of suitable residence or involvement with a
recognized homeless shelter within 14 days of disposition; that he not be in any place
where he knew or had reason to know that illegal drugs, stolen property, or firearms were
present; and that he abstain from the use of illegal drugs, drugs of abuse, and alcohol.
The trial court further advised Thomas, both orally and in the judgment entry, that, if he
violated any condition of his community control sanctions, violated any law, or left the
state without permission, the court had the option to impose a longer time under the same
sanction, impose a more restrictive sanction, or impose a prison term of eight to twelve
years in prison.
{¶ 4} In November 2020, Thomas absconded, eventually returned, and entered
Woodhaven, an addiction treatment center. Upon completion of treatment, Thomas failed
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to report to his probation officer and was arrested again in early 2022 on an absconding
warrant. In April 2022, he was reinstated to community control and was ordered to
complete the Decision Points intervention program. The court’s reinstatement entry
provided that “[a]ll other sanctions and Court-ordered financial obligations previously
ordered on 11/18/2019, and any subsequent added sanctions, and the alternative
sentence of 8 to 12 years CRC (Reagan Tokes Act) are hereby re-imposed and remain
in full force and effect.”
{¶ 5} In July 2022, Thomas absconded from community control sanctions again.
On July 5, 2023, Thomas was arrested. He was subsequently given a notice of
community control sanctions revocation hearing. It notified him that he had a legal right
to a probable cause hearing regarding the allegations set forth in the notice, that he may
waive the right, if desired, that he had the right to present witnesses and evidence
favorable to his defense, as well as the right to disclosure of evidence, that he had the
right to confront adverse witnesses, unless they would be subjected to a risk of harm, and
that he had the right to be represented by counsel of choice or to have counsel appointed
if he was indigent.
{¶ 6} On July 13, 2023, the trial court conducted the initial probation revocation
hearing, at which Thomas appeared with his counsel. At sidebar during the hearing, the
trial court advised Thomas’s counsel that a term of incarceration for Thomas had been
recommended by probation staff but that certain assessments could be completed before
sentencing. On behalf of Thomas, and in his presence, Thomas’s counsel waived the first
reading of the probation revocation and any defects in service, and Thomas immediately
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thereafter admitted that he had violated the terms and conditions of his community control
sanctions by absconding a second time. The trial court accepted Thomas’s admission,
finding that it was knowingly, voluntarily, and intelligently made, ordered a substance
abuse and mental health assessment, and scheduled the revocation disposition hearing
for July 27, 2023.
{¶ 7} At the disposition hearing, Thomas requested drug and mental health
treatment, alleging that his cocaine use persisted. He stated that he had probation officers
in multiple counties and had been overwhelmed by his reporting requirements. However,
given Thomas’s history of absconding despite having undergone previous drug addiction
treatment and remaining under community control sanctions, the trial court concluded that
Thomas was making excuses, and it did not believe he would comply with supervision or
treatment. Accordingly, the court revoked his community control sanctions and
sentenced him to prison for three to four-and-a-half years. Thomas appeals.
II. Assignment of Error
{¶ 8} Thomas asserts the following assignment of error:
TRIAL COURT ABUSED ITS DISCRETION WHEN IT ACCEPTED
APPELLANT'S ADMISSION OF A VIOLATION OF COMMUNITY
CONTROL AND SENTENCED HIM TO PRISON, BECAUSE THE
ADMISSION WAS NOT KNOWINGLY, INTELLIGENTLY, VOLUNTARILY
ENTERED.
{¶ 9} “[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
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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. “A trial court
need not comply with the requirements of Crim.R. 11, which governs pleas, in accepting
an offender’s admission to community control violations.” State v. Cunningham, 2d Dist.
Clark Nos. 2014-CA-99, 2014-CA-100, 2015-Ohio-2554. Instead, Crim.R. 32.3 applies
to community control revocation proceedings and requires that the trial 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.”
{¶ 10} In general, revocation of probation implicates two due process
requirements: (1) a preliminary hearing to determine whether there is probable cause to
believe that the defendant has violated the terms of his community control; and (2) a final
hearing to determine whether probation should be revoked. State v. Blakeman, 2d Dist.
Montgomery No. 18983, 2002-Ohio-2153, citing Gagnon v. Scarpelli, 411 U.S. 778, 93
S.Ct. 1756, 36 L.Ed.2d 656 (1973).
{¶ 11} At the final revocation hearing, the trial court must inform the defendant of
the reasons for which his probation is being revoked and provide an adequate record for
review on appeal. State v. Delaney, 11 Ohio St.3d 231, 235, 465 N.E.2d 72 (1984).
Moreover, in order for a trial court to impose a prison term for a violation of community
control sanctions, the court must have “informed the defendant at the original sentencing
hearing or the sentencing hearing held in relation to a prior sanctions violation, of the
potential sentence for a future violation.” State v. Mayle, 11th Dist. Ashtabula No. 2017-
-6-
A-0005, 2017-Ohio-8942, ¶ 23, citing State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110,
821 N.E.2d 995, ¶ 18-19. However, the trial court is not required “to repeat the potential
prison term during the violation proceeding resulting in the imposition of a prison term.”
Id. at ¶ 23.
{¶ 12} As noted, “the requirements for a full Crim.R. 11(C)(2) plea colloquy do not
apply to a community-control-violation hearing, because a defendant faced with
revocation of community control is not afforded the full spectrum of rights given to a
defendant in a criminal prosecution.” State v. Hampton, 2d Dist. Montgomery No. 29612,
2023-Ohio-1591, ¶ 10, citing State v. Cunningham, 2d Dist. Clark No. 2014-CA-100,
2015-Ohio-2554, ¶ 14; State v. Patton, 2016-Ohio-4867, 68 N.E.3d 273, ¶ 11 (8th Dist.),
citing State v. Parsons, 4th Dist. Athens No. 09CA4, 2009-Ohio-7068, ¶ 11; State v.
Alexander, 1st Dist. Hamilton No. C-070021, 2007-Ohio-5457, ¶ 7. Generally, “[t]he 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.” State v. Lewis,
2d Dist. Montgomery No. 23505, 2010-Ohio-3652, ¶ 11, citing State v. Jackson, 2d Dist.
Montgomery No. 23458, 2010-Ohio-2836, ¶ 56. R.C. 2929.15(B) provides a trial court
with three options if an offender violates a condition of community control, including (a) a
longer time under community control; (b) a more restrictive community control sanction;
or (c) a prison term that does not exceed the prison term specified by the court at the
offender’s sentencing hearing.
{¶ 13} “A trial court's choice of sanction under R.C. 2929.15(B), where the
defendant has violated the conditions of community control, is subject to review on appeal
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under an abuse of discretion standard.” (Citations omitted.) Id. at ¶ 15. “Abuse of
discretion has been defined as an attitude that is unreasonable, arbitrary, or
unconscionable.” (Citations omitted.) Id. at ¶ 11.
{¶ 14} However, “[t]he failure to object to a due process violation during a
community control revocation hearing waives all but plain error.” State v. Klosterman, 2d
Dist. Darke Nos. 2015-CA-9, 2015-CA-10, 2016-Ohio-232, ¶ 15. Under the Ohio Rules of
Criminal Procedure, “[p]lain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” State v. Brill, 3d Dist. Union
No. 14-22-20, 2023-Ohio-404, ¶ 8, citing Crim.R. 52(B). “In order to find plain error under
Crim.R. 52(B), there must be an error, the error must be an ‘obvious’ defect in the trial
proceedings, and the error must have affected ‘substantial rights.’ ” Id. at ¶ 8, citing State
v. Bowsher, 3d Dist. Union No. 14-07-32, 2009-Ohio-6524, ¶ 12, quoting State v. Barnes,
94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “Notice of plain error is taken ‘only to
“prevent a manifest miscarriage of justice.” ’ ” (Citations omitted.) Id. at ¶ 8. Under Crim.R.
52(B), “the defendant bears the burden of demonstrating that a plain error affected his
substantial rights.” Id., quoting State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802
N.E.2d 643, ¶ 14.
{¶ 15} Since Thomas did not raise any objections before the trial court, we will
apply the plain error standard of review to his assignment of error.
{¶ 16} Thomas suggests that he was not properly afforded his due process
protections and, thus, did not knowingly, intelligently, and voluntarily admit to violating the
conditions of his community control sanctions by absconding a second time in July 2022.
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Thomas contends that he would not have admitted to the probation violation if he had
known that the trial court was going to sentence him to prison and not afford him his rights
to contest the alleged community control violation. Thomas asserts that he was confused
about his reporting obligations because of his multiple violations and believed that he
would remain on community control sanctions, noting that he specifically requested a
treatment program in order to address his addiction, which was what led him to violating
the law and his community control sanctions in the first place.
{¶ 17} The record demonstrates that the trial court advised Thomas at the
original sentencing hearing that, if he violated any condition of his community control
sanctions, the court had the option to impose a longer time under the same sanction,
impose a more restrictive sanction, or impose a prison term of eight to twelve years. In
addition, the trial court’s original judgment entry explained the same consequences of
violating the terms and conditions of community control to Thomas in writing.
{¶ 18} In April 2022, after Thomas absconded for the first time, he was reinstated
to community control, and the court’s reinstatement entry provided another written notice
to Thomas that the alternative sentence of eight to twelve years under the Reagan Tokes
Act, as set forth at his original sentencing hearing, remained in full force and effect.
{¶ 19} Around July 2023, after Thomas absconded for a second time, the court
provided him with a notice of community control sanctions revocation hearing, which set
forth his hearing rights. The notice informed Thomas of his rights and set forth four specific
community control sanctions that Thomas was alleged to have violated, which included
that Thomas had been declared an absconder from supervision for a second time on July
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15, 2022. At the revocation hearing, Thomas’s counsel acknowledged receipt of the
revocation notice and waived the first reading of the probation revocation and any defects
in service, and Thomas admitted that he had violated the terms and conditions of his
community control sanctions by absconding a second time. The trial court accepted
Thomas’s admission, finding that it was knowingly, voluntarily, and intelligently made, and
scheduled the revocation disposition hearing. The notice provided to Thomas informed
him of his rights as well as the alleged violation of community control sanctions. At the
disposition hearing, Thomas requested drug and mental health treatment and stated that
he was overwhelmed by having probation officers in multiple counties. However, the trial
court expressed that it did not believe that Thomas would comply with additional
community control sanctions because of his history of absconding despite undergoing
drug addiction treatment and remaining under community control sanctions. Thus, it
revoked Thomas’s community control sanctions and sentenced him to prison for three to
four-and-a-half years.
{¶ 20} Under the foregoing circumstances, we conclude that plain error is not
demonstrated, as the trial court complied with the requirements of due process. First, the
trial court provided Thomas with a preliminary hearing, where Thomas, represented by
counsel, admitted to absconding and thus to violating the terms of his community control.
The trial court then provided Thomas with a final hearing, during which Thomas testified
on his own behalf and the court concluded that Thomas's probation should be revoked
because he had violated his community control by absconding and made excuses for his
actions. Thereafter, the trial court sentenced him in accordance with the original judgment
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entry of conviction.
{¶ 21} The trial court did not err in accepting Thomas’s admission of violating the
conditions of community control, as there was no evidence that his admission was not
knowingly, intelligently, and voluntarily entered. Thomas did not dispute the alleged
community control violation during the revocation hearing. There was no evidence that
Thomas failed to understand the rights he waived when he admitted to the violation. The
record does not indicate that he objected at any time during the revocation or final
sentencing hearing. The fact that Thomas desired to remain on community control so that
he could receive a third mental health or drug treatment opportunity does not compel the
conclusion that Thomas did not understand his rights or that he believed the trial court
would honor his request. Although Thomas contends that he would not have admitted to
the probation violation if he had known that the trial court was going to sentence him to
prison, he appears to simply regret his decision to admit to the probation violation, rather
than demonstrating a due process violation.
{¶ 22} In this case, there was “substantial evidence,” through his admission, that
Thomas had absconded and thus had violated the terms of his community control
sanctions. Under these circumstances, we conclude that Thomas has failed to establish
plain error. Even if evaluated under an abuse of discretion standard, the trial court did
not abuse its discretion in revoking Thomas's community control or in imposing a three to
four-and-half year prison sentence. Because Thomas has not carried the burden of
establishing plain error with respect to the trial court's acceptance of his admission, his
sole assignment of error is overruled.
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III. Conclusion
{¶ 23} The judgment of the trial court is affirmed.
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EPLEY, P.J. and TUCKER, J., concur.