State v. Westrick , 196 Ohio App. 3d 141 ( 2011 )

[Cite as State v. Westrick, 196 Ohio App.3d 141, 2011-Ohio-1169.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
THE STATE OF OHIO,
APPELLEE, CASE NO. 12-10-12
v.
WESTRICK, OPINION
APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2008 CR 00050
Judgment Affirmed
Date of Decision: March 14, 2011
APPEARANCES:
Gary L. Lammers, for appellee.
Andrew R. Bucher, for appellant.
Case No. 12-10-12
SHAW, Judge.
{¶1} Defendant-appellant, Nicole K. Westrick, appeals the August 30, 2010
judgment of the Common Pleas Court of Putnam County, Ohio, finding that she
had violated the terms of her judicial release, revoking her judicial release, and
reimposing her sentence of 12 months.
{¶2} The facts relevant to this appeal are as follows. On September 12,
2008, Westrick was indicted on three counts of deception to obtain a dangerous
drug in violation of R.C. 2925.22(A), each a felony of the fifth degree. Initially,
Westrick pleaded not guilty to each offense, but on January 28, 2009, she
withdrew her previously tendered plea of not guilty to Count Three of the
indictment and entered a plea of guilty to that offense. In exchange for Westrick’s
plea of guilty, the state agreed to dismiss the first two counts. A presentence
investigation was ordered, and a sentencing hearing was held on March 31, 2009.
{¶3} Westrick was placed on three years of community control under the
general terms and provisions of the Adult Parole Authority. Among the special
sanctions placed upon her were that she serve 30 days in jail and that she “have
only one (1) medical care provider and one (1) pharmacy and shall disclose the
same to her supervising officer.” The trial court also advised Westrick that if she
violated the terms of her community control, she would receive a sentence of 12
months in prison.
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{¶4} In November 2009, the state filed two separate motions to revoke
Westrick’s community control, listing numerous violations of her supervision. A
hearing was held on these motions on November 19, 2009, and Westrick admitted
to violating her community control as alleged by the state, including, inter alia,
failing to use one medical provider and disclosing that provider to her supervising
officer on three separate occasions and to using a pharmacy that was not disclosed
to her supervising officer. As a result, the trial court sentenced her to 12 months in
prison.
{¶5} The trial court granted Westrick judicial release on February 17, 2010,
and placed her under community-control sanctions once again under the general
terms and provisions of the Adult Parole Authority. Among the special sanctions
placed upon her this time were that she successfully complete the W.O.R.T.H.
Center program and that she “have only one (1) medical care provider and one (1)
pharmacy and shall disclose the same to her supervising officer.”
{¶6} On July 23, 2010, the state filed a motion to revoke Westrick’s
judicial release and to reimpose the remainder of her prison sentence. In this
motion, the state alleged that Westrick had failed to use only one pharmacy and
failed to inform her supervising officer that she was using a pharmacy other than
the one she had previously disclosed to her supervising officer. After various
delays, a hearing on the state’s motion to revoke Westrick’s judicial release was
conducted on August 24, 2010.
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{¶7} At the hearing, the state presented the testimony of Westrick’s current
supervising officer, Duane Weiging, and her former supervising officer, Jim
Szeremeta. Both officers testified that they each had explained the conditions of
supervision to Westrick, including that she was to use only one pharmacy and was
to advise them of which one she was using. Weiging also testified that Westrick
had signed a document containing these terms and conditions of supervision and
indicated that she had no questions about using only one pharmacy. When
Weiging discussed the conditions of Westrick’s supervision with her, she
informed him that she would be using the Walmart pharmacy located on Cable
Road in Lima, Ohio, which was also the pharmacy on record for Westrick when
she was under supervision with Szeremeta.
{¶8} Szeremeta testified that in July 2010, Weiging was on vacation when
he received a phone call from the Walmart on Cable Road regarding Westrick’s
attempt to have a prescription for a Schedule II controlled substance refilled earlier
than the date it was due to be refilled, which request the pharmacy denied.
Szeremeta was also informed that Westrick later attempted to have her
prescription transferred to a Walmart in Ottawa, Ohio, which was refused, and that
she eventually transferred her prescription to a Rite Aid on Shawnee Road in
Lima, Ohio. Szeremeta went to Rite Aid and learned that the pharmacy had filled
the prescription for Westrick the day before but that she had also submitted two
other prescriptions to be filled. Two days later, Westrick called Rite Aid to see if
her prescriptions were ready, and the pharmacist contacted Szeremeta. He then
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contacted the local police, who aided him in arresting Westrick when she picked
up her prescriptions from Rite Aid. Westrick told him that she had changed to the
Rite Aid pharmacy because it had a drive-through.
{¶9} Westrick then presented the testimony of Amy Mankin, a Rite Aid
pharmacist, who testified that the transfer of Westrick’s prescription from
Walmart to Rite Aid was done in accordance with law. She also testified that
Westrick’s transferred prescription was filled by Rite Aid and picked up by
Westrick on Monday and that Rite Aid filled two other prescriptions for Westrick
the next day, which Westrick picked up two days later. On cross-examination,
Mankin testified that Westrick had told her that she needed to transfer the
prescription and fill it because she was going on vacation.
{¶10} The trial court found that Westrick had violated the terms of her
judicial release and reimposed Westrick’s 12-month prison sentence. This appeal
followed, and Westrick now asserts four assignments of error.
Assignment of Error I
The trial court erred in failing to enter a judgment of acquittal
pursuant to Crim.R. 29.
Assignment of Error II
The trial court erred in finding that appellant had violated
community control, the same being an abuse of discretion.
Assignment of Error III
The trial court erred in finding that appellant had violated a
term of community control which was overbroad and lacked a
mechanism through which compliance could be assured.
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Assignment of Error IV
The trial court erred when it allowed hearsay evidence to be
presented that constituted the only evidence relied upon to make the
crucial determination of the community control violation, the same
compromised appellant’s right to confrontation.
{¶11} For ease of discussion, we elect to address the assignments of error
out of order and to address the second and fourth assignments of error, which are
interrelated, together.
First Assignment of Error
{¶12} In her first assignment of error, Westrick maintains that the trial
court erred in failing to grant her Crim.R. 29 motion for acquittal at the conclusion
of the state’s evidence. However, Westrick acknowledges that this was a hearing
to determine whether she had violated the terms of her judicial release and that a
revocation hearing is not a criminal trial. See State v. Ryan, 3d Dist. No. 14-06-
55, 2007-Ohio-4743.
{¶13} Crim.R. 29 states: “The court on motion of a defendant * * * after
the evidence on either side is closed, shall order the entry of a judgment of
acquittal of one or more offenses charged in the indictment, information, or
complaint, if the evidence is insufficient to sustain a conviction of such offense or
offenses.” (Emphasis added.) By its very language, Crim.R. 29 applies to trials
for criminal offenses. A judicial-release-revocation hearing is not a criminal trial
and does not result in a conviction. In fact, a violation of community-control
sanctions does not necessarily involve criminal activity, such as the violation at
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issue in the case sub judice. Thus, Crim.R. 29 was not applicable at Westrick’s
hearing, and the trial court did not err in denying this motion. Accordingly, the
first assignment of error is overruled.
Third Assignment of Error
{¶14} In her third assignment of error, Westrick maintains that the trial
court erred in finding that she had violated a condition of her judicial release that
was overbroad and lacking a mechanism through which compliance could be
assured. More specifically, she asserts that the condition that she have one
pharmacy and disclose that pharmacy to her supervising officer was vague and
that there was no mechanism to enforce it because the testimony of Szeremeta
demonstrated that there was not a “set way” to report a change of circumstances to
a supervising officer.
{¶15} A trial court has broad discretion in imposing community-control
sanctions. State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201,
¶ 10. Nevertheless, a trial “court’s discretion in imposing [probationary
conditions] is not limitless.” State v. Jones (1990), 49 Ohio St.3d 51, 52, 550
N.E.2d 469. Rather, “probation conditions must be reasonably related to the
statutory ends of probation and must not be overbroad.”1 Talty at ¶ 16, citing
1
The court in Talty recognized that community control is the functional equivalent of probation and that
the goals of probation, previously codified in R.C. 2951.02(C), were equally applicable to community
control, although they were no longer explicitly stated in the Revised Code. Although Westrick’s
community-control sanctions and conditions were imposed as a part of her judicial release and she was not
on community control, we believe that the goals of community control apply equally to judicial release,
which requires that a trial court impose “appropriate community control sanction[s], under appropriate
conditions.” R.C. 2929.20(K).
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Jones (relying upon a “commonsense” understanding of the conditions of
supervision to determine whether a condition is overbroad and holding that
“[c]ourts imposing conditions on probation are not expected to define with
specificity the probationer’s behavior in all possible circumstances. Rather, the
conditions must be clear enough to notify the probationer of the conduct expected
of him”). The goals of community control are “rehabilitation, administering
justice, and ensuring good behavior.” Talty at ¶ 16, citing Jones. Thus, “courts
should consider whether the condition (1) is reasonably related to rehabilitating
the offender, (2) has some relationship to the crime of which the offender was
convicted, and (3) relates to conduct which is criminal or reasonably related to
future criminality and serves the statutory ends of probation.” Jones at 52.
{¶16} Here, Westrick was convicted of deception to obtain dangerous
drugs. This charge stemmed from an investigation that revealed that in the course
of just over two years, Westrick obtained prescriptions for various pain
medications from 62 different prescribers without informing any of them that she
was also being treated by other physicians who were also providing her with
prescriptions for pain medications. She then filled these prescriptions using 37
different pharmacies. The investigation further revealed that Westrick was
addicted to these medications.
{¶17} The conditions at issue in this appeal were that Westrick have only
one pharmacy and that she had to disclose this pharmacy to her supervising
officer. These conditions were placed upon her when she was initially sentenced
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to community control in March 2009. In November 2009, she admitted that she
had used a pharmacy that she did not disclose to her supervising officer, as well as
a number of other violations of community control. Consequently, her supervision
was revoked, and she was sent to prison. Westrick was granted judicial release the
following February and ordered to complete the W.O.R.T.H. program, to undergo
drug treatment, and to adhere to the same conditions now at issue.
{¶18} Clearly, the trial court was concerned about Westrick’s abuse of
drugs and the efforts she had made in order to obtain a large quantity of
prescription medication, which led to her conviction for deception to obtain
dangerous drugs. Using 37 different pharmacies enabled her to obtain a large
amount of prescription pain medication without detection for over two years.
Thus, requiring that she use only one pharmacy and that she disclose this
pharmacy to her supervising officer were conditions reasonably related to her
rehabilitation, to her crime, and to her potential to engage in future criminal
behavior.
{¶19} Further, these conditions were not vague, overbroad, or lacking a
mechanism to ensure compliance. These conditions were capable of being readily
understood when applying common sense to them, an approach encouraged by the
Ohio Supreme Court in Jones. A commonsense reading of these conditions
provided Westrick with fair notice of what conduct was prohibited and what was
required. In no uncertain terms, Westrick was to use one pharmacy, and she was
to report the name of this pharmacy to her supervising officer. In addition, she
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was to use only one medical-care provider and to report her legal status and
medical status to that provider, the pharmacist, and the supervising officer. The
patently obvious purpose of all of these conditions was to allow Westrick access to
medical care and prescription medications if necessary but to do so with full
disclosure to anyone treating her and with a supervising officer who could monitor
the situation to detect whether Westrick was engaging in the same pattern of
behavior that ultimately resulted in her conviction. Further, these conditions were
not new to Westrick. In fact, her community control was revoked once before
due, in part, to her use of a pharmacy that she had not disclosed to her supervising
officer. Therefore, her third assignment of error is overruled.
Second and Fourth Assignments of Error
{¶20} Westrick asserts in her second assignment of error that the trial court
erred in finding that there was substantial evidence that she had violated the
conditions of her judicial release. In her fourth assignment of error, Westrick
contends that the trial court erred in permitting and relying solely upon
inadmissible hearsay evidence at the judicial release revocation hearing as to what
Szeremeta had been told by Jim Kempf, Tisha Bater, Jacob Bowersock, George
Wolfe, and Amy Mankin in order to find that she had violated the condition that
she use only one pharmacy.
{¶21} As previously noted, a judicial-release-revocation hearing is not a
criminal trial, so the state is not required to establish a violation of the terms of
judicial release beyond a reasonable doubt. Ryan, 2007-Ohio-4743, at ¶ 7, citing
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State v. Hylton (1991), 75 Ohio App.3d 778, 600 N.E.2d 821. Instead, the state
must show “substantial” proof that the offender violated the terms of his or her
judicial release. See State v. Alexander, 3d Dist. No. 14-07-45, 2008-Ohio-1485, ¶
8, citing Ryan.
{¶22} A trial court’s decision finding a violation of judicial release will not
be disturbed on appeal absent an abuse of discretion. See Alexander at ¶ 8, citing
Ryan. An abuse of discretion constitutes more than an error of law or judgment
and implies that the trial court acted unreasonably, arbitrarily, or unconscionably.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When
applying the abuse-of-discretion standard, a reviewing court may not simply
substitute its judgment for that of the trial court. Id.{¶23} Additionally, although a revocation proceeding must comport with
the requirements of due process, it is not a criminal proceeding. Gagnon v.
Scarpelli (1973), 411 U.S. 778, 782. The minimum due process requirements for
revocation hearings include that the offender have “the right to confront and cross-
examine adverse witnesses (unless the hearing officer specifically finds good
cause for not allowing confrontation).” Ryan, 2007-Ohio-4743, at ¶ 8, citing State
v. Miller (1975), 42 Ohio St.2d 102, 104, 326 N.E.2d 259, quoting Morrissey v.
Brewer (1972), 408 U.S. 471, 489.
{¶24} Furthermore, revocation hearings are not subject to the rules of
evidence, thus allowing for the admission of hearsay evidence. See State v.
Patierno, 3d Dist. No. 4-08-08, 2009-Ohio-410, ¶ 16; Evid.R. 101(C)(3). “The
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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 (1991), 77 Ohio App.3d
26, 36, 601 N.E.2d 61, citing Miller, 42 Ohio St.2d at 106, 326 N.E.2d 259.
However, hearsay evidence at a revocation hearing can compromise the offender’s
due process right to confront adverse witnesses. Ryan at ¶ 9, citing Bickel at 37.
“The introduction of hearsay evidence into a revocation hearing is reversible error
when that evidence is the only evidence presented and is crucial to a determination
of a probation violation.” Ryan, 2007 Ohio-4743, ¶ 9, citing State v. Ohly, 166
Ohio App.3d 808, 816, 853 N.E.2d 675.2
{¶25} In the case sub judice, Weiging testified that he had been assigned to
supervise Westrick when she was granted judicial release and released from the
W.O.R.T.H. Center. On June 29, 2010, he went to her home for a home visit and
scheduled an appointment for her to come to his office on July 14, 2010. Westrick
came to Weiging’s office as directed, and at that time, Weiging reviewed the terms
and conditions of supervision with Westrick, which were the same terms and
conditions she was previously under, to “make sure we’re on the same page.” She
also signed these terms and conditions after they had reviewed them together.
Weiging specifically discussed the condition that she was to use one pharmacy and
2
Although this was a hearing to determine whether Westrick had violated the conditions of her judicial
release rather than of community control or probation, this court has previously applied the same principles
applicable to community-control-revocation hearings to judicial-release-revocation hearings. See State v.
Osborn, 3d Dist. No. 9-05-35, 2006-Ohio-1890.
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to disclose the name of the pharmacy to him. Westrick then informed him that she
would be using the pharmacy at Walmart on Cable Road in Lima. She also did
not have any questions about this condition when Weiging asked if she had any
questions about it. After July 14, 2010, Weiging did not have any further contact
with Westrick.
{¶26} Szeremeta then testified that he had been Westrick’s supervising
officer when she was initially placed on community control in March 2009. He
explained to the court that when Westrick was first placed under his supervision,
she informed him that she would be using the Cable Road Walmart pharmacy.
Consequently, he provided that pharmacy with a copy of Westrick’s judgment
entry of conviction and his business card and requested that the pharmacy contact
him if there was any type of irregularity with her obtaining prescriptions. On July
20, 2010, he received a voice-mail message from Jim Kempf, a pharmacist at the
Cable Road Walmart. He testified that Kempf had left the message the previous
day and asked that Szeremeta return his call to discuss Westrick coming into the
pharmacy to request that a prescription be refilled earlier than it was due.
{¶27} Szeremeta testified that when he called the pharmacy, Kempf was
not working and he spoke to another pharmacist, Tisha Bater, instead. Bater
informed him that Westrick came to the pharmacy and wanted to refill her
prescription for Ambien, a Schedule II controlled substance, two or three days
earlier than prescribed, but the pharmacy refused to do so. Shortly after Westrick
left the premises, the pharmacy at the Walmart located in Ottawa, Ohio, contacted
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the Cable Road Walmart and told the pharmacist that Westrick wanted her
prescription transferred to its location. However, for reasons unknown to
Szeremeta, the two pharmacies did not transfer the prescription. Bater also told
Szeremeta that within a few hours, the Cable Road Walmart was contacted by the
Rite-Aid on Shawnee Road in Lima and asked to transfer Westrick’s prescription
to its location. Walmart then transferred the prescription to Rite Aid.
{¶28} Szeremeta testified that he had gone to Rite Aid and spoken with
Jacob Bowersock, an intern. As he was speaking with Bowersock, Amy Mankin,
a pharmacist, began speaking with him. While at Rite Aid, Szeremeta provided
them with a copy of the judgment entry of conviction for Westrick and a release
form signed by her. He also learned that Westrick had two prescriptions to be
filled at Rite Aid. Two days later, Szeremeta was contacted by George Wolfe, a
pharmacist at Rite Aid, who informed him that Westrick had called the pharmacy
that morning to ask if her prescriptions were ready, and they were.
{¶29} Szeremeta contacted the local police department for assistance.
When Westrick arrived at Rite Aid and picked up her two prescriptions, her
vehicle was stopped by the police and she was placed under arrest by Szeremeta.
When Szeremeta told her that he was arresting her because of her failure to inform
her supervising officer that she was using Rite Aid’s pharmacy, she stated that the
reason she changed was because Rite Aid had a drive-through and Walmart did
not. Szeremeta further testified that Westrick had not notified anyone at the Adult
Parole Authority, including Weiging, that she was changing pharmacies.
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{¶30} Mankin also testified that Westrick had her prescription for Ambien
transferred to the Rite Aid from the Cable Road Walmart. Westrick told Mankin
that the reason she needed the transfer and to refill the prescription at Rite Aid was
because she was going on vacation. The prescription was refilled on Monday,
July 19, 2010. According to Mankin, Westrick had two additional prescriptions
filled by Rite Aid the next day, but she did not pick up those prescriptions until
two days later.
{¶31} Given this evidence, we do not find that the trial court abused its
discretion in finding that Westrick had violated her conditions of judicial release,
namely, that she had used more than one pharmacy and that she had failed to
disclose that she was using the Rite Aid pharmacy to her supervising officer.
Weiging’s testimony, which did not include hearsay, showed that on July 14,
2010, Westrick had told him that she would be using the Cable Road Walmart.
Mankin’s testimony, exclusive of any hearsay, showed that five days later,
Westrick had used Rite Aid to fill the prescription she had transferred from the
Cable Road Walmart and that she had used Rite Aid again to fill two additional
prescriptions. Szeremeta’s testimony, absent the hearsay evidence included in his
testimony, demonstrated that he had arrested Westrick immediately after she had
used Rite Aid to fill two other prescriptions on July 22, 2010, and that she
admitted to him that she used Rite Aid. Further, both Weiging’s and Szeremeta’s
testimony, exclusive of any hearsay, established that Westrick had not notified her
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supervising officer or anyone at the Adult Parole Authority at any point in time
before her arrest that she was using the Rite-Aid pharmacy.
{¶32} This evidence conclusively established that Westrick had used more
than one pharmacy and that she had not disclosed the fact that she was using Rite
Aid to her supervising officer. Thus, the hearsay evidence that was admitted was
not the only evidence presented to determine whether Westrick violated her
conditions of judicial release. The hearsay evidence as to what Szeremeta was
told by Kempf, Bater, Bowersock, Wolfe, and Mankin was relevant to this
determination and to the court’s decision as to the consequence of Westrick’s
violations, because it more fully explained the circumstances surrounding
Westrick’s transfer, including the timing of her different attempts to have her
prescription refilled, the number of attempts, her attempt to obtain the refill before
it was due, and her differing reasons for the transfer. However, it was not crucial
to the determination of whether she violated a term of her judicial release.
{¶33} Despite all of this evidence, Westrick asserts that by transferring the
one prescription to Rite Aid from Walmart, she was using only one pharmacy,
which was in compliance with this condition of judicial release. We disagree.
{¶34} The fact that she was attempting to obtain a refill of a prescription
and then had this prescription transferred, as well as the fact that she told Weiging
that the Cable Road Walmart was the pharmacy she was using only a few days
before transferring her prescription from there, demonstrates that she was using
the Cable Road Walmart while on judicial release. She then chose to use a
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different pharmacy when she transferred the prescription to Rite Aid. The
condition at issue was not that she use only one pharmacy at a time but that she
use only one pharmacy while under judicial release. The undisputed evidence
showed that Westrick had used two different pharmacies while under a
community-control sanction that she use only one.
{¶35} Further, the undisputed evidence showed that Westrick had not
reported her use of Rite-Aid to her supervising officer. Although she argues that
the testimony of Szeremeta that some offenders wait until their next scheduled
meeting with their supervising officers to update them on any changes in their
lives established that it was acceptable for her to inform Weiging of her use of
Rite Aid’s pharmacy at her next scheduled meeting, there was no evidence about
the kinds of changes that are sometimes reported at the next meeting, the
circumstances under which that might occur, and the conditions of community
control and/or judicial release for those offenders. Moreover, there was no
evidence that Westrick intended to inform Weiging of this change at their next
scheduled meeting or that she even thought that she could wait to inform him until
this time. Regardless, Westrick had ample time to notify Weiging of this change
and she chose, for whatever reason, not to do so. Therefore, she also violated this
condition.
{¶36} For all of these reasons, the second and fourth assignments of error
are overruled as well, and the judgment of the Common Pleas Court of Putnam
County, Ohio, is affirmed.
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Judgment affirmed.
ROGERS, P.J., and PRESTON, J., concur.
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