State v. Fonte ( 2013 )

[Cite as State v. Fonte, 2013-Ohio-98.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98144
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JONATHAN FONTE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-531362
BEFORE: Jones, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: January 17, 2013
ATTORNEY FOR APPELLANT
Jonathan N. Garver
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Nathaniel Tosi
Mark J. Mahoney
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Jonathan Fonte appeals from the trial court’s March
2012 judgment terminating his community control sanctions and sentencing him to a
14-month prison term. We affirm.
I. Procedural History
{¶2} In December 2009, Fonte was charged with one count of retaliation. In
March 2010, Fonte pleaded guilty to the charge as indicted. The trial court sentenced
Fonte to two years of community control sanctions with numerous conditions. In
February 2012, the trial court was advised that Fonte had violated the terms of his
community control sanctions, and a hearing on the alleged violations was scheduled.
Prior to the hearing, Fonte waived the “preliminary community control revocation
hearing,” and the trial court indicated that it would let the probation officer “advise the
Court as to what the nature and extent of the alleged violations” were. At the conclusion
of the hearing, the trial court found that Fonte had violated the terms of his community
control sanctions. The court revoked Fonte’s community control sanctions and
sentenced him to a 14-month prison term. Fonte appeals, raising five assignments of
error, which challenge the trial court’s termination of his community control sanctions
and the imposition of a prison term. (See appendix.)
II. Facts
{¶3} At the hearing, the probation officer, who was not sworn in, stated that while
Fonte was on community control sanctions, he was charged with trespass in a park, which
resulted in Fonte pleading to an amended charge of disorderly conduct, and he was
arrested in two other separate incidents for telephone harassment and menacing.
Defense counsel admitted that Fonte had been arrested, but argued that his community
control sanctions should not be terminated because he had not “violated any additional
terms other than these three matters” and therefore had “largely been in compliance” with
the conditions of his community control sanctions.
{¶4} In regard to the menacing charge, counsel stated that the case was set for trial
and Fonte and his attorney on that case believed it was a defensible case for them. In
regard to the telephone harassment charge, based on the facts according to Fonte, it was a
“miscommunication.” Thus, for the two pending cases, counsel contended that the “full
facts” of the cases were not known and if the trial court were to revoke Fonte’s
community control sanctions it would be premature. The trial court disagreed with
counsel, revoked his community control sanctions, and sentenced him to prison.
III. Law and Analysis
{¶5} Fonte first contends that the trial court violated his rights to due process and
confrontation by allowing the unsworn hearsay evidence of a probation officer without “a
prior specific finding of good cause for not allowing confrontation.” We disagree.
{¶6} A community control sanction revocation hearing is not a criminal trial.
Rather, it is “‘an informal hearing structured to assure that the finding of a * * *
[probation] violation will be based on verified facts and that the exercise of discretion
will be informed by an accurate knowledge of the * * * [probationer’s] behavior.’”
State v. Hylton, 75 Ohio App.3d 778, 781, 600 N.E.2d 821 (4th Dist.1991), quoting
Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Further, the
rules of evidence do not apply to community control sanction proceedings. Evid.R.
101(C)(3).
{¶7} The due process rights that must be observed in a community control sanction
revocation hearing are:
(a) written notice of the claimed violations of [community control]; (b)
disclosure to the [offender] of evidence against him; (c) opportunity to be
heard in person and to present witnesses and documentary evidence; (d) the
right to confront and cross-examine adverse witnesses; (e) a “neutral and
detached” hearing body * * *; and (f) a written statement by the
factfinders as to the evidence relied upon and reasons for revoking
[community control].
Morrissey at 489; State v. Miller, 42 Ohio St.2d 102, 104, 326 N.E.2d 259 (1975).
{¶8} Fonte waived his preliminary hearing and admitted the violations. He,
therefore, waived his right to an evidentiary hearing on the violations, and the hearing that
was had was only to address the consequence, or punishment, for the violations.
{¶9} Further, Fonte did not object to the probation officer’s statement at the
hearing and did not cross-examine her. In fact, he agreed with her reporting of the three
cases he had been charged with while under community control sanctions in this case.
His response to her report on the two pending cases was that they were defensible and
therefore revocation of his community control sanctions was premature. He admitted
pleading guilty to disorderly conduct on the third case.
{¶10} This court has previously held that the failure to object to the unsworn
testimony of a probation officer at a violation hearing waives any error regarding the trial
court’s determination. State v. Rose, 8th Dist. No. 70984, 1997 Ohio App. LEXIS 1072,
*8-*9, (Mar. 20, 1997), citing State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364(1977). This court further noted that the defendant in Rose had the opportunity to
cross-examine the officer and present evidence on his own behalf, but did not.
{¶11} In light of the above, Fonte’s contention that his rights to due process and
confrontation were violated is not well taken.
{¶12} Fonte next contends that an arrest alone cannot be ground for revocation of
community control sanctions. Further, Fonte contends that the trial court abused its
discretion in finding that he violated his community control sanctions.
{¶13} “The right to continue on community control depends on compliance with
community control conditions and is a matter resting within the sound discretion of the
court.” State v. Schlecht, 2d Dist. No. 2003-CA-3, 2003-Ohio-5336, ¶ 7. Accordingly,
we review the trial court’s decision to revoke a defendant’s community control for an
abuse of discretion. State v. Brown, 2d Dist. No. 22467, 2008-Ohio-4920, ¶ 9. Such
decision is an abuse of discretion if no sound reasoning process supports the decision. Id.{¶14} While on community control sanctions in this case, Fonte was charged in
three other cases. Although two of the cases were pending at the time of the hearing
here, Fonte had been convicted in the third case. That conviction alone would serve as a
basis for the revocation of community control sanctions. The arrests, therefore, were not
the sole basis for revoking Fonte’s community control sanctions. Further, the trial court
did not abuse its discretion in revoking his community control sanctions.
{¶15} Fonte also contends that his due process rights were violated because the
trial court did not issue a written statement setting forth the reason for revoking his
community control sanctions and the evidence it relied on. This court has held,
however, that “a court need not issue a written opinion where it sufficiently explains its
reasons and the evidence relied on to the defendant on the record such that a sufficient
record exists for appellate review.” State v. Harian, 8th Dist. No. 97269,
2012-Ohio-2492, ¶ 22, citing State v. Delaney, 11 Ohio St.3d 231, 235, 465 N.E.2d 72(1984); State v. Martin, 8th Dist. No. 82140, 2003-Ohio-3381, ¶ 23. Here, the court
explained its decision as follows:
My concern is as follows, because looking at your history here, you did
plead initially to a felony three, a retaliation charge, back in April of 2010.
You did have a prior criminal record at that time, including some crimes of
violence. You had an assault on your juvenile record.
Also, at that time you had already served a prison term after violating
probation, and you were a registered sex offender as well, and you had
previously violated parole.
Now, in spite of all that, I did put you on probation for two years and gave
you the opportunity then to make it right.
Also, I did actually account for a mental health assessment, also required
you to take medication as provided by your physician. So I basically gave
you the tools you needed to change, also [had] you do the Thinking For a
Change program and anger management.
And I think you did okay on community control for awhile, it looks like
about ten months, before you got that case in Parma, and then there was the
second case in Parma, and then we have this arrest on the Tri-C case that
I’m going to call it involving threats to the dean there at that school.
So that’s a concern, because basically I put you on community control in a
situation where I think other courts might have put you in prison. I gave
you the opportunity. I trusted you basically to do the right thing, and so
there’s been now three different incidents since then * * *.
So basically, having given you everything you need, at this point saying * *
* I should re-refer you back to more mental health counseling, * * * I know
there are some issues there, but I have to address the behavior, and I find
the behavior actually somewhat disturbing in terms of the threat to society.
{¶16} The record more than sufficiently explains the court’s reasons for revoking
Fonte’s community control sanctions. Fonte’s contention therefore is without merit.
{¶17} Finally, Fonte contends that the imposition of a 14-month sentence was an
abuse of discretion. We disagree.
{¶18} In support of his contention, Fonte cites several factors that bode well in his
favor, such as that he had been on community control sanctions for a significant period of
time without violation, and that he had completed many of the other conditions imposed
by the court. But in imposing community control sanctions, the court explained to Fonte
that it had “some concerns about [his] ability to remain compliant on community control
sanctions,” but it was willing to “give it a shot and give [him] a shot as well.” The court
admonished Fonte, however, that “if there is any violation, you’ve got to understand I’m
not really going to have much sympathy or any leeway in terms of violations here.” The
court further advised Fonte that a violation of the terms of his community control would
result in the court sentencing him to a two-year prison term.
{¶19} On this record, where the trial court explicitly explained to Fonte that it had
reservations about placing him on community control sanctions and that any violation
would result in a prison term being imposed, and Fonte presented with three new cases,
one of which resulted in a conviction, the trial court did not abuse its discretion in
imposing a 14-month sentence.
{¶20} Judgment affirmed.
It is ordered that appellee recover from appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
APPENDIX
Appellant’s Assignments of Error
I. The trial court violated Appellant’s right to due process of law and his right to
confront and cross-examine his accusers by finding that he had violated his community
control sanction on the basis of unsworn hearsay evidence without a prior specific finding
of good cause for not allowing confrontation. Sixth and Fourteenth Amendments to the
Constitution of the United States; Article I, Sections 10 and 16 of the Constitution of the
State of Ohio.
II. The trial court denied Appellant due process of law by holding that a mere “arrest,”
standing alone, without proof of guilt, constitutes a violation of community control
sanction and by relying upon evidence of a mere “arrest” to revoke Appellant’s
community control sanction. Fourteenth Amendment to the Constitution of the United
States; Article I, Section 16 of the Constitution of the State of Ohio.
III. The trial court denied Appellant due process of law by rendering judgment that he
had violated his community control sanction without issuing a written statement as to the
evidence relied on and the reasons for revoking his community control sanction.
Fourteenth Amendment to the Constitution of the United States; Article I, Section 16 of
the Constitution of the State of Ohio.
IV. The trial court abused its discretion in finding that Appellant had violated his
community control sanction.
V. The trial court abused its discretion by imposing a 14-month term of imprisonment
for the alleged violation of Appellant’s community control sanction.