State v. English

[Cite as State v. English, 2021-Ohio-850.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109645
v. :
DARRIN E. ENGLISH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 18, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-634702-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristen Hatcher, Assistant Prosecuting
Attorney, for appellee.
Dale M. Hartman, for appellant.
LARRY A. JONES, SR., J.:
Defendant-appellant Darrin English (“English”) appeals the trial
court’s imposition of an 18-month prison sentence following revocation of his
community control sanctions. For the reasons that follow, we affirm.
In 2018, English was charged with failure to provide notice of
change of address in violation of R.C. 2950.05(F)(1), a felony of the fourth degree;
the registration requirement stemmed from his prior conviction for pandering
sexually oriented material involving a minor. See State v. English, Cuyahoga C.P.
No. CR-15-600844-A.
English pleaded guilty to the indictment and was sentenced to two
years of community control sanctions subject to a prison sentence of 18 months if
he violated his community control sanctions. The court placed him with the adult
probation department’s mental health and developmental disabilities unit. During
his sentencing hearing, the trial court told English that he was required to abide by
all the rules and regulations of the probation department, to report as directed by
the probation officer, follow the recommendations of his treatment team, attend all
mental health appointments as scheduled, take all medications as prescribed,
attend programming as indicated in his case plan, submit to random drug testing,
and pay a monthly supervision fee of $20. Both the court and defense counsel
reminded English that he must comply with registration requirements.
In March 2019, the trial court held a review hearing. The court
expressed its concern that English was continuing to test positive for marijuana.
English’s probation officer told the court that English was “doing a good job of
reporting his different psych appointments and medical appointments” and was
“on track with getting involved with sex offender counseling.” The court continued
English on community control sanctions.
In November 2019, English had another review hearing, this time
after he had been arrested pursuant to a warrant. The court noted that English
tested positive for marijuana several times in February, March, April, and May
2019. The court also noted that English had posted pictures of himself to social
media holding knives and had been found in possession of several weapons,
including knives, mace, stun gun, laptop computer, and cell phone, all of which he
was prohibited from possessing under the terms of his community control
sanctions or parole. English admitted he was not supposed to have these items,
but claimed they either did not work or did not belong to him.
When the court asked English why he was not living at his registered
address, English told the court he had permission to live somewhere else. The
court disagreed, stating that English’s multiple requests to live somewhere other
than his registered address had been denied by the probation department or adult
parole authority. The court noted its concern, and the concern of his probation
and parole officers, that English was found living in a hotel room in possession of,
or in close proximity to, so many prohibited items.
Through defense counsel, English admitted he had violated the
terms of his community control sanctions. The court found English in violation of
his community control sanctions and imposed the original sentence of 18 months
in prison.
English appealed and raises two assignments of error for our review:
I. The trial court violated appellant’s right to due process.
II. The lower court violated appellant’s Eighth Amendment right to
be free from double jeopardy.
In the first assignment of error, English claims that the trial court
violated his right to due process because he did not have a preliminary hearing and
was not able to confront witnesses against him.
As an initial matter, English did not note his objection at the trial-
court level. Therefore, he has waived all but plain error. Crim.R. 52(B) provides
that “[p]lain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.” Appellate courts take notice of
plain error “with the utmost caution, under exceptional circumstances, and only to
prevent a manifest miscarriage of justice.” State v. Barnes, 94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002), citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978).
The revocation of community control sanctions can result in a
prison sentence; thus, a probationer must be accorded due process at the
revocation hearing. State v. Bailey, 8th Dist. Cuyahoga No. 103114, 2016-Ohio-
494, ¶ 9, citing Gagriori v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d
656 (1973); see also Crim.R. 32.2(A). A person subject to community control
sanctions is entitled to certain due process rights if they are to be punished for a
violation of their community control, including: (1) written notice of the claimed
violations; (2) disclosure of the evidence against them; (3) an opportunity to be
heard and to present witnesses and documentary evidence; (4) the right to
confront and cross-examine adverse witnesses; (5) a neutral and detached hearing
body; and (6) a written statement by the factfinder of the evidence relied upon and
the reason for revocation. Bailey at ¶ 10, citing State v. Davis, 8th Dist. Cuyahoga
No. 93959, 2010-Ohio-5126, ¶ 26.
Failure to timely object to a due process violation during a probation
violation hearing waives error. Bailey at id., citing State v. Simpkins, 8th Dist.
Cuyahoga No. 871131, 2006-Ohio-3496, ¶ 12. This court has stated that an
admission to a community-control violation “dispense[s] with the need to present
evidence or to give appellant the opportunity to defend.” State v. Frazier, 8th Dist.
Cuyahoga No. 104596, 2017-Ohio-470, ¶ 11.
In Frazier, this court held that the trial court did not commit plain
error in finding the appellant violated the terms of his community control when
the appellant waived the requirement that evidence be presented against him as
well as his right to cross-examine or call witnesses by admitting to his violation.
Id. at ¶ 12. Similarly, in Bailey, this court found that there were no due process
errors in a probation violation hearing when the appellant admitted to the
violation, was afforded the opportunity to be heard about the circumstances
surrounding the alleged violations, and was able to question his supervising
probation officer. Id. at ¶ 11.
This court has also held that while written notice of claimed
violations is preferred, oral notice of alleged violations may be sufficient, as long as
the oral statements explain the basis of the revocation proceeding, provide
adequate notice to the probationer, and provide a record for appellate review of the
revocation hearing. State v. Patton, 8th Dist. Cuyahoga No. 103737, 2016-Ohio-
4867, 68 N.E.3d 273, ¶ 9, citing State v. Washington, 8th Dist. Cuyahoga Nos.
101157 and 101170, 2015-Ohio-305, ¶ 22. Oral notice coupled with complete
admission of the violation at the preliminary hearing satisfies any due process
concerns. State v. Gaines, 8th Dist. Cuyahoga No. 106784, 2019-Ohio-639, ¶ 15,
citing State v. Jimenez, 8th Dist. Cuyahoga No. 104735, 2017-Ohio-1553, ¶ 6.
Finally, this court has repeatedly held that there is no due process
violation when a preliminary hearing to establish probable cause and a revocation
hearing are held on the same day. State v. Macura, 8th Dist. Cuyahoga No.
108111, 2019-Ohio-4064, ¶ 17, citing Gaines; State v. Greene, 8th Dist. Cuyahoga
No. 106028, 2018-Ohio-1965; State v. Cox, 8th Dist. Cuyahoga No. 105932, 2018-
Ohio-748.
In Macura, the probable cause hearing and revocation hearings
were held on the same day. The hearing began as a preliminary, probable cause
hearing during which the probation officer advised the trial court that the
defendant had not been reporting to the probation department and had tested
positive for drugs. This court determined that it was at this juncture that the
preliminary probable cause hearing transitioned into a final revocation hearing
and there was no due process violation because it was clear from the transcript
what had occurred. Id. at ¶ 19.
In this case, English was represented by counsel at the hearing.
English admitted to his violation. As this court stated in Frazier, an admission to a
community control violation waives the right to cross-examine or call witnesses.
Id. at ¶ 12. Although English alleges that there was no preliminary hearing, the
record reflects that what occurred was a preliminary hearing that transitioned into
a revocation hearing. The sentencing court spoke at length about the allegations
that formed the basis of the violation, fulfilling its obligation to provide English
with notice of the claimed violations. English had the opportunity to address the
court regarding the violations. English disputed some of the specifics of the
allegations, but defense counsel acknowledged the violation and attempted to
explain the circumstances surrounding the violation on English’s behalf.
Presumably after recognizing that the court had transitioned to a revocation
hearing, counsel also addressed the court in mitigation of sentence. Thus, any due
process concerns were satisfied with the combination of oral notice of the
violations and English’s admission to them. See Gaines at ¶ 15.
English also alleges that the original sentencing entry does not set
forth his requirement to register as a sex offender and he was not on notice that his
conduct in possessing the items the court described would constitute a violation.
We disagree. The requirement for English to register as a sex offender did not
originate in the instant case. Moreover, by entering a guilty plea to the offense in
this case, English acknowledged that he had an obligation to register his address
and failed to do so. Defense counsel told the court that she had discussed the
registration requirements with English in an effort to ensure that he understood
them. With respect to English’s possession of certain prohibited items, English
himself acknowledged that he knew that he was not allowed to have these items.
Thus, he was aware that his conduct constituted a violation. In addition to the
prohibited items English possessed, the court previously warned him about his
marijuana use during the March 2019 review hearing. The court again addressed
English’s marijuana use again during the violation hearing, as well as the
registration issues.
Based on the record before the court, English was aware of the rules
and regulations of probation and that his conduct had constituted a violation.
In light of the above, we find that his due process rights were not
violated.
The first assignment of error is overruled.
In the second assignment of error, English contends that he was
subject to double jeopardy because he was sentenced to a prison sentence after
revocation of his postrelease control.
The Double Jeopardy Clause, contained in the Fifth Amendment of
the United States Constitution states that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” The United States Supreme
Court has recognized that double jeopardy principles do not prohibit the
imposition of every additional sanction that could be interpreted as “punishment.”
State v. Martello, 97 Ohio St.3d 398, 400, 780 N.E.2d 250 (2002), citing Hudson
v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). Rather,
double jeopardy principles protect “only against the imposition of multiple
criminal punishments for the same offense and then only when such occurs in
successive proceedings.” Martello at id., citing Hudson.
In Hudson, the United States Supreme Court reaffirmed the two-
part test for determining whether a particular punishment is a “criminal
punishment” for double-jeopardy purposes. Id. at 99. The first prong of this test
asks whether the legislature, in establishing the penalizing mechanism, indicated
either expressly or impliedly a preference for one label or the other, and the second
prong examines cases where the legislature may have intended to create a civil
penalty, asking whether the statutory scheme was so punitive in purpose or effect
as to transform the intended civil remedy into a criminal penalty. Id. With respect
to postrelease control, the Martello Court applied this test and ultimately held that
postrelease control is part of the original judicially imposed sentence. Id. at 402.
When a defendant receives a term of incarceration for violation of conditions of
postrelease control, such a term is attributable to the original sentence. Id. at 405.
Similarly, sanctions imposed for violating community control do not
constitute criminal punishment for purposes of double jeopardy. State v. Peters,
8th Dist. Cuyahoga No. 92791, 2009-Ohio-5836, ¶ 13-14. The imposition of a
prison sentence is not a punishment for the new offense, but is a consequence of
the original conviction. State v. Black, 2d Dist. Montgomery No. 24005, 2011-
Ohio-1273, ¶ 13. A prison sentence following the violation of community control
sanctions is not a “second penalty for a new offense, but rather, the original
sentence * * * being now imposed.” State v. Myers, 5th Dist. Richland No. 2003
CA 0062, 2004-Ohio-3715, ¶ 23.
In State v. Butcher, 4th Dist. Athens Nos. 15CA33 and 15CA34,
2017-Ohio-1544, the appellant was sentenced to a nine-year prison term following
a conviction for aggravated burglary. At the time of his conviction, the appellant
was on postrelease control for a prior criminal case and was on community control
sanctions in a third case involving the intimidation of a witness. The appellant
complained that the same act (his new conviction) formed the basis of the
violations of both his community control and his postrelease control, and as such
ran afoul of his double jeopardy protection against multiple punishments. The
Butcher Court found that neither sanction for the appellant’s noncompliance with
the conditions of postrelease constituted “criminal punishment”; thus, double
jeopardy protections were inapplicable. Id. at ¶ 103. The court reasoned that the
sanctions were a continuation of the sentences imposed in the criminal matters to
which the postrelease and community control sanctions were attached. The
Butcher Court held that prison terms imposed for violations of those sanctions
were not a violation of the appellant’s double-jeopardy rights where both sentences
were based on the same underlying act. Id.
In this case, English was on postrelease control following his release
from prison in CR-15-600844-A, in which he was convicted of pandering sexually
oriented material involving a minor. He was placed on community control
sanctions in the instant case for failure to provide notice of change of address, as
he was required to do pursuant to his registration as a sex offender in CR-15-
600844-A. When the trial court imposed a prison term for violating his
community control sanctions, the sentence was a consequence for the original
conviction. See Black at ¶ 13. As such, it did not constitute a new “criminal
punishment” for the act underlying the violation. Similarly, when English was
sanctioned by the Adult Parole Authority for his failure to abide by the conditions
of his postrelease control, that sanction was part of the original sentence for his
conviction in CR-15-600844-A. Again, this was not a new punishment for the act
underlying the violation, but a continuation of the previous judicially imposed
sentence in that case. Neither the sanction for the postrelease control violation nor
the sanction for the community control violation constituted new criminal
punishments for the purposes of a double-jeopardy analysis. See Butcher at ¶ 103.
Instead, they are a continuation of the imposed sentences in their respective
criminal cases. Id. As such, they do not implicate English’s right to be free from
double jeopardy.
Accordingly, the second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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.
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, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR