State v. Wright

[Cite as State v. Wright, 2022-Ohio-2100.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2021-A-0029
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
KYLE VAUGHN WRIGHT, JR.,
a.k.a. KYLE V. WRIGHT, JR., Trial Court No. 2018 CR 00570
Defendant-Appellant.
OPINION
Decided: June 21, 2022
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Kyle Vaughn Wright, Jr., appeals from the judgment of the
Ashtabula County Court of Common Pleas, finding him in violation of community control
and imposing a 30-month term imprisonment. Appellate counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting there are no colorable issues for
appeal and thus the matter is wholly frivolous. After considering the record, pursuant to
Anders, supra, we agree with counsel, affirm the trial court, and grant counsel’s motion
to withdraw.
{¶2} Appellant was indicted on one count of felonious assault, in violation of R.C.
2903.11(A)(1), a felony of the second degree; and one count of domestic violence, in
violation of R.C. 2919.25(A), a misdemeanor of the first degree. He pleaded not guilty to
the charges. Appellant, after being evaluated by experts, was found not competent to
stand trial. The trial court subsequently issued an order requiring appellant to undergo
treatment in a facility for a period of one year for the purpose of restoring appellant to
competency. In February 2021, appellant was found competent to stand trial.
{¶3} Appellant ultimately withdrew his plea of not guilty and entered a plea of
guilty to one count of attempted felonious assault, a felony of the third degree, and one
count of domestic violence, a misdemeanor of the first degree. He was sentenced to a
two-year period of community control. Appellant was advised, inter alia, that if he violated
any law or any condition of community control, the court could impose a prison term of up
to 36 months for the attempted-felonious-assault conviction and 180 days incarceration
for the domestic-violence conviction. This judgment was not appealed.
{¶4} On April 13, 2021, the trial court issued a judgment stating it had received
information that appellant had cut off his electronic-monitoring device. As a result, the
court issued a capias warrant for appellant’s arrest for violating supervision. On May 14,
2021, a complaint for violation of probation was filed. The court, after an initial hearing,
concluded that it had probable cause to proceed with a final hearing on the complaint for
violation. After the final hearing, the court determined there was substantial, reliable
evidence that appellant violated the terms of his community control by (1) failing to charge
his electronic monitoring device twice per day, as ordered; and (2) by cutting off the device
resulting in a “master tamper” alert. He was sentenced to an aggregate term of 30 months
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imprisonment, i.e., 30 months on the attempted-felonious-assault charge and 180 days
on the domestic-violence charge, to be served concurrently with one another. From this
judgment, appellant appeals and counsel has filed a brief pursuant to Anders, supra.
{¶5} In Anders, supra, the United States Supreme Court held that if appellate
counsel, after a conscientious examination of the case, finds an appeal to be wholly
frivolous, he or she should advise the court and request permission to withdraw. Id. at
744. This request to withdraw must be accompanied by a brief citing anything in the record
that could arguably support an appeal. Id. Further, counsel must furnish his or her client
with a copy of the brief and request to withdraw and give the client an opportunity to raise
any additional items. Id. Once these requirements have been met, the appellate court
must review the entire record to determine whether the appeal is wholly frivolous. Id. If
the court finds the appeal is wholly frivolous, the court may grant counsel’s motion to
withdraw and proceed to a decision on the merits. Id. If, however, the court concludes the
appeal is not frivolous, it must appoint new counsel for the client. Id.{¶6} In his brief, counsel proposed the following potential assignment of error:
{¶7} “The trial court erred when it sentenced appellant to a term of 30 months
incarceration.”
{¶8} Counsel served a copy of his Anders brief on appellant and, as a result,
appellant sent this court a letter. While the letter does not formally comply with this court’s
rules on briefing, it does claim that appellant wished to prosecute an appeal because the
prosecutor allegedly “lied” to the trial court during the final hearing. According to
appellant, the prosecutor falsely advised the court appellant assaulted his mother with the
electronic monitoring device after it was removed. And, as such, he maintains the court
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was misled which caused it to impose a harsher sentence. Appellant therefore claims he
is entitled to have the imposed sentence reduced. We shall address both counsel’s and
appellant’s contentions separately.
{¶9} With respect to counsel’s proposed assignment of error, we conclude the
trial court did not err in imposing a 30-month term of imprisonment. The trial court, at
appellant’s original sentencing hearing, advised appellant that if he violated the terms of
his community control, he could be sentenced up to 36 months on the felony-three and
180 days on the first-degree misdemeanor. The court elected to sentence appellant to
30 months total (running the 180-day term concurrently with the 30-month felony term).
Pursuant to R.C. 2929.15(B)(3), if a defendant violates community control and the court
chooses to impose a prison term, the prison term (1) must be within the range of prison
terms set forth in R.C. 2929.14 for the offense for which community control was imposed,
and (2) cannot exceed the prison term specified in the notice provided to the offender at
the original sentencing hearing. Both prongs of the statute were met. We therefore
discern no error in the trial court’s imposition of appellant’s sentence for violating the
conditions of community control.
{¶10} Next, in his letter, appellant contends the prosecutor falsely alleged he
struck his mother with the electronic monitor. He essentially asserts this statement was
prejudicial and led to him receiving a harsher penalty. We do not agree.
{¶11} At the final hearing, appellant’s probation officer, Maria Taylor testified that,
at the time Ashtabula County Adult Probation received notification of the “master tamper”
alert (i.e., that appellant cut the monitoring device off), he was living in Pennsylvania and
being supervised through a Pennsylvania probation department. Upon contacting the
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Pennsylvania officer, the Ashtabula department learned appellant’s “mother had called
and said that he cut his monitor off and then assaulted her with it.” Thus, while the
prosecutor elicited Ms. Taylor’s answer, the prosecutor made no such statement
regarding appellant striking his mother with the device. In this respect, appellant’s
assertion lacks merit.
{¶12} Regardless, the trial court did not mention the above aspect of Ms. Taylor’s
testimony in her judgment. Hence, we cannot conclude the statement that he struck his
mother with the device (be it true or false) had any impact on the court’s imposition of
punishment. Appellant’s argument therefore lacks merit.
{¶13} We shall next conduct an independent review of the record to determine
whether any colorable issues for appeal exist.
{¶14} “[A] revocation of community control punishes the failure to comply with the
terms 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. Crim.R. 32.3, which governs revocation of community control, provides 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.”
{¶15} “Community control violation proceedings are not equivalent to criminal
prosecutions.” Black, supra, at ¶12. As a result, the full panoply of rights accorded a
defendant in a criminal prosecution do not apply to the community-control revocation
process. See Morrisey v. Brewer, 408 U.S. 471, 480 (1972). Nevertheless, a defendant
is entitled to certain due process protections before a court may revoke community-
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control sanctions. See e.g. In re C.E.S., 11th Dist. Lake No. 2013-L-118, 2014-Ohio-
4296, ¶18. First, a defendant is entitled to a preliminary hearing to determine whether
there is probable cause to believe that the defendant has violated the terms of his or her
community control. State v. Sallaz, 11th Dist. Trumbull No. 2003-T-0009, 2004-Ohio-
3508, ¶38, citing Gagnon v. Scarpelli, 411 U.S. 778 (1973). Second, due process
requires a final hearing to determine whether community control should be revoked. Id.{¶16} The final revocation hearing is less summary in nature than the
probable cause hearing because the decision under consideration is
the actual revocation rather than a mere determination of probable
cause. Therefore, due process requires: (a) written notice of the
claimed violations of probation; (b) disclosure to the probationer of
evidence against him; (c) an 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 on and reasons for revoking probation.
Sallaz, supra, citing Gagnon, supra, at 786.
{¶17} In this matter, the trial judge conducted both phases of the revocation
process. At each phase, the judge fully explained appellant’s due process rights and
what they entail. Moreover, at the final hearing, appellant confirmed he received written
notice of the alleged violations; he was advised he was entitled to disclosure of the
evidence the state would use to prove the violations; he was advised of his right to be
present and the right to offer witnesses and documentary evidence; he was advised of
his right to confront and cross-examine witnesses called by the state; he was advised he
was entitled to a neutral and detached hearing body to determine whether he violated
community control; and he was advised that, once the court makes a finding on the
ultimate issue, he is entitled to a written report regarding the evidence upon which the
court relied and the reasons for revoking community control. Appellant confirmed he
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understood his various rights and affirmed he wished to proceed with the final hearing.
The trial court clearly comported with due process requirements at each stage of the
revocation process.
{¶18} Next, Ms. Taylor testified that appellant was required to charge the
electronic monitor to ensure he can be tracked. She stated, between February 2021 until
April of 2021, the probation department traced 23 dead battery alerts, which translated
into a total of 66 days that the device’s battery was dead. And, as discussed above, on
April 13, 2021, Ashtabula Adult Probation received a “master tamper” alert. After
following up with Pennsylvania’s probation department, Ashtabula probation was advised
that appellant had cut the monitor off. Appellant’s actions were contrary to his community
control conditions, one of which was to remain on electronic monitoring and comply with
monitoring rules.
{¶19} “When reviewing challenges to the state’s evidence alleging a community
control violation, an appellate court reviews the evidence and evaluates whether the state
presented substantial proof that a violation occurred.” State v. Baldwin, 11th Dist. Lake
No. 2021-L-092, 2022-Ohio-757, ¶9. This standard is highly deferential to the judgment
of the trial court and is analogous to a preponderance of the evidence burden of
proof. State v. Brown, 11th Dist. Lake Nos. 2020-L-002 and 2020-L-003, 2020-Ohio-
5140, ¶69. Accordingly, “‘the state only has to introduce evidence tending to show that it
was more probable than not that the probationer violated the terms of his or her
probation.’” Baldwin, supra, quoting State v. Stockdale, 11th Dist. Lake No. 96-L-172,
1997 WL 663688, *3 (Sept. 26, 1997).
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{¶20} Under the circumstances, we conclude the state introduced sufficient,
credible evidence to demonstrate that, more likely than not, appellant violated the terms
of his community control. The trial court, accordingly, did not err in drawing the same
conclusion.
{¶21} After an independent review of this matter, we conclude there are no
arguable issues necessitating the appointment of new counsel. The appeal is wholly
frivolous, and thus counsel’s motion to withdraw is well taken and hereby granted.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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