State v. Bailey

[Cite as State v. Bailey, 2016-Ohio-494.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103114
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHARLES R. BAILEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-591851-A
BEFORE: Keough, P.J., Boyle, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: February 11, 2016
ATTORNEY FOR APPELLANT
Sheila Sexton
P.O. Box 1206
Willoughby, Ohio 44096
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kelly N. Mason
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} In this appeal from a community control revocation hearing,
defendant-appellant, Charles Bailey, challenges his guilty plea and the revocation of
community control. For the reasons that follow, we affirm.
{¶2} In December 2014, Bailey was named in a four-count indictment charging
him with two counts of theft, in violation of R.C. 2913.02(A)(1), and two counts of
forgery, in violation of R.C. 2913.31(A)(2). All charges were classified as fifth-degree
felonies, and the victim of the offenses was Bailey’s mother.
{¶3} In January 2015, Bailey pleaded guilty to one count of theft and forgery. At
sentencing, the trial court found Bailey amenable to community control sanctions and
sentenced him to be supervised by the adult probation department for a period of five
years. The court ordered the following conditions: (1) complete an inpatient drug
program, (2) report weekly to drug treatment and be subject to weekly drug testing, (3)
pay the monthly supervision fee, (4) pay restitution to the victim in the amount of $275.
Bailey was advised at sentencing that failure to abide by the terms and conditions of
community control would result in a 24-month prison sentence. Bailey did not seek
appeal to challenge his plea or sentence.
{¶4} In May 2015, the trial court scheduled a community control revocation
hearing after receiving a report from Bailey’s probation officer that Bailey allegedly left
the inpatient drug rehabilitation facility without permission and went to his mother’s
house. During the revocation hearing, Bailey admitted to the violations, specifically that
he left a note for his mother expressing his desire that she die.
{¶5} The trial court found Bailey in violation of the terms and conditions of
community control and ordered that Bailey serve 24 months in prison. Bailey now
appeals, raising two assignments of error for our review.
I. Plea
{¶6} In his first assignment of error, Bailey contends that the trial court erred in
accepting a plea that was not supported by the evidence. Specifically, he contends that
the value of the stolen items at issue in the case do not support the degree of the offense
he was charged with and the sentence imposed. Principles of res judicata, however,
prohibit Bailey from challenging his plea, the level of the offense, and the sentence
imposed.
{¶7} Res judicata bars the further litigation in a criminal case of issues that were
or could have been raised previously in a direct appeal. State v. Leek, 8th Dist.
Cuyahoga No. 74338, 2000 Ohio App. LEXIS 2909, *3 (June 21, 2000), citing State v.
Perry , 10 Ohio St. 2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. The
appeal taken in this case is from the revocation hearing. Bailey could have raised any
issues pertaining to his plea on direct appeal, but did not do so. Accordingly, his
challenges in his first assignment of error are barred by res judicata, and therefore
overruled.
II. Due Process Violation
{¶8} In his second assignment of error, Bailey contends that the trial court erred by
failing to follow probation violation procedural due process and reaching a decision not
supported by the evidence.
{¶9} Because the revocation of probation entails a serious loss of liberty, a
probationer must be accorded due process at the revocation hearing. Gagnon v.
Scarpelli, 411 U.S. 778, 781, 93 S.Ct.1756, 36 L. Ed. 2d 656 (1973); State v. Miller, 42
Ohio St. 2d 102, 326 N.E.2d 259 (1975), syllabus. A person subject to community
control may be punished for a violation of conditions of community control, but only if
certain due process rights are observed. See Crim.R. 32.3(A). The minimal due process
requirements are:
(1) written notice of the claimed violations; (2) disclosure of evidence
against him; (3) 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 reasons for
revocation.
State v. Davis, 8th Dist. Cuyahoga No. 93959, 2010-Ohio-5126, ¶ 26, citing Miller at 104.
{¶10} Bailey contends that he was denied due process when he did not receive (1)
written notice of the violation, (2) adequate time to prepare and defend the allegations,
and (3) an opportunity to subpoena or confront witnesses. The record reflects that Bailey
did not object or raise these issues at the time of the revocation hearing. Failure to timely
object to a due process violation during a probation violation hearing waives error. State
v. Simpkins, 8th Dist. Cuyahoga No. 87131, 2006-Ohio-3496, ¶ 12, citing State v.
Henderson, 62 Ohio App. 3d 848, 853, 577 N.E.2d 710 (5th Dist.1989).
{¶11} The record reflects that Bailey waived the probable cause hearing on the
violation and admitted to the violation. (Tr. 27.) Furthermore, Bailey was afforded an
opportunity to be heard about the circumstances surrounding the alleged violations, and
was able to question his supervising probation officer. The trial court also made
adequate inquiry into the allegations and questioned both Bailey and the probation officer
prior to making any decision on revocation. Accordingly, we find no due process errors.
{¶12} The record also contains substantial and competent evidence to support the
trial court’s decision to revoke Bailey’s term of community control. The evidentiary
burden of proof at a violation or revocation hearing is different from that of a criminal
trial. State v. Harian, 8th Dist. Cuyahoga No. 97269, 2012-Ohio-2492, ¶ 17. The trial
court need only find that substantial evidence of a violation of a term of community
control exists. Id., citing State v. Wallace, 7th Dist. Mahoning No. 05 MA 172,
2007-Ohio-3184, ¶ 16. A court’s finding of a violation based on the evidence is subject
only to the judge’s discretion. State v. Jones, 8th Dist. Cuyahoga No. 58423, 1991 Ohio
App. LEXIS 2098, *9 (May 9, 1991), citing State v. Theisin, 167 Ohio St. 119, 124, 146
N.E.2d 865 (1957).
{¶13} In this case, the trial court found that Bailey violated community control
orders by leaving his inpatient drug treatment facility and for having contact with this
mother, the victim in this case. The court considered that Bailey’s contact with his
mother may not have been physical, but that the threatening and upsetting nature of the
letter he wrote to her was nonetheless contact. Moreover, Bailey admitted to the
violation and on multiple instances accepted responsibility for his actions. Therefore, the
court’s decision to revoke and terminate Bailey’s term of community control and impose
a prison sentence is supported by the record. The second assignment of error is
overruled.
{¶14} 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. 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR