State v. Osborne

[Cite as State v. Osborne, 2011-Ohio-1625.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2010-CA-0080
JACK OSBORNE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas Case No.
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 30, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
GREG D. BISHOP 0037719 DALE MUSILLI 0038035
Assistant Richland County Prosecutor 105 Sturges Avenue
38 South Park Street Mansfield, Ohio 44903
Mansfield, Ohio 44902
[Cite as State v. Osborne, 2011-Ohio-1625.]
Delaney, J.
{¶1} Defendant-Appellant, Jack Osborne, appeals the judgment of the Richland
County Court of Common Pleas, finding him guilty of a community control violation, after
being convicted in case number 05-CR-0468 of one count of Operating a Motor Vehicle
Under the Influence (OMVI), a felony of the fourth degree, as of December 5, 2005.
{¶2} The trial court initially sentenced Appellant to a $10,000.00 fine, a three-
year license suspension, thirty months in prison, suspended, and four years community
control sanctions with the condition that Appellant complete a six-month residential
treatment program, the DUI court program, pay child support, and submit to random
drug testing.
{¶3} On November 15, 2007, Appellant was again arrested in Richland County
for OMVI, as well as for violating his community control. On December 17, 2007, the
trial court sentenced Appellant to fifteen months in the Lorain Correctional Institution for
his community control violation. On July 2, 2008, the trial court sentenced Appellant on
case number 07-CR-093 to three years in prison, to be served consecutively to his
community control violation sentence in case number 05-CR-0468. Appellant was fined
$1,500.00 and a three-year license suspension was imposed. The State agreed to
judicial release after Appellant entered DUI Court subsequent to serving six months of
his prison sentence.
{¶4} On March 17, 2010, after Appellant had been in prison for twenty-seven
months, the trial court granted judicial release, and required Appellant to complete a
residential treatment program at Licking-Muskingum Community Correction Center
(LMCCC).
Richland County, Case No. 2010-CA-0080 3
{¶5} On April 22, 2010, Appellant was unsuccessfully discharged from LMCCC,
having violated program rules regarding being dishonest to staff and having a
detrimental attitude to the program and to others. Appellant was then transported to
Richland County Jail.
{¶6} Appellant was arraigned on community control violations and was placed
on an electronic monitoring device and house arrest on May 13, 2010.
{¶7} On May 26, 2010, the trial court held a community control violation hearing
and Appellant admitted that he was terminated from the LMCCC program; however, he
argued that he was not given a chance to finish the program.
{¶8} Appellant subpoenaed five witnesses during the mitigation portion of the
proceedings in order to testify as to his participation in the program; however, the court
permitted him to call two witnesses to testify. The State did not call any witnesses to
testify.
{¶9} The trial court sentenced Appellant to serve the remainder of his three-
year sentence on case number 07-CR-093.
{¶10} Appellant raises four Assignments of Error:
{¶11} “I. APPELLANT WAS DENIED HIS DUE PROCESS RIGHTS IN
VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENT OF THE U.S.
CONSTITUTION AND THE [SIC] ARTICLE 10, SECTION 1 OF THE CONSTITUTION
OF THE STATE OF OHIO.
{¶12} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT
APPELLANT VIOLATE [SIC] THE TERMS OF HIS PROBATION.
Richland County, Case No. 2010-CA-0080 4
{¶13} “III. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL.
{¶14} “IV. THE FINDING OF PROBATION VIOLATION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
I. & IV.
{¶15} In his first assignment of error, Appellant argues that he was denied due
process because he was not afforded a preliminary hearing on his community control
violation. Gagnon v. Scarpelli (1973), 411 U.S. 778. In his fourth assignment of error,
he also argues that the trial court’s finding was against the manifest weight of the
evidence. We disagree.
{¶16} In Gagnon v. Scarpelli (1973), 411 U.S. 778, 786, 93 S.Ct. 1756, 36
L.Ed.2d 656, the United States Supreme Court held that the due process requirements
of Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, with
regard to parole violation hearings, were applicable to probation revocation
proceedings. The minimal due process requirements for final revocation hearings
include:
{¶17} “ ‘(a) [W]ritten notice of the claimed violations of (probation or) parole; (b)
disclosure to the (probationer or) parolee 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 (unless the hearing officer specifically
finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing
body such as a traditional parole board, members of which need not be judicial officers
Richland County, Case No. 2010-CA-0080 5
or lawyers; and (f) a written statement by the factfinders as to the evidence relied on
and reasons for revoking (probation or) parole.’ “ Id., citing Morrissey, supra, at 489.
{¶18} On May 26, 2010, the trial court afforded Appellant the equivalent of a
preliminary hearing (termed a probable cause hearing) wherein Appellant was brought
before the court for a hearing of the alleged violations of his conditions of supervision.
Appellant admitted that he was guilty of the probation violation. Accordingly, there was
no need for a formal hearing.
{¶19} Appellant proceeded to present witnesses as to why he was improperly
terminated from the program. The trial court permitted him to call two witnesses in
mitigation after he had admitted to violating his community control. At the conclusion of
the witness testimony, the trial court stated, “You show yourself to be a very capable
person as we have heard from some of the witnesses today. But you just play with the
rules. You play around the edge of things, always trying to manipulate or work
something out that you want to do something a little differently than the way things are
set up. That’s what gets you in trouble: Always thinking you are an exception to the
rules, whether it is drinking or something else. I have nothing left to do but give you
your original sentence of 3 years back.”
{¶20} We do not find that the trial court violated Appellant’s due process rights.
Upon review of the record, we find the court's decision to revoke community control was
properly documented, that appellant's due process rights were protected, and that the
decision was not against the manifest weight of the evidence. Appellant admitted his
guilt at the probable cause hearing, and the trial court was within its rights to sentence
Appellant to the remainder of his sentence based upon that admission.
Richland County, Case No. 2010-CA-0080 6
{¶21} Appellant’s first and fourth assignments of error are overruled.
II.
{¶22} In Appellant’s second assignment of error, he argues that the trial court
abused its discretion in finding that Appellant violated the terms of his probation.
{¶23} The specific term of Appellant’s probation was that he successfully
complete the LMCCC program. Appellant admitted that he was terminated from the
program before completing the program.
{¶24} In order for the judgment of the trial court to be considered to be an abuse
of discretion, it must be found that the court’s attitude is unreasonable, arbitrary or
unconscionable. State v. Maurer (1984), 15 Ohio St.3d 239, 253, 473 N.E.2d 768.
{¶25} No abuse of discretion can be found in the present case. Appellant had
been specifically warned not to deviate from his route to and from his dental
appointment. Evidence was adduced that he had his mother stop and get him food and
that he ate it in the parking lot before leaving the dentist. Moreover, evidence was
produced that he bragged to at least two residents of the facility that he had gone to his
house and had sex with his girlfriend while he was off campus.
{¶26} Accordingly, we find that the trial court properly found that Appellant
violated the terms of his community control.
{¶27} Appellant’s second assignment of error is overruled.
III.
{¶28} In Appellant’s third assignment of error, Appellant argues that he did not
receive the effective assistance of counsel.
Richland County, Case No. 2010-CA-0080 7
{¶29} This Court has recognized claims of ineffective assistance in the context
of appeals from community control proceedings. See State v. Krouskoupf, 5th Dist. No.
CT2005-0024, 2006-Ohio-783. There is a two-pronged analysis in reviewing a claim for
ineffective assistance of counsel. See Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d
373. First, we must determine whether counsel's assistance was ineffective; i.e.,
whether counsel's performance fell below an objective standard of reasonable
representation and was violative of any of his or her essential duties to the client. If we
find ineffective assistance of counsel, we must then determine whether or not the
defense was actually prejudiced by counsel's ineffectiveness such that the reliability of
the outcome of the proceeding is suspect. This requires a showing that there is a
reasonable probability that but for counsel's unprofessional error, the outcome of the
proceeding would have been different. Id. Defense counsel is entitled to a strong
presumption that all decisions fall within the wide range of reasonable professional
assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267.
{¶30} Appellant first argues that counsel was ineffective for failing to require a
probable cause hearing. Such an argument is meritless, as Appellant admitted to the
allegations at the beginning of the probable cause hearing.
{¶31} Appellant next argues that counsel was ineffective for failing to object to
hearsay testimony at the hearing. Generally, probation revocation hearings are not
subject to the rules of evidence. The admission of hearsay evidence into a probation
revocation hearing can only be construed as reversible error when it constituted the
sole, crucial evidence in support of the probation violation determination. State v.
Richland County, Case No. 2010-CA-0080 8
Thompson, 6th Dist. No. WD-06-034 ¶ 44, citing State v. Ohly, 166 Ohio App.3d 808,
2006-Ohio-2353.
{¶32} Appellant also argues that counsel failed to admit an exhibit at the
hearing. Appellant, however, does not specify what this exhibit was in his brief.
{¶33} Having reviewed the record, we find no showing that appellant's counsel's
performance fell below an objective standard of reasonable representation.
{¶34} Appellant’s third assignment of error is overruled.
{¶35} Based on the foregoing, Appellant’s assignments of error are overruled.
{¶36} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, J.
Hoffman, P.J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS
[Cite as State v. Osborne, 2011-Ohio-1625.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JACK OSBORNE :
:
Defendant-Appellant : Case No. 2010-CA-0080
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed
to Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JULIE A. EDWARDS