State v. Burdette

[Cite as State v. Burdette, 2011-Ohio-4425.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
: Case No. 10-CA-9
ROBERT J. BURDETTE, JR. :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Morrow County Court of
Common Pleas Case Nos. 08-CR-82 and
08-CR-217
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 30, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CHARLES HOWLAND 0020765 MICHAEL C. HOAGUE 0024771
DAVID HOMER 0030870 17 Carriage Drive
Morrow County Prosecuting Attorney Delaware, Ohio 43015
60 East High Street
Mount Gilead, Ohio 43338
Delaney, P.J.
{¶1} Defendant-Appellant, Robert Burdette, appeals from the judgment of the
Morrow County Court of Common Pleas, finding him guilty of violating conditions of his
Intervention in Lieu of Conviction (ILC) agreement. The State of Ohio is Plaintiff-
Appellee.
{¶2} Appellant was initially charged in Morrow County Common Pleas Court
with one count of possession of drugs, in violation of R.C. 2925.11, a felony of the fifth
degree. On June 8, 2008, he filed a motion seeking intervention in lieu of conviction
(ILC). A plea agreement was reached wherein Appellant was to receive ILC and a
temporary order was put in place at the plea hearing on October 23, 2008. Appellant’s
guilty plea to Possession of Drugs, a felony of the fifth degree was journalized on
November 25, 2008. The court reserved sentencing and placed Appellant under control
of the Morrow County Probation Department for at least one year.
{¶3} Specific conditions were placed on Appellant as part of his ILC
agreement. He was required to complete a Community Based Correctional Facility
Program (CBCF), the Ashland County ACCADA drug court program, and abide by their
recommended follow-up treatment. He would have to enter a maintenance program of
at least one year following his release from CBCF. He would also have to perform up to
500 hours of community service at the discretion of the probation department.
{¶4} Appellant successfully completed CBCF and began reporting to his
probation officer in April, 2009. He signed general conditions of probation that included,
among other things, a provision that he not use any illegal drugs or prescriptions not
lawfully prescribed to him. He was also required to submit to random drug testing at the
request of his probation officer.
{¶5} On November 2, 2009, Appellant was required to take such a drug test by
submitting a urine sample, and the redi-strip test indicated that Appellant tested positive
for benzodiazepines, commonly known as Xanax. Appellant admitted to his probation
officer, Chris Miranda, that he had taken a Xanax and it was not prescribed to him. The
urine sample was then sent to an outside lab for further testing and verification.
{¶6} Based on the information received from Miranda, the Morrow County
Prosecutor’s Office filed a motion to terminate the ILC agreement.
{¶7} The matter came for a hearing on February 4, 2010, and the trial court
found that Appellant had violated his agreement. The court based its decision on
Appellant’s admission of guilt to Miranda as well as the redi-strip test. At that time, the
results from the independent laboratory were not available.
{¶8} At a sentencing hearing on March 30, 2010, the court found Appellant
guilty pursuant to the ILC agreement of one count of possession of drugs, a felony of
the fifth degree, and sentenced Appellant to a prison term of 11 months, to be served
concurrently to sentences for similar crimes in Ashland and Richland counties. The
court suspended the sentence and ordered Appellant to be placed on three years of
community control sanctions.
{¶9} It is from that conviction that Appellant now appeals and raises five
Assignments of Error:
{¶10} “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
REVOKING APPELLANT’S INTERVENTION IN LIEU OF CONVICTION BECAUSE
THE COURT NO LONGER HAD JURISDICTION OVER THE APPELLANT.
{¶11} “II. APPELLANT WAS DENIED DUE PROCESS OF LAW IN THE
REVOCATION OF HIS INTERVENTION IN LIEU OF HIS CONVICTION IN VIOLATION
OF HIS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.
{¶12} “III. THE TRIAL COURT ERRED AND COMMITTED AN ABUSE OF
DISCRETION IN REVOKING DEFENDANT’S INTERVENTION IN LIEU OF
CONVICTION AND THEREBY VIOLATED APPELLANT’S RIGHTS UNDER THE
FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶13} “IV. THE TRIAL COURT’S FINDING AT THE REVOCATION HEARING
THAT APPELLANT VIOLATED A CONDITION OF HIS INTERVENTION IN LIEU OF
CONVICTION WAS BOTH AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
AND NOT SUPPORTED BY SUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE U.S.
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶14} “V. THE APPELLANT’S FEDERAL AND STATE CONSTITUTIONAL
RIGHTS TO DUE PROCESS, EQUAL PROTECTION, FUNDAMENTAL FAIRNESS
AND THE EFFECTIVE ASSISTANCE OF COUNSEL WERE VIOLATED WHEN THE
STATE FAILED TO DISCLOSE AND WITHHELD THE RESULTS OF A LABORATORY
TEST THAT WAS FAVORABLE TO APPELLANT AND MATERIAL TO GUILT IN THAT
IT REFUTED THE RESULTS OF THE REDI-STRIP TEST THAT THE STATE RELIED
ON IN SUPPORT OF ITS MOTION TO TERMINATE APPELLANT’S INTERVENTION
IN LIEU OF CONVICTION.”
I.
{¶15} In Appellant’s first assignment of error, he argues that the trial court erred
in revoking his Intervention in Lieu of Conviction (ILC) because the court no longer had
jurisdiction over Appellant.
{¶16} Specifically, Appellant references R.C. 2951.041, which provides, in
pertinent part:
{¶17} “(E) If the court grants an offender's request for intervention in lieu of
conviction and the court finds that the offender has successfully completed the
intervention plan for the offender, including the requirement that the offender abstain
from using drugs and alcohol for a period of at least one year from the date on which
the court granted the order of intervention in lieu of conviction and all other terms and
conditions ordered by the court, the court shall dismiss the proceedings against the
offender. Successful completion of the intervention plan and period of abstinence under
this section shall be without adjudication of guilt and is not a criminal conviction for
purposes of any disqualification or disability imposed by law and upon conviction of a
crime, and the court may order the sealing of records related to the offense in question
in the manner provided in sections 2953.31 to 2953.36 of the Revised Code.”
{¶18} Of additional relevance, however, is R.C. 2951.041(D), which provides:
{¶19} “(D) If the court grants an offender's request for intervention in lieu of
conviction, the court shall place the offender under the general control and supervision
of the county probation department, the adult parole authority, or another appropriate
local probation or court services agency, if one exists, as if the offender was subject to a
community control sanction imposed under section 2929.15, 2929.18, or 2929.25 of the
Revised Code. The court shall establish an intervention plan for the offender. The terms
and conditions of the intervention plan shall require the offender, for at least one year
from the date on which the court grants the order of intervention in lieu of conviction, to
abstain from the use of illegal drugs and alcohol, to participate in treatment and
recovery support services, and to submit to regular random testing for drug and alcohol
use and may include any other treatment terms and conditions, or terms and conditions
similar to community control sanctions, which may include community service or
restitution, that are ordered by the court.” (Emphasis added).
{¶20} The trial court held a hearing on February 4, 2010, and found that
Appellant had violated his ILC conditions by testing positive for benzodiazepines on
November 2, 2009. Appellant then admitted that he ingested illegal drugs to his
probation officer. The judgment entry from which Appellant was given ILC was filed on
November 25, 2008, as a result of an October 22, 2008, plea agreement. At the October
22, 2008, hearing, a temporary treatment order was put into place.
{¶21} Appellant’s supervision under the Morrow County Probation Department
was not completed when he committed this infraction. He had not completed the
Ashland County drug court program and follow up treatment, nor had he entered into a
maintenance program of not less than one year. Moreover, R.C. 2951.041(D) indicates
that ILC will last for at least one year, not exactly one year. As the other conditions of
Appellant’s ILC program had not been completed, and there is no termination of his ILC
for successful completion of conditions at the time that he committed the current
infraction, we find Appellant’s argument to be unpersuasive.
{¶22} Appellant’s first assignment of error is overruled.
II, III, & IV
{¶23} In Appellant’s second and third assignments of error, he argues that his
due process rights were violated because his ILC was revoked and that the trial court
abused its discretion in revoking his ILC. In his fourth assignment of error, he argues
that the trial court’s finding of guilt was against the manifest weight of the evidence.
{¶24} ILC is comparable to probation, and those who are placed on ILC are
monitored by the county probation department. R.C. 2951.041(D). In order to comport
with due process, a trial court must adhere to the following conditions when ruling on a
defendant’s guilt in relation to a probation violation: “(a) written notice of the claimed
violations; (b) disclosure of evidence against the defendant; (c) the 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 fact finders as to the evidence relied on and
reasons for revocation State v. Pavlich, 6th Dist. No. E-10-011, 2011-Ohio-802, at ¶25,
citing State v. McKeithen, 3rd Dist. No. 9–08–29, 2009–Ohio–84, ¶ 22, quoting State v.
Miller (1975), 42 Ohio St. 2d 102, 104, 326 N.E.2d 259, quoting Morrissey v. Brewer
(1972), 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484.
{¶25} A community control revocation is not a criminal trial; therefore, the State
is not required to establish a violation of the terms of community control “beyond a
reasonable doubt.” Pavlich, supra, ¶7, citing State v. Ryan, 3rd Dist. No. 14–06–55,
2007–Ohio–4743, ¶ 7, citing State v. Hylton (1991), 75 Ohio App. 3d 778, 600 N.E.2d
821. Instead, the state must show “substantial” proof that the offender violated the terms
of his or her community control sanctions. Ryan, supra.
{¶26} Substantial evidence is akin to a preponderance-of-the-evidence burden
of proof. State v. Ohly, 166 Ohio App. 3d 808, 853 N.E.2d 675, 2006-Ohio-2353, at ¶18,
citing State v. Hayes (Aug. 10, 2001), 6th Dist. No. WD-00-075. Substantial evidence is
considered to consist of more than a mere scintilla of evidence, but somewhat less than
a preponderance. State v. Gomez (Feb. 18, 1994), 11th Dist. No. 93-L-080, citing Laws
v. Celebrezze (4th Cir., 1966), 368 F.2d 640, 642, and Marker v. Finch (D.C.Del.1971),
322 F. Supp. 905, 910, fn. 7.
{¶27} “The privilege of probation rests upon the probationer's compliance with
the probation conditions and any violation of those conditions may properly be used to
revoke the privilege.” State v. Bell (1990), 66 Ohio App. 3d 52, 57, 583 N.E.2d 414.
Determination of the credibility of the witnesses is for the trier of fact. State v. Swiger
(1966), 5 Ohio St. 2d 151, 156, 214 N.E.2d 417. A trial court's finding of a violation of
community control will not be disturbed on appeal absent an abuse of discretion.
Pavlich, supra. An abuse of discretion implies more than an error of law or judgment;
instead, it connotes that the trial court's attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219, 450 N.E.2d
1140. When applying the abuse of discretion standard, an appellate court may not
simply substitute its judgment for that of the trial court. Id.
{¶28} In the case at bar, Mr. Miranda testified that Appellant tested positive for
illegal drugs based on a redi-strip test. Appellant then admitted that he had taken a
Xanax that was not prescribed to him. Based on this evidence, the court found that
Appellant had violated the terms of his ILC program and revoked his ILC.
{¶29} Appellant argues that because the test results from an outside agency
indicated negative results for drugs in Appellant’s system, he should have been allowed
to further argue the issue of Appellant’s guilt of the violation. Appellant also argues that
the prosecutor committed a violation by failing to disclose the results of this lab test prior
to the date of the sentencing hearing. In fact, the prosecutor represented that she did
not receive the report until March 30, 2010, the date of the sentencing hearing.
{¶30} The trial court, over Appellant’s objection, refused to consider the lab
report as additional evidence. The court, in so doing, stated that it was basing its
finding on Appellant’s admission to taking illegal drugs and was not relying heavily on
the redi-strip test.
{¶31} We do not find that Appellant has presented evidence of a due process
violation based on the proceedings in the trial court. Moreover, we do not find that the
trial court abused its discretion in finding Appellant guilty of violating his ILC conditions
and the court’s finding was not against the manifest weight of the evidence.
{¶32} Appellant’s second, third, and fourth assignments of error are overruled.
V.
{¶33} In Appellant’s fifth assignment of error, he argues that his due process
rights and equal protection rights were violated because he was not granted complete
discovery prior to his revocation hearing.
{¶34} First, we would address Appellee’s contention that the transcript from
which it cites was prepared in violation of App. R. 9. We disagree.
{¶35} Ohio App. R. 9 provides, in pertinent part:
{¶36} “(A) * * * The original papers and exhibits thereto filed in the trial court, the
transcript of proceedings, if any, including exhibits, and a certified copy of the docket
and journal entries prepared by the clerk of the trial court shall constitute the record on
appeal in all cases. A videotape recording of the proceedings constitutes the transcript
of proceedings other than hereinafter provided, and, for purposes of filing, need not be
transcribed into written form. Proceedings recorded by means other than videotape
must be transcribed into written form. When the written form is certified by the reporter
in accordance with App. R. 9(B), such written form shall then constitute the transcript of
proceedings. When the transcript of proceedings is in the videotape medium, counsel
shall type or print those portions of such transcript necessary for the court to determine
the questions presented, certify their accuracy, and append such copy of the portions of
the transcripts to their briefs.* * *”
{¶37} Appellant provided a transcript and certified that it was accurate pursuant
to App. R. 9(A). While it may have been more appropriate for Appellant to file the
transcript prior to filing his brief, the rule does not require this and Appellee could raise
any questions regarding the accuracy of the transcript to this court.
{¶38} Turing to the issue of potential discovery noncompliance resulting in a
constitutional violation, we examine the rules of criminal procedure in Ohio. Crim. R.
32.3, which governs probation revocation hearings, does not expressly provide for a
right to discovery prior to the revocation hearing. Revocation of probation implicates
two due process requirements. The trial court is first required to conduct a preliminary
hearing to determine whether there is probable cause to believe that the defendant has
violated the terms of his probation. Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S. Ct.
1756, 36 L. Ed. 2d 656; Morrissey v. Brewer (1972), 408 U.S. 471, 92 S. Ct. 2593, 33
L. Ed. 2d 484. At the hearing the trial court must comply with the terms set out in ¶15,
infra. Appellant was afforded each of these rights at his hearing.
{¶39} Crim. R. 16 applies to criminal proceedings. A probation revocation
hearing or as an extension, an ILC termination hearing, is not criminal in nature, and
therefore we hold that Crim. R. 16 is inapplicable to revocation hearings. See State v.
Parsons (Nov. 26, 1996), 2nd Dist. No. 96 CA 20, 1996 WL 665004.
{¶40} Appellant argues that the State failed to timely disclose the results of an
outside lab result, indicating that Appellant tested negative for illegal drugs. To the
contrary, the record supports the finding that the State turned over the results of the test
the same day that it received the results, on March 30, 2010, the date of the sentencing
hearing.
{¶41} When Appellant’s counsel requested that the court reconsider its decision
to find Appellant in violation of the terms of his ILC, the court declined to do so, stating,
”In terms of the violation itself, I’m not going to revisit. I haven’t seen a reason why I
should revisit. * * * This is separate from what we were doing at that [time] and I found
the defendant to be a violator. . . .there was an admission of use of an illegal substance
or substance that was not properly prescribed and therefore the violation and therefore
the revocation and so I’m not going to go back and do that again… [New evidence] is
not going to alter the Court. I just said to you I am not going back and reviewing.”
{¶42} Finding no constitutional violation and moreover, no prejudice to
Appellant, we overrule his fifth assignment of error.
{¶43} The judgment of the Morrow County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Farmer, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
ROBERT J. BURDETTE, JR. :
:
Defendant-Appellant : Case No. 10-CA-9
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Morrow County Court of Common Pleas is affirmed. Costs assessed to
Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JOHN W. WISE