State v. McCoy

[Cite as State v. McCoy, 2021-Ohio-456.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-13
:
v. : Trial Court Case Nos. 2018-CR-196 &
: 2020-CR-44
MITCHELL EDWARD MCCOY :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
...........
OPINION
Rendered on the 19th day of February, 2021.
...........
JANE A. NAPIER, Atty. Reg. No. 0061426, Champaign County Prosecutor’s Office,
Appellate Division, 200 North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
BENJAMIN W. ELLIS, Atty. Reg. No. 0092449, 817B Patterson Road, Dayton, Ohio
45419
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Mitchell Edward McCoy appeals from the trial court’s judgment which found
that he had violated his community control sanctions by failing to obey federal, state and
local laws and ordinances, revoked his community control, and imposed prison sentences
of 12 months in Champaign C.P. No. 2018-CR-196 and 12 months in Champaign C.P.
No. 2020-CR-44, to be served consecutively.
{¶ 2} On November 5, 2018, McCoy was indicted in Case No. 2018-CR-196 on
one count of possession of cocaine, in violation R.C. 2925.11(A)(C)(4)(a), a felony of the
fifth degree, one count of aggravated possession of drugs, in violation of R.C.
2925.11(A)(C)(1)(a), a felony of the fifth degree, and one count of possession of
marijuana, in violation of R.C. 2925.11(A)(C)(3)(a), a minor misdemeanor. McCoy filed
a motion for intervention in lieu of conviction, which the trial court denied after a hearing;
at the hearing, the court also addressed certain bond violations reported by Pretrial
Services, which McCoy admitted, namely failing to appear for a pretrial services
appointment and twice using marijuana. The court continued McCoy’s bond.
{¶ 3} On January 28, 2019, McCoy pled guilty to the count of possession of
cocaine in Case No. 2018-CR-196, and the other two counts were dismissed.
Sentencing was held on March 4, 2019. The trial court’s judgment entry of conviction
stated that “[p]rior to engaging in the sentencing hearing, the Court reviewed with the
Defendant certain allegations of violation of bond,” namely that McCoy twice tested
positive for marijuana and failed to attend drug treatment as ordered. The court noted
that McCoy admitted the bond violations, and it found him guilty thereof. The court
imposed community control for three years with additional special conditions, including
that McCoy “successfully gain admission to, and complete, the West Central Community
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Based Correctional Facility [WCCBCF] residential program.”
{¶ 4} On March 7, 2019, the court filed an entry stating that it had received a
correspondence from McCoy, which was attached, requesting that the court modify his
residential commitment to West Central’s outpatient program. The court denied the
request.
{¶ 5} On March 8, 2019, the court issued an entry stating that McCoy had been
accepted for treatment in the WCCBCF program. In accordance with the terms of
McCoy’s community control, the court ordered him to successfully complete the program.
{¶ 6} On March 15, 2019, the court issued an entry stating that, in the course of
the admission process to the WCCBCF program, McCoy had been ordered to report to
the Tri-County Regional Jail, and that a probation officer reported to court staff that McCoy
had possessed marijuana and tested positive for marijuana at the jail. The court ordered
the Adult Parole Authority to investigate the incident and suspended McCoy’s admission
to WCCBCF.
{¶ 7} On March 19, 2019, the State filed a notification of its intent to pursue a
misdemeanor charge against McCoy based upon the marijuana found on McCoy’s person
in the jail. On March 22, 2019, the court issued an entry stating that McCoy’s conduct at
the jail “require[d] community control violation review.” The court ordered the assigned
probation officer to file violation allegations regarding McCoy’s conveyance of marijuana
into the jail if the officer believed the evidence supported the allegations.
{¶ 8} On March 25, 2019, the probation officer filed a notice of supervision violation
regarding the possession of marijuana and positive drug test. After a hearing, the court
continued McCoy on community control.
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{¶ 9} On August 8, 2019, the court issued an entry stating that Probation Officer
Herbert Nicholson had requested a community control violation hearing, and the court
scheduled that hearing for the following day; the basis for the violation was that McCoy
failed to successfully complete WCCBCF. At the violation hearing, McCoy appeared in
court via video from the jail and represented that he was indigent. The court scheduled
an arraignment hearing for August 13, 2019. McCoy again appeared via video from the
jail at that time. The court noted that McCoy did not contest the existence of probable
cause, and it found probable cause to hold a community control violation hearing. The
court further noted that McCoy did not contest the merits of the violation. The court
scheduled a violation hearing and granted McCoy’s request for a personal recognizance
bond.
{¶ 10} After a hearing on August 22, 2019, the court found that McCoy committed
the offense of failing to successfully complete WCCBCF while under a community control
sanction. The court also noted that McCoy was on probation to Champaign County
Municipal Court in Case No. 2018-CR-605 for underage consumption, a misdemeanor of
the first degree. The court returned McCoy to community control.
{¶ 11} On February 25, 2020, a notice of supervision violation was issued, stating
that on various dates in February 2020, McCoy had violated his curfew, used
methamphetamines, used marijuana, entered a bar, and consumed alcohol, and that he
had failed to complete community service hours. On February 28, 2020, after a hearing,
the court found probable cause to hold a community control violation hearing.
{¶ 12} On March 4, 2020, the State filed a motion to continue the hearing, because
McCoy had been indicted on two felony counts of drug possession in Champaign C.P.
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No. 2020-CR-44,1 and the new charges were based on conduct alleged in his community
control violation charges. According to the State, the State and McCoy were “still in
communication regarding a resolution for both matters.” The motion stated that McCoy
was in the Tri-County Regional Jail “on this matter as well as on his new case.” The
court scheduled the matter for a status conference on March 6, 2020.
{¶ 13} On March 6, the court filed an entry under both case numbers. The entry
provided that, in Case No. 2018-CR-196, in exchange for McCoy’s admission to the
community control violations, the State would recommend a return to community control,
with the “special added condition” that McCoy complete the WCCBCF program. The
court followed this recommendation and returned McCoy to community control in that
case. With respect to Case No. 2020-CR-44, the entry stated that McCoy had been
indicted on one count of aggravated possession of drugs and possession of cocaine, and
that as part of a negotiated plea agreement, McCoy agreed to plead guilty to possession
of cocaine. The court imposed three years of community control in that case. The court
further stated that if McCoy’s community control were revoked, the court would impose a
sentence of 12 months in each case, to be served consecutively, for an aggregate term
of 24 months.
{¶ 14} On March 11, 2020, a notice of supervision violation was issued, which
alleged that on or about 20,March 9, 2020, McCoy had threatened “to hire a person or
person(s) to do bodily [harm] to [his former girlfriend, H.R.] in and around Champaign
County, Ohio.” Such action violated Condition of Supervision Rule #1, namely, that
1
McCoy’s indictment for aggravated possession of drugs, in violation of R.C.
2925.11(A)(C)(1)(a), and possession of cocaine, in violation of R.C. 2925.11(A)(C)(4)(a),
both felonies of the fifth degree, was dated March 2, 2020.
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McCoy would “obey federal, state and local laws and ordinances, * * *.”
{¶ 15} The court scheduled a hearing, but on March 23, 2020, the court continued
the matter due to the COVID-19 pandemic. The following day, McCoy filed a motion to
be released from the Tri-County Regional Jail to reside with his brother.
{¶ 16} On March 25, 2020, another notice of supervision violation was issued,
which set forth the same violation as the March 11, 2020 notice. On the same day, the
court also denied McCoy’s request for release from jail, because McCoy was alleged to
have threatened to hire a third party to do bodily harm to his ex-girlfriend three days after
being returned to community control supervision. Therefore, the court found McCoy to
be a threat to public safety.
{¶ 17} On April 2, 2020, the court denied a pro se request by McCoy to be released
on electronic monitoring or recognizance bond. The entry noted that counsel had filed a
similar motion on March 24, which was denied, and that McCoy’s pro se motion seemed
to contain “admissions of guilt to the community control violation allegations.”2
{¶ 18} At a hearing on April 14, 2020, the prosecutor represented to the court that
McCoy would plead guilty to the community control violation involving H.R., and McCoy
acknowledged his intention to do so. The following exchange occurred at the hearing:
THE COURT: I should tell the parties at the outset, and I don’t know
if this changes the Defendant’s admission decision, but the Defendant was
rejected for admission to West Central. And they say, in their rejection
letter, that you would not be accepted. Thus, we are declining Mr. McCoy’s
2
McCoy’s pro se correspondence stated in part: “I want to start off by apologizing for what
I said about my ex [H.R.]. I would never want any actual harm to be done to her. I was
just hurt and trying to vent my feelings about things that transpired between she and I.”
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admission to West Central given his recent suicide attempt and ongoing
medical requirements. We suggest that the Monday Program may be a
better fit for Mr. McCoy.
I tell you that, not because the Court is suggesting Monday at this
point. I’m telling you this because the Court has indicated that if the
Defendant was not admitted to West Central, then the Defendant would be
returned to Court for disposition determination. So we not only have this
merits hearing, but we also have the decision on what to do. And it should
be very clear to everybody that the Court is, at this point, not saying it will
follow West Central’s recommendation. I’m just making it a matter of
knowledge that West Central has rejected the Defendant.
And for completeness of the record, I’m also saying they are
recommending Monday. But I don’t know if I - - that the Court has
concluded that Monday is the best place at this point. I don’t know if that
changes the Defendant’s desire to enter this admission or not. But we’re
going to pause so [defense counsel] will have an opportunity to speak to his
client.
[DEFENSE COUNSEL]: Your Honor, he still wants to proceed to
the admission to the violation.
THE COURT: * * * Is that accurate, Mr. McCoy?
[MCCOY]: Yes, Your Honor.
{¶ 19} McCoy advised the court that he had reviewed the discovery packet with
counsel and had sufficient time to discuss his case with counsel. McCoy stated that he
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had confidence in his attorney and had received enough information about the case to
enter his admission knowingly intelligently, and voluntarily. McCoy indicated that he had
not previously been to prison.
{¶ 20} The following exchange occurred:
THE COURT: Do you understand that if your community control is
revoked in 2018 CR 196, you’ll receive 12 months to prison. And in case
number 2020 CR 44 you would receive 12 months to prison. The
sentences would be served consecutively to each other for a total sentence
of 24 months. Do you understand that?
THE WITNESS: Yes, Your Honor.
***
THE COURT: Do you understand that the Court is not required to
follow the recommendations of the Prosecutor, your attorney, or yourself?
THE WITNESS: Yes, Your Honor.
THE COURT: Do you understand that the Court is not required to
follow the recommendations of West Central?
THE WITNESS: Yes, Your Honor.
THE COURT: At the time of sentencing, the Court has to determine
whether to return you to community control or send you to prison. If you
are returned to community control, the Court can also extend your period of
supervision not to exceed five years, impose new sanctions, or give you a
more restrictive sanction like placement in jail or in a residential facility. Do
you understand that?
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THE WITNESS: Yes, Your Honor.
{¶ 21} The court advised McCoy regarding post-release control and the
consequences of any violation thereof.
{¶ 22} The following exchange continued:
THE COURT: Do you believe you understand what you are doing
today?
THE WITNESS: Yes, Your Honor.
THE COURT: Are you doing this of your own free choice?
THE WITNESS: Yes, Your Honor.
THE COURT: Do you understand the nature of the charges against
you?
THE WITNESS: Yes, Your Honor.
THE COURT: Do you understand the maximum penalties
involved?
THE WITNESS: Yes, Your Honor.
THE COURT: Do you understand that an admission of the merits
[is] a complete admission of your guilt?
THE WITNESS: Yes, Your Honor.
THE COURT: Do you understand that if the Court accepts your
admission to the merits, you can be sentenced immediately?
THE WITNESS: Yes, Your Honor.
THE COURT: Do you understand that if the Court accepts your
admission to the merits you give up certain Constitutional rights; and those
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include the right to attend a merits hearing?
THE WITNESS: Yes, Your Honor.
THE COURT: Do you understand that you give up the right to
confront witnesses against you, which is also known as the right to face
those who accuse you and cross-examine them?
THE WITNESS: Yes, Your Honor.
THE COURT: Do you understand that you give up the right to have
compulsory process for obtaining witnesses in your favor, which means that
you give up the right to have witnesses attend and testify in your favor
pursuant to subpoena?
THE WITNESS: Yes, Your Honor.
THE COURT: Do you understand that you give up the right to make
the State prove your guilt by a preponderance of the evidence before you
are found guilty?
THE WITNESS: Yes, Your Honor.
THE COURT: Has anybody made any threats against you to make
you enter this admission?
THE WITNESS: No, Your Honor.
THE COURT: Has anybody made any promises to you or any
promises to recommend something on your behalf to get you to enter this
admission?
THE WITNESS: No, Your Honor.
THE COURT: Does the State believe it has fully complied with the
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Rules of Criminal Procedure regarding discovery?
[THE PROSECUTOR]: Yes.
THE COURT: Does defense counsel share that belief?
[DEFENSE COUNSEL]: I do.
THE COURT: Do you understand that your lawyer and the State
believe that you’ve been given all the information you are entitled to, Mr.
McCoy, so that you can make a knowing, intelligent, and voluntary decision
as to entering an admission?
THE WITNESS: Yes, Your Honor.
THE COURT: Does the State believe it has sufficient information to
prove the Defendant’s guilt?
[THE PROSECUTOR]: Yes.
THE COURT: Do you understand that the State believes they can
prove you guilty?
THE WITNESS: Yes, Your Honor.
THE COURT: Do you have any defense to the charge, meaning,
any reason you should be found not guilty?
THE WITNESS: No, Your Honor.
THE COURT: Are you admitting that with regard to Violation 1 that
on or about March 9, 2020, you did threaten to hire a person or persons to
do bodily harm to [H.R.] in and around Champaign County, Ohio?
THE WITNESS: Yes, Your Honor.
THE COURT: Court has reviewed the complaint and admission of
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the Defendant. Court finds Defendant guilty of the violation behavior. We
will proceed to consider disposition. * * *
{¶ 23} The State then indicated that it had reviewed McCoy’s case file and spoken
with his supervising officer, Officer Nicholson. Based on that information, the State
recommended that McCoy be returned to community control in both cases under the
same terms and conditions previously imposed. The State requested that, with regard
to the West Central placement, the court’s order be modified so that McCoy would be
sent to the Monday Program or another appropriate community-based correctional facility
(CBCF) program, at the court’s discretion. The State noted that it “believe[d] that the
short time period between this incident and the previous incident continue[d] to
demonstrate that [McCoy] ha[d] shown maturity and growth. That he ha[d] shown the
ability to utilize the tools and resources available to him.”
{¶ 24} According to the State, McCoy’s supervising officer, Officer Nicholson,
continued to believe that he could work with McCoy, notwithstanding that Nicholson also
thought that McCoy’s behavior “was important enough to warrant a community control
violation” being filed against him. Nicholson also continued to believe that a CBCF was
most appropriate for McCoy. The State asserted that the Monday Program was an
option and that Officer Nicholson and the prosecutor had spoken about the CBCF in the
Toledo area that was another potential option for McCoy.
{¶ 25} Although no violation report about the incident was prepared, the State
provide the following information regarding the violation at the hearing:
[THE PROSECUTOR]: I believe the Defendant explains in his own words
the factual basis. But for the Court’s understanding as well, the Defendant
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was having a conversation with Derick Long over at the jail. Mr. Long is a
counselor for TCN. During that conversation between the Defendant and
Mr. Long the Defendant made statements about physically harming [H.R.]
and hiring somebody and paying them, I believe, $2,000 to harm her. Mr.
Long is a mandatory reporter and felt, as his duty as a TCN counselor at
the jail, he had a duty to report that incident to Officer Nicholson and go
through the appropriate channels.
THE COURT: So he was going to pay or he had paid?
OFFICER NICHOLSON: Was.
***
THE COURT: Officer Nicholson, what do you know about this
incident?
OFFICER NICHOLSON: The Defendant was making arrangements.
And the allegation is that he did not make the money exchange, but he was
going to arrange it. At that point Mr. Long alerted me of that. And I did go
out and interview the Defendant. As well as speak to [H.R.] and let her
know that if there was any future contact, she had to report it to me.
THE COURT: What was the reason why the Defendant wanted to
have her harmed?
OFFICER NICHOLSON: There were several problems with the
relationship. Mainly, he believed that she cheated.
THE COURT: Did you speak to the Defendant about these
allegations?
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OFFICER NICHOLSON: I did.
THE COURT: And is that what this State’s Exhibit 1 letter is about.
OFFICER NICHOLSON: Yes, sir.
THE COURT: Did he indicate when he did this? When he - - or
who he contacted when he made the contact?
OFFICER NICHOLSON: No. He reported to me that he was
simply blowing off steam during the interview with the counselor. He did
not indicate, you know, he had made any contacts. I did review the
jailhouse calls up to that point and there was no indication that he made
those arrangements.
***
THE COURT: So while the Defendant perhaps had these feelings
he had not, to your knowledge, acted on them?
OFFICER NICHOLSON: That’s correct.
***
THE COURT: Counsel for Defendant?
[DEFENSE COUNSEL]: * * * I spoke with Amanda Call, counselor
for TCN Behavioral Health who counseled Mr. McCoy at the Tri-County Jail.
In our discussion, Amanda was concerned about Mitch’s substance abuse
and mental health problems and anger management issues. She felt that
Mitch needed to be in a program such as the Christopher House in Xenia.
She thought that all of those issues with Mitch could be addressed there.
Where, at the time, she was thinking West Central would not be able to
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address those.
She was very committed to her belief that Christopher House is the
type of program that Mitch needed to overcome these serious issues that
he has had in the past. And for that reason, Your Honor, we * * * ask that
the Court consider that as a possible solution for disposition.
{¶ 26} The court then allowed McCoy to speak and the following exchange
occurred:
THE WITNESS: * * * I just want to start off by apologizing by
returning back in your courtroom, Your Honor. I don’t want to be here. I’m
sure you don’t want to see me back in here. Me and the whole [H.R.]
situation, I was in my feelings. I was in pain. I would never hurt nobody.
I would never hurt her. I still love her. Even though she did what she did
to me and I did what I did to her, I still love her. I would never do nothing
to her. I was just in my feelings and venting.
And I just ask, please, I’m tired of being locked down and tired of
being locked up. I’m tired of being away from my family. I haven’t seen my
family for like a month with this whole coronavirus. * * * I just want to say I’d
never hurt nobody. And I’m not. And I’m not a threat to nobody. * * *
THE COURT: * * * When you say that what she did to me and I did
to her, what did she do to you?
THE WITNESS: We was - - she cheated on me while I was at West
Central. I got out. While I was out - - and I tried to work things out with
her. I wasn’t able to. I couldn’t live with it. And I cope with s*** different
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than other people do. I do drugs. That is why I got high. I didn’t talk to
somebody. I try to deal with them on my own.
And another thing is, I was still checking in with Herb. I never ran
on him. I was still coming to see Chelsea, I was still doing what I had to do
there. I have never ran from nobody. I always came to my court hearings.
I just want you to know that too.
THE COURT: * * * I’m looking at your very first journal entry of
conviction where it says on December 17, 2018, Defendant failed to appear
at a Pretrial Services appointment. And then on February 2019 you failed
to attend drug treatment counseling as ordered.
***
THE COURT: So when you say what I did to her, I’m not sure I
understand. You taking drugs, how that means you did something?
THE WITNESS: I started getting high. I was getting high. And
she didn’t want me to. And she asked me to stop, but I didn’t.
THE COURT: I am sure that Derick Long has dealt with people who
have, quote, blown off steam. And I’m sure, as a counselor who is in the
business of treating people who get angry during their sessions, that he’s
learned over the years what it means to blow off steam versus, hey, there
is something here that really causes me some concern. Would you agree
with that generally?
THE WITNESS: Yes, Your Honor, I would.
THE COURT: Okay.
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THE WITNESS: I would, Your Honor.
THE COURT: * * * So what is it about your situation with him that
caused him to say, hey, this is pretty serious. I got to report this?
THE WITNESS: I have no idea, Your Honor.
THE COURT: That’s the problem.
THE WITNESS: I have no idea.
THE COURT: That’s the problem.
THE WITNESS: I would never hurt nobody though.
THE COURT: When I placed you on community control the first
time - - I thought I had put it in one of your entries that specifically talked
about your maturity. Yeah. It is in your third journal entry of sentencing,
which would be Thursday, August 22, 2019. And I said I was going to
return you to community control despite, among other things, your lack of
maturity, your intolerant disposition, and your co-dependency on family
members that infringe on your personal development. So now I got a
situation where a counselor finds enough validity in what you say that you’re
going to harm [H.R.].
{¶ 27} At the sentencing hearing, the court stated in part:
Court notes that this is the Defendant’s fourth community control
violation in the 2018 case. Court notes that Defendant committed the first
violation in the 2020 case three days after being returned to community
control in the ’18 case. And three days after being granted community
control supervision in the ’20 case. Court finds that the community control
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violation involved the communication of the intention to cause physical harm
to a woman he had motivation to injure due to her infidelity. The Court
finds that the violation involved a communication of the intention to pay a
third party $1,000 to cause physical harm to a woman who, quote, cheated
on him, close quote, during his residence to a CBFC program.
* * * Court recognizes that there is no indication that has been found
that Defendant arranged payments through phone calls from the jail. But
the Court does recognize this is mitigated by the Defendant’s ability to make
undetected arrangements through the U.S. mail. The Court also
acknowledges that no harm has come to the victim as of today.
{¶ 28} The court then imposed the aggregate 24-month sentence was described
above.
{¶ 29} McCoy raises a single assignment of error on appeal:
REVOCATION OF APPELLANT’S COMMUNITY CONTROL WAS
BASED ON EVIDENCE WHICH NEITHER DESCRIBES NOR SUPPORTS
A VIOLATION OF LAW.
{¶ 30} McCoy asserts that threatening to hire a person or persons to do bodily
harm to H.R. was not a violation of the community control requirement to obey federal,
state and local laws and ordinances, because the alleged conduct was not a violation of
any federal, state and local law or ordinance. McCoy asserts that he “obviously did not
complete his threatening conduct,” so the State “likely cast [his] behavior as attempted
menacing." He further argues that menacing only exists where an offender knowingly
causes another to believe the offender will cause physical harm to the person, citing R.C.
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2903.22, and if the victim is not in fact intimidated, the offender’s conduct would constitute
only an attempted menacing. McCoy asserts that his behavior might also be viewed as
an attempted assault, but a “[c]riminal attempt can only occur where there is an act or
omission which constitutes a substantial step towards the commission of a crime, and
that substantial step strongly corroborates the actor’s criminal purpose.” According to
McCoy, such a step did not occur in his case.
{¶ 31} McCoy asserts that the evidence in the record did not support “a substantial
step or criminal purpose,” where his only communication was with his mental health
counselor, an implicitly confidential relationship.” According to McCoy, he would have
reasonably and naturally expected that his “menacing” statements would not be
communicated to his ex-girlfriend through the counselor, and thus would not have been
intimidating to her.
{¶ 32} McCoy argues that “it is unclear what specific crime or violation of law was
suspected or alleged.” He asserts that the alleged attempt to menace his ex-girlfriend
was supported “only by the trial court’s own conjecture that [McCoy] would have been
able to send a letter arranging the crime. McCoy asserts that there was insufficient proof
that criminal conduct actually occurred. He also argues that his statement to the
counselor could not reasonably be construed as a “substantial step in furtherance” of
intimidation; he was only “blowing off steam.”
{¶ 33} The State responds that McCoy admitted to the merits of the allegations
while being assisted by competent counsel and did not object to the trial court’s finding of
guilt “on the basis that his conduct did not rise to the level of a violation of law.” The
State notes that McCoy also did not dispute the State’s assertion at the hearing that it
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had sufficient information to prove McCoy’s guilt.
{¶ 34} According to the State, McCoy’s argument ignores the fact that he admitted
to the subject violation after he was given “a full and complete opportunity to challenge
the State’s allegations and to argue that his community control should not be revoked.”
The State also argues that McCoy’s argument “is essentially an attempt to re-litigate this
matter even though he admitted to the merits of the allegations set forth in the notice of
violation.” Finally, the State argues that, regardless of whether McCoy’s threat to his
counselor regarding harming the victim could be considered harmless, as McCoy had
argued to the trial court and now argues on appeal, “the violation was nevertheless
established by his admission.”
{¶ 35} As this Court has noted:
The right to continue on community control depends upon
compliance with the conditions of community control and is a matter within
the sound discretion of the trial court. State v. Lewis, 2d Dist. Montgomery
No. 23505, 2010-Ohio-3652, ¶ 11. “[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.”
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“Community control violation proceedings are not equivalent to
criminal prosecutions.” Black at ¶ 12. Nevertheless, “[a] defendant is
entitled to certain due process protections before a court may revoke
community control sanctions, although the full panoply of rights due a
defendant in a criminal prosecution does not apply to the revocation of
community control.” State v. Harmon, 2d Dist. Champaign No. 2007-CA-
35, 2008-Ohio-6039, ¶ 6, citing Morrissey v. Brewer, 408 U.S. 471, 480, 92
S.Ct. 2593, 33 L.Ed.2d 484 (1972). 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.
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973);
State v. Blakeman, 2d Dist. Montgomery No. 18983, 2002-Ohio-2153.
Second, due process requires a final hearing to determine whether
community control should be revoked. Id.At the final revocation hearing, the State must (1) provide the
defendant with written notice of the alleged violations of community control;
(2) disclose the evidence against the defendant; (3) give the defendant an
opportunity to be heard in person and to present witnesses and
documentary evidence; (4) allow the defendant to confront and cross-
examine adverse witnesses; (5) afford the defendant a neutral and
detached hearing body; and, (6) provide the defendant with a written
statement by the fact finder as to the evidence relied upon and the reasons
for revoking community control. State v. Klosterman, 2d Dist. Darke Nos.
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2015-CA-9 and 2015-CA-10, 2016-Ohio-232, ¶ 15; State v. Gilreath, 2d
Dist. Greene No. 2000-CA-1, 2000 WL 896319, * 2 (July 7, 2000).
A defendant may elect to forgo a hearing on the merits of the alleged
community control violations and admit to the violations. Where a
defendant elects to do so, the trial court is not required to comply with the
requirements of Crim.R. 11, which governs pleas. State v. Cunningham,
2d Dist. Clark Nos. 2014-CA-99 and 2014-CA-100, 2015-Ohio-2554, ¶ 14.
Unlike in felony plea hearings, the trial court is not required to notify a
defendant at a community control revocation hearing of the maximum prison
sentence that may be imposed. That notification must have been provided
at the original sentencing (if no prior revocation hearing had been held) or
at the most recent revocation hearing (if multiple revocation hearings had
been held). State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821
N.E.2d 995.
Upon revoking a defendant's community control, the trial court may
(1) lengthen the term of the community control sanction; (2) impose a more
restrictive community control sanction; or (3) impose a prison term on the
offender, provided that the prison term is within the range of prison terms
available for the offense for which community control had been imposed
and the term does not exceed the prison term specified in the notice
provided to the offender at the original sentencing hearing. R.C.
2929.15(B); see State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814
N.E.2d 837, paragraph two of the syllabus.
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State v. Norman, 2d Dist. Clark Nos. 2017-CA-40, 2017-CA-41, 2018-Ohio-993, ¶ 16-20.
{¶ 36} State’s Exhibit 1, McCoy’s written statement, states on one page:
***
Look I’m sorry about everything I have done and said you know I went to
West Central back in 2019 and I was engaged with [H.R.] [while] I was gone
she cheated on me and when I got out she still did it to me so I said f*** it
and started getting high but what I said about paying someone to beat her
up I really didn’t mean it I promise I still love her so much but I don’t want
nothing to do with [her] anymore I just want to go to this program to get
myself back together.
{¶ 37} On another page, McCoy wrote: “I talked to [counselor] [Derick] Long I told
him I was going to pay someone to beat up [H.R.] but I really don’t mean it I still love her
I’m sorry.” The page was dated March 9, 2020.
{¶ 38} The trial court’s revocation of McCoy’s community control was based upon
McCoy’s admission that he “did threaten to hire a person or persons to do bodily harm”
to H.R. in the course of a counseling session at the jail. In sentencing McCoy, the court
appropriately relied upon his admission to a violation of Rule of Supervision No. 1. Given
this admission, McCoy cannot now argue his verbal threat did not constitute a crime.
Notably, the record establishes that McCoy’s statement was communicated to H.R., and
as we recently noted in State v. Stutz, 2020-Ohio-6959, __ N.E.3d __, ¶ 10 (2d Dist.), this
statement would constitute the offense of menacing. “The [aggravated] menacing
statute does not require a threat to be made directly to the victim.” Id. at ¶ 13.
Accordingly, the assignment of error is overruled.
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{¶ 39} The judgment of the trial court is affirmed.
.............
TUCKER, P.J. and HALL, J., concur.
Copies sent to:
Jane A. Napier
Benjamin W. Ellis
Nick A. Selvaggio