State v. Fears

[Cite as State v. Fears, 2018-Ohio-1468.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellant : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 17-CA-67
VERN L. FEARS :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No.
2012CR0846D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 16, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP RANDALL FRY
PROSECUTING ATTORNEY 10 West Newlon Place
BY: JOSEPH SNYDER Mansfield, OH 44902
38 South Park Street
Mansfield, OH 44902
[Cite as State v. Fears, 2018-Ohio-1468.]
Gwin, P.J.
{¶1} Defendant-appellant Vern Fears [“Fears”] appeals the July 13, 2017
Judgement Entry of the Richland County Court of Common Pleas finding that he violated
his community control sanctions.
Facts and Procedural History
{¶2} On February 4, 2013 in Richland County Court of Common Pleas, Case
Number 2012-CR-0847 Fears was convicted of one count of Aggravated Burglary a
felony of the first degree and one count of Robbery, a felony of the second degree. The
trial court sentenced Fears to four years in prison on the Aggravated Burglary charge. On
the Robbery charge, Fears was given a four year suspended prison sentence, with a
mandatory five years of post-release control, and five years of community control to begin
upon Fears’ release from prison on the Aggravated Burglary charge.
{¶3} On November 23, 2016, Fears was released from prison and placed on
probation / community control. On April 4, 2017, a “Notice of Hearing Probation Violation”
was filed alleging that Fears had violated his probation. Fears pled to the violation and
was found guilty by the trial court. By Judgment Entry filed May 8, 2017, Fears’
community control was continued with the addition that he pay a $200.00 sanction and
successfully complete “Thinking for a Change.”
{¶4} On June 27, 2017, a “Notice of Hearing Probation Violation” was filed
alleging that Fears had violated his probation. The Notice set forth in three separate
counts the alleged violations.
{¶5} On July 12, 2017, a probation violation hearing was conducted by the trial
court. Fears admitted to the allegations contained in Counts 2 and Count 3 but denied
the allegations contained in Count 11. T. September 15, 2017 at 4-5. A hearing was held
concerning Fears’ violation of Count 1, which alleged that Fears “On or about 06/10/17…
entered [a residence] without the consent of the person authorized to give consent” and
further, “On or after 05/28/17…changed your residence without obtaining permission from
your supervising officer.” Id. at 4.
{¶6} The only witness called by the state during the revocation hearing was the
probation officer, Mary Gates.
{¶7} Gates testified that Fears is on Community Control for the Robbery charge
and Fears is on Post-release Control for the Aggravated Burglary charge. T. at 7. Gates
testified that she went to the location that Fears was supposed to be residing on two
occasions and no one answered the door. Gates left her card in the door on both
occasions. T. at 9. Fears testified that she spoke on the telephone with Fears’ wife on
May 30, 2017, and she reported that he had not been home since May 28, 2017. T. at
10. Gates testified that on June 12, 2017, an officer from the Mansfield Police Department
contacted her informing her that Fears went to the residence of his wife, kicked the door
in and was shot by an alleged boyfriend who was at the home. T. at 11-13; 20. Gates
also testified that The Northern Ohio Fugitive Task Force was attempting to locate Fears
after this incident. T. at 13-14. Gates contacted the task force because she was in fear
for the safety of Fears’ wife. T. at 15. Fears further testified that Fears’ wife had told her
Fears was staying with his father in Cleveland. T. at 17.
1 Count 2 alleged that Fears had failed to report for office visits every Tuesday as instructed; Count
3 alleged that Fears failed to attend Reentry Court as instructed.
{¶8} After his arrest, Gates met with Fears who told her that he never changed
his address and was still living in Mansfield, not Cleveland. Fears claimed his wife was
lying and trying to set him up. T. at 21.
{¶9} After listening to the testimony of Mary Gates, the Court ruled that Fears
was guilty of changing his residence without obtaining permission from his supervision
officer. The Court said it based its ruling for a number of reasons. The first reason the
Court stated was that Fears’ wife said so and that her testimony is uncontracted. T.at 40.
The Court stated that Fears’ wife had been a reliable reporter in the past so there was no
reason to disbelieve her testimony. T. at 40. The Court also stated in its ruling that on
June 10, 2017, that Fears could not get into his residence without kicking in the door. T.
at 40, 41.
{¶10} On July 13, 2017, a Community Control Violation Journal Entry was filed.
The Court accepted Fears’ admission to Community Control violations Count 2 and Count
3 and found Fears guilty of Community Control violation Count 1. Fears was sentenced
to 3 years of prison on the underlying charge of Robbery, along with 3 years of mandatory
Community Control.
Assignment of Error
{¶11} Fears raises one assignment of error:
{¶12} “I. THE TRIAL COURT FAILED TO AFFORD THE APPELLANT A FULL
AND FAIR PROBATION REVOCATION HEARING AS REQUIRED BY DUE PROCESS
AND GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION.”
Law and Analyses
{¶13} In finding that Fears was guilty of Count 1 of his probation violation /
community control violation, Fears argues that the trial court violated his right to confront
and cross-examine his accusers and erred in permitting the probation officer to testify to
the hearsay statement alleged made by Fears’ wife. However, Fears did not raise the
constitutional argument at trial. Fears only objected to hearsay in the form of the
Mansfield Police detective telling Gates that Fears had kicked the door in to his wife’s
residence and was shot by the wife’s boyfriend. T. at 12-13.
STANDARD OF APPELLATE REVIEW
A. Plain error.
{¶14} Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain errors or
defects affecting substantial rights” notwithstanding an accused’s failure to meet his
obligation to bring those errors to the attention of the trial court. However, the accused
bears the burden to demonstrate plain error on the record, State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a
deviation from a legal rule” that constitutes “an ‘obvious’ defect in the trial proceedings,”
State v. Barnes, 94 Ohio St. 3d 21, 27, 759 N.E.2d 1240 (2002).
{¶15} Even if the error is obvious, it must have affected substantial rights, and
“[w]e have interpreted this aspect of the rule to mean that the trial court’s error must have
affected the outcome of the trial.” Id. The Ohio Supreme Court recently clarified in State
v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is
“required to demonstrate a reasonable probability that the error resulted in prejudice—
the same deferential standard for reviewing ineffective assistance of counsel claims.”
(Emphasis sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81–
83, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004). Accord, State v. Thomas, ___ Ohio St.3d
___, 2017-Ohio-8011, ___N.E.3d ____ (Oct. 4, 2017), ¶32-34.
{¶16} If the accused shows that the trial court committed plain error affecting the
outcome of the proceeding, an appellate court is not required to correct it; the Supreme
Court has “admonish[ed] courts to notice plain error ‘with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.’”
(Emphasis added.) Barnes at 27, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St. 2d
91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Accord, State v. Thomas,
___ Ohio St.3d ___, 2017-Ohio-8011, ___N.E.3d ____ (Oct. 4, 2017), ¶32-34.
B. Probation / Community Control revocation.
{¶17} “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. Ohly, 166 Ohio App. 3d 808, 2006-Ohio-2353, 853 N.E.2d 675 (6th
Dist.), ¶19, quoting State v. Bell, 66 Ohio App. 3d 52, 57, 583 N.E.2d 414 (5th Dist. 1990).
“Because a community control revocation hearing is not a criminal trial, the state does not
have to establish a violation with proof beyond a reasonable doubt.” State v. Wolfson,
4th Dist. Lawrence No. 03CA25, 2004-Ohio-2750, ¶7; see, also, State v. Payne, 12th
Dist. Warren No. CA2001-09-081, 2002-Ohio-1916; State v. Hylton, 75 Ohio App. 3d 778,
782, 600 N.E.2d 821 (4th Dist. 1991). Instead, the state need only present “substantial”
proof that a defendant willfully violated the community control conditions. See Hylton, 75
Ohio App. 3d at 7822. “The test ordinarily applied is highly deferential to the decision of
2Prior case law governing probation revocations applies to the revocation of community control.
State v. Wolfson, 4th Dist. Lawrence No. 03CA25, 2004-Ohio-2750.
the trial court and is akin to a preponderance of the evidence burden of proof. See State
v. Alderson, 4th Dist. Meigs No. 98CA12, 1999 WL 713594 (Aug. 31, 1999). Accordingly,
the court's conclusion must be sustained if there is competent credible evidence to
support it. Id.” State v. Hayes, 6th Dist. Wood No. WD-00-075, 2001 WL 909291(Aug.
10, 2001). Additionally, the “[d]etermination of the credibility of the witnesses is for the
trier of fact.” Ohly, 166 Ohio App. 3d 808, ¶ 19. See also, State v. Brank, 5th Dist. Tusc.
No.2006AP 090053, 2007-Ohio-919.
{¶18} Once a trial court finds that a defendant violated community control
conditions, it possesses discretion to revoke the defendant's community control. In that
event, appellate courts should not reverse trial court decisions unless a court abused its
discretion. Wolfson, 2004-Ohio-2750, ¶8.
{¶19} An abuse of discretion exists where the reasons given by the court for its
action are clearly untenable, legally incorrect, or amount to a denial of justice, or where
the judgment reaches an end or purpose not justified by reason and the evidence.
Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship
of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,
5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823, ¶54.
1. The confrontation clause and post-release control / community control
revocation hearings.
{¶20} The Sixth Amendment to the United States Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the
witnesses against him.”
{¶21} In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), the Supreme Court of the United States held that out-of-court statements that are
testimonial are barred, under the Confrontation Clause, unless the witness is unavailable
and the defendant had a prior opportunity to cross-examine the witness, regardless of
whether the statements are deemed reliable by the trial court.
{¶22} In Blanks v. Maryland, the Court of Special Appeals of Maryland had the
following observation,
In the twelve years since Crawford was decided, ten federal courts
of appeals have addressed whether the Crawford standard for admissibility
of testimonial hearsay applies in a revocation of probation (or parole)
proceeding. All ten courts have held that because the rights guaranteed by
the Sixth Amendment only apply to “criminal prosecutions,” neither the Sixth
Amendment right to confrontation nor the Crawford Court’s interpretation of
that right applies in such a proceeding. See United States v. Rondeau, 430
F.3d 44, 47 (1st Cir. 2005) (“Nothing in Crawford indicates that the Supreme
Court intended to extend the Confrontation Clause’s reach beyond the
criminal prosecution context”); United States v. Aspinall, 389 F.3d 332, 343
(2nd Cir. 2004) (“Nothing in Crawford, which reviewed a criminal trial,
purported to alter the standards set by Morrissey/[Gagnon] or otherwise
suggested that the Confrontation Clause principle enunciated in Crawford
is applicable to probation revocation proceedings”); United States v. Lloyd,
566 F.3d 341, 343 (3rd Cir. 2009) (“The limited right to confrontation
[afforded in a revocation proceeding] stems from the Fifth Amendment’s
Due Process Clause, not from the Confrontation Clause of the Sixth
Amendment.”); United States v. Ferguson, 752 F.3d 613, 619 (4th Cir.
2014) (revocation of parole proceeding “does not involve the Sixth
Amendment”)9; United States v. Kirby, 418 F.3d 621, 627 (6th Cir. 2005)
(Crawford does not apply to a revocation of probation proceeding because,
by its text, the Sixth Amendment does not apply outside of a criminal
prosecution); United States v. Kelley, 446 F.3d 688, 691 (7th Cir. 2006)
(“Crawford changed nothing with respect to [probation] revocation hearings”
because the “limited confrontation right in revocation proceedings was
explicitly grounded in considerations of due process, not the Sixth
Amendment”); United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008)
(Crawford does not apply in the context of a revocation of supervised
release proceeding); United States v. Hall, 419 F.3d 980, 985 (9th Cir.
2005), cert denied, 546 U.S. 1080, 126 S. Ct. 838, 163 L. Ed. 2d 714 (2005)
(Crawford does not apply in a revocation of probation proceeding where
“due process standard[s] [are] used to determine whether hearsay
evidence” is admissible); Curtis v. Chester, 626 F.3d 540, 544 (10th Cir.
2010) (Sixth Amendment right to confrontation does not apply in parole
revocation proceeding and “neither do any Supreme Court cases dealing
with it, specifically Crawford ”); Ash v. Reilly, 431 F.3d 826, 829 (D.C.Cir
2005) (due process rights afforded to a parolee at a revocation proceeding
emanate from the Due Process Clause of the Fourteenth Amendment, not
the Confrontation Clause of the Sixth Amendment, thus making Crawford
inapplicable in that setting). See also Reyes v. State, 868 N.E.2d 438, 440
& n. 1 (Ind. 2007) (holding that Crawford has no application in a civil
revocation of probation proceeding); State v. Carr, 216 Ariz. 444, 167 P.3d
131, 134 (App.2007) (probation revocation proceeding is not “a stage of a
criminal prosecution” and thus does not implicate the Sixth Amendment).
228 Md.App. 3335, 351-352, 137 A.3d 1074, 1083-1084(2016). Accord, State v.
Esquilin, 179 Conn.App. 461, __ A.3d___ (2018), at n. 10. (since Crawford “an
overwhelming majority of federal circuit and state appellate courts that have
addressed this issue have concluded that Crawford does not apply to a revocation
of probation hearing.” (Citations omitted.)).
2. Hearsay and post-release control / community control revocation hearings.
{¶23} As set forth by the United States Supreme Court in Gagnon v. Scarpelli,
411 U.S. 778, 786, 93 S. Ct. 1756, 36 L. Ed. 2d 656(1973), the due process requirements
of Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484(1972), with regard
to parole violation hearings, are applicable to probation revocation proceedings. The
minimal due process requirements for final revocation hearings include:
(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 or
lawyers; and (f) a written statement by the factfinders as to the evidence
relied on and reasons for revoking (probation or) parole. (Emphasis added).
Gagnon v. Scarpelli, 411 U.S. at 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656(1973), citing
Morrissey v. Brewer, 408 U.S. at 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484(1972).
{¶24} Whether there is “good cause” for not allowing confrontation during a
revocation hearing should be determined by using a balancing test. State v. Esquilin, 179
Conn.App. 461, 472 __ A.3d___ (2018). This test requires the court to “to balance, “‘on
the one hand, the defendant’s interest in confronting the declarant, against, on the other
hand, the government’s reasons for not producing the witness and the reliability of the
proffered hearsay. United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006); see also
United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000).’ (Internal quotation marks
omitted.) State v. Shakir, 130 Conn. App. 458, 468, 22 A.3d 1285, cert. denied, 302
Conn. 931, 28 A.3d 345 (2011).” Esquilin, 179 Conn.App. at 473. In Blanks v. State, the
court observed,
“[G]ood cause need not reach the high standard governing the
admissibility of hearsay evidence at criminal trials.” Fuller, 308 Md. at 553
n. 5, 520 A.2d 1315. “In determining whether there is good cause to admit
hearsay in a probation revocation hearing, it is obvious that the most
important factor is the reliability of the proffered hearsay evidence” and
“whenever the proffered hearsay evidence has substantial guarantees of
trustworthiness the hearsay is admissible without the need to establish any
additional good cause.” Bailey, 327 Md. at 699, 612 A.2d 288 (citing
Egerstaffer v. Israel, 726 F.2d 1231, 1234–35 (7th Cir. 1984)).
228 Md.App. at 355, 137 A.3d at 1085.
{¶25} The Ohio Supreme Court has also recognized that there is a limitation on
the admissibility of hearsay testimony during revocation proceedings. In State v. Tims, 9
Ohio St. 2d 136, 224 N.E.2d 348(1967), the defendant was prosecuted for statutory rape,
and, at trial, a document entitled “Report of Examination for Alleged Rape” was admitted
in evidence through a clerk in the medical record room of the hospital who admitted that
she had not made the examination and was not present when it was made. The question
before the court in that case was “whether the report of the examination for alleged rape
was properly admitted into evidence under the provisions of Section 2317.40, Revised
Code (Business Records as Evidence Act).” It was held that the Business Records as
Evidence Act was not applicable. See also, State v. Miller, 42 Ohio St. 2d 102, 104-105,
326 N.E.2d 259(1975).
{¶26} In State v. Miller, the Ohio Supreme Court held.
Where at a probation revocation hearing the trial court permits a
probation officer who did not prepare the entries in the probation department
record to testify as to the contents of that record and the probation officer
who prepared the entries does not appear, there is a denial of the
probationer’s right to confront the witnesses against him, and, where the
record does not show that the probation officer who prepared the entries
was unavailable or that a specific finding was made of good cause for not
allowing confrontation, there is a denial of the minimum requirements of due
process of law required for probation revocation proceedings. (Morrissey v.
Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484, and Gagnon v.
Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656, followed.)
42 Ohio St. 2d 102, 104-105, 326 N.E.2d 259, at syllabus (emphasis added). The Court
found that,
The record here does not indicate that appellee’s original probation
officer, although no longer employed by the probation department, was
unavailable, or that the trial court made a specific finding of good cause for
not allowing confrontation. The trial court, therefore, did not provide
appellee the minimum due process requirements specified in Morrissey at
his probation revocation hearing.
42 Ohio St. 2d 102, 106, 326 N.E.2d 259 (emphasis added).
{¶27} In the case at bar, Fears only objected to testimony by the probation officer
that Fears had kicked in the door to his wife’s residence. T. at 12. However, the probation
officer without objection previously testified to these facts. T. at 11-12.
{¶28} Courts have “held that minimum due process requirements are satisfied
where the parolee admits the alleged parole violation at the revocation hearing. Helton
v. Ohio Adult Parole Auth. (June 26, 2001), Franklin App. No. 00AP–1108, 2001 WL
709946. This principle was recognized in Morrissey, supra, 408 U.S. at 490, 92 S. Ct.
2593, 33 L. Ed. 2d 484, wherein the United States Supreme Court stated that “[i]f it is
determined that petitioners admitted parole violations to the Parole Board, as respondents
contend, and if those violations are found to be reasonable grounds for revoking parole
under state standards, that would end the matter.” Wilkins v. Timmerman-Cooper, United
States District Court, S.D. Ohio, Case No. 2:06-cv-00027, 2006 WL 3762122(Dec. 20,
2006), at *7.
{¶29} In the case at bar, Fears admitted two of the three violations thus
establishing minimum due process requirements for those violations. In addition,
Moreover, once a revocation hearing satisfies minimum due process
requirements, the decision to deny parole is not subject to judicial review
unless parole is revoked for a constitutionally impermissible reason. Helton,
supra, citing Mayrides v. Ohio Adult Parole Auth. (Apr. 30, 1998), Franklin
App. No. 97APE08–1035, 1998 WL 211923. Under R.C. 2967.15, the Ohio
Adult Parole Authority is authorized to revoke parole when the parolee has
violated the terms and conditions of his parole. State ex rel. Nedea v.
Capots (1988), 40 Ohio St. 3d 74, 75, 531 N.E.2d 707. Therefore, Wilkins’s
four parole violations were sufficient grounds for the revocation of his
parole.
Wilkins v. Wilkinson, 157 Ohio App. 3d 209, 2004-Ohio-2530, 809 N.E.2d 1026, ¶22.
{¶30} After finding that the defendant has violated community control sanctions,
the sentencing court may: (1) extend the period of the same community control sanction,
but not beyond the five-year maximum; (2) impose a more restrictive community control
sanction for any remaining period of time up to the five-year maximum; or (3) cancel the
community control sanction and impose a definite sentence of imprisonment within the
range allowed for the offense under RC 2929.14(A). R.C. 2929.15(C).
{¶31} In the case at bar, by Fears’ own admissions the trial court had substantial
proof that Fears violated the community control sanctions. Fears had previously violated
community control sanctions and the trial court modified those sanctions. Under R.C.
2929.15(C), the trial court had authority to cancel the community control sanctions and
impose a prison sentence, even if it found Fears had not violated Count 1.
{¶32} Fears has failed to demonstrate a reasonable probability that any error
resulted in prejudice that affected the outcome of the revocation proceedings. The trial
court neither lost his way nor created a miscarriage of justice in convicting and sentencing
Fears for violating his community control sanctions.
CONCLUSION.
{¶33} Fears’ sole assignment of error is overruled. The judgment of the Richland
County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Delaney, J., and
Wise, Earle, J., concur