State v. Middlebrooks

[Cite as State v. Middlebrooks, 2011-Ohio-4534.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2010 AP 08 0026
ANTONIO MIDDLEBROOKS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court
of Common Pleas Case No. 2008 CR 01 00
22
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 6, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RYAN STYER 0069730 KEITH O’KORN 0069834
MICHAEL J. ERNEST 0066627 440 Polaris Parkway, Ste. 150
Tuscarawas County Prosecutor’s Office Westerville, Ohio 43082
125 E. High Ave.
New Philadelphia, Ohio 44663
Delaney, J.
{¶1} Defendant-Appellant, Antonio Middlebrooks, appeals from the judgment of
the Tuscarawas County Court of Common Pleas, revoking his community control
sanctions. The State of Ohio is Plaintiff-Appellee.
{¶2} On October 15, 2008, Appellant was sentenced to three years of
community control based on his convictions for seven counts of trafficking in drugs, in
violation of R.C. 2925.03. At sentencing, the trial court indicated that if Appellant
violated community control, the court would impose the sentence of fifty-six months
(eight months on each count, to be served consecutively). As conditions of his
community service, Appellant was required to pay restitution in the amount of $630.00
to a drug task force fund, he was required to maintain employment, and abide by the
laws of the State.
{¶3} In January, 2010, Appellant was arrested for trafficking in cocaine and
possession of cocaine. He was later indicted on those charges and convicted by a jury
of possession of cocaine, a felony of the fifth degree, in violation of R.C. 2925.11.
{¶4} On July 10, 2010, a probation revocation hearing was held in the case at
bar based on Appellant’s conviction of possession of cocaine, as well as allegations that
Appellant failed to keep his probation officer apprised of his address and place of
employment, and that he failed to make regular monthly payments towards his financial
obligations.
{¶5} On July 13, 2010, the trial court determined that the State had presented
sufficient evidence to find that Appellant violated his conditions of probation and
sentenced him to eight month consecutive sentences on the seven counts of drug
trafficking.
{¶6} It is from this entry that Appellant now appeals, raising four Assignments
of Error:
{¶7} “I. THE SENTENCING ENTRIES ARE NOT FINAL APPEALABLE
ORDERS.
{¶8} “II. SUBSTANTIAL PROOF DID NOT EXIST THAT APPELLANT
VIOLATED HIS COMMUNITY CONTROL SANCTIONS, AND EVEN IF IT DID, THE
TRIAL COURT STILL ABUSED ITS DISCRETION IN REVOKING THE APPELLANT’S
COMMUNITY CONTROL.
{¶9} “III. THE TRIAL COURT ERRED IN REVOKING APPELLANT’S
PROBATION IN THAT THE CONDITIONS OF APPELLANT’S PROBATION WERE
OVERLY BROAD AND DID NOT POSSESS THE REQUISITE NEXUS TO THE CRIME
OF WHICH APPELLANT WAS CONVICTED.
{¶10} “IV. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF THE 6TH AMENDMENT TO THE U.S. CONSTITUTION
AND ARTICLE I, SECTIONS 10 & 16 OF THE OHIO CONSTITUTION.”
I.
{¶11} Appellant has withdrawn his first assignment of error. Accordingly, we find
the issue raised therein to be moot.
II.
{¶12} In his second assignment of error, Appellant alleges that the trial court
erred in finding him guilty of the probation violations because substantial proof did not
exist to support the violations.
{¶13} 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.” State v. Pavlich, 6th Dist. No. E-10-011, 2011-Ohio-802, ¶7, citing
State v. Ryan, 3d 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.
{¶14} 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.
{¶15} “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.
{¶16} 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.” Pavlich, supra, at ¶25, citing
State v. McKeithen, 3d 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.
{¶17} Accordingly, we must determine if the trial court abused its discretion in
finding that Appellant violated his conditions of probation. A review of the record does
not support a finding that the trial court abused its discretion.
{¶18} To the contrary, the evidence supports the trial court’s finding. Detective
Charles Willett of the New Philadelphia Police Department testified that he searched the
apartment that Appellant was residing in during the summer of 2009 and found $550.00
along with cocaine in the reclining chair that Appellant was sleeping in. When Detective
Willett attempted to arrest Appellant on January 15, 2010, Appellant fled upon seeing
him. After Appellant was arrested, he was indicted on, tried, and convicted of
possession of cocaine.
{¶19} Alice Barr of the Ohio Adult Parole Authority (APA) testified that she was
Appellant’s probation officer when he resided in Ohio. She reviewed his conditions of
probation with him when he was placed on community control. She was also involved
with his transfer of probation from Ohio to Michigan when he moved there in 2009. She
testified that she was in contact with his probation officer in Michigan and that Appellant
had not obtained permission to move back to Ohio from Michigan. Moreover, Appellant
had failed to make any restitution payments at the time of the revocation hearing.
{¶20} Appellant argues that the trial court should not have considered Ms. Barr’s
testimony, as she was no longer his supervising officer. We do not find this argument
persuasive. Ms. Barr had firsthand knowledge of Appellant’s terms of probation and of
his specific violations. There is no legal reason to prohibit her from testifying. Moreover,
the rules of evidence do not apply in revocation proceedings. Evid. R. 101(C). As such,
hearsay testimony is admissible and Ms. Barr could testify as to her knowledge of
Appellant’s probation conditions in Michigan.
{¶21} Moreover, the trial court was within its purview to determine that Appellant
violated the financial portion of his community control sanctions by failing to pay
restitution and court costs. R.C. 2929.18 provides for financial sanctions, but it does not
limit the sanctions to those listed in the statute. As such, we find that the trial court was
within its discretion to order Appellant to pay the drug task force, as the buy money
used to facilitate controlled buys between Appellant and a confidential informant came
from the task force’s funds.
{¶22} Appellant’s second assignment of error is overruled.
III.
{¶23} In his third assignment of error, Appellant argues that the trial court erred
in revoking his probation because his probation conditions were overly broad and did
not possess the requisite nexus to the crimes of which he was convicted. We disagree.
{¶24} Pursuant to R.C. 2951.02, trial courts are granted broad discretion in
setting conditions of probation. Specifically, R.C. 2951.02(C) provides that “ * * * [i]n the
interests of doing justice, rehabilitating the offender, and insuring his good behavior, the
court may impose additional requirements on the offender * * *. Compliance with the
additional requirements shall also be a condition of the offender's probation or other
suspension.” See State v. Jones (1990), 49 Ohio St. 3d 51, 550 N.E.2d 469, citing State
v. Livingston (1976), 53 Ohio App. 2d 195, 196-197, 372 N.E.2d 1335, 1337, citing
United States v. Strada (D.C.Mo.1974), 393 F. Supp. 19; People v. Dominguez (1967),
256 Cal. App. 2d 623, 64 Cal. Rptr. 290; Williams v. State (Tex.Crim.App.1975), 523
S.W.2d 953; see, also, Lakewood v. Davies (1987), 35 Ohio App. 3d 107, 519 N.E.2d
860, paragraph two of the syllabus. A trial court’s discretion in imposing conditions of
probation is not limitless. “Such conditions cannot be overly broad so as to
unnecessarily impinge upon the probationer's liberty.” Jones, supra, at 52, citing State v.
Maynard (1988), 47 Ohio App. 3d 76, 547 N.E.2d 409.
{¶25} The Supreme Court in Jones held, “[i]n determining whether a condition of
probation is related to the ‘interests of doing justice, rehabilitating the offender, and
insuring his good behavior,’ courts should consider whether the condition (1) is
reasonably related to rehabilitating the offender, (2) has some relationship to the crime
of which the offender was convicted, and (3) relates to conduct which is criminal or
reasonably related to future criminality and serves the statutory ends of probation. See,
e.g., United States v. Tolla (C.A.2, 1986), 781 F.2d 29, 32-33; State v. Maynard, supra,
at paragraph two of the syllabus; State v. Livingston, supra; Howland v. Florida
(Fla.App.1982), 420 So. 2d 918, 919; Rodriguez v. Florida (Fla.App.1979), 378 So. 2d 7;
Nitz v. State (Alaska App.1987), 745 P.2d 1379.” Id., at 53.
{¶26} The conditions of Appellant’s probation were not overly broad and in fact
are directly related to his convictions. The condition of paying restitution directly relates
to paying back money that was given to Appellant by a confidential informant of the drug
task force when he participated in controlled buys with that informant. Though
Appellant was ultimately not convicted of trafficking in drugs, he agreed to the condition
in the trial court’s judgment entry. This money and the buys were directly related to the
execution of the search warrant wherein Appellant’s residence in Ohio was raided and
the cocaine that he was convicted of possessing was found.
{¶27} The court did not require even a minimum amount be paid each month;
rather it merely required that Appellant make regular monthly payments. Moreover, as
we noted in our disposition of Appellant’s second assignment of error, this restitution
order was lawful pursuant to R.C. 2929.18(A)(1).
{¶28} Appellant’s third assignment of error is overruled.
IV.
{¶29} In Appellant’s fourth assignment of error, he argues that he was denied
the effective assistance of counsel in the event that this Court determines that his
arguments in the preceding assignments of error were not properly preserved for
appeal. Appellant’s arguments were considered on their merits, and as such, his fourth
assignment of error is overruled.
{¶30} For the foregoing reasons, the judgment of the Tuscarawas County Court
of Common Pleas is affirmed.
By: Delaney, J.
Gwin, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
ANTONIO MIDDLEBROOKS :
:
Defendant-Appellant : Case No. 2010 AP 08 0026
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Tuscarawas County Court of Common Pleas is affirmed. Costs
assessed to Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE