State v. Caldwell

2018 Ohio 2203

• Court: Ohio Court of Appeals
• Decided: June 6, 2018
• Docket: 2017 CA 075
• Status: Published

Opinion

[Cite as State v Caldwell, 2018-Ohio-2203.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2017 CA 075 GARY CALDWELL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2007 CR 413

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 6, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP JAMES L. BLUNT, II PROSECUTING ATTORNEY 3954 Industrial Parkway Drive JOSEPH C. SNYDER Shelby, Ohio 44875 ASSISTANT PROSECUTOR 38 South Park Street Mansfield, Ohio 44902

Wise, John, P. J. Richland County Case No. 2017 CA 075 2

{¶1} Appellant Gary Caldwell appeals his revocation of community control in the

Richland County Court of Common Pleas. Appellee is the State of Ohio. The relevant

facts leading to this appeal are as follows.

{¶2} On April 28, 2008, appellant appeared before the trial court and entered a

plea of guilty to an amended count of abduction, R.C. 2905.02(A)(1), a felony of the third

degree. He was thereupon sentenced inter alia to five years of community control, a

condition of which was completion of the “VOA halfway house” program. According to the

sentencing entry, appellant was at that time already in prison on a separate Richland

County case from 2007.

{¶3} On June 6, 2017, following an investigation under the Prison Rape

Elimination Act (“PREA”), 42 U.S.C. 15601, et seq., State Probation Officer Mary Gates

filed a seven-count notice of probation violations regarding appellant. This was based on

alleged actions occurring while appellant was a resident at the Volunteers of America

facility, which had led to his termination from the VOA program.1

{¶4} A hearing on the alleged probation violations went forward before the trial

court on July 26, 2017, and was carried into a second day, August 4, 2017.

{¶5} After hearing the evidence, the trial court found appellant guilty of violating

his community control based on counts 5 and 7 of Gates’ notice (engaging in sexual

contact with another resident without his consent, and failing to complete the VOA halfway

house program). Via judgment entry issued on August 7, 2017, appellant was sentenced

to three years in prison and three years mandatory post-release control.

1 Appellant’s brief implies that the halfway house in question qualifies as a CBCF (community based correctional facility). We will herein proceed under this assumption. Richland County Case No. 2017 CA 075 3

{¶6} On September 6, 2017, appellant filed a notice of appeal. He herein raises

the following sole Assignment of Error:

{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT

THE DEFENDANT VIOLATED HIS TERM AND CONDITIONS OF COMMUNITY

CONTROL BY BEING TERMINATED FOR CAUSE FROM THE VOLUNTEERS OF

AMERICA COMMUNITY BASED CORRECTIONAL FACILITY.”

I.

{¶8} In his sole Assignment of Error, appellant contends the trial court abused

its discretion in finding he had violated the terms of his community control. We disagree.

{¶9} “The privilege of probation [or community control] 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. Russell, 11th Dist. Lake

No. 2008–L–142, 2009–Ohio–3147, ¶ 7, quoting State v. Bell, 66 Ohio App.3d 52, 57,

583 N.E.2d 414 (5th Dist. 1990). Because a revocation hearing is not a criminal trial, the

State only has to introduce evidence showing that it was more probable than not that the

person on probation or community control violated the terms or conditions of the same.

See State v. Stockdale, 11th Dist. Lake No. 96–L–172, 1997 WL 663688. Because a

community control revocation hearing does not require that the State prove its allegations

beyond a reasonable doubt, our review as to whether a defendant's revocation is

supported by the evidence is conducted under a “highly deferential standard.” See State

v. Slosky, 5th Dist. Guernsey No. 12 CA 13, 2012–Ohio–5853, ¶ 24, citing State v.

Ritenour, 5th Dist. Tuscarawas No. 2006AP010002, 2006–Ohio–4744, ¶ 36 (additional

citations omitted). Richland County Case No. 2017 CA 075 4

{¶10} Generally, an appellate court reviews a trial court's decision actually

revoking community control sanctions on an abuse-of-discretion standard. See State v.

Cofer, 2nd Dist. Montgomery No. 22798, 2009-Ohio-890, ¶ 13. In other words, once a

trial court finds that a defendant has violated community control conditions, it possesses

discretion to revoke the defendant's community control. In that event, appellate courts

should not reverse the trial court's decision unless the court abused its discretion. See

State v. Wolfson, 4th Dist. Lawrence No. 03CA25, 2004–Ohio–2750, ¶¶ 7-8; State v.

Umphries, 4th Dist. Pickaway No. 97CA45, 1998 WL 377768.2

{¶11} At the violation hearings conducted by the trial court in this matter, the State

called Probation Officer Gates and two witnesses from the VOA facility (including the

victim, R.B.), while appellant called the VOA clinical supervisor and a corrections officer

from the Richland County Sheriff’s Office. Appellant did not testify at the hearings.

{¶12} Evidence was adduced that appellant arrived at the VOA facility on or about

May 12, 2017. Appellant soon met another male participant in the program, R.B., who

had been there since late April 2017. Tr. at 10. Almost immediately, appellant began

sexually harassing R.B. Tr. at 7. In particular, during a period of time in May 2017,

appellant asked R.B. on several occasions to perform sexual acts on him, such as fellatio

and “hand jobs.” Tr. at 7-11. R.B. repeatedly told appellant to leave him alone, to no avail.

At one point, appellant entered a shower stall and grabbed R.B.’s penis. Tr. at 21. R.B.

reported some of these incidents, prompting VOA officials to conduct an investigation.

Following said investigation, appellant's VOA case manager terminated appellant from

2 Thus, as the State aptly notes in its response brief, the text of appellant’s assigned error conflates the applicable standards of review for this appeal. Richland County Case No. 2017 CA 075 5

the program. Tr. at 27. The VOA facility policy is that a substantiated PREA incident

results in automatic termination. See Tr. at 28.

{¶13} Appellant’s cursory argument in the case sub judice essentially directs us

to the testimony of Luann LaRue, the VOA clinical supervisor, who recalled that appellant,

when interviewed by staff members, denied any inappropriate behavior towards R.B. See

Tr. at 44-48. Appellant also argues the State failed to prove he was terminated from the

VOA program “for cause,” citing our decision in State v. Redick, 5th Dist. Fairfield No. 08

CA 73, 2009-Ohio-3850. However, the appellant in Redick claimed he had been deprived

of due process because of alleged hearsay evidence presented during his revocation

hearing, and we did not therein explicitly set forth a “good cause” standard for CBCF or

residential program termination.

{¶14} Upon review, we find there was sufficient evidence presented that appellant

violated the terms of his community control via his actions at the VOA facility and his

resulting termination from the program. Accordingly, the trial court did not abuse its

discretion in its corresponding decision to revoke appellant's community control sanction. Richland County Case No. 2017 CA 075 6

{¶15} Appellant's sole Assignment of Error is therefore overruled.

{¶16} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Richland County, Ohio, is hereby affirmed.

By: Wise, John, P. J.

Delaney, J., and

Wise, Earle, J., concur.

JWW/d 0522