State v. Campbell

2023 Ohio 2815

Opinion

[Cite as State v. Campbell, 2023-Ohio-2815.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2022-03-008

: OPINION - vs - 8/14/2023 :

NICOLE LYNN CAMPBELL, :

Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2019-CR-00556

Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nick Horton, Assistant Prosecuting Attorney, for appellee.

Joshua R. Crousey, for appellant.

BYRNE, J.

{¶1} Nicole Lynn Campbell appeals from a decision of the Clermont County Court

of Common Pleas that found her in violation of community control and sentenced her to a

prison term. For the reasons discussed below, we reverse and remand for further

proceedings. Clermont CA2022-03-008

I. Procedural and Factual Background

{¶2} In 2019, a Clermont County grand jury indicted Campbell on one count of

burglary, a second-degree felony. Campbell subsequently entered a guilty plea to an

amended charge of burglary, a third-degree felony.

{¶3} At sentencing, in December 2019, the court imposed a three-year term of

community control. At both the sentencing hearing and in the sentencing entry, the court

advised Campbell it would order her to serve a 24-month prison term for any basic or

specific violation of community control.

{¶4} In September 2020, the Clermont County Probation Department filed an

affidavit of violation alleging that Campbell had violated community control by failing to

report and for being convicted of a new offense. Campbell admitted to the violations. Prior

to sentencing, the probation department filed a supplemental affidavit alleging a conviction

for another new offense. The court subsequently found Campbell guilty of the violations

alleged but continued her on community control.

{¶5} In July 2021, the Clermont County Probation Department filed an affidavit,

and then later a supplemental affidavit, alleging multiple new community control violations.

The allegations included failure to report to probation, failure to report for treatment, and

positive alcohol screens. Over the course of two hearings, the court found Campbell in

violation of community control. At sentencing, in January 2022, the court told Campbell it

would let her choose whether to go to prison or to residential treatment. When Campbell

failed to respond to the court's offer, the court indicated it would choose for her. The court

ordered Campbell to residential treatment, consisting of not more than 180 days at the

"MonDay Program."

{¶6} In February 2022, a probation officer transported Campbell to the MonDay

Program to begin her court-ordered treatment. On the same day she arrived, MonDay

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Program staff discharged Campbell for alleged aggressive and abusive behavior to staff

and others. The probation department then filed yet another affidavit of violation, which

detailed Campbell's discharge from the MonDay Program.

{¶7} The court held a community control revocation hearing in March 2022. The

court discussed the allegations in the newest affidavit of violation. The court then asked

Campbell if she was admitting to being discharged from the MonDay Program for

aggressive behavior to staff and others. Campbell responded, "No, sir."

{¶8} The court responded by stating that it had been provided a copy of a discharge

summary from the MonDay Program and that it would accept and admit that discharge

summary into evidence. Without objection by either party, the court admitted the discharge

summary as the Court's Exhibit 1.

{¶9} In the discharge summary, which was prepared by a MonDay Program

clinician, the clinician provided a written description for Campbell's unsuccessful discharge.

This narrative indicated that Campbell was hostile with staff upon entering the program

facility and that Campbell had made racist comments to a nurse. The court discussed these

facts while reviewing the discharge summary.

{¶10} After admitting the discharge summary into evidence, the court asked

Campbell if she wished to testify. Campbell stated that she did not want to testify.

Campbell's counsel did not produce any evidence or request to cross-examine any

witnesses. The state submitted no evidence.

{¶11} Solely based upon the discharge summary, the court found that Campbell

was in violation of the terms of community control. Campbell's attorney argued in her favor

with regard to sentencing and asked the court to consider Campbell's addiction issues and

to consider sending her to a different treatment program. Instead, the court imposed the

original burglary charge's 24-month prison sentence, as it had previously informed

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Campbell it would do if she violated community control.

{¶12} Campbell appealed, raising two assignments of error.

II. Law and Analysis

A. Assignment of Error No. 1:

{¶13} THE TRIAL COURT ERRED BY RELYING ON AND ADMITTING HEARSAY

EVIDENCE IN VIOLATION OF THE CONFRONTATION CLAUSE OF THE SIXTH

AMENDMENT TO THE UNITED STATES CONSTITUTION.

{¶14} Campbell argues that the trial court violated her confrontation rights under the

United States Constitution by admitting the discharge summary. She also argues that the

admission of the discharge summary violated her right to due process. She contends the

discharge summary constituted testimonial hearsay, that the author of the discharge

summary did not testify, and that Campbell was therefore unable to confront the witness

against her.1

{¶15} As a preliminary matter, we must address the appropriate standard of review.

A defendant who fails to timely object to a court's alleged due process violation during a

community control revocation violation hearing waives all but plain error. State v. Nallen,

2d Dist. Miami No. 2012 CA 24, 2013-Ohio-3284, ¶ 18, citing State v. Foster, 6th Dist. Lucas

Nos. L-06-1126 and L-06-1229, 2007-Ohio-1867, ¶ 12. Accord State v. English, 8th Dist.

Cuyahoga No. 109645, 2021-Ohio-850, ¶ 10. This remains true when a defendant fails to

timely object on Confrontation Clause grounds. State v. White, 12th Dist. Warren No.

CA2018-09-107, 2019-Ohio-4312, ¶ 24 ("The record reflects that White's objection at trial

was based on hearsay and there is no indication that the court understood that White was

1. Campbell acknowledges that the admission of the discharge summary did not violate the Rules of Evidence because those rules do not apply in proceedings with respect to community control sanctions. Evid.R. 101(D)(3).

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challenging the admission of the recording on the basis of a Confrontation Clause violation.

As such, we review the Confrontation Clause issue for plain error"); State v. Cappadonia,

12th Dist. Warren No. CA2008-11-138, 2010-Ohio-494, ¶ 29 ("As a result of appellant's

failure to specifically object to the admission of the social worker's assessment on

Confrontation Clause grounds, we need only determine whether the admission of the

assessment constituted plain error on the part of the trial court").

{¶16} "Plain errors or defects affecting substantial rights may be noticed although

they were not brought to the attention of the court." Crim.R. 52(B). Crim.R. 52(B) places

three limitations on a reviewing court's decision to correct an error not raised before the trial

court. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). First, an error, "i.e., a deviation from

a legal rule," must have occurred. Id., citing State v. Hill, 92 Ohio St.3d 191, 200 (2001), in

turn citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770 (1993). Second, the

error complained of must be plain, i.e., it must be "an 'obvious' defect in the * * *

proceedings." Id., quoting State v. Sanders, 92 Ohio St.3d 245, 257 (2001), in turn citing

State v. Keith, 79 Ohio St.3d 514, 518 (1997). Third, the error must have affected

"substantial rights," that is, the error must have affected the outcome of the trial. Id. An

appellate court will take notice of plain error with "utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice." State v. Baldev, 12th

Dist. Butler No. CA2004-05-106, 2005-Ohio-2369, ¶ 12.

{¶17} At the revocation hearing, Campbell did not object to the admission of the

discharge summary on Confrontation Clause or any other grounds, so Campbell waived all

but plain error. Nallen at ¶ 18. On appeal, Campbell argues that the admission of the

discharge summary constituted a denial of her due process right of confrontation and cross-

examination. Campbell does not explicitly reference the plain error standard of review.

However, Campbell argues that the court's procedure resulted in a deprivation of her

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constitutional rights and that because the state produced no other evidence of a violation,

the error was not harmless, and she suffered prejudice. We find that Campbell's argument

is tantamount to a plain error argument, and we therefore find that it is not waived.

{¶18} Upon review, we agree that the trial court's procedure at the revocation

hearing constituted plain error. We have recognized that community control hearings are

not subject to the rules of evidence, therefore allowing for the admission of hearsay

evidence. State v. Schreiber, 12th Dist. Warren No. CA2018-03-026, 2019-Ohio-2963, ¶

20. Nonetheless, "[a] defendant is entitled to due process when his or her community

control is revoked as a result of a violation of a community control condition." State v.

Noonan, 12th Dist. Butler Nos. CA2018-10-203 and CA2018-10-204, 2019-Ohio-2960, ¶

13, citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756 (1973). The due process

rights that must be observed in a community control revocation hearing are,

(1) written notice of the claimed violations of community control, (2) disclosure of evidence against the offender, (3) an opportunity to be heard in person and to present witnesses and documentary evidence, (4) the right to confront and cross- examine adverse witnesses, (5) a neutral and detached hearing body, and (6) a written statement by the fact finder as to the evidence relied upon and the reasons for revoking community control.

(Emphasis added.) Noonan at Id., citing State v. Shumway, 2d Dist. Greene No. 2017-CA-

51, 2018-Ohio-1227, ¶ 11; Columbus v. Bickel, 77 Ohio App.3d 26, 34 (10th Dist.1991).

{¶19} A community control revocation hearing is not a criminal trial, and therefore,

the state is not obligated to prove a violation beyond a reasonable doubt. Schreiber at ¶

17. However, the state is required to present "substantial evidence" of a violation of

community control. Id., citing State v. Kincer, 12th Dist. Clermont No. CA2005-07-059,

2006-Ohio-2249, ¶ 5, citing State v. Hylton, 75 Ohio App.3d 778, 782 (4th Dist.1991).

{¶20} Here, when questioned by the court as to whether she was admitting to the

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factual basis of the alleged violation, Campbell responded unequivocally that she denied

the allegation. At that time, it should have been plainly evident that the state would be

required to introduce evidence substantiating the violation. Instead, what occurred was that

the trial court sua sponte produced a discharge summary containing written allegations of

the alleged violation. How that document was provided to the court is not developed in the

record. The court then indicated it was admitting the discharge summary as its own exhibit.

The court then discussed the written allegations and based solely upon its consideration of

the contents of the discharge summary, found Campbell in violation of community control.

{¶21} The court's procedure placed it in the role of prosecuting an alleged violation

against Campbell. While a court is generally permitted under the Rules of Evidence to

question witnesses and even call witnesses in its sound discretion, the court must never

abandon its impartial role or assume the role of an advocate. State v. Hammond, 12th Dist.

Clinton No. 87-11-026, 1988 WL 129474, *3 (Dec. 5, 1988); City of Warren v. Hill, 11th Dist.

Trumbull No. 2003-T-0069, 2004-Ohio-6946, ¶ 22; State v. Prokos, 91 Ohio App.3d 39, 44

(4th Dist. 1993). And though the Rules of Evidence do not apply in revocation proceedings,

the defendant remains entitled to "a neutral and detached hearing body." Noonan, 2019-

Ohio-2960 at ¶ 13.

{¶22} Here, the only evidence produced of a violation was introduced by the court

itself. The state produced no evidence whatsoever. "In effect, the court prosecuted the

entire matter for [the state] and simultaneously acted as the trier of fact." City of Warren at

¶ 23. Moreover, the procedure utilized by the court, i.e., simply reading allegations from a

discharge summary, precluded Campbell from confronting and cross-examining the author

of the report. Under these circumstances, we must conclude that the court abandoned its

role as a neutral and detached factfinder and further deprived Campbell of the right to

confront and cross-examine the witnesses against her, both of which she is entitled to

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during revocation proceedings as a matter of due process. Noonan at ¶ 13.

{¶23} For these reasons, we conclude that the irregular procedure constituted an

obvious defect in the proceedings. Furthermore, we conclude the error affected Campbell's

substantial rights. As discussed above, the state submitted no evidence at the hearing.

Campbell produced no evidence either. Therefore, in the absence of the trial court's

consideration of its own exhibit, it could not have found "substantial evidence" of a violation

of community control. Accordingly, the error affected the outcome of the proceedings and

constituted plain error. Barnes, 94 Ohio St.3d at 27.

{¶24} The state cites a somewhat similar case from the Second District Court of

Appeals, which it argues demonstrates that plain error did not occur here. In State v. Pullen-

Morrow, 2d Dist. Montgomery No. 24862, 2012-Ohio-3605, the appellant argued that

counsel at her revocation hearing was ineffective for failing to object to testimony from a

probation officer regarding the content of a discharge summary from the MonDay Program

that the probation officer did not author, as well as for failing to object to the admission of

the discharge summary itself. Id. at ¶ 1.

{¶25} We find Pullen-Morrow distinguishable. In that case, the court did not

abandon its role as a neutral factfinder and produce the only evidence of a violation against

the defendant. Instead, the state called a witness who testified to the contents of the

discharge summary and was subject to cross-examination. Id. at ¶ 10-11. And despite

concerns with the witness's hearsay testimony, the court of appeals observed that the

witness had testified as to a conversation with the defendant that arguably substantiated

the violation. Id. at ¶ 22. Therefore, the due process concerns discussed in Pullen-Morrow

were not the same and did not rise to the same level of concern as those occurring here.

{¶26} Based on the foregoing analysis, we sustain Campbell's first assignment of

error. We reverse the decision of the trial court finding Campbell in violation of community

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control and we remand this matter for a new revocation hearing.

B. Assignment of Error No. 2:

{¶27} APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

{¶28} In her second assignment of error, Campbell argues that her attorney

provided ineffective assistance by failing to object to the admission of the discharge

summary. However, given our resolution of Campbell's first assignment of error, this

assignment of error is moot and need not be addressed. App.R. 12(A)(1)(c).

III. Conclusion

{¶29} Campbell has demonstrated plain error in the court's sua sponte admission of

the MonDay Program discharge summary. We reverse and vacate the decision finding

Campbell in violation of community control. We remand for a new revocation hearing.

{¶30} Judgment reversed and cause remanded.

HENDRICKSON, J., concurs.

PIPER, P.J., concurs separately.

PIPER, P.J., concurring separately.

{¶31} I concur with the judgment of my colleagues but find that the proceedings

occurred in the manner they did because Campbell's counsel provided little to no

representation. Counsel’s failure to represent Campbell's interests resulted in the state

submitting no evidence or witnesses. Counsel failed to call Campbell to the stand to explain

why she believed her discharge from the program was unjustified.

{¶32} When the client longs for a contested hearing and does not believe her

community control is rightfully revoked, her protector of a fair process cannot shrink into the

stands as a mere spectator. Counsel’s commitment to courtroom representation of clients

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entails fulfilling the necessary responsibilities undertaken. Even when the battle may

seemingly be doomed, presence on the field is required. The lack of that presence results

in ineffective representation of counsel.

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