State v. Clark

2022 Ohio 2539

Opinion

[Cite as State v. Clark, 2022-Ohio-2539.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 14-22-01

v.

GREGORY A. CLARK, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 18 CR 0108

Judgment Affirmed

Date of Decision: July 25, 2022

APPEARANCES:

Alison Boggs for Appellant

Andrew M. Bigler for Appellee Case No. 14-22-01

SHAW, J.

{¶1} Defendant-Appellant, Gregory A. Clark (“Clark”), appeals the

December 21, 2021 judgment of the Union County Common Pleas Court sentencing

him to consecutive-prison terms following his admission to violating his community

control. For the reasons that follow, we affirm.

Background

{¶2} In December 2018, Clark pled guilty to one count of grand theft when

the property is a firearm or dangerous ordnance, a third degree felony, and one count

of breaking and entering, a fifth degree felony. Clark failed to appear for sentencing

but was subsequently arrested and sentenced in June 2021 to five years of

community control on each count. The terms and conditions of Clark’s community

control included that he successfully complete the residential program at West

Central Community Based Correctional Facility (“West Central”). Clark was

notified that any violation of his community control could result in a thirty-six-

month prison sentence on the count of grand theft and twelve months on the count

of breaking and entering, to run consecutively, for a total prison sentence of forty-

eight months.

{¶3} On December 15, 2021, Clark’s supervising probation officer filed a

Notice of Community Control Violation, alleging that Clark violated the condition

of his community control by being “unsuccessfully discharged from West Central

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CBCF on December 15, 2021.” On December 17, 2021, the trial court ordered that

Clark be served with (1) a copy of the notice, (2) an affidavit of indigency, and (3)

an explanation of rights as to the alleged community control violation.

{¶4} The trial court conducted a community control violation hearing on

December 21, 2021. At the hearing, Clark admitted to the alleged violation. Based

upon that admission, the trial court found Clark had violated his community control.

The supervising probation officer’s recommendation was that the trial court impose

a prison sentence. Clark’s defense counsel argued in mitigation of the sentence,

requesting that the trial court continue community control rather than prison, and

Clark also spoke to the trial court in mitigation. The trial court then imposed a

thirty-month prison term on the offense of grand theft and a ten-month prison term

on the offense of breaking and entering, with these terms to be served consecutively

to each other, for a total prison sentence of forty months. It is from this judgment

that Clark appeals, asserting the following assignments of error for our review.

Assignment of Error No. 1 The trial court erred when it accepted Appellant’s admission to the violation of his community control before giving Appellant notice at the hearing of the claimed violations.

Assignment of Error No. 2 The trial court erred when it failed to conduct a separate preliminary hearing and revocation hearing, depriving Appellant the ability to call witnesses to either show he did not violate his community control or that he had mitigating circumstances that showed the alleged violation did not warrant a revocation of his community control.

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Assignment of Error No. 3 Appellant was deprived effective assistance of counsel resulting in Appellant not receiving his right to a full revocation hearing on the community control violation.

{¶5} For ease of discussion, we elect to combine Clark’s first and second

assignments of error for our review.

First and Second Assignments of Error

{¶6} In his first assignment of error, Clark contends that he was denied due

process, when at the hearing on his community control violation, the trial court

never inquired of him as to whether he was willing to waive a preliminary probable

cause hearing and also failed to apprise him of the “actual grounds” for the alleged

violation before taking his admission. (Appellant’s Brief at 5). Clark further

contends, in his second assignment of error, that the trial court erred when it failed

to conduct a separate preliminary hearing and revocation hearing. According to

Clark, he did not have an opportunity to present evidence of racial prejudice

displayed toward him as a defense to violating his community control, or as his

reason for that violation, in mitigation to support a non-revocation. Clark requests

this Court to remand the matter for full and complete hearings on the community

control violation. The State, however, argues no plain error exists where Clark

failed to object to the lack of a second hearing.

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Legal Analysis

{¶7} A defendant under community control is entitled to both a preliminary

hearing and a final revocation hearing. State v. Grow, 3d Dist. Logan Nos. 8-20-

27, 8-20-28, and 8-20-29, 2021-Ohio-641, ¶ 7. The purpose of the preliminary

hearing is to determine if probable cause exists to believe the defendant has violated

the terms of his community control. Id. “ ‘The purpose of the final revocation

hearing is to give the defendant “an opportunity to be heard and to show” that he

either did not violate his conditions or that certain mitigating circumstances “suggest

that the violation does not warrant revocation.” ’ ˮ Id., quoting State v. Knerr, 3d

Dist. Auglaize Nos. 2-14-03 and 2-14-04, 2014-Ohio-3988, ¶ 14, quoting Morrissey

v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593 (1972).

{¶8} The due process requirements for revocation hearings further require

(1) written notice of the claimed violation; (2) disclosure of the evidence against a

defendant; (3) an opportunity to be heard and to present witnesses and evidence; (4)

the right to confront and cross-examine witnesses; (5) a neutral and detached

hearing body; and (6) a written statement by the factfinder as to the evidence relied

upon and reasons for revocation. Id. at ¶ 8. State v. Miller, 42 Ohio St.2d 102, 104

(1975).

{¶9} Crim.R. 32.3, which provides the procedural framework that is to occur

at a community-control-revocation hearing, provides, in pertinent part:

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(A) Hearing. The 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. The defendant may be admitted to bail pending hearing.

(B) Counsel. The defendant shall have the right to be represented by retained counsel and shall be so advised. Where a defendant convicted of a serious offense is unable to obtain counsel, counsel shall be assigned to represent the defendant, unless the defendant after being fully advised of his or her right to assigned counsel, knowingly, intelligently, and voluntarily waives the right to counsel. Where a defendant convicted of a petty offense is unable to obtain counsel, the court may assign counsel to represent the defendant.

{¶10} Accordingly, we have reviewed the record to determine whether the

trial court complied with the requirements of due process and Crim.R. 32.3. The

record reflects at the commencement of the community control violation hearing

held December 21, 2021, the trial court began by reading the violation alleged in

the December 15, 2021 Notice. The trial court then noted that it had issued the

journal entry ordering that Clark be served with a copy of the notice of the alleged

community control violation and the explanation of rights. The “explanation of

rights” form explained that:

A defendant under community control is entitled to both a preliminary and a final revocation hearing. The preliminary hearing is a “probable cause” hearing to determine if you, as defendant, violated any terms of your community control. If the court finds probable cause that you have violated your community control, the court will set the matter for a second hearing to consider evidence and argument on whether or not you should be sent to prison or given another chance on community control. The court may continue you on community

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control or revoke community control and send you to prison as you were told by the court at the time your sentence was imposed.

(Doc. 58).

{¶11} After this, the trial court stated the case was before it for “first

hearing.” (12/21/21 Tr. at 4). The defense declined to have the trial court give any

further explanation of rights in the case, and counsel indicated that Clark intended

to admit to the alleged violation of community control. As the record indicates,

Clark had a hearing and was represented by counsel when the trial court read the

alleged community control violation against him. This Court notes that the alleged

violation was that Clark was unsuccessfully discharged from West Central in

violation of the requirement that he successfully complete the program at West

Central. Accordingly, the record does not support Clark’s contention that he was

not apprised of the claimed violation of his community control terms.

{¶12} Moreover, when questioned directly by the trial court, Clark freely and

voluntarily admitted to the community control violation and therefore effectively

waived a probable-cause determination by his admission. See State v. Frazier, 8th

Dist. Cuyahoga No. 104596, 2017-Ohio-470, ¶ 11 (“Appellant, through his attorney,

was given an opportunity to address the court and dispute the charges brought

against him. Instead, appellant admitted to the violation.”).

{¶13} We further find no plain error occurred. Clark never objected to the

merger of the two hearings or requested a separate revocation hearing. The failure

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to object to a due process violation during the revocation hearing waives all but

plain error. State v. Dye, 4th Dist. Athens No. 16CA17, 2017-Ohio-9389, ¶ 10,

citing State v. Klosterman, 2d Dist. Darke Nos. 2015-CA-9 and 2015-CA-10, 2016-

Ohio-232, ¶ 15; State v. Allsup, 3d Dist. Hardin Nos. 6-10-06 and 6-10-07, 2011-

Ohio-405, ¶ 30. Crim.R. 52(B) provides that “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the court.” See id. “An error qualifies as ‘plain error’ only if it is obvious and but

for the error, the outcome of the proceeding clearly would have been otherwise.”

State v. Barnhart, 3d Dist. Putnam No. 12-20-08, 2021-Ohio-2874, ¶ 8, citing State

v. Yarbrough, 95 Ohio St.3d 227, 245, 2002-Ohio-2126, ¶ 32.

{¶14} The trial court here held both hearings serially in one consolidated

hearing, “which is not unusual for courts to do, particularly when the defendant

stipulates to violations of community control.” State v. Waddell, 10th Dist. Franklin

No. 14AP-372, 2014-Ohio-4829, ¶ 10, citing see, e.g., State v. Marvin, 134 Ohio

App.3d 63 (3d Dist. 1999) (“after appellant admitted his violation to the trial court

just after commencement of the hearing, the court proceeded to address issues

relevant to the final revocation hearing”); State v. Brown, 7th Dist. No. 10 MA 34,

2010-Ohio-6603 (“after appellant stipulated to probable cause for the violations and

openly admitted that he committed the violations, the trial court proceeded directly

to the final revocation hearing”); State v. Hammonds, 10th Dist. No. 06AP-1122,

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2007-Ohio-4456 (“after the defendant stipulated to probable cause and admitted to

community control violations, the trial court proceeded to the mitigation phase of

the proceedings”). Insofar as Clark argues on appeal that he had mitigating

circumstances, or his reason for the violation, showing that the violation did not

warrant revocation of his community control, that information was, in fact,

presented at the revocation portion via Clark’s own statements and by defense

counsel’s mitigation argument. After the supervising probation officer read off of

Clark’s discharge from the residential program, revealing how the incident

happened, Clark and his counsel both proceeded to explain the violation in

mitigation.

{¶15} As other appellate courts have held, oral notice coupled with the

complete admission at the preliminary hearing on the violation of sanctions satisfied

any due process concerns. Dye at ¶ 18; State v. Jimenez, 8th Dist. Cuyahoga No.

104735, 2017-Ohio-1553, ¶ 6. It also is relevant that this Court has found similar

procedural facts in State v. Wilhite, 3d Dist. No. 14-06-16, 2007-Ohio-116, did not

rise to the level of plain error when a trial court proceeded to the revocation phase

of the proceedings in the same hearing as an admitted violation of community

control, reasoning that the defendant was not prejudiced. There, as here, defendant

admitted to the violation before the trial court, did not object to the trial court

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proceeding to disposition, and made statements in mitigation before being sentenced

to a prison term. Wilhite at ¶ 9.

{¶16} Accordingly, based on the record before us, there was no due process

violation in this case, and no plain error. The first and second assignments of error

are overruled.

Third Assignment of Error

{¶17} In his third assignment of error, Clark claims that he was denied the

effective assistance of counsel when his counsel failed to request separate

community control violation hearings and present evidence in his defense.

{¶18} To establish his ineffective-assistance-of-counsel claims, Clark must

show both deficient performance, that his defense counsel’s performance fell below

an objective standard of reasonable representation, and prejudice. State v.

Blackburn, 3d Dist. Logan No. 8-21-25, 2022-Ohio-988, ¶ 18-19. “ ‘To show

prejudice, [he] must show a reasonable probability that, but for counsel’s errors, the

result of the proceeding would have been different.’ ˮ State v. Moll, 3d Dist.

Defiance No. 4-19-17, 2020-Ohio-2784, ¶ 4, quoting State v. Conway, 109 Ohio

St.3d 412, 2006-Ohio-2815, ¶ 95.

{¶19} Based on our resolution of Clark’s first and second assignments of

error, Clark cannot demonstrate that the outcome of his community control

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revocation hearing would have been different. Therefore, Clark’s defense counsel

was not ineffective for failing to challenge the summary nature of the proceedings

or the validity of his community control violation admission at his community

control violation hearing. See State v. Jimenez, 8th Dist. Cuyahoga No. 104735,

2017-Ohio-1553, at ¶ 6 (“oral notice coupled with the complete admission at the

preliminary hearing on the violation of sanctions satisfies any * * * effective

assistance of counsel concerns”). Additionally, defense counsel was able to present

the information regarding Clark’s completion progress at West Central, and the

allegations Clark made concerning his treatment by others at the facility during the

mitigation portion. Thus, his third assignment of error is overruled.

{¶20} Accordingly, for the foregoing reasons, the judgment of the Union

County Common Pleas Court is affirmed.

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr

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