State v. Colson

2025 Ohio 1266

• Court: Ohio Court of Appeals
• Decided: April 10, 2025
• Docket: 114447
• Status: Published

Opinion

[Cite as State v. Colson, 2025-Ohio-1266.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 114447 v. :

ANGELO COLSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 10, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-679871-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Jamielle Lamson-Buscho, Assistant Prosecuting Attorney, for appellee.

Marc L. Stolarsky Law, LLC, and Marc L. Stolarsky, for appellant.

EILEEN A. GALLAGHER, A.J.:

Angelo Colson (“Colson”) appeals the trial court’s “decision to revoke

his probation . . . based on allegedly improper conduct related to employment

verification.” For the following reasons, we affirm the trial court’s judgment. I. Facts and Procedural History

On June 16, 2023, Colson pled guilty to attempted felonious assault,

endangering children and operating a vehicle while under the influence of alcohol

or drugs. On July 20, 2023, the court sentenced Colson to three years of

community-control sanctions (“CCS”) in the intensive probation supervision unit,

the terms of which included regular drug testing, completion of an anger-

management program, driver’s license suspension, completion of an inpatient-drug

treatment program, attending three “AA/NA meetings per week,” obtaining a

sponsor and receiving psychological counseling. The court included in its

sentencing journal entry that “violation of the terms and conditions may result in

more restrictive sanctions or a prison term of 36 months . . . .”

On July 27, 2023, Colson was transported to an inpatient-drug

treatment facility. On August 1, 2023, the facility reported Colson absent without

leave, and on August 2, 2023, the court issued a capias for his arrest. For

approximately the next year, Colson was “unaccounted for.”

On August 29, 2024, Colson was arrested for obstructing official

business and taken into custody because of the outstanding capias.

On September 19, 2024, the court held a CCS violation hearing at

which probation officer Karen Jopek (“Jopek”) related that Colson did not comply

with any of the terms of his CCS. Jopek stated that Colson “actually left the program

and was walking — he basically was walking down the street . . . . No contact had

been received from . . . Colson since that time until 8/29.” Colson’s attorney stated that “[e]verything [Jopek] said is accurate” and Colson stipulated “to probable cause

for being in violation.” Colson’s attorney also admitted, in mitigation, that Colson

was “about 17 months sober. He was working at Popeye’s full-time for about three

months. He has a place to stay.”

Colson’s attorney further stated that Colson was “ready, willing and

able to do treatment if [the court] is inclined to do so.” The court questioned Jopek

about this option and reviewed Colson’s history of criminal activity, specifically

noting that he has “had many [CCS] repeated escapes.” During allocution, Colson

stated that he left the treatment facility because he “saw activities going down” and

“got ambushed in the bathroom” after he “said something about it.” The court stated

that it did not “see any evidence” to support Colson’s “claim” about what occurred

other than Colson’s version of the events. The court stated that it doubted Colson’s

claim but was “willing to hear more, if you’ve got some evidence or some way to

verify that.”

The court engaged Colson in a conversation on the record in an attempt

to “verify” Colson’s version of why he left the treatment facility on August 1, 2023.

According to the court, there was “reason to doubt [Colson’s] credibility.” For

example, the court questioned Colson about his teeth after he claimed they were

“kicked out” in the “ambush.”

The court asked Colson, “Now what would make me think you would

want to rehabilitate?” The court asked Colson if he had “proof of this employment

[he] had at Popeye’s.” Colson answered, “I don’t have no proof of that right now. I don’t have nothing, sir, right now. All I got is my word, sir.” The court stated that it

was trying to “test” Colson’s credibility and asked how it was to know that Colson

was “not going to walk out of” a treatment facility if that is where the court would

send him to rehabilitate.

The court continued to question Colson about his claim that he was

working at Popeye’s. Colson stated that his supervisor’s name was Amber Williams,

but he did not know the address or telephone number of his place of employment.

Colson stated that he was “cooking chicken and serving chicken” from May to July

2024. After determining Popeye’s location at which Colson claimed to have worked,

the court instructed Jopek to call Popeye’s to verify whether Colson worked there or

used to work there and explained its reasoning as follows: “I want to see if he’s

telling the truth. We’ll keep looking for something that’s true. Maybe I could have

the faith that he can go to a halfway house and actually do it.”

Jopek called Popeye’s and spoke with the “general manager on duty.”

Jopek told the court that she asked the general manager, “[D]oes an Angelo Colson

work for you?” Jopek reported that the general manager answered,

“[U]nfortunately not.” The court stated as follows: “I am just having a lot of doubt

issues with the defendant’s statement. What he said so far has been unverifiable.”

At the court’s request, Jopek called Popeye’s general manager back and, after the

conversation, stated the following on the record:

So they did have an [Amber] Williams that worked there that was fired under suspicion of theft . . . There’s no Mr. Angelo Colson in their system and then he also spoke with his head cook who has been there for 17 years that indicated Angelo Colson has never worked there and they would never pay anyone under the table. It would always be via pay stub.

Colson stated that he “worked with Angela[1] Williams. I did not know

nothing about no theft when she was let go because they said my daughter had broke

the window, that’s why he let her go.” The court asked Colson who got fired, and

Colson replied, “Amber Williams.” Colson also stated as follows: “But I was working

with her at Popeye’s. I was doing under the table and I was working for her and she

was paying me so I was working there.”

The court stated the following:

We can go on and on with this matter but I don’t see any point in it. I just don’t find your character to be truthful with the Court or honest based on all your behavior. I looked at this earlier, you put blame on everybody else. I just don’t see you rehabilitating. I don’t want to waste more time trusting you, put you into a rehabilitation center. I’m going to find you to be a [CCS] violator. You can rehabilitate in the penitentiary. The other two times didn’t work, these other jailings didn’t work. You didn’t walk in here, you got carried in here.

The court sentenced Colson to 36 months in prison and gave him

credit for time served. Colson appeals this order raising two assignments of error

for our review.

I. The trial court violated Mr. Colson’s Sixth Amendment right to confront witnesses by perpetuating evidence from a telephone conversation conducted outside the hearing, without allowing Mr. Colson the opportunity to cross-examine the source of the information.

1 Although somewhat confusing from the transcript of Colson’s CCS violation

hearing, it appears that Jopek mistakenly referred to Amber Williams as “Angela” Williams. Immediately after Jopek’s mistake, Colson also referred to this person as “Angela” Williams. II. The trial court violated Mr. Colson’s Fourteenth Amendment right to due process by admitting improper hearsay evidence obtained in an ex-parte manner, resulting in an unfair and arbitrary probation revocation hearing.

II. Law and Analysis

a. Standard of Review

Generally, we review a trial court’s decision regarding a CCS violation

for an abuse of discretion. State v. Williams, 2025-Ohio-461, ¶ 9 (8th Dist.). The

Ohio Supreme Court has defined abuse of discretion as follows: “a court exercising

its judgment, in an unwarranted way, in regard to a matter over which it has

discretionary authority.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. However, in

this case, Colson failed to object to any part of his CCS hearing. Failure to object to

a due process violation during a CCS violation hearing waives all but plain error. See

State v. English, 2021-Ohio-850, ¶ 12-13 (8th Dist.). “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). For an error to be “plain,” it “must be an

‘obvious’ defect in the trial proceedings” and it “must have affected ‘substantial

rights.’” State v. Barnes, 94 Ohio St.3d 21, 27 (2002). The Ohio Supreme Court has

mandated that Crim.R. 52(B) “be invoked only in exceptional circumstances to avoid

a miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 96 (1978).

b. CCS Violation Hearings

Crim.R. 32.3(A) states that the “court shall not impose a prison term

for violation of the conditions of a community control sanction . . . except after a

hearing at which the defendant shall be present and apprised of the grounds on which action is proposed.” Typically, a CCS violation hearing is a two-step

procedure. “A defendant is entitled to a preliminary hearing to determine whether

there is probable cause to believe that the defendant has violated the terms of his or

her [CCS] . . . . Due process also requires a final hearing to determine whether [the

CCS] should be revoked.” State v. Cox, 2018-Ohio-748, ¶ 15 (8th Dist.).

This court has “previously held that there is no due process violation

in conducting both hearings on the same day.” State v. Macura, 2019-Ohio-4064,

¶ 17 (8th Dist.), citing State v. Gaines, 2019-Ohio-639 (8th Dist.); State v. Greene,

2018-Ohio-1965 (8th Dist.), and State v. Cox, 2018-Ohio-748 (8th Dist.).

In this case, it is undisputed that Colson stipulated to probable cause

that he violated the terms of his CCS during the preliminary stage of the hearing.

Furthermore, Jopek stated that Colson did not comply with any of the terms of his

CCS and Colson’s attorney said that Jopek’s statement was “accurate.” Therefore,

we are only concerned with the final stage of the hearing at which the trial court

revoked Colson’s CCS and imposed a prison term.

A “person subject to [CCS] may be punished for a violation of

conditions of [CCS], but only if certain due process rights are observed.” State v.

Bailey, 2016-Ohio-494, ¶ 9 (8th Dist.). Although a CCS revocation hearing is not a

criminal trial, the defendant is entitled to the “minimum requirements of due

process” at the final hearing, which includes:

“(a) written notice of the claimed violations of [CCS]; (b) disclosure to the [defendant] 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 . . .; (e) a ‘neutral and detached’ hearing body . . . ; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [CCS].”

Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), quoting Morrissey v. Brewer, 408

U.S. 471, 489 (1972).

Colson’s appeal centers around the argument that his constitutional

rights were violated when the trial court “relied on testimony from [Jopek], who

stated that . . . Colson’s employment status was unable to be confirmed through a

phone call to a fast-food restaurant, where . . . Colson claimed to be employed.”

According to Colson, the trial court’s “revocation of [his CCS] was based on

constitutionally flawed and procedurally improper evidence.” Colson argues that

this violated his Sixth Amendment right to confront witnesses against him pursuant

to Crawford v. Washington, 541 U.S. 36, 42 (2004), and it violated his “Fourteenth

Amendment right to due process by admitting improper hearsay evidence obtained

in an ex-parte manner . . . .”

c. Sixth Amendment Right to Confront Witnesses

In Colson’s first assignment of error, he argues that the trial court’s

reliance on this “testimonial hearsay” violated the Confrontation Clause. The

Confrontation Clause of the Sixth Amendment to the United States Constitution

states as follows: “In all criminal prosecutions, the accused shall enjoy the right . . .

to be confronted with the witnesses against him . . . .” (Emphasis added.) In

Crawford, the United States Supreme Court noted the long-standing holding that “this bedrock procedural guarantee applies to both federal and state prosecutions.”

(Emphasis added.) Id., citing Pointer v. Texas, 380 U.S. 400, 406 (1965).

In State v. Smith, 2020-Ohio-1492, ¶ 9 (8th Dist.), this court held that

a “community control sanctions violation hearing is not akin to a criminal

prosecution.” See also Gagnon, 411 U.S. at 782 (“Probation revocation, like parole

revocation, is not a stage of a criminal prosecution . . . .”). In Colson’s appellate brief,

he cites no case law or other legal authority holding that the Sixth Amendment’s

Confrontation Clause and Crawford apply to CCS violation hearings in addition to

criminal prosecutions. Because the Sixth Amendment plainly states that it applies

to “criminal prosecutions” and a CCS violation hearing is not a criminal prosecution,

we find that the Sixth Amendment and Crawford do not apply to CCS violation

hearings.

Accordingly, Colson’s first assignment of error is overruled.

d. Improper Hearsay Evidence

In Colson’s second assignment of error, he argues that the “trial court

violated [the due process] principles by admitting unreliable hearsay evidence

obtained through an ex parte phone call during the [CCS] hearing . . . .”

Although the Sixth Amendment right to confrontation does not apply

to CCS violation hearings, the Fourteenth Amendment right to due process does.

See Gagnon, 411 U.S. at 786. However, pursuant to Evid.R. 101(D)(3), the Rules of

Evidence do not apply to community-control-sanction-violation hearings. In State ex rel. Mango v. Ohio Dept. of Rehab. & Corr., 2022-Ohio-

1559, ¶ 14, the Ohio Supreme Court reviewed the due process rights, as related to

hearsay, that are afforded a parolee at a parole revocation hearing:

Though a parolee has certain due-process rights at a revocation hearing, he is not entitled to all the procedural rights accorded the defendant in a criminal trial. See Morrissey at 480 (“the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations”); see also State ex rel. Coulverson v. Ohio Adult Parole Auth., 62 Ohio St.3d 12, 16, 577 N.E.2d 352 (1991). As relevant here, the parole board may admit hearsay evidence because “a parolee contesting revocation does not have the same confrontation rights as does a trial defendant.” Coulverson at 16. Accordingly, the arresting officer’s testimony at the revocation hearing, even if it contained hearsay statements . . . did not violate Mango’s due-process rights. Moreover, the record shows that the hearing officer relied on more than the so-called hearsay evidence of which Mango complains. Most notably, the evidence against Mango included body-camera footage from the arresting officer, which contained the officer’s observations from the scene and admissions by Mango that he had pushed [the victim] during an argument.

We first note that the process due at a parole-revocation hearing is the

same process due at a CCS-violation hearing. State v. Heinbach, 1995 Ohio App.

LEXIS 3792 (8th Dist.) (citing Gagnon) (“The United States Supreme Court has

established that a defendant in a probation revocation hearing is entitled to the same

due process rights provided a defendant in a parole revocation hearing.”).

Therefore, Mango applies to this case.

The Mango Court found that the admission of hearsay statements at

the revocation hearing did not violate Mango’s due process rights. Mango at ¶ 14. The Mango Court additionally found that Mango’s parole revocation was based on

“more than the so-called hearsay evidence . . . .” Id.

In this case, the out-of-court statements at issue are the Popeye’s

general manager’s assertions that Colson did not work there. We are mindful that

the topic of Colson’s employment is irrelevant to whether he violated the terms of

his CCS because Colson’s employment was not a condition of his CCS and he

stipulated to probable cause that he violated the conditions that were in place. Our

task is limited to the determination of whether the court based its decision to revoke

Colson’s CCS and impose a prison term on not being able to verify Colson’s claim

that he had worked at Popeye’s.

Upon review, we find the record does not support that the trial court

exclusively relied on this “hearsay” information when deciding to revoke Colson’s

CCS and impose a prison term. The court made clear from the beginning of the

hearing that it doubted Colson’s truthfulness and credibility. Indeed, when

instructing Jopek to call Popeye’s, the court stated that it was going to “keep looking

for something that’s true.” Additionally, the court expressed doubt that Colson

would “actually do” inpatient treatment if it ordered that disposition. In other

words, our review of the CCS-violation-hearing transcript shows that the court

based its decision on more than just the “hearsay” information and threw Colson a

lifeline when it attempted to verify Colson’s employment claim.

After consideration, we find that Colson has failed to show plain error.

In following Mango, 2022-Ohio-1559, there was no “obvious defect in the proceedings,” i.e., a due-process violation, when the trial court instructed Jopek to

call the Popeye’s general manager and Jopek relayed the general manager’s

statements to the court at Colson’s CCS hearing. Furthermore, Colson’s “substantial

rights” were not violated because the record shows that the court based its decision

on the totality of the circumstances. This is not the exceptional case in which plain

error must be found to avoid a miscarriage of justice.

Accordingly, Colson’s second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________________________ EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

MICHELLE J. SHEEHAN, J., and MARY J. BOYLE, J., CONCUR