State v. English

2021 Ohio 850

• Court: Ohio Court of Appeals
• Decided: March 18, 2021
• Docket: 109645
• Status: Published

Opinion

[Cite as State v. English, 2021-Ohio-850.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109645 v. :

DARRIN E. ENGLISH, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 18, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-634702-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher, Assistant Prosecuting Attorney, for appellee.

Dale M. Hartman, for appellant.

LARRY A. JONES, SR., J.:

Defendant-appellant Darrin English (“English”) appeals the trial

court’s imposition of an 18-month prison sentence following revocation of his

community control sanctions. For the reasons that follow, we affirm. In 2018, English was charged with failure to provide notice of

change of address in violation of R.C. 2950.05(F)(1), a felony of the fourth degree;

the registration requirement stemmed from his prior conviction for pandering

sexually oriented material involving a minor. See State v. English, Cuyahoga C.P.

No. CR-15-600844-A.

English pleaded guilty to the indictment and was sentenced to two

years of community control sanctions subject to a prison sentence of 18 months if

he violated his community control sanctions. The court placed him with the adult

probation department’s mental health and developmental disabilities unit. During

his sentencing hearing, the trial court told English that he was required to abide by

all the rules and regulations of the probation department, to report as directed by

the probation officer, follow the recommendations of his treatment team, attend all

mental health appointments as scheduled, take all medications as prescribed,

attend programming as indicated in his case plan, submit to random drug testing,

and pay a monthly supervision fee of $20. Both the court and defense counsel

reminded English that he must comply with registration requirements.

In March 2019, the trial court held a review hearing. The court

expressed its concern that English was continuing to test positive for marijuana.

English’s probation officer told the court that English was “doing a good job of

reporting his different psych appointments and medical appointments” and was

“on track with getting involved with sex offender counseling.” The court continued

English on community control sanctions. In November 2019, English had another review hearing, this time

after he had been arrested pursuant to a warrant. The court noted that English

tested positive for marijuana several times in February, March, April, and May

2019. The court also noted that English had posted pictures of himself to social

media holding knives and had been found in possession of several weapons,

including knives, mace, stun gun, laptop computer, and cell phone, all of which he

was prohibited from possessing under the terms of his community control

sanctions or parole. English admitted he was not supposed to have these items,

but claimed they either did not work or did not belong to him.

When the court asked English why he was not living at his registered

address, English told the court he had permission to live somewhere else. The

court disagreed, stating that English’s multiple requests to live somewhere other

than his registered address had been denied by the probation department or adult

parole authority. The court noted its concern, and the concern of his probation

and parole officers, that English was found living in a hotel room in possession of,

or in close proximity to, so many prohibited items.

Through defense counsel, English admitted he had violated the

terms of his community control sanctions. The court found English in violation of

his community control sanctions and imposed the original sentence of 18 months

in prison.

English appealed and raises two assignments of error for our review:

I. The trial court violated appellant’s right to due process. II. The lower court violated appellant’s Eighth Amendment right to be free from double jeopardy.

In the first assignment of error, English claims that the trial court

violated his right to due process because he did not have a preliminary hearing and

was not able to confront witnesses against him.

As an initial matter, English did not note his objection at the trial-

court level. Therefore, he has waived all but plain error. 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.” Appellate courts take notice of

plain error “with the utmost caution, under exceptional circumstances, and only to

prevent a manifest miscarriage of justice.” State v. Barnes, 94 Ohio St.3d 21, 27,

759 N.E.2d 1240 (2002), citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978).

The revocation of community control sanctions can result in a

prison sentence; thus, a probationer must be accorded due process at the

revocation hearing. State v. Bailey, 8th Dist. Cuyahoga No. 103114, 2016-Ohio-

494, ¶ 9, citing Gagriori v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d

656 (1973); see also Crim.R. 32.2(A). A person subject to community control

sanctions is entitled to certain due process rights if they are to be punished for a

violation of their community control, including: (1) written notice of the claimed

violations; (2) disclosure of the evidence against them; (3) an opportunity to be

heard 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 factfinder of the evidence relied upon and

the reason for revocation. Bailey at ¶ 10, citing State v. Davis, 8th Dist. Cuyahoga

No. 93959, 2010-Ohio-5126, ¶ 26.

Failure to timely object to a due process violation during a probation

violation hearing waives error. Bailey at id., citing State v. Simpkins, 8th Dist.

Cuyahoga No. 871131, 2006-Ohio-3496, ¶ 12. This court has stated that an

admission to a community-control violation “dispense[s] with the need to present

evidence or to give appellant the opportunity to defend.” State v. Frazier, 8th Dist.

Cuyahoga No. 104596, 2017-Ohio-470, ¶ 11.

In Frazier, this court held that the trial court did not commit plain

error in finding the appellant violated the terms of his community control when

the appellant waived the requirement that evidence be presented against him as

well as his right to cross-examine or call witnesses by admitting to his violation.

Id. at ¶ 12. Similarly, in Bailey, this court found that there were no due process

errors in a probation violation hearing when the appellant admitted to the

violation, was afforded the opportunity to be heard about the circumstances

surrounding the alleged violations, and was able to question his supervising

probation officer. Id. at ¶ 11.

This court has also held that while written notice of claimed

violations is preferred, oral notice of alleged violations may be sufficient, as long as

the oral statements explain the basis of the revocation proceeding, provide adequate notice to the probationer, and provide a record for appellate review of the

revocation hearing. State v. Patton, 8th Dist. Cuyahoga No. 103737, 2016-Ohio-

4867, 68 N.E.3d 273, ¶ 9, citing State v. Washington, 8th Dist. Cuyahoga Nos.

101157 and 101170, 2015-Ohio-305, ¶ 22. Oral notice coupled with complete

admission of the violation at the preliminary hearing satisfies any due process

concerns. State v. Gaines, 8th Dist. Cuyahoga No. 106784, 2019-Ohio-639, ¶ 15,

citing State v. Jimenez, 8th Dist. Cuyahoga No. 104735, 2017-Ohio-1553, ¶ 6.

Finally, this court has repeatedly held that there is no due process

violation when a preliminary hearing to establish probable cause and a revocation

hearing are held on the same day. State v. Macura, 8th Dist. Cuyahoga No.

108111, 2019-Ohio-4064, ¶ 17, citing Gaines; State v. Greene, 8th Dist. Cuyahoga

No. 106028, 2018-Ohio-1965; State v. Cox, 8th Dist. Cuyahoga No. 105932, 2018-

Ohio-748.

In Macura, the probable cause hearing and revocation hearings

were held on the same day. The hearing began as a preliminary, probable cause

hearing during which the probation officer advised the trial court that the

defendant had not been reporting to the probation department and had tested

positive for drugs. This court determined that it was at this juncture that the

preliminary probable cause hearing transitioned into a final revocation hearing

and there was no due process violation because it was clear from the transcript

what had occurred. Id. at ¶ 19. In this case, English was represented by counsel at the hearing.

English admitted to his violation. As this court stated in Frazier, an admission to a

community control violation waives the right to cross-examine or call witnesses.

Id. at ¶ 12. Although English alleges that there was no preliminary hearing, the

record reflects that what occurred was a preliminary hearing that transitioned into

a revocation hearing. The sentencing court spoke at length about the allegations

that formed the basis of the violation, fulfilling its obligation to provide English

with notice of the claimed violations. English had the opportunity to address the

court regarding the violations. English disputed some of the specifics of the

allegations, but defense counsel acknowledged the violation and attempted to

explain the circumstances surrounding the violation on English’s behalf.

Presumably after recognizing that the court had transitioned to a revocation

hearing, counsel also addressed the court in mitigation of sentence. Thus, any due

process concerns were satisfied with the combination of oral notice of the

violations and English’s admission to them. See Gaines at ¶ 15.

English also alleges that the original sentencing entry does not set

forth his requirement to register as a sex offender and he was not on notice that his

conduct in possessing the items the court described would constitute a violation.

We disagree. The requirement for English to register as a sex offender did not

originate in the instant case. Moreover, by entering a guilty plea to the offense in

this case, English acknowledged that he had an obligation to register his address

and failed to do so. Defense counsel told the court that she had discussed the registration requirements with English in an effort to ensure that he understood

them. With respect to English’s possession of certain prohibited items, English

himself acknowledged that he knew that he was not allowed to have these items.

Thus, he was aware that his conduct constituted a violation. In addition to the

prohibited items English possessed, the court previously warned him about his

marijuana use during the March 2019 review hearing. The court again addressed

English’s marijuana use again during the violation hearing, as well as the

registration issues.

Based on the record before the court, English was aware of the rules

and regulations of probation and that his conduct had constituted a violation.

In light of the above, we find that his due process rights were not

violated.

The first assignment of error is overruled.

In the second assignment of error, English contends that he was

subject to double jeopardy because he was sentenced to a prison sentence after

revocation of his postrelease control.

The Double Jeopardy Clause, contained in the Fifth Amendment of

the United States Constitution states that no person shall “be subject for the same

offence to be twice put in jeopardy of life or limb.” The United States Supreme

Court has recognized that double jeopardy principles do not prohibit the

imposition of every additional sanction that could be interpreted as “punishment.”

State v. Martello, 97 Ohio St.3d 398, 400, 780 N.E.2d 250 (2002), citing Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). Rather,

double jeopardy principles protect “only against the imposition of multiple

criminal punishments for the same offense and then only when such occurs in

successive proceedings.” Martello at id., citing Hudson.

In Hudson, the United States Supreme Court reaffirmed the two-

part test for determining whether a particular punishment is a “criminal

punishment” for double-jeopardy purposes. Id. at 99. The first prong of this test

asks whether the legislature, in establishing the penalizing mechanism, indicated

either expressly or impliedly a preference for one label or the other, and the second

prong examines cases where the legislature may have intended to create a civil

penalty, asking whether the statutory scheme was so punitive in purpose or effect

as to transform the intended civil remedy into a criminal penalty. Id. With respect

to postrelease control, the Martello Court applied this test and ultimately held that

postrelease control is part of the original judicially imposed sentence. Id. at 402.

When a defendant receives a term of incarceration for violation of conditions of

postrelease control, such a term is attributable to the original sentence. Id. at 405.

Similarly, sanctions imposed for violating community control do not

constitute criminal punishment for purposes of double jeopardy. State v. Peters,

8th Dist. Cuyahoga No. 92791, 2009-Ohio-5836, ¶ 13-14. The imposition of a

prison sentence is not a punishment for the new offense, but is a consequence of

the original conviction. State v. Black, 2d Dist. Montgomery No. 24005, 2011-

Ohio-1273, ¶ 13. A prison sentence following the violation of community control sanctions is not a “second penalty for a new offense, but rather, the original

sentence * * * being now imposed.” State v. Myers, 5th Dist. Richland No. 2003

CA 0062, 2004-Ohio-3715, ¶ 23.

In State v. Butcher, 4th Dist. Athens Nos. 15CA33 and 15CA34,

2017-Ohio-1544, the appellant was sentenced to a nine-year prison term following

a conviction for aggravated burglary. At the time of his conviction, the appellant

was on postrelease control for a prior criminal case and was on community control

sanctions in a third case involving the intimidation of a witness. The appellant

complained that the same act (his new conviction) formed the basis of the

violations of both his community control and his postrelease control, and as such

ran afoul of his double jeopardy protection against multiple punishments. The

Butcher Court found that neither sanction for the appellant’s noncompliance with

the conditions of postrelease constituted “criminal punishment”; thus, double

jeopardy protections were inapplicable. Id. at ¶ 103. The court reasoned that the

sanctions were a continuation of the sentences imposed in the criminal matters to

which the postrelease and community control sanctions were attached. The

Butcher Court held that prison terms imposed for violations of those sanctions

were not a violation of the appellant’s double-jeopardy rights where both sentences

were based on the same underlying act. Id.

In this case, English was on postrelease control following his release

from prison in CR-15-600844-A, in which he was convicted of pandering sexually

oriented material involving a minor. He was placed on community control sanctions in the instant case for failure to provide notice of change of address, as

he was required to do pursuant to his registration as a sex offender in CR-15-

600844-A. When the trial court imposed a prison term for violating his

community control sanctions, the sentence was a consequence for the original

conviction. See Black at ¶ 13. As such, it did not constitute a new “criminal

punishment” for the act underlying the violation. Similarly, when English was

sanctioned by the Adult Parole Authority for his failure to abide by the conditions

of his postrelease control, that sanction was part of the original sentence for his

conviction in CR-15-600844-A. Again, this was not a new punishment for the act

underlying the violation, but a continuation of the previous judicially imposed

sentence in that case. Neither the sanction for the postrelease control violation nor

the sanction for the community control violation constituted new criminal

punishments for the purposes of a double-jeopardy analysis. See Butcher at ¶ 103.

Instead, they are a continuation of the imposed sentences in their respective

criminal cases. Id. As such, they do not implicate English’s right to be free from

double jeopardy.

Accordingly, the 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.

LARRY A. JONES, SR., JUDGE

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