[Cite as State v. Osborne, 2017-Ohio-785.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 15CA010727
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE JAMES OSBORNE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 07CR074897
DECISION AND JOURNAL ENTRY
Dated: March 6, 2017
CARR, Presiding Judge.
{¶1} Appellant James Osborne appeals the judgment of the Lorain County Court of
Common Pleas. This Court affirms.
I.
{¶2} In 2007, Osborne was indicted on one count of pandering obscenity involving a
minor and one count of pandering sexually oriented matter involving a minor. In 2010, Osborne
pleaded guilty to the indictment. The trial court concluded the two offenses were allied and the
State elected to have Osborne sentenced for pandering obscenity involving a minor. Osborne
was sentenced in 2011 to five years of community control, the provisions of which included
several restrictions and requirements, including restrictions related to computer use and
interactions with minors. Osborne was additionally classified as a Tier II sex offender. The
sentencing entry provided that if Osborne violated the terms of his sentence, he would be subject
to an eight year prison sentence. 2
{¶3} Osborne initially registered his mother’s address as his place of residence.
Shortly thereafter, he began a relationship with Heather Koon and sought to reside with her.
Osborne’s probation officer, David Gaul, informed Osborne that he should check with him or the
sheriff’s office before signing a lease or moving to ensure that the residence was not too close to
a school or other prohibited location. In October 2011, Osborne signed a lease with Ms. Koon
on Blaine Street. Mr. Gaul informed Osborne that he could not stay there due to its proximity to
a school; however, Osborne could visit there. Mr. Gaul had been to Osborne’s mother’s house
on several occasions; however, Osborne was never there at the time and his bedroom always
looked very tidy and not “very lived in.”
{¶4} In 2013, Mr. Gaul and the sheriff’s department received anonymous calls
indicating that Osborne was living at the prohibited address on Blaine Street with Ms. Koon. In
September 2013, Mr. Gaul went out to the Blaine Street address with Deputy Deborah Hurlburt
with the Lorain County Sheriff’s Office to try to determine where Osborne was residing. When
they arrived, Mr. Gaul noticed through a window that Osborne appeared to be using a laptop.
Upon entering and speaking with Osborne, Osborne admitted that he was staying at the residence
three to four nights a week and that his mail was delivered there. Mr. Gaul discovered that,
contrary to his restrictions, Osborne had been using the internet and had an iPhone which also
had internet access. Deputy Hurlburt examined the phone and found compromising photos of
young girls. Osborne was thereafter arrested for violating community control. His phone and
the laptop he was using were confiscated. Following an investigation, additional evidence
surfaced that implicated Osborne in the rape of two young girls.
{¶5} Osborne waived a probable cause hearing and admitted probable cause existed for
the violations. Following a merits hearing in December 2014, the trial court found Osborne 3
violated community control and sentenced him to eight years in prison. Osborne has appealed,
raising two assignments of error for our review, which we will address together.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW BY FAILING TO PROVIDE APPELLANT WITH WRITTEN NOTICE OF THE CLAIMED VIOLATIONS OF PROBATION.
ASSIGNMENT OF ERROR II
THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW BY RENDERING JUDGMENT THAT HE HAD VIOLATED HIS COMMUNITY CONTROL SANCTIONS WITHOUT SUFFICIENTLY INFORMING APPELLANT OF THE REASONS FOR WHICH HIS PROBATION WAS BEING REVOKED, WHILE ALSO PROVIDING AN ADEQUATE RECORD FOR REVIEW ON APPEAL.
{¶6} Osborne argues in his first assignment of error that he was denied due process
because he never received written notice of the community control violations. Osborne argues in
his second assignment of error that his due process rights were violated when the trial court
failed to sufficiently inform him of the reasons why his community control was being revoked.
{¶7} “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.” Crim.R. 32.3(A).
“‘[B]ecause community control is the functional equivalent of what was formerly probation, the
same due process protections that applied to probation violations [] apply to community control
violations.’” State v. Phillips, 9th Dist. Lorain No. 14CA010669, 2016-Ohio-1142, ¶ 6, quoting
State v. Walton, 9th Dist. Lorain No. 09CA009588, 2009-Ohio-6703, ¶ 5.
At the preliminary hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an 4
independent decisionmaker, and a written report of the hearing. The final hearing is a less summary one because the decision under consideration is the ultimate decision to revoke rather than a mere determination of probable cause, but the “minimum requirements of due process” include very similar elements:
“(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee 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 (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawye[rs]; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole.”
(Internal citation omitted.) Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), quoting Morrisey v.
Brewer, 408 U.S. 471, 489 (1972); see also Phillips at ¶ 6.
{¶8} Nonetheless, this Court “has previously rejected such due process arguments
when an offender has attempted to raise them for the first time on appeal.” Phillips, 2016-Ohio-
1142, at ¶ 7, citing State v. Robinson, 9th Dist. Wayne No. 02CA0008, 2003-Ohio-250, ¶ 6-7.
Osborne did not object on these bases below and, thus, has forfeited all but plain error. See
Crim.R. 52(B); Phillips at ¶ 7. However, Osborne failed to argue plain error in his initial brief
on appeal. “While he argued plain error in his reply brief, a party may not raise new * * * issues
for consideration in his reply brief; rather, the reply brief is merely an opportunity to reply to the
brief of the appellee.” (Internal quotations and citations omitted.) State v. Caldwell, 9th Dist.
Summit No. 26306, 2013-Ohio-1417, ¶ 9. As Osborne did not develop a plain error argument in
his initial brief on appeal, and we decline to create one for him, we overrule his first and second
assignments of error on that basis. See id.
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[Cite as State v. Osborne, 2017-Ohio-785.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 15CA010727
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE JAMES OSBORNE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 07CR074897
DECISION AND JOURNAL ENTRY
Dated: March 6, 2017
CARR, Presiding Judge.
{¶1} Appellant James Osborne appeals the judgment of the Lorain County Court of
Common Pleas. This Court affirms.
I.
{¶2} In 2007, Osborne was indicted on one count of pandering obscenity involving a
minor and one count of pandering sexually oriented matter involving a minor. In 2010, Osborne
pleaded guilty to the indictment. The trial court concluded the two offenses were allied and the
State elected to have Osborne sentenced for pandering obscenity involving a minor. Osborne
was sentenced in 2011 to five years of community control, the provisions of which included
several restrictions and requirements, including restrictions related to computer use and
interactions with minors. Osborne was additionally classified as a Tier II sex offender. The
sentencing entry provided that if Osborne violated the terms of his sentence, he would be subject
to an eight year prison sentence. 2
{¶3} Osborne initially registered his mother’s address as his place of residence.
Shortly thereafter, he began a relationship with Heather Koon and sought to reside with her.
Osborne’s probation officer, David Gaul, informed Osborne that he should check with him or the
sheriff’s office before signing a lease or moving to ensure that the residence was not too close to
a school or other prohibited location. In October 2011, Osborne signed a lease with Ms. Koon
on Blaine Street. Mr. Gaul informed Osborne that he could not stay there due to its proximity to
a school; however, Osborne could visit there. Mr. Gaul had been to Osborne’s mother’s house
on several occasions; however, Osborne was never there at the time and his bedroom always
looked very tidy and not “very lived in.”
{¶4} In 2013, Mr. Gaul and the sheriff’s department received anonymous calls
indicating that Osborne was living at the prohibited address on Blaine Street with Ms. Koon. In
September 2013, Mr. Gaul went out to the Blaine Street address with Deputy Deborah Hurlburt
with the Lorain County Sheriff’s Office to try to determine where Osborne was residing. When
they arrived, Mr. Gaul noticed through a window that Osborne appeared to be using a laptop.
Upon entering and speaking with Osborne, Osborne admitted that he was staying at the residence
three to four nights a week and that his mail was delivered there. Mr. Gaul discovered that,
contrary to his restrictions, Osborne had been using the internet and had an iPhone which also
had internet access. Deputy Hurlburt examined the phone and found compromising photos of
young girls. Osborne was thereafter arrested for violating community control. His phone and
the laptop he was using were confiscated. Following an investigation, additional evidence
surfaced that implicated Osborne in the rape of two young girls.
{¶5} Osborne waived a probable cause hearing and admitted probable cause existed for
the violations. Following a merits hearing in December 2014, the trial court found Osborne 3
violated community control and sentenced him to eight years in prison. Osborne has appealed,
raising two assignments of error for our review, which we will address together.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW BY FAILING TO PROVIDE APPELLANT WITH WRITTEN NOTICE OF THE CLAIMED VIOLATIONS OF PROBATION.
ASSIGNMENT OF ERROR II
THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW BY RENDERING JUDGMENT THAT HE HAD VIOLATED HIS COMMUNITY CONTROL SANCTIONS WITHOUT SUFFICIENTLY INFORMING APPELLANT OF THE REASONS FOR WHICH HIS PROBATION WAS BEING REVOKED, WHILE ALSO PROVIDING AN ADEQUATE RECORD FOR REVIEW ON APPEAL.
{¶6} Osborne argues in his first assignment of error that he was denied due process
because he never received written notice of the community control violations. Osborne argues in
his second assignment of error that his due process rights were violated when the trial court
failed to sufficiently inform him of the reasons why his community control was being revoked.
{¶7} “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.” Crim.R. 32.3(A).
“‘[B]ecause community control is the functional equivalent of what was formerly probation, the
same due process protections that applied to probation violations [] apply to community control
violations.’” State v. Phillips, 9th Dist. Lorain No. 14CA010669, 2016-Ohio-1142, ¶ 6, quoting
State v. Walton, 9th Dist. Lorain No. 09CA009588, 2009-Ohio-6703, ¶ 5.
At the preliminary hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an 4
independent decisionmaker, and a written report of the hearing. The final hearing is a less summary one because the decision under consideration is the ultimate decision to revoke rather than a mere determination of probable cause, but the “minimum requirements of due process” include very similar elements:
“(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee 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 (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawye[rs]; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole.”
(Internal citation omitted.) Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), quoting Morrisey v.
Brewer, 408 U.S. 471, 489 (1972); see also Phillips at ¶ 6.
{¶8} Nonetheless, this Court “has previously rejected such due process arguments
when an offender has attempted to raise them for the first time on appeal.” Phillips, 2016-Ohio-
1142, at ¶ 7, citing State v. Robinson, 9th Dist. Wayne No. 02CA0008, 2003-Ohio-250, ¶ 6-7.
Osborne did not object on these bases below and, thus, has forfeited all but plain error. See
Crim.R. 52(B); Phillips at ¶ 7. However, Osborne failed to argue plain error in his initial brief
on appeal. “While he argued plain error in his reply brief, a party may not raise new * * * issues
for consideration in his reply brief; rather, the reply brief is merely an opportunity to reply to the
brief of the appellee.” (Internal quotations and citations omitted.) State v. Caldwell, 9th Dist.
Summit No. 26306, 2013-Ohio-1417, ¶ 9. As Osborne did not develop a plain error argument in
his initial brief on appeal, and we decline to create one for him, we overrule his first and second
assignments of error on that basis. See id. at ¶ 30.
III.
{¶9} Osborne’s assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed. 5
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
SCHAFER, J. CANNON, J. CONCUR.
(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)
APPEARANCES:
BRIAN J. DARLING, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.