State v. Piper

2015 Ohio 5228

• Court: Ohio Court of Appeals
• Decided: December 14, 2015
• Docket: 15-CAC-04-0040
• Status: Published

Opinion

[Cite as State v. Piper, 2015-Ohio-5228.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : RICHARD L. PIPER : Case No. 15 CAC 05 0040 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. 14TRC00582

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 14, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH SCHMANSKY DAVID H. BIRCH 70 North Union Street 286 South Liberty Street Delaware, OH 43015 Powell, OH 43065 Delaware County, Case No. 15 CAC 05 0040 2

Farmer, J.

{¶1} On May 21, 2014, appellant, Richard Piper, pled guilty to physical control

of a vehicle while under the influence in violation of R.C. 4511.194. By judgment entry

filed same date, the trial court ordered appellant to pay a $250.00 fine and serve one

year of community control. The terms of community control filed on May 22, 2014

included, "[c]ontact your community control officer as directed" and "[c]omply with the

following sentence set by the Court" which included the payment of the $250.00 fine

and court costs.

{¶2} On December 18, 2014, appellant's community control officer filed a notice

of community control violation, noting appellant failed to appear for office appointments

as directed, failed to pay his fine and costs as directed, and failed to appear in court on

July 1, 2014 to show cause for non-payment. A hearing was held on April 27, 2015. By

judgment entry filed same date, the trial court found appellant had violated the terms of

his community control, terminated his community control, and ordered him to serve

thirty days in jail.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶4} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

VIOLATING THE APPELLANT'S DUE PROCESS RIGHTS AS PROTECTED BY THE

UNITED STATES CONSTITUTION." Delaware County, Case No. 15 CAC 05 0040 3

{¶5} Appellant claims the trial court violated his due process rights by

permitting the probation officer to assume the role of prosecutor during the revocation

hearing. We disagree.

{¶6} As noted by our brethren from the Third District in State v. Westrick, 196

Ohio App.3d 141, 2011-Ohio-1169, ¶ 23:

Additionally, although a revocation proceeding must comport with

the requirements of due process, it is not a criminal proceeding.***The

minimum due process requirements for revocation hearings include that

the offender have "the right to confront and cross-examine adverse

witnesses (unless the hearing officer specifically finds good cause for not

allowing confrontation)."*** (Citations omitted.)

{¶7} On December 18, 2014, a notice of community control violation was filed,

explaining the following:

The following are the orders of the Court and/or the conditions of

community control with which you have failed to comply: Condition 3, to

wit: Contact your Community Control officer as directed. Condition 9(A),

to wit: pay fines and court costs as directed.

The evidence against you consists of: This officer's testimony, the

defendant failed to report for office appointments on 7-28-14 and 12-4-14. Delaware County, Case No. 15 CAC 05 0040 4

The defendant does not live at the address provided and has not updated

his address with the court. The defendant failed to pay fines and costs by

7-01-14 and failed to appear in court on said date to show cause for non-

payment.

{¶8} There is an undocketed document in the file labeled "Transcription of

Hearing" which is "certified" to be "a true and accurate representation of that record"

and is signed by appellant's trial/appellate counsel. The two page document indicates

the matter was heard before the trial court with appellant, his attorney, and community

control officer Doug Stadler present. Defense counsel indicated that although he had

been very recently retained, he was ready to proceed. The substance of the entire

hearing is as follows:

Judge: So my understanding we are having a hearing on this

matter. Mr. Stadler are you ready to proceed?

Probation officer: I am.

Judge: You can call your first witness which is probably yourself.

Probation officer: Yes it is. (Witness sworn in) Based on my notes

Mr. Piper was placed on community control for physical control into. (sic)

on May 21 2014 for one year on non reporting probation. I mailed an

appointment letter to his address in July of 2014. [H]e did not appear. I

mailed another letter for December 4, 2014. [H]e did not appear. I got a

returned letter saying he did not reside at the address I had listed. He Delaware County, Case No. 15 CAC 05 0040 5

recently updated his address. It is now 102 Diersing Road Croton Ohio.

The address I did have was N. Main Street Johnstown, Ohio. Mr. Piper

did not update that address with me so I did a probation violation and

requested a warrant after he failed to report for a show cause hearing on

July 1. We came in for a preliminary hearing, Mr. Piper tested positive for

opiates. He said he had a prescription. He did not provide the

prescription.

Def. Atty.: Objection. That is not relevant. It is not addressed in the

probation violation notice.

Judge: Sustained. Just talk about what he was actually violated on.

Probation officer: And that's all I have.

Transcript concludes.

{¶9} By judgment entry filed April 27, 2015, the trial court found appellant had

violated the terms of his community control, terminated his community control, and

ordered him to serve thirty days in jail.

{¶10} Based upon the undocketed transcript signed by appellant's attorney, we

find although no attorney represented the interests of the state, appellant did not object

to the procedure, and there is no indication of any due process violations. Appellant

was represented by counsel who made an objection which was sustained, and the

probation officer was under oath, subject to cross-examination.

{¶11} Upon review, we find the trial court did not err in conducting the revocation

hearing. Delaware County, Case No. 15 CAC 05 0040 6

{¶12} The sole assignment of error is denied.

{¶13} The judgment of the Municipal Court of Delaware County, Ohio is hereby

affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.

SGF/sg 1124