[Cite as State v. Parker,

.]

COURT OF APPEALS STARK 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- Case Nos. 2010 CA 00148 and 2010 CA 00149 DEBORAH PARKER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2008 CR 00096

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 7, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO RODNEY A. BACA PROSECUTING ATTORNEY 610 Market Avenue North RENEE M. WATSON Canton, Ohio 44702 ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case Nos. 2010 CA 00148 and 2010 CA 00194 2

Wise, J.

{¶1} Appellant Deborah Parker appeals the May 18, 2010, decision of the Stark

County Court of Common Pleas revoking her community control sanctions and

imposing a modified sentence of nine (9) months.

{¶2} Appellee is State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} In September, 2008, following a trial by jury, Appellant Deborah Parker

was found guilty of one count of theft from an elderly person or disabled adult in

violation of R.C. §2913.02(A)(2).

{¶4} Following a pre-sentence investigation, Appellant was sentenced to three

(3) years community control. Conditions of Appellant’s community control included

supervision by and compliance with Intensive Supervision Probation Program (ISP),

mental health track.

{¶5} On September 21, 2009, within one month of being placed under

supervision, Appellant’s probation officer filed a motion to revoke or modify because

Appellant refused to sign the terms and conditions of her community control. Appellant

also habitually failed to report.

{¶6} Appellant failed to appear at the scheduled hearing in his matter and a

warrant was issued for her arrest.

{¶7} Appellant was eventually located at St. Thomas Hospital, where Appellant

had admitted herself and was taken into custody. Appellant’s probation was ultimately

continued with Appellant signing the terms and conditions of her community control and

acknowledging her understanding of same. (T. at 7-10). Stark County, Case Nos. 2010 CA 00148 and 2010 CA 00149 3

{¶8} While in the ISP program, Appellant failed to take her medications as

directed, failed to attend seven (7) mental health counseling sessions in a three week

period, failed to comply with services at the Crisis Center and the H.O.P.E. program,

refused to permit her probation officer to have access to her information at St. Thomas

Hospital’s outpatient psychiatric services to monitor her progress, and displayed hostile

and irrational behavior toward her probation officer when questioned about her lack of

compliance with the conditions of probation. Additionally, Appellant failed to produce

documentation from a physician with regard to her employment limitations.

{¶9} Based on the above, motions to revoke or modify Appellant’s probation

were filed on February 25, 2010 and March 5, 2010.

{¶10} A revocation hearing was held on March 8, 2010.

{¶11} Appellant failed to appear at the revocation resulting in a capias being

issued for her arrest.

{¶12} Appellant’s revocation hearing was rescheduled for May 10, 2010. At said

hearing, the State presented testimony from Probation Officer Danielle Smith.

{¶13} Appellant presented testimony from her aunt, Connie Williams, who stated

that she transported Appellant to two doctor appointments and six or seven reporting

appointments with Smith. Williams further elaborated that she was “sick” of the way her

niece was treated, and that she was not being treated “like a lady”. (T. at 32-33). As

Williams was leaving the courtroom, she called Smith an expletive, which resulted in the

trial court finding her in contempt and having her taken into custody. (T. at 36-40).

{¶14} The trial court found that Appellant had violated the terms and conditions

of her probation and proceeded to sentence her to nine (9) months incarceration. Stark County, Case Nos. 2010 CA 00148 and 2010 CA 00149 4

{¶15} Following sentencing, Appellant asked the trial court why she had not

been permitted to testify. The trial court responded that such a decision was a matter to

be decided by her and her attorney. Appellant replied that she had never discussed the

issue with her attorney. She then proceeded to advise the court that she had been

falsely arrested and that she was not supposed to be on probation. (T. at 41-46).

{¶16} The trial court sentencing entry was journalized on May 18, 2010.

{¶17} Appellant now appeals to this Court, assigning the following errors for

review:

ASSIGNMENTS OF ERROR

{¶18} “I. THE COURT VIOLATED THE MINIMUM DUE PROCESS

REQUIREMENTS FOR REVOCATION OF COMMUNITY CONTROL SANCTIONS IN

THAT APPELLANT WAS NOT IDENTIFIED DURING THE HEARING, THE TRIAL

COURT DID NOT PROPERLY INFORM HER OF HER PRISON SENTENCE, AND

THERE WAS INSUFFICIENT EVIDENCE TO REVOKE HER COMMUNITY CONTROL.

{¶19} “II. THE APPELLANT WAS DENIED HER RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL.”

I.

{¶20} In her first assignment of error, Appellant claims that the trial court violated

her “minimum due process requirements” for revocation of community control sanctions.

We disagree.

{¶21} Appellant initially argues that it was error for the trial court to revoke her

community control sanctions because she was not identified during the revocation

hearing. Stark County, Case Nos. 2010 CA 00148 and 2010 CA 00149 5

{¶22} In Gagnon v. Scarpelli (1973),

,

,

, the Supreme Court stated that a trial court is to provide the following due

process requirement for revocations hearings: 1) written notice of the claimed violations;

2) disclosure of evidence against him; 3) 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 reasons for revocation.

{¶23} Upon review of the record, we find that Appellant received all of the above

and therefore received due process at her community control violation hearing.

{¶24} Appellant argues that the State failed to specifically identify Appellant

during the revocation hearing and claims that this is a due process violation. Appellant

fails to cite any authority in support of this argument.

{¶25} Evid.R. 101(C)(3) provides that the rules of evidence are not applicable to

“proceedings with respect to community control sanctions[.]”

{¶26} A community control revocation hearing is not a criminal trial; therefore,

the State does not have to establish a violation with proof beyond a reasonable doubt.

State v. Henry, Richland App. No. 2007-CA-0047,

,citing State v.

Payne, Warren App. No. CA2001-09-081,

, citing State v. Hylton

(1991),

,

. Instead, the prosecution must

present “substantial” proof that a defendant violated the terms of his community control

sanctions.

citing

. Accordingly, we apply the “some

competent, credible evidence” standard set forth in C.E. Morris Co. v. Foley Constr. Co.

(1978),

,

, to determine whether a court's finding that a Stark County, Case Nos. 2010 CA 00148 and 2010 CA 00149 6

defendant violated the terms of his community control sanction is supported by the

evidence. See State v. Umphries (July 9, 1998), Pickaway App. No. 97CA45; State v.

Puckett (Nov. 12, 1996), Athens App. No. 96CA1712. This highly deferential standard is

akin to a preponderance of the evidence burden of proof. See State v. Kehoe (May 18,

1994), Medina App. No. 2284-M. We further note that evidentiary rules are inapplicable

at community control revocation hearings. Evid.R. 101(C)(3).

{¶27} Further, even if such failure to identify Appellant amounted to error, we

find that Appellant waived any alleged due process errors by failing to object in the trial

court. “The failure to timely object to a due process violation during a probation

revocation proceeding waives any error.” State v. Simpkins, 8th Dist. No. 87131, 2006-

Ohio-3496, ¶ 12, citing State v. Henderson (1989),

,

.

{¶28} Next, Appellant argues that the trial court failed to inform her as to post-

release control.

{¶29} For its part, R.C. §2929.15(B) sets forth the options from which the court

may choose for any violations of the conditions of a community control sanction. If a trial

court determines that an offender shall be placed on community control, the trial court is

required to notify the offender of the consequences that may be imposed if the offender

violates the terms of community control. R.C. §2929.19(B)(5). If a prison term is a

consequence of a violation, the trial court must notify the offender of the specific prison

term that may be imposed. Id. In State v. Brooks,

,

,

, at paragraph two of the syllabus, the Supreme Court of Ohio held that

the trial court must give the required notification at the sentencing hearing. See, also, Stark County, Case Nos. 2010 CA 00148 and 2010 CA 00149 7

State v. McWilliams, 9th Dist. No. 22359,

(following the

holding of Brooks). The Court further stated that the specific prison term identified at the

sentencing hearing “set[s] a ceiling on the potential prison term, leaving the court with

the discretion to impose a lesser term * * * when a lesser term is appropriate.” Brooks at

¶ 23. Accordingly, if the offender commits a violation and the trial court determines that

a prison term is the appropriate sanction, “the term imposed may not exceed the term

the offender was originally notified of under R.C. 2929.19(B)(5).” Id. at ¶ 22,

.

{¶30} Absent from the relevant statutes is a requirement that a court that

chooses to impose community control sanctions as an initial sentence must inform the

offender of post-release control. Such a requirement applies, instead, when the trial

court chooses at the original sentencing hearing to impose the sanction of a prison

term. R.C. §2967.28(B) and §2929.19(B)(3).

{¶31} “Nothing in * * * R.C. 2929.19(B)(5) itself requires the court to inform a

defendant who is being sentenced to community control sanctions, at the sentencing

hearing, that if he violates the conditions of his sanctions, and if the court sentences him

to a term of imprisonment for that violation, and if he violates prison rules, the parole

board may extend his prison term. Likewise, there is no requirement that the court

imposing community control sanctions must inform the defendant that if he is later

sentenced to a term of imprisonment for violation of the conditions of his sanctions, then

post-release control may be imposed. These contingencies are not part of the ‘specific

prison term’ that can be imposed in the event of a future violation of the conditions of Stark County, Case Nos. 2010 CA 00148 and 2010 CA 00149 8

post-release control.” (Emphasis in original.) State v. Harris, Cuyahoga App. No. 89971,

.

{¶32} This Court has reached the same conclusion. See, e.g., State v. Russell,

Richland App. No. 06CA12,

. Therefore, this Court finds no error with

respect to the trial court's failure to advise Appellant at her initial sentencing hearing

about post-release control.

{¶33} Lastly, Appellant argues that she was denied the opportunity to testify at

the revocation hearing.

{¶34} This Court has reviewed the transcript of the hearing and finds that

Appellant failed to advise the trial court that she wished to testify and further failed to

make any objection when her attorney rested her case without first calling her to testify.

We further find that Appellant has failed to show how the outcome of the revocation

hearing would have been different if she had in fact testified.

{¶35} Accordingly, we find Appellant's first assignment of error not well-taken

and hereby overrule same.

II.

{¶36} In her second assignment of error, Appellant claims that she was denied

the effective assistance of counsel. We disagree.

{¶37} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether Appellant was prejudiced by

counsel's ineffectiveness. Lockhart v. Fretwell (1993),

,

, 122 Stark County, Case Nos. 2010 CA 00148 and 2010 CA 00149

; Strickland v. Washington (1984),

,

,

; State v. Bradley (1989),

,

.

{¶38} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and

Bradley. Knowles v. Mirzayance (2009), --- U.S. ----,

,

.

{¶39} To show deficient performance, appellant must establish that “counsel's

representation fell below an objective standard of reasonableness.” Strickland v.

Washington,

,

. This requires showing that counsel

made errors so serious that counsel was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment. Strickland v. Washington

,

. Counsel also has a duty to bring to bear such skill and knowledge as will

render the trial a reliable adversarial testing process. Strickland v. Washington

,

,

.

{¶40} “Thus, a court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel's challenged conduct on the facts of the particular case,

viewed as of the time of counsel's conduct. A convicted defendant making a claim of

ineffective assistance must identify the acts or omissions of counsel that are alleged not

to have been the result of reasonable professional judgment. The court must then

determine whether, in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance. In making that

determination, the court should keep in mind that counsel's function, as elaborated in

prevailing professional norms, is to make the adversarial testing process work in the Stark County, Case Nos. 2010 CA 00148 and 2010 CA 00149 10

particular case. At the same time, the court should recognize that counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment.” Strickland v. Washington,

,

,

.

{¶41} In light of “the variety of circumstances faced by defense counsel [and] the

range of legitimate decisions regarding how best to represent a criminal defendant,” the

performance inquiry necessarily turns on “whether counsel's assistance was reasonable

considering all the circumstances.” Strickland v. Washington,

,

,

. At all points, “[j]udicial scrutiny of counsel's performance

must be highly deferential.” Strickland v. Washington,

,

,

.

{¶42} Appellant must further demonstrate that she suffered prejudice from her

counsel's performance. See Strickland,

(“An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he

defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.”

. To prevail on his ineffective-assistance claim, Appellant must

show, therefore, that there is a “reasonable probability” that the trier of fact would not

have found him guilty Stark County, Case Nos. 2010 CA 00148 and 2010 CA 00149 11

{¶43} Appellant argues that her counsel was ineffective for failing to have her

testify at the revocation hearing and for failing to object to the lack of identification of

Appellant at the hearing.

{¶44} As stated above, Appellant has failed to explain what her testimony would

have been had counsel called her to testify and how the outcome of the hearing would

have been different based on such testimony.

{¶45} Further, based on our disposition of the identification issue above, we do

not find that counsel’s failure to object to such rises to the level of prejudicial error

necessary to find that Appellant was deprived of a fair hearing.

{¶46} Having reviewed the record, we find Appellant was not prejudiced by

defense counsel's representation of her. The results of the revocation hearing were not

unreliable nor were the proceedings fundamentally unfair because of the performance

of defense counsel. Appellant has failed to demonstrate that there exists a reasonable

probability that, had trial counsel called her to testify or objected to the failure of

identification, the result of her case would have been different. Stark County, Case Nos. 2010 CA 00148 and 2010 CA 00149 12

{¶47} Appellant’s second assignment of error is denied.

{¶48} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.

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___________________________________

JUDGES JWW/d 0124 Stark County, Case Nos. 2010 CA 00148 and 2010 CA 00194 13

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DEBORAH PARKER : : Defendant-Appellant : Case Nos. 2010 CA 00148 and : 2010 CA 00149

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

Costs assessed to Appellant.

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___________________________________

___________________________________

JUDGES