[Cite as State v. Wright,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. John W. Wise, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : -vs- : : JOHN LEWIS WRIGHT : Case No. 2013CA00011 : : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2007CR1228

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 25, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellee

JOHN D. FERRERO STEVEN A. REISCH Prosecuting Attorney 201 Cleveland Aveue S.W. Suite 104 By: RENEE M. WATSON Canton, OH 44702 Assistant Prosecuting Attorney 110 Central Plaza, South – Suite 510 Canton, OH 44702-1413 Stark County, Case No. 2013CA00011 2

Baldwin, J.

{¶1} Defendant-appellant John Lewis Wright appeals from the December 31,

2012 Judgment Entry of the Stark County Court of Common Pleas revoking his Judicial

Release and reimposing sentence. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 20, 2007, the Stark County Grand Jury indicted appellant on

one count of felonious assault in violation of R.C. 2903.11(A)(1) and/or (A)(2), a felony

of the second degree. At his arraignment on August 24, 2007, appellant entered a plea

of not guilty to the charge.

{¶3} Thereafter, on November 13, 2007, appellant withdrew his former not

guilty plea and pled guilty to the charge contained in the indictment. Pursuant to a

Judgment Entry filed on December 27, 2007, appellant was placed on three (3) years of

community control under specified terms and conditions.

{¶4} On March 4, 2009, a Motion to Revoke Probation or Modify Former Order

was filed. As memorialized in a Judgment Entry filed on April 20, 2009, the trial court

found that appellant had violated the terms of his community control, revoked the same

and sentenced appellant to a four (4) year prison term.

{¶5} Subsequently, on October 8, 2009, appellant filed a Motion for Judicial

Release. Following a hearing held on November 2, 2009, appellant was granted judicial

release and placed on intensive probation for a period of three (3) years under specified

terms and conditions. A Judgment Entry memorializing the same was filed on

November 6, 2009. Stark County, Case No. 2013CA00011 3

{¶6} On April 22, 2010, appellant’s probation officer, Dennis Williams, filed a

Motion to Revoke Probation or Modify Former Order. Williams, in such motion, alleged

that appellant had violated his probation by not taking care of a warrant issued by

Massillon Municipal Court after being told to do so several times, by testing positive for

cocaine on two dates, and by paying nothing towards his court costs or monitoring fees.

A probable cause hearing was scheduled for May 3, 2010. On such date, appellant

stipulated to probable cause and the court set an evidentiary hearing for May 10, 2010.

After appellant failed to appear on May 10, 2010, a capias was issued for his arrest.

Appellant remained an absconder for over two years.

{¶7} On November 27, 2012, the capias was returned after appellant was

arrested. On December 12, 2012, Shelley Wolf, a probation officer who had taken over

appellant’s file after his previous probation officer had retired, filed an addendum to the

Motion to Revoke Probation or Modify Former Order. Wolf, in her motion, alleged that

appellant had violated his probation by failing to appear for his May 10, 2010 court date,

causing the issuance of a capias, and by failing to contact the probation department.

An evidentiary hearing was held on December 17, 2012.

{¶8} At the hearing, Wolf testified that appellant had been on probation and

was being supervised by another probation officer, who had since retired, when he

disappeared over two years ago. Wolf testified that she took over appellant’s case.

She testified that, pursuant to the November 6, 2009 Judgment Entry granting him

judicial release, appellant was to follow any verbal order of the court or any

representative of the court, which would include an order to appear for the May 10,

2010 evidentiary hearing. She testified that it was her understanding that the Stark County, Case No. 2013CA00011 4

evidentiary hearing was scheduled at the previous probable cause hearing. According

to Wolf, since the date the capias was issued, appellant had had no contact with the

probation department.

{¶9} On cross-examination, Wolf admitted that she had never had any contact

with appellant. She also admitted that she was not present on May 3, 2012, the last time

when appellant was in court, and thus did not know that he was actually informed of the

May 10, 2010 date.

{¶10} At the conclusion of the hearing the trial court found that appellant was

present on May 3, 2010 at the probable cause hearing and had stipulated to probable

cause. The trial court further found that appellant, on such date, was directed to appear

on May 10, 2010 for an evidentiary hearing but failed to do so and that appellant had

made no attempt to report to or contact the probation department. The trial court

revoked appellant’s judicial release and ordered that appellant serve out the remainder

of his four (4) year prison sentence. A Judgment Entry memorializing the trial court’s

decision was filed on December 31, 2012.

{¶11} Appellant now raises the following assignments of error on appeal:

{¶12} “I. THE TRIAL COURT'S FINDING THAT HE VIOLATED JUDICIAL

RELEASE WAS NOT BASED UPON SUFFICIENT EVIDENCE AND DENIED

APPELLANT DUE PROCESS UNDER THE FOURTEENTH AMENDMENT.”

{¶13} “II. THE TRIAL COURT DENIED THE APPELLANT DUE PROCESS

BY NOT AFFORDING AN OPPORTUNITY TO CROSS-EXAMINATION OF A WITNESS

WITH DIRECT KNOWLEDGE OF THE ALLEGATIONS AGAINST HIM.” Stark County, Case No. 2013CA00011 5

I, II

{¶14} Appellant, in his two assignments of error, argues that the trial court’s

finding that he had violated his judicial release/community control is not supported by

sufficient evidence because the evidence presented at the December 17, 2012 hearing

consisted entirely of hearsay testimony from Shelley Wolf, who was not appellant’s

original probation officer. Appellant contends he was deprived of due process because

of the alleged hearsay evidence presented during his revocation hearing.

{¶15} “Generally, probation revocation hearings are not subject to the rules of

evidence. The admission of hearsay evidence into a probation revocation hearing can

only be construed as reversible error when it constituted the sole, crucial evidence in

support of the probation violation determination. State v. Thompson, Wood App. No.

WD-06-034,

, citing State v. Ohly,

,

,

. Additionally, in regard to any issues concerning the right

to confront witnesses as set forth in Crawford v. Washington (2004),

,

,

, we have held that said case does not apply to community

control revocation hearings. See State v. Crace, Fairfield App. No. 05CA93, 2006-Ohio-

3027, ¶ 18.” State v. Redick, 5th Dist. Case No. 08 CA 73,

, ¶ 11.

{¶16} Because a community control revocation hearing is not a criminal trial, the

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

v. Payne, 12th Dist. No. CA2001-09-081,

, citing State v. Hylton,

,

(4th Dist. 1991). Instead, the prosecution must

present “substantial” proof that a defendant violated the terms of his community control Stark County, Case No. 2013CA00011 6

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 defendant violated

the terms of his community control sanction is supported by the evidence. See State v.

Puckett, 4th Dist. No. 96CA1712,

(Nov. 12, 1996). This highly

deferential standard is akin to a preponderance of the evidence burden of proof. See

State v. Kehoe , 9th Dist. No. 2284-M,

(May 18, 1994).

{¶17} In the case sub judice, we find that the revocation of appellant’s judicial

release/community control was supported by evidence independent of the hearsay

testimony from Wolf and that the revocation was not based solely on hearsay. The trial

court’s docket clearly shows that a capias was issued for appellant’s arrest on May 10,

2010 after appellant failed to appear for the evidentiary hearing on such date and did

not contact the probation department. The record further demonstrates that the capias

was not returned until November 27, 2012. Thus, appellant had absconded for over two

years. We concur with appellee that appellant has failed to establish that he was denied

due process in the revocation of his judicial release/community control and that the trial

court’s decision to revoke his judicial release/community control is supported by

sufficient evidence.

{¶18} Appellant’s two assignments of error are, therefore, overruled. Stark County, Case No. 2013CA00011 7

{¶19} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Wise, P. J. and

Delaney, J. concur.

HON. CRAIG R. BALDWIN

HON. JOHN W. WISE

HON. PATRICIA A. DELANEY

CRB/dr [Cite as State v. Wright,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff -Appellee : : -vs- : JUDGMENT ENTRY : JOHN LEWIS WRIGHT : : Defendant - Appellant : CASE NO. 2013CA00011

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.

HON. CRAIG R. BALDWIN

HON. JOHN W. WISE

HON. PATRICIA A. DELANEY