[Cite as State v. Wright,

.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO, CASE NO. 2021-A-0029

Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas

KYLE VAUGHN WRIGHT, JR., a.k.a. KYLE V. WRIGHT, JR., Trial Court No. 2018 CR 00570

Defendant-Appellant.

OPINION

Decided: June 21, 2022 Judgment: Affirmed

Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Kyle Vaughn Wright, Jr., appeals from the judgment of the

Ashtabula County Court of Common Pleas, finding him in violation of community control

and imposing a 30-month term imprisonment. Appellate counsel has filed a brief pursuant

to Anders v. California,

(1967), asserting there are no colorable issues for

appeal and thus the matter is wholly frivolous. After considering the record, pursuant to

we agree with counsel, affirm the trial court, and grant counsel’s motion

to withdraw. {¶2} Appellant was indicted on one count of felonious assault, in violation of R.C.

2903.11(A)(1), a felony of the second degree; and one count of domestic violence, in

violation of R.C. 2919.25(A), a misdemeanor of the first degree. He pleaded not guilty to

the charges. Appellant, after being evaluated by experts, was found not competent to

stand trial. The trial court subsequently issued an order requiring appellant to undergo

treatment in a facility for a period of one year for the purpose of restoring appellant to

competency. In February 2021, appellant was found competent to stand trial.

{¶3} Appellant ultimately withdrew his plea of not guilty and entered a plea of

guilty to one count of attempted felonious assault, a felony of the third degree, and one

count of domestic violence, a misdemeanor of the first degree. He was sentenced to a

two-year period of community control. Appellant was advised, inter alia, that if he violated

any law or any condition of community control, the court could impose a prison term of up

to 36 months for the attempted-felonious-assault conviction and 180 days incarceration

for the domestic-violence conviction. This judgment was not appealed.

{¶4} On April 13, 2021, the trial court issued a judgment stating it had received

information that appellant had cut off his electronic-monitoring device. As a result, the

court issued a capias warrant for appellant’s arrest for violating supervision. On May 14,

2021, a complaint for violation of probation was filed. The court, after an initial hearing,

concluded that it had probable cause to proceed with a final hearing on the complaint for

violation. After the final hearing, the court determined there was substantial, reliable

evidence that appellant violated the terms of his community control by (1) failing to charge

his electronic monitoring device twice per day, as ordered; and (2) by cutting off the device

resulting in a “master tamper” alert. He was sentenced to an aggregate term of 30 months

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Case No. 2021-A-0029 imprisonment, i.e., 30 months on the attempted-felonious-assault charge and 180 days

on the domestic-violence charge, to be served concurrently with one another. From this

judgment, appellant appeals and counsel has filed a brief pursuant to

{¶5} In

the United States Supreme Court held that if appellate

counsel, after a conscientious examination of the case, finds an appeal to be wholly

frivolous, he or she should advise the court and request permission to withdraw.

. This request to withdraw must be accompanied by a brief citing anything in the record

that could arguably support an appeal.

Further, counsel must furnish his or her client

with a copy of the brief and request to withdraw and give the client an opportunity to raise

any additional items.

Once these requirements have been met, the appellate court

must review the entire record to determine whether the appeal is wholly frivolous.

If

the court finds the appeal is wholly frivolous, the court may grant counsel’s motion to

withdraw and proceed to a decision on the merits.

If, however, the court concludes the

appeal is not frivolous, it must appoint new counsel for the client.

{¶6} In his brief, counsel proposed the following potential assignment of error:

{¶7} “The trial court erred when it sentenced appellant to a term of 30 months

incarceration.”

{¶8} Counsel served a copy of his Anders brief on appellant and, as a result,

appellant sent this court a letter. While the letter does not formally comply with this court’s

rules on briefing, it does claim that appellant wished to prosecute an appeal because the

prosecutor allegedly “lied” to the trial court during the final hearing. According to

appellant, the prosecutor falsely advised the court appellant assaulted his mother with the

electronic monitoring device after it was removed. And, as such, he maintains the court

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Case No. 2021-A-0029 was misled which caused it to impose a harsher sentence. Appellant therefore claims he

is entitled to have the imposed sentence reduced. We shall address both counsel’s and

appellant’s contentions separately.

{¶9} With respect to counsel’s proposed assignment of error, we conclude the

trial court did not err in imposing a 30-month term of imprisonment. The trial court, at

appellant’s original sentencing hearing, advised appellant that if he violated the terms of

his community control, he could be sentenced up to 36 months on the felony-three and

180 days on the first-degree misdemeanor. The court elected to sentence appellant to

30 months total (running the 180-day term concurrently with the 30-month felony term).

Pursuant to R.C. 2929.15(B)(3), if a defendant violates community control and the court

chooses to impose a prison term, the prison term (1) must be within the range of prison

terms set forth in R.C. 2929.14 for the offense for which community control was imposed,

and (2) cannot exceed the prison term specified in the notice provided to the offender at

the original sentencing hearing. Both prongs of the statute were met. We therefore

discern no error in the trial court’s imposition of appellant’s sentence for violating the

conditions of community control.

{¶10} Next, in his letter, appellant contends the prosecutor falsely alleged he

struck his mother with the electronic monitor. He essentially asserts this statement was

prejudicial and led to him receiving a harsher penalty. We do not agree.

{¶11} At the final hearing, appellant’s probation officer, Maria Taylor testified that,

at the time Ashtabula County Adult Probation received notification of the “master tamper”

alert (i.e., that appellant cut the monitoring device off), he was living in Pennsylvania and

being supervised through a Pennsylvania probation department. Upon contacting the

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Case No. 2021-A-0029 Pennsylvania officer, the Ashtabula department learned appellant’s “mother had called

and said that he cut his monitor off and then assaulted her with it.” Thus, while the

prosecutor elicited Ms. Taylor’s answer, the prosecutor made no such statement

regarding appellant striking his mother with the device. In this respect, appellant’s

assertion lacks merit.

{¶12} Regardless, the trial court did not mention the above aspect of Ms. Taylor’s

testimony in her judgment. Hence, we cannot conclude the statement that he struck his

mother with the device (be it true or false) had any impact on the court’s imposition of

punishment. Appellant’s argument therefore lacks merit.

{¶13} We shall next conduct an independent review of the record to determine

whether any colorable issues for appeal exist.

{¶14} “[A] revocation of community control punishes the failure to comply with the

terms and conditions of community control, not the specific conduct that led to the

revocation.” State v. Black, 2d Dist. Montgomery No. 24005,

,

¶17. Crim.R. 32.3, which governs revocation of community control, provides that the trial

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.”

{¶15} “Community control violation proceedings are not equivalent to criminal

prosecutions.” Black, supra, at ¶12. As a result, the full panoply of rights accorded a

defendant in a criminal prosecution do not apply to the community-control revocation

process. See Morrisey v. Brewer,

(1972). Nevertheless, a defendant

is entitled to certain due process protections before a court may revoke community-

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Case No. 2021-A-0029 control sanctions. See e.g. In re C.E.S., 11th Dist. Lake No. 2013-L-118, 2014-Ohio-

4296, ¶18. First, a defendant is entitled to a preliminary hearing to determine whether

there is probable cause to believe that the defendant has violated the terms of his or her

community control. State v. Sallaz, 11th Dist. Trumbull No. 2003-T-0009, 2004-Ohio-

3508, ¶38, citing Gagnon v. Scarpelli,

(1973). Second, due process

requires a final hearing to determine whether community control should be revoked.

{¶16} The final revocation hearing is less summary in nature than the probable cause hearing because the decision under consideration is the actual revocation rather than a mere determination of probable cause. Therefore, due process requires: (a) written notice of the claimed violations of probation; (b) disclosure to the probationer of evidence against him; (c) an opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses; (e) a neutral and detached hearing body; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking probation. Sallaz, supra, citing

.

{¶17} In this matter, the trial judge conducted both phases of the revocation

process. At each phase, the judge fully explained appellant’s due process rights and

what they entail. Moreover, at the final hearing, appellant confirmed he received written

notice of the alleged violations; he was advised he was entitled to disclosure of the

evidence the state would use to prove the violations; he was advised of his right to be

present and the right to offer witnesses and documentary evidence; he was advised of

his right to confront and cross-examine witnesses called by the state; he was advised he

was entitled to a neutral and detached hearing body to determine whether he violated

community control; and he was advised that, once the court makes a finding on the

ultimate issue, he is entitled to a written report regarding the evidence upon which the

court relied and the reasons for revoking community control. Appellant confirmed he

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Case No. 2021-A-0029 understood his various rights and affirmed he wished to proceed with the final hearing.

The trial court clearly comported with due process requirements at each stage of the

revocation process.

{¶18} Next, Ms. Taylor testified that appellant was required to charge the

electronic monitor to ensure he can be tracked. She stated, between February 2021 until

April of 2021, the probation department traced 23 dead battery alerts, which translated

into a total of 66 days that the device’s battery was dead. And, as discussed above, on

April 13, 2021, Ashtabula Adult Probation received a “master tamper” alert. After

following up with Pennsylvania’s probation department, Ashtabula probation was advised

that appellant had cut the monitor off. Appellant’s actions were contrary to his community

control conditions, one of which was to remain on electronic monitoring and comply with

monitoring rules.

{¶19} “When reviewing challenges to the state’s evidence alleging a community

control violation, an appellate court reviews the evidence and evaluates whether the state

presented substantial proof that a violation occurred.” State v. Baldwin, 11th Dist. Lake

No. 2021-L-092,

. This standard is highly deferential to the judgment

of the trial court and is analogous to a preponderance of the evidence burden of

proof. State v. Brown, 11th Dist. Lake Nos. 2020-L-002 and 2020-L-003, 2020-Ohio-

5140, ¶69. Accordingly, “‘the state only has to introduce evidence tending to show that it

was more probable than not that the probationer violated the terms of his or her

probation.’”

quoting State v. Stockdale, 11th Dist. Lake No. 96-L-172,

, *3 (Sept. 26, 1997).

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Case No. 2021-A-0029 {¶20} Under the circumstances, we conclude the state introduced sufficient,

credible evidence to demonstrate that, more likely than not, appellant violated the terms

of his community control. The trial court, accordingly, did not err in drawing the same

conclusion.

{¶21} After an independent review of this matter, we conclude there are no

arguable issues necessitating the appointment of new counsel. The appeal is wholly

frivolous, and thus counsel’s motion to withdraw is well taken and hereby granted.

MARY JANE TRAPP, J.,

MATT LYNCH, J.,

concur.

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Case No. 2021-A-0029