Court of Appeals of Ohio, Fourth District, Athens
H. Eckstein, Washington Court House, Ohio, for Appellant.
Michael DeWine, Ohio Attorney General, and Katherine J.
Bockbrader, Assistant Ohio Attorney General and Special
Prosecutor for Athens County, Columbus, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
Matthew W. McFarland Judge.
Steven T. Dye commenced an appeal of the July 13, 2016
judgment of the Athens County Court of Common Pleas which
revoked his sentence of community control and ordered him to
serve the remainder of his previously suspended ten-year
prison sentence. On appeal, Appellant argues the trial court
erred by accepting an unknowing, unintelligent, and
involuntary admission to a violation of community control
sanctions. However, upon review, we find Appellant was
afforded the due process protections required by Crim.R.
32.3. Accordingly, we overrule the sole assignment of error
and affirm the judgment of the trial court.
Appellant was indicted on one count of Aggravated Burglary
and five counts of Burglary in Athens County Common Pleas
Court Case Number 08CR0056. Appellant was subsequently
indicted on the same counts in Athens County Case No.
08CR186. The two cases were merged.
On June 24, 2008, Appellant pleaded guilty to the six counts.
He also admitted to being in violation of community control
for prior criminal cases. Appellant was sentenced to a total of
ten years of imprisonment. The trial court also revoked
Appellant's community control in the prior criminal cases
and ordered him to serve remaining prison time on those cases
concurrently with the ten-year sentence. The judgment
entry of sentence stated that Appellant would be eligible for
judicial release in six years.
Appellant applied for and was granted judicial release. By
journal entry dated July 15, 2014, Appellant was placed on
five years of community control. Subsequent to
Appellant's judicial release, it was alleged he violated
the terms of community control. A notice of violation was
filed in January 2015.
In September 2015 at a First Stage Hearing, Appellant
admitted to the violations. At the Second Stage Hearing in
October 2015, the trial court ordered him to continue on
community control, subject to additional terms and
conditions. In December 2015, the State filed six allegations
of violating the terms of his judicial release and community
The trial court again held a First Stage Hearing on May 11,
2016 on the second set of alleged violations. At this
hearing, Appellant again admitted the violations. The trial
court found Appellant in violation of the terms of community
control. The trial court further found Appellant's
admissions were made knowingly, voluntarily, and
A Second Stage Hearing was held on June 21, 2016. This
hearing was not recorded. As a result, Appellant has filed a
statement with this Court pursuant to App.R. 9. According to
the agreed statement, at the Second Stage Hearing,
Appellant's counsel again argued for continuing community
control, based on Appellant's substance abuse problem.
Counsel requested Appellant receive drug treatment. The State
argued that Appellant had previously had the opportunity for
drug treatment options, which had failed. The State requested
Appellant's suspended prison sentence be re- imposed.
The trial court ordered Appellant to serve the remainder of
his previously suspended ten-year sentence. This timely
DEFENDANT-APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS
UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION WHEN THE TRIAL COURT ACCEPTED AN UNKNOWING,
UNINTELLIGENT, AND INVOLUNTARY ADMISSION TO A VIOLATION OF
COMMUNITY CONTROL SANCTIONS."
STANDARD OF REVIEW
In this case, Appellant contends his waiver of his due
process rights was not knowingly, intelligently and
voluntarily made at the preliminary hearing on his community
control violations hearing as the trial court failed to
strictly comply with the requirement of a valid waiver of
those rights. Any constitutional right may be waived provided
that the waiver is made knowingly, intelligently and
voluntarily. State v. Moschell, 4thDist. Athens No.
10CA5, 2010 WL 3743819; State v. Rose (Mar. 20,
1997), 8thDist. Cuyahoga ...