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State v. Dye

Court of Appeals of Ohio, Fourth District, Athens

December 22, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
STEVEN T. DYE, Defendant-Appellant.

          Steven 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.

         {¶1} 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.

         FACTS

         {¶2} 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.

         {¶3} 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.[1] 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.[2] The judgment entry of sentence stated that Appellant would be eligible for judicial release in six years.

         {¶4} 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.

         {¶5} 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 control sanctions.

         {¶6} 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 intelligently.

         {¶7} 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.

         {¶8} The trial court ordered Appellant to serve the remainder of his previously suspended ten-year sentence. This timely appeal followed.

         ASSIGNMENT OF ERROR

         "I. 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."

         A. STANDARD OF REVIEW

         {¶9} 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 ...


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