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State v. Greene

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 17, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
THIOTIS GREENE DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-602591-A

          ATTORNEY FOR APPELLANT Mark R. Marshall

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Owen M. Patton Assistant Prosecuting Attorney

          BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Keough, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶1} Defendant-appellant, Thiotis Greene ("appellant"), brings the instant appeal challenging the trial court's sentence on his drug possession conviction. Specifically, appellant argues that he did not waive his right to a preliminary hearing to determine whether there was probable cause that he violated the terms of his community control sanctions and that the trial court abused its discretion in finding that he violated the terms of community control. After a thorough review of the record and law, this court vacates and remands for further proceedings consistent with this opinion.

         I. Factual and Procedural History

         {¶2} Following a traffic stop on January 8, 2016, appellant was arrested for driving without a driver's license. During an inventory search of the vehicle, officers recovered marijuana and a substance they suspected to be crack cocaine.

         {¶3} Appellant made an initial appearance via video conference on January 12, 2016. The trial court declared appellant to be indigent and assigned a public defender to represent appellant.

         {¶4} In Cuyahoga C.P. No. CR-16-602591-A, the Cuyahoga County Grand Jury returned an indictment on January 26, 2016, charging appellant with drug possession, a fifth-degree felony in violation of R.C. 2925.11(A). Appellant was arraigned on January 29, 2016. He pled not guilty to the indictment.

         {¶5} On April 19, 2016, appellant pled guilty to the drug possession offense as charged in the indictment. The trial court ordered a presentence investigation report and set the matter for sentencing.

         {¶6} The trial court held a sentencing hearing on May 17, 2016. The trial court sentenced appellant to community control sanctions for a term of one and one-half years. The trial court set forth the following conditions of appellant's community control: (1) appellant to abide by all rules and regulations of the probation department; (2) appellant to be supervised by Group C; (3) appellant to report monthly, or more frequently if directed to do so by his probation officer; (4) appellant to pay a monthly supervision fee of $20; (5) appellant is eligible to request early termination when all conditions have been met; (6) appellant to submit to random drug testing until appellant has three consecutive negative screens; (7) appellant to attend programming as directed by probation officer; (8) the conditions and terms of probation are subject to modification by the probation officer and approval of the trial court. The trial court advised appellant that he would be sentenced to one year in prison if he failed to follow any of the community control conditions or the rules of the probation department.

         {¶7} On June 13, 2017, the trial court issued a capias for appellant for failing to comply with the rules of his probation. On July 7, 2017, the trial court held a hearing on an alleged community control violation. Appellant's probation officer advised the trial court that she was notified by Cleveland police officers on June 8, 2017, that appellant was arrested for domestic violence. The probation officer asserted that appellant's "violent arrest" constituted a violation of community control sanctions. (Tr. 24.) Appellant, through counsel, acknowledged that he had, in fact, been arrested. Appellant's counsel stated that although appellant had been arrested, there was no indication that he would be charged as a result of the incident. Counsel further asserted that appellant had been "fully compliant" with the terms of community control.

         {¶8} The trial court stated that the police report indicated that appellant may have violated the terms of community control during the incident by consuming alcohol. The trial court explained, "[w]ell, the allegation that [appellant] was highly intoxicated[.] * * * So I would suggest it's a violation of probation - the intoxication, the fact that he was drinking at all, is one thing." (Tr. 26.)

         {¶9} Appellant's counsel explained that appellant admitted to "ingesting a beer, " but denied being intoxicated during the incident. Appellant addressed the court and admitted that he consumed one beer. Appellant acknowledged, however, that he was aware that he was not supposed to consume even one drink. (Tr. 28.) Appellant disputed the police report's description of the incident.

         {¶10} The victim of the domestic violence incident addressed the trial court and explained that the description of the incident in the police report was not accurate. The victim asserted that to her knowledge, appellant was not intoxicated.

         {¶11} The trial court found that appellant violated the terms of his community control sanctions. As a result, the trial court terminated appellant's community control and sentenced appellant to nine months in prison. The trial court explained that it sentenced appellant to prison based on his record, including his previous convictions for offenses of violence, the fact that he was arrested for domestic violence, the fact that appellant was on probation in federal court, [1] and the fact that appellant was intoxicated or consumed at least one beer. The trial court opined that it was highly doubtful that appellant consumed only one beer during the domestic violence incident.

         {¶12} On July 19, 2017, appellant filed the instant appeal challenging the trial court's judgment. He assigns two errors for review:

I. The record does not establish that either the trial court held or that appellant waived his right to a preliminary hearing to determine whether there was probable cause that appellant violated the terms of his community control sanction.
II. The trial court's termination of community control sanction based upon appellant having at least one beer was an abuse of discretion as the record does not reflect that refraining from use of alcohol was a condition of his community control sanction.

         II. Law and Analysis

         A. Preliminary Probable Cause Hearing

         {¶13} In his first assignment of error, appellant argues that the trial court did not hold a preliminary hearing - prior to a revocation hearing - to determine whether there was probable cause that appellant violated the terms of his community control sanctions. He further contends that he did not waive his right to the preliminary probable cause hearing.

         {¶14} Appellant did not object to the trial court's failure to hold a preliminary hearing. Accordingly, he has waived all but plain error. State v. Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765 (2001), quoting State v. Childs, 14 Ohio St.2d 56, 62, 236 N.E.2d 545 (1968) ("Even constitutional rights 'may be lost as finally as any others by a failure to assert them at the proper time.'"). Crim.R. 52(B) provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." We are mindful that notice of plain error "'is to be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.'" State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), quoting State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).

         {¶15} In support of his argument that the trial court was required to hold a preliminary probable cause hearing, appellant directs this court to Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Appellant appears to argue that Gagnon requires trial courts to conduct two separate hearings - a preliminary hearing to determine whether there is probable cause that the probationer violated the conditions of probation, and, after determining that probable cause exists, a subsequent hearing to determine whether probation should be continued or revoked. Appellant's argument is misplaced.

         {¶16} A trial court's revocation of community control can result in a serious loss of liberty, so "a probationer must be accorded due process at the revocation hearing." State v. Bailey, 8th Dist. Cuyahoga No. 103114, 2016-Ohio-494, ¶ 9, citing Gagnon at 781; State v. Miller, 42 Ohio St.2d 102, 326 N.E.2d 259 (1975), syllabus.

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. Roberts, [2017-Ohio-481');">2017-Ohio-481, 84 N.E.3d, ¶ 18 (2d Dist.)], citing Gagnon. Due process also requires a final hearing to determine whether community control should be revoked. Id.

State v. Cox, 8th Dist. Cuyahoga No. 105932, 2018-Ohio-748, ¶ 15.

         {¶17} In Cox, the trial court held a hearing on probable cause and revocation on the same day. Id. at ΒΆ 15. During the probable cause portion of the hearing, both the defendant and the probation officer testified regarding the defendant's alleged violation for failing to report. This court explained that the trial court was in the best position to judge the credibility of the defendant and the probation officer ...


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