State v. Fears, No. 17–CA–67

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: Gwin, P.J.
• Citation: 110 N.E.3d 951,2018 Ohio 1468
• Parties: STATE of Ohio, Plaintiff–Appellant v. Vern L. FEARS, Defendant–Appellee
• Docket Number: No. 17–CA–67
• Decision Date: 16 April 2018

110 N.E.3d 951
2018 Ohio 1468

STATE of Ohio, Plaintiff–Appellant
v.
Vern L. FEARS, Defendant–Appellee

No. 17–CA–67

Court of Appeals of Ohio, Fifth District, Richland County.

DATE OF JUDGMENT ENTRY: April 16, 2018

GARY BISHOP, PROSECUTING ATTORNEY, BY: JOSEPH SNYDER, 38 South Park Street, Mansfield, OH 44902, For Plaintiff–Appellee

RANDALL FRY, 10 West Newlon Place, Mansfield, OH 44902, For Defendant–Appellant

JUDGES: Hon. W. Scott Gwin, P.J., Hon. Patricia A. Delaney, J., Hon. Earle E. Wise, J.

OPINION

Gwin, P.J.

{¶ 1} Defendant-appellant Vern Fears ["Fears"] appeals the July 13, 2017 Judgement Entry of the Richland County Court of Common Pleas finding that he violated his community control sanctions.

Facts and Procedural History

{¶ 2} On February 4, 2013 in Richland County Court of Common Pleas, Case Number 2012–CR–0847 Fears was convicted of one count of Aggravated Burglary a felony of the first degree and one count of Robbery, a felony of the second degree. The trial court sentenced Fears to four years in prison on the Aggravated Burglary charge. On the Robbery charge, Fears was given a four year suspended prison sentence, with a mandatory five years of post-release control, and five years of community control to begin upon Fears' release from prison on the Aggravated Burglary charge.

{¶ 3} On November 23, 2016, Fears was released from prison and placed on probation/community control. On April 4, 2017, a

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"Notice of Hearing Probation Violation" was filed alleging that Fears had violated his probation. Fears pled to the violation and was found guilty by the trial court. By Judgment Entry filed May 8, 2017, Fears' community control was continued with the addition that he pay a $200.00 sanction and successfully complete "Thinking for a Change."

{¶ 4} On June 27, 2017, a "Notice of Hearing Probation Violation" was filed alleging that Fears had violated his probation. The Notice set forth in three separate counts the alleged violations.

{¶ 5} On July 12, 2017, a probation violation hearing was conducted by the trial court. Fears admitted to the allegations contained in Counts 2 and Count 3 but denied the allegations contained in Count 1¹ . T. September 15, 2017 at 4–5. A hearing was held concerning Fears' violation of Count 1, which alleged that Fears "On or about 06/10/17... entered [a residence] without the consent of the person authorized to give consent" and further, "On or after 05/28/17...changed your residence without obtaining permission from your supervising officer." Id. at 4.

{¶ 6} The only witness called by the state during the revocation hearing was the probation officer, Mary Gates.

{¶ 7} Gates testified that Fears is on Community Control for the Robbery charge and Fears is on Post-release Control for the Aggravated Burglary charge. T. at 7. Gates testified that she went to the location that Fears was supposed to be residing on two occasions and no one answered the door. Gates left her card in the door on both occasions. T. at 9. Fears testified that she spoke on the telephone with Fears' wife on May 30, 2017, and she reported that he had not been home since May 28, 2017. T. at 10. Gates testified that on June 12, 2017, an officer from the Mansfield Police Department contacted her informing her that Fears went to the residence of his wife, kicked the door in and was shot by an alleged boyfriend who was at the home. T. at 11–13; 20. Gates also testified that The Northern Ohio Fugitive Task Force was attempting to locate Fears after this incident. T. at 13–14. Gates contacted the task force because she was in fear for the safety of Fears' wife. T. at 15. Fears further testified that Fears' wife had told her Fears was staying with his father in Cleveland. T. at 17.

{¶ 8} After his arrest, Gates met with Fears who told her that he never changed his address and was still living in Mansfield, not Cleveland. Fears claimed his wife was lying and trying to set him up. T. at 21.

{¶ 9} After listening to the testimony of Mary Gates, the Court ruled that Fears was guilty of changing his residence without obtaining permission from his supervision officer. The Court said it based its ruling for a number of reasons. The first reason the Court stated was that Fears' wife said so and that her testimony is uncontracted. T.at 40. The Court stated that Fears' wife had been a reliable reporter in the past so there was no reason to disbelieve her testimony. T. at 40. The Court also stated in its ruling that on June 10, 2017, that Fears could not get into his residence without kicking in the door. T. at 40, 41.

{¶ 10} On July 13, 2017, a Community Control Violation Journal Entry was filed. The Court accepted Fears' admission to Community Control violations Count 2 and Count 3 and found Fears guilty of Community Control violation Count 1. Fears was

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sentenced to 3 years of prison on the underlying charge of Robbery, along with 3 years of mandatory Community Control.

Assignment of Error

{¶ 11} Fears raises one assignment of error:

{¶ 12} "I. THE TRIAL COURT FAILED TO AFFORD THE APPELLANT A FULL AND FAIR PROBATION REVOCATION HEARING AS REQUIRED BY DUE PROCESS AND GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION."

Law and Analyses

{¶ 13} In finding that Fears was guilty of Count 1 of his probation violation/community control violation, Fears argues that the trial court violated his right to confront and cross-examine his accusers and erred in permitting the probation officer to testify to the hearsay statement alleged made by Fears' wife. However, Fears did not raise the constitutional argument at trial. Fears only objected to hearsay in the form of the Mansfield Police detective telling Gates that Fears had kicked the door in to his wife's residence and was shot by the wife's boyfriend. T. at 12–13.

STANDARD OF APPELLATE REVIEW

A. Plain error.

{¶ 14} Crim.R. 52(B) affords appellate courts discretion to correct "[p]lain errors or defects affecting substantial rights" notwithstanding an accused's failure to meet his obligation to bring those errors to the attention of the trial court. However, the accused bears the burden to demonstrate plain error on the record, State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, and must show "an error, i.e., a deviation from a legal rule" that constitutes "an ‘obvious’ defect in the trial proceedings," State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶ 15} Even if the error is obvious, it must have affected substantial rights, and "[w]e have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial." Id. The Ohio Supreme Court recently clarified in State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is "required to demonstrate a reasonable probability that the error resulted in prejudice—the same deferential standard for reviewing ineffective assistance of counsel claims." (Emphasis sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez , 542 U.S. 74, 81–83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Accord, State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 32–34.

{¶ 16} If the accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it; the Supreme Court has "admonish[ed] courts to notice plain error ‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ " (Emphasis added.) Barnes at 27, 759 N.E.2d 1240, quoting State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Accord, State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 32–34.

B. Probation/Community Control revocation.

{¶ 17} "The privilege of probation rests upon the probationer's compliance with the probation conditions and any violation of those conditions may properly be used to revoke the privilege."

110 N.E.3d 956

State v. Ohly , 166 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d 675 (6th Dist.), ¶ 19, quoting State v. Bell , 66 Ohio App.3d 52, 57, 583 N.E.2d 414 (5th Dist. 1990). "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. Wolfson, 4th Dist. Lawrence No. 03CA25, 2004-Ohio-2750, 2004 WL 1178724, ¶ 7 ; see, also, State v. Payne , 12th Dist. Warren No. CA2001-09-081, 2002 WL 649403 ; State v. Hylton , 75 Ohio App.3d 778, 782, 600 N.E.2d 821 (4th Dist. 1991). Instead, the state need only present "substantial" proof that a defendant willfully violated the community control conditions. See Hylton , 75 Ohio App.3d at 782, 600 N.E.2d 821² . "The test ordinarily applied is highly deferential to the decision of the trial court and is akin to a preponderance of the evidence burden of proof. See State v. Alderson , 4th Dist....