State v. Johnson, 102760

Decision Date08 October 2015
Docket NumberNo. 102760,No. 102761,102760,102761
Citation2015 Ohio 4189
PartiesSTATE OF OHIO PLAINTIFF-APPELLANT v. PHILROY JOHNSON DEFENDANT-APPELLEE
CourtOhio Court of Appeals

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case Nos. CR-12-568869-A and CR-11-548936-A

BEFORE: E.T. Gallagher, P.J., S. Gallagher, J., and Blackmon, J.

ATTORNEYS FOR APPELLANT

Timothy J. McGinty

Cuyahoga County Prosecutor

BY: Frank Romeo Zeleznikar

Assistant Prosecuting Attorney

The Justice Center, 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Robert L. Tobik

Cuyahoga County Public Defender

BY: Cullen Sweeney

Assistant Public Defender

310 Lakeside Avenue

Suite 200

Cleveland, Ohio 44113

EILEEN T. GALLAGHER, P.J.:

{¶1} In this consolidated appeal, the state of Ohio ("the state") appeals a standing order of the Cuyahoga County Common Pleas Court that prohibits the Cuyahoga County Prosecutor's Office from participating in community control revocation hearings without leave of court. The state assigns one error for our review:

The trial court's determination that the prosecuting attorney does not represent the state at community control violation hearings, and is therefore not a party to community control revocation hearings, is a violation of R.C. 309.08(A), due process, and the separation of powers doctrine.

{¶2} We find no merit to the appeal and affirm the trial court's order.

I. Facts and Procedural History

{¶3} In May 2011, defendant Philroy Johnson ("Johnson"), pleaded guilty to escape in Cuyahoga C.P. No. CR-11-548936, and the court sentenced him to community control sanctions for a period of three years. One year later, the court found Johnson in violation of the terms of his community control sanctions, but nevertheless continued community control in lieu of prison.

{¶4} In April 2013, Johnson pleaded guilty to attempted having a weapon while under disability and carrying a concealed weapon in Cuyahoga C.P. No. CR-12-568869. The court sentenced him to 36 months of community control sanctions. Almost a year later, the court again found Johnson in violation of the terms of his community control and continued the community control sanctions.

{¶5} The court held yet another community control revocation hearing in March 2015. The transcript from the hearing shows that an assistant county prosecutor was present on behalf of the state and asserted that the prosecutor's office has a right to attend and participate in all community control revocation hearings. The trial court refused to allow the prosecutor to speak at the hearing because he had not previously sought leave to participate at the hearing as required by the court's standing order.

{¶6} At the hearing, the probation officer described the defendant's violations to the court. The court found Johnson in violation of his community control sanctions and imposed nine months of the suspended prison terms in the sentencing entries, to be served at a local residential facility.

{¶7} The state subsequently filed a notice of appeal together with a motion for leave to appeal, which we granted. The state now appeals the denial of its asserted right to be heard at all community control revocation hearings.

II. Law and Analysis

{¶8} In its sole assigned error, the state argues the prosecutor's office has a constitutional and statutory right to be present and heard at all community control violation hearings. The state contends the trial court's refusal to allow the state to be a party to community control revocation hearings violates its right to due process and the separation of powers doctrine.

A. Prosecutor's Statutory Rights

{¶9} The state argues it has a statutory right to be heard at community control revocation hearings pursuant to R.C. 309.08(A), which defines the power of the prosecuting attorney, a member of the executive branch of government. R.C. 309.08(A) provides, in relevant part:

The prosecuting attorney shall prosecute, on behalf of the state, all complaints, suits, and controversies in which the state is a party, * * * and other suits, matters, and controversies that the prosecuting attorney is required to prosecute within or outside the county, in the probate court, court of common pleas, and court of appeals.

The state contends community control revocation hearings fall within the purview of "complaints, suits, and controversies," and "other suits, matters, and controversies that the prosecuting attorney is required to prosecute."

{¶10} However, R.C. 2929.15(A)(2)(a), which governs community control sanctions, provides in relevant part:

If a court sentences an offender to any community control sanction or combination of community control sanctions authorized pursuant to [s]ection 2929.16, 2929.17, or 2929.18 of the Revised Code, the court shall place the offender under the general control and supervision of a department of probation in the county that serves the court for purposes of reporting to the court a violation of any condition of the sanctions, any condition of release under a community control sanction imposed by the court, a violation of law, or the departure of the offender from this state without the permission of the court or the offender's probation officer.

Nothing in R.C. 2929.15 gives the prosecutor's office any role at community control revocation hearings. The plain language of R.C. 2929.15 provides that the probationdepartment, not the prosecutor's office, is assigned the task of reporting alleged community control violations to the court.

{¶11} R.C. 2929.15 does not prescribe an adversary proceeding; it reflects the fact that a defendant sentenced to community control is supervised by the court through the county probation department. Indeed, the purpose of community control revocation hearings is to determine whether reasonable cause exists to believe that the defendant violated the court's orders as outlined in the community control sanctions. Community control revocation is a mechanism by which the court enforces its own orders. It is akin to a contempt finding. The trial court has a "fundamental and inherent" power to enforce its own orders. Wind v. State, 102 Ohio St. 62, 64, 130 N.E. 35 (1921); see also Edwards v. Murray, 48 Ohio St.2d 303, 305, 358 N.E.2d 577 (1976).

{¶12} An act reported to be in violation of community control may or may not be a criminal offense, but it is an alleged violation of the court's orders as outlined in the terms of the community control sanctions. If the action in violation of community control happens to also be a criminal offense, the state may prosecute the offense in a new criminal case pursuant to R.C. 309.08.

{¶13} However, the court is solely responsible for determining whether an act alleged to be in violation of community control is in fact a violation of the terms of the defendant's community control sanctions as set forth in the court's sentencing order. This is because community control revocation hearings are not criminal proceedings. State v. Heinz, 8th Dist. Cuyahoga No. 102178, 2015-Ohio-2763, ¶ 14; Gagnon v.Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

{¶14} On this point, Gagnon is instructive. In that case, a probationer argued he was entitled to a hearing before revocation of his community control, and that he had a right to counsel at the hearing. The court observed that although a community control revocation is not a stage of criminal prosecution, it results in the loss of liberty. Gagnon at 781. Therefore, the court concluded that minimal requirements of due process demand that the probationer be afforded an opportunity to be heard before his community control may be revoked. Id., citing Morrissey at 480.

{¶15} Whether due process guaranteed the probationer a right to counsel at community control revocation hearings was a separate matter. In making this determination, the Gagnon court considered the purpose of community control, which "'is to help individuals reintegrate into society as constructive individuals as soon as they are able.'" Id. at 782, quoting Morrissey at 480. The court also noted significant differences between criminal proceedings and community control revocation hearings:

In a criminal trial, the state is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors. In short, a criminal trial under our system is an adversary proceeding with its own unique characteristics. In a revocation hearing, on the other hand, the State is represented, not by a prosecutor, but by aparole officer with the orientation described above; formal procedures and rules of evidence are not employed.

Id. at 789. The "orientation described above" refers to the probation officer's function. The Gagnon court explained that a probation officer has a "double duty to the welfare of his clients and the safety of the general community." Id. However, "by and large, concern for the client dominates his professional attitude." Id.

{¶16} The court further explained that a probation officer does not "compel conformance" to Ohio laws. Gagnon at 784. That is the prosecutor's job. The probation officer supervises rehabilitation and decides, in his discretion, whether to recommend revocation. Id. The Gagnon court observed that revocation is viewed "as a failure of supervision." Id.

{¶17} Due to the differences between criminal prosecution and community control revocation hearings, the court held that a probationer does not have an absolute right to counsel in all community control revocation hearings. Id. The probationer is guaranteed only "minimum requirements of due process," and has a right to counsel only under certain circumstances. Id. The court...

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