State v. Mingua

• Decision Date: 03 December 1974
• Citation: 327 N.E.2d 791,42 Ohio App.2d 35,71 O.O.2d 234
• Parties: , 71 O.O.2d 234 The STATE of Ohio, Appellee, v. MINGUA, Appellant.
• Court: Ohio Court of Appeals

Page 35

42 Ohio App.2d 35

327 N.E.2d 791, 71 O.O.2d 234

The STATE of Ohio, Appellee, v. MINGUA, Appellant.

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 3, 1974.

Syllabus by the Court

1. A revocation of the probation status of an accused may only be accomplished after two separate hearings are conducted-the first to determine if probable cause exists to force a probationer to answer formal charges against him, and the second, if such cause exists, to examine the total evidence presented. (Parker v. Cardwell, 32 Ohio App.2d 193, applicable.)

2. Although the quantum of evidence required to support a probation revocation need not be 'beyond a reasonable doubt,' it must be 'substantial,' and such evidence must meet the test of competency.

James J. Hughes, Jr., City Atty., Daniel W. Johnson, City Prosecutor, and Wayne A. Brown, Columbus, for appellee.

Timothy J. O'Connell, interim director, Legal Aid & Defender Society, and Gary M. Schweickart, Columbus, for appellant.

HOLMES, Judge.

This matter involves the appeal of a probation revocation entered by the Municipal Court of Franklin County. The facts in brief, upon which this appeal has been brought, are that the defendant, the appellant herein, had previously been found guilty of an offense in Columbus, and was put on probation for a two-year period.

It would appear that the defendant was placed in the care of members of his family who resided in another community. Further, the record shows that the defendant's probation officer received a call from the defendant's sister- in-law to the effect that some neighbors in the community were accusing the defendant of having committed a certain offense of the same or similar nature for which he had previously been convicted and put on probation. A probation revocation hearing followed.

At the outset of the probation revocation hearing, counsel for the defendant objected to continuing the hearing on the basis that counsel had only been brought into the case the morning of such hearing; further, neither counsel nor the defendant had received written specifications of the charges which were to be determined at such hearing. In addition, counsel argued that there had been no preliminary hearing afforded to the defendant to determine probable cause as to whether the terms of the probation had been violated, as required by the pronouncement of the Supreme Court of the United States in the cases of Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 and Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.

Counsel for the defendant argued, also, that the only testimony that would be given would be that of the probation officer, and would concern the telephone call from the defendant's sister-in-law. He contended that such would be pure hearsay. Counsel for the defendant further relied upon the decision of this court in State v. Miller, Franklin County Court of Appeals, No. 73AP-320, decided January 22, 1974 (1974 Decisions, page 124) and State v. Smith (1972), 29 Ohio App.2d 241, 281 N.E.2d 17. He accordingly argued that the manner and procedure of the contemplated hearing were in violation of the rights of this defendant.

At the hearing of the probation revocation, the trial court permitted the probation officer to relate the matter of the telephone conversation that he had with the defendant's sister-in-law concerning the accustations she had heard others make concerning the defendant. Also, he testified that the sister-in-law had informed him she had a conference with the psychiatrist at the mental health clinic. He stated the doctor informed her as follows:

'He feels that this man, referring to the defendant, should be hospitalized because all the tests that they have indicate that he is likely to commit this crime again. He also confirmed to her that, from the information he has, that the defendant very likely did commit the offense which he was alleged to have committed * * *.'

The probation officer, upon being asked whether he knew of any of the particulars of the alleged offense which the defendant was to have committed, again stated that the only information, other than the conversation of the defendant's sister-in-law, was that with the director of the mental health clinic, and that 'she did tell me that they believe that the defendant committed this act.'

Upon such state of the record, the trial court revoked the defendant's probation, and reinstated the former sentence.

The defendant appeals, citing the following errors:

1. 'Appellant was denied fundamental due process of law since neither he nor his counsel was served with written notice of the claimed violations of probation';

2. 'Appellant was denied fundamental due process of law by not being afforded a probable cause hearing prior to the final adjudicatory proceeding';

3. 'Appellant was denied fundamental due process of law when he was denied the right to confront and cross-examine adverse witnesses';

4. 'The order of the trial court revoking appellant's probation is not supported by sufficient probative evidence, hence such an order is contrary to law.'

At the outset, we should state that the legal principles that shall be applied to this matter involving a revocation of probation shall be the same as would be applied to a matter involving a revocation of parole, in that the majority of this court, in the case of State v. Miller, supra, held that the due process hearing rights, as extended pursuant to Morrissey, surpa, and Parker v. Cardwell (1972), 32 Ohio App.2d 193, 289 N.E.2d 382, to parolees charged with a violation of parole would be in a like manner recognized for those charged with a violation of probation. The decision in Miller noted State v. Smith, supra.

I.

In Parker v. Cardwell, supra, this court, substantially in conformity with the United States Supreme Court decision in Morrissey,supra, set forth the manner in which revocation hearings were to be conducted. A revocation, pursuant to such decision, should be based upon a two-stage proceeding. One stage is the original probable cause hearing, and the other stage is the revocation hearing. In the instant case, there appears to have been only one hearing-that which had been invoked by the probation officer concerning certain information that he had received.

There is no indication in the record that the defendant or his counsel had received any written notice of the hearing, or that any written charges were served upon them. However, defendant's counsel states...