State v. Patton
| Decision Date | 07 July 2016 |
| Docket Number | No. 103737.,103737. |
| Citation | 68 N.E.3d 273,2016 Ohio 4867 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Anthony PATTON, Sr., Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Kathleen Amerkhanian, Kryszak & Associates Co., L.P.A., Sheffield Village, OH, for appellant.
Timothy J. McGinty, Cuyahoga County Prosecutor, Steven N. Szelagiewicz, Assistant County Prosecutor, Cleveland, OH, for appellee.
Before: E.A. GALLAGHER, P.J., STEWART, J., and CELEBREZZE, J.
{¶ 1} Defendant-appellant Anthony Patton Sr. was found guilty of violating the terms of his community control after failing to report to his probation officer and testing positive for alcohol. The court ordered Patton to serve a 12–month prison term on the violation. On appeal, Patton complains that the court violated his due process rights at the revocation hearing, that certain conditions of community control were unreasonable and overly broad, and that his trial counsel was ineffective at his original sentencing hearing and revocation hearing. For the reasons that follow, we affirm.
{¶ 2} In December 2013, Patton pleaded guilty to attempted robbery in Cuyahoga C.P. No. CR–12–569561–A and was sentenced to two years of community control. Certain conditions of community control required Patton to report to his probation officer every two weeks, enjoined him from using drugs and alcohol, and subjected him to random drug testing. The order also stated that the terms and conditions of community control are subject to modification by the probation officer with approval of the court.
{¶ 3} Nearly a year later, Patton missed one of his scheduled appointments with his probation officer but reported to his probation officer the next day, December 5, 2014. While at his appointment, Patton submitted a urine specimen that came back positive for alcohol. To make up for the missed reporting day, Patton's probation officer advised him he would be required to come in and meet with him twice during the following week. When Patton failed to report on both days, the probation officer notified the court that Patton was in violation of the terms of his probation. After Patton again failed to report the following two weeks, the court issued a warrant for Patton's arrest. Patton was promptly arrested and was issued a breathalyzer test that came back positive for alcohol, registering his BAC at .031.
{¶ 4} On January 13, 2015, Patton appeared in court with counsel on the alleged community control violation. Patton's probation officer outlined the allegations on the record: 1) Patton failed to report as directed or contact his probation officer since December 5, 2014; 2) Patton submitted urine specimen on December 5, 2014, which came back positive for alcohol; and 3) Patton submitted to a breathalyzer examination on January 8, 2015, resulting in a BAC of .031. The probation officer stated that this was Patton's first probation violation hearing in the case, and that Patton had "signed the waiver." Patton, through counsel, admitted to the violations. Counsel then addressed the court in mitigation, and Patton spoke on his own behalf. Ultimately, the court found Patton to be in violation of his community control for testing positive for alcohol and failing to report.
{¶ 5} Following the revocation hearing, Patton filed several pro se motions challenging his original conviction and sentence. Those motions were all denied. In November 2015, Patton filed a motion for delayed appeal with this court asking to appeal from the original sentencing order, the order revoking his community control, and an older order allowing for the reindictment of his case (the case was originally indicted as Cuyahoga C.P. No. CR–12–561447–A, but was reindicted as CR–12–569561–A). This court granted Patton's motion for leave to appeal, stating "[m]otion by appellant, pro se, for leave to appeal is granted only as to trial court case number CR–12–569561."
{¶ 6} In his first assigned error, Patton argues that the trial court violated his due process rights at the revocation hearing and that the court abused its discretion by denying his previously filed motions. Specifically, Patton argues that his due process rights were violated when the court failed to present, in writing, the allegations against him, failed to hold a preliminary hearing on the charges, and that his admissions at the violation hearing were not knowing and informed.
{¶ 7} We cannot review whether the trial court abused its discretion by denying Patton's previously filed motions for relief. Patton only requested leave to appeal his original sentencing order and revocation hearing, therefore, those are the only orders from which this court granted leave to appeal. Accordingly, our review is limited to a direct appeal from those orders. See State v. Painter, 12th Dist. Clermont No. CA2012–04–031, 2013-Ohio-529, 2013 WL 607897, ¶ 14 ().
{¶ 8} "Because the revocation of probation entails a serious loss of liberty, a probationer must be accorded due process at the revocation hearing." State v. Bailey, 8th Dist. Cuyahoga No. 103114, 2016-Ohio-494, 2016 WL 561789, ¶ 9, citing Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) ; State v. Miller, 42 Ohio St.2d 102, 326 N.E.2d 259 (1975), syllabus. At a minimum, due process requires the defendant be provided:
(1) written notice of the claimed violations; (2) disclosure of evidence against him; (3) opportunity to be heard and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a "neutral and detached" hearing body; and (6) a written statement by the factfinder of the evidence relied upon and reasons for revocation.
Bailey at ¶ 9, citing State v. Davis, 8th Dist. Cuyahoga No. 93959, 2010-Ohio-5126, 2010 WL 4149254, ¶ 26.
{¶ 9} Although written notice of claimed violations is preferred, this court has held that oral notice of alleged violations may be sufficient when the oral statements "explain the basis of the revocation proceeding," "provide adequate notice to the probationer," and "provide a record for appellate review of the revocation hearing." State v. Washington, 8th Dist. Cuyahoga Nos. 101157 and 101170, 2015-Ohio-305, 2015 WL 407336, ¶ 22, citing State v. Lenard, 8th Dist. Cuyahoga No. 93373, 2010-Ohio-81, 2010 WL 125862, ¶ 10–11, citing Lakewood v. Sullivan, 8th Dist. Cuyahoga No. 79382, 2002-Ohio-2134, 2002 WL 832487, ¶ 26.
{¶ 10} We conclude that oral notice of the claimed violations met the minimum due process guarantee in this case. At the violation hearing, Patton's probation officer read into the record the basis for his allegations. From this point on, Patton was aware of the allegations against him, and there was a record for appellate review. Defense counsel did not contend that the oral notification was insufficient to provide adequate notice, nor did he ask that the hearing be continued to a later date. Rather, defense counsel authoritatively addressed the court and admitted to the allegations on behalf of his client without further discussion. Therefore, the oral notification did not violate Patton's due process rights.
{¶ 11} Next, Patton contends that nothing in the record establishes that he knowingly waived his right to present evidence is his defense and to confront his accusers through cross-examination. As a general matter, an unknowing waiver of a defendant's right in a revocation hearing to present evidence and confront his accusers is invalid. State v. Armstrong, 56 Ohio App.3d 105, 107, 564 N.E.2d 1070 (8th Dist.1988). Nevertheless, Ohio courts have made it clear that "[a] community control revocation hearing is not a criminal trial." State v. Parsons, 4th Dist. Athens No. 09CA4, 2009-Ohio-7068, 2009 WL 5247440, ¶ 11. Accordingly, "[a] defendant faced with revocation of probation or parole is not afforded the full panoply of rights given to a defendant in a criminal prosecution" and "the requirements of Crim.R. 11(C)(2) do not apply to a community-control-violation hearing." Id.
{¶ 12} It is important to point out that Patton is not arguing on appeal that he did not understand the rights he was waiving when he admitted to the allegations. Instead, he simply argues that nothing in the record proves that he understood the implication of admitting to the allegations, which would include a waiver of his right to present evidence and cross-examine witnesses. Patton misunderstands the burden of proof on this issue. In revocation hearings, trial courts are not obligated to procure a knowing waiver through a Crim.R. 11(C)(2)(c) colloquy like they are required to do before accepting a guilty plea. Therefore, the relevant consideration is not whether the record proves that he understood the rights he was waiving; it is whether the record in some way indicates that he did not understand the rights he was waiving. There is nothing in the record that indicates Patton unknowingly waived his rights. Generally, without affirmative evidence in the record indicating otherwise, we presume regularity in trial court proceedings. State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 19. Presuming regularity in this instance would require us to presume that the trial court and the parties would not have proceeded past the evidentiary phase of the proceedings without Patton indicating his willingness to waive his rights, through a signed declaration or otherwise.
{¶ 13} Moreover, even if we were to find that Patton did not waive his rights, we cannot conclude that Patton suffered any prejudice in this instance. The record shows that Patton was able to confront his probation officer during the hearing and prior to the court finding him in violation. The court allowed Patton to engage in a conversation with his probation officer about why he might have been unaware of a change in his...
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