State v. Middlebrooks

[Cite as State v. Middlebrooks, 2011-Ohio-4534.]

COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2010 AP 08 0026
ANTONIO MIDDLEBROOKS :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court
of Common Pleas Case No. 2008 CR 01 00
22

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 6, 2011

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

RYAN STYER 0069730 KEITH O’KORN 0069834
MICHAEL J. ERNEST 0066627 440 Polaris Parkway, Ste. 150
Tuscarawas County Prosecutor’s Office Westerville, Ohio 43082
125 E. High Ave.
New Philadelphia, Ohio 44663

Delaney, J.
 {¶1} Defendant-Appellant, Antonio Middlebrooks, appeals from the judgment of

the Tuscarawas County Court of Common Pleas, revoking his community control

sanctions. The State of Ohio is Plaintiff-Appellee.

{¶2} On October 15, 2008, Appellant was sentenced to three years of

community control based on his convictions for seven counts of trafficking in drugs, in

violation of R.C. 2925.03. At sentencing, the trial court indicated that if Appellant

violated community control, the court would impose the sentence of fifty-six months

(eight months on each count, to be served consecutively). As conditions of his

community service, Appellant was required to pay restitution in the amount of $630.00

to a drug task force fund, he was required to maintain employment, and abide by the

laws of the State.

{¶3} In January, 2010, Appellant was arrested for trafficking in cocaine and

possession of cocaine. He was later indicted on those charges and convicted by a jury

of possession of cocaine, a felony of the fifth degree, in violation of R.C. 2925.11.

{¶4} On July 10, 2010, a probation revocation hearing was held in the case at

bar based on Appellant’s conviction of possession of cocaine, as well as allegations that

Appellant failed to keep his probation officer apprised of his address and place of

employment, and that he failed to make regular monthly payments towards his financial

obligations.

{¶5} On July 13, 2010, the trial court determined that the State had presented

sufficient evidence to find that Appellant violated his conditions of probation and

sentenced him to eight month consecutive sentences on the seven counts of drug

trafficking.
 {¶6} It is from this entry that Appellant now appeals, raising four Assignments

of Error:

{¶7} “I. THE SENTENCING ENTRIES ARE NOT FINAL APPEALABLE

ORDERS.

{¶8} “II. SUBSTANTIAL PROOF DID NOT EXIST THAT APPELLANT

VIOLATED HIS COMMUNITY CONTROL SANCTIONS, AND EVEN IF IT DID, THE

TRIAL COURT STILL ABUSED ITS DISCRETION IN REVOKING THE APPELLANT’S

COMMUNITY CONTROL.

{¶9} “III. THE TRIAL COURT ERRED IN REVOKING APPELLANT’S

PROBATION IN THAT THE CONDITIONS OF APPELLANT’S PROBATION WERE

OVERLY BROAD AND DID NOT POSSESS THE REQUISITE NEXUS TO THE CRIME

OF WHICH APPELLANT WAS CONVICTED.

{¶10} “IV. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF THE 6TH AMENDMENT TO THE U.S. CONSTITUTION

AND ARTICLE I, SECTIONS 10 & 16 OF THE OHIO CONSTITUTION.”

I.

{¶11} Appellant has withdrawn his first assignment of error. Accordingly, we find

the issue raised therein to be moot.

II.

{¶12} In his second assignment of error, Appellant alleges that the trial court

erred in finding him guilty of the probation violations because substantial proof did not

exist to support the violations.
 {¶13} A community control revocation is not a criminal trial; therefore, the State

is not required to establish a violation of the terms of community control “beyond a

reasonable doubt.” State v. Pavlich, 6th Dist. No. E-10-011, 2011-Ohio-802, ¶7, citing

State v. Ryan, 3d Dist. No. 14–06–55, 2007–Ohio–4743, ¶ 7, citing State v. Hylton

(1991), 75 Ohio App.3d 778, 600 N.E.2d 821. Instead, the State must show

“substantial” proof that the offender violated the terms of his or her community control

sanctions. Ryan, supra.

{¶14} Substantial evidence is akin to a preponderance-of-the-evidence burden

of proof. State v. Ohly, 166 Ohio App.3d 808, 853 N.E.2d 675, 2006-Ohio-2353, at ¶18,

citing State v. Hayes (Aug. 10, 2001), 6th Dist. No. WD-00-075. Substantial evidence is

considered to consist of more than a mere scintilla of evidence, but somewhat less than

a preponderance. State v. Gomez (Feb. 18, 1994), 11th Dist. No. 93-L-080, citing Laws

v. Celebrezze (4th Cir., 1966), 368 F.2d 640, 642, and Marker v. Finch (D.C.Del.1971),

322 F.Supp. 905, 910, fn. 7.

{¶15} “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.” State v. Bell (1990), 66 Ohio App.3d 52, 57, 583 N.E.2d 414.

Determination of the credibility of the witnesses is for the trier of fact. State v. Swiger

(1966), 5 Ohio St.2d 151, 156, 214 N.E.2d 417. A trial court's finding of a violation of

community control will not be disturbed on appeal absent an abuse of discretion.

Pavlich, supra. An abuse of discretion implies more than an error of law or judgment;

instead, it connotes that the trial court's attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d
1140. When applying the abuse of discretion standard, an appellate court may not

simply substitute its judgment for that of the trial court. Id.

{¶16} In order to comport with due process, a trial court must adhere to the

following conditions when ruling on a defendant’s guilt in relation to a probation

violation: “(a) written notice of the claimed violations; (b) disclosure of evidence against

the defendant; (c) the opportunity to be heard in person and to present witnesses and

documentary evidence; (d) the right to confront and cross-examine adverse witnesses;

(e) a neutral and detached hearing body; and (f) a written statement by the fact finders

as to the evidence relied on and reasons for revocation.” Pavlich, supra, at ¶25, citing

State v. McKeithen, 3d Dist. No. 9–08–29, 2009–Ohio–84, ¶ 22, quoting State v. Miller

(1975), 42 Ohio St.2d 102, 104, 326 N.E.2d 259, quoting Morrissey v. Brewer (1972),

408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484.

{¶17} Accordingly, we must determine if the trial court abused its discretion in

finding that Appellant violated his conditions of probation. A review of the record does

not support a finding that the trial court abused its discretion.

{¶18} To the contrary, the evidence supports the trial court’s finding. Detective

Charles Willett of the New Philadelphia Police Department testified that he searched the

apartment that Appellant was residing in during the summer of 2009 and found $550.00

along with cocaine in the reclining chair that Appellant was sleeping in. When Detective

Willett attempted to arrest Appellant on January 15, 2010, Appellant fled upon seeing

him. After Appellant was arrested, he was indicted on, tried, and convicted of

possession of cocaine.
 {¶19} Alice Barr of the Ohio Adult Parole Authority (APA) testified that she was

Appellant’s probation officer when he resided in Ohio. She reviewed his conditions of

probation with him when he was placed on community control. She was also involved

with his transfer of probation from Ohio to Michigan when he moved there in 2009. She

testified that she was in contact with his probation officer in Michigan and that Appellant

had not obtained permission to move back to Ohio from Michigan. Moreover, Appellant

had failed to make any restitution payments at the time of the revocation hearing.

{¶20} Appellant argues that the trial court should not have considered Ms. Barr’s

testimony, as she was no longer his supervising officer. We do not find this argument

persuasive. Ms. Barr had firsthand knowledge of Appellant’s terms of probation and of

his specific violations. There is no legal reason to prohibit her from testifying. Moreover,

the rules of evidence do not apply in revocation proceedings. Evid. R. 101(C). As such,

hearsay testimony is admissible and Ms. Barr could testify as to her knowledge of

Appellant’s probation conditions in Michigan.

{¶21} Moreover, the trial court was within its purview to determine that Appellant

violated the financial portion of his community control sanctions by failing to pay

restitution and court costs. R.C. 2929.18 provides for financial sanctions, but it does not

limit the sanctions to those listed in the statute. As such, we find that the trial court was

within its discretion to order Appellant to pay the drug task force, as the buy money

used to facilitate controlled buys between Appellant and a confidential informant came

from the task force’s funds.

{¶22} Appellant’s second assignment of error is overruled.

III.
 {¶23} In his third assignment of error, Appellant argues that the trial court erred

in revoking his probation because his probation conditions were overly broad and did

not possess the requisite nexus to the crimes of which he was convicted. We disagree.

{¶24} Pursuant to R.C. 2951.02, trial courts are granted broad discretion in

setting conditions of probation. Specifically, R.C. 2951.02(C) provides that “ * * * [i]n the

interests of doing justice, rehabilitating the offender, and insuring his good behavior, the

court may impose additional requirements on the offender * * *. Compliance with the

additional requirements shall also be a condition of the offender's probation or other

suspension.” See State v. Jones (1990), 49 Ohio St.3d 51, 550 N.E.2d 469, citing State

v. Livingston (1976), 53 Ohio App.2d 195, 196-197, 372 N.E.2d 1335, 1337, citing

United States v. Strada (D.C.Mo.1974), 393 F.Supp. 19; People v. Dominguez (1967),

256 Cal.App.2d 623, 64 Cal.Rptr. 290; Williams v. State (Tex.Crim.App.1975), 523

S.W.2d 953; see, also, Lakewood v. Davies (1987), 35 Ohio App.3d 107, 519 N.E.2d

860, paragraph two of the syllabus. A trial court’s discretion in imposing conditions of

probation is not limitless. “Such conditions cannot be overly broad so as to

unnecessarily impinge upon the probationer's liberty.” Jones, supra, at 52, citing State v.

Maynard (1988), 47 Ohio App.3d 76, 547 N.E.2d 409.

{¶25} The Supreme Court in Jones held, “[i]n determining whether a condition of

probation is related to the ‘interests of doing justice, rehabilitating the offender, and

insuring his good behavior,’ courts should consider whether the condition (1) is

reasonably related to rehabilitating the offender, (2) has some relationship to the crime

of which the offender was convicted, and (3) relates to conduct which is criminal or

reasonably related to future criminality and serves the statutory ends of probation. See,
e.g., United States v. Tolla (C.A.2, 1986), 781 F.2d 29, 32-33; State v. Maynard, supra,

at paragraph two of the syllabus; State v. Livingston, supra; Howland v. Florida

(Fla.App.1982), 420 So.2d 918, 919; Rodriguez v. Florida (Fla.App.1979), 378 So.2d 7;

Nitz v. State (Alaska App.1987), 745 P.2d 1379.” Id., at 53.

{¶26} The conditions of Appellant’s probation were not overly broad and in fact

are directly related to his convictions. The condition of paying restitution directly relates

to paying back money that was given to Appellant by a confidential informant of the drug

task force when he participated in controlled buys with that informant. Though

Appellant was ultimately not convicted of trafficking in drugs, he agreed to the condition

in the trial court’s judgment entry. This money and the buys were directly related to the

execution of the search warrant wherein Appellant’s residence in Ohio was raided and

the cocaine that he was convicted of possessing was found.

{¶27} The court did not require even a minimum amount be paid each month;

rather it merely required that Appellant make regular monthly payments. Moreover, as

we noted in our disposition of Appellant’s second assignment of error, this restitution

order was lawful pursuant to R.C. 2929.18(A)(1).

{¶28} Appellant’s third assignment of error is overruled.

IV.

{¶29} In Appellant’s fourth assignment of error, he argues that he was denied

the effective assistance of counsel in the event that this Court determines that his

arguments in the preceding assignments of error were not properly preserved for

appeal. Appellant’s arguments were considered on their merits, and as such, his fourth

assignment of error is overruled.
 {¶30} For the foregoing reasons, the judgment of the Tuscarawas County Court

of Common Pleas is affirmed.

By: Delaney, J.

Gwin, P.J. and

Wise, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. JOHN W. WISE

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
ANTONIO MIDDLEBROOKS :
:
Defendant-Appellant : Case No. 2010 AP 08 0026
:
 For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Tuscarawas County Court of Common Pleas is affirmed. Costs

assessed to Appellant.

_________________________________
HON. PATRICIA A. DELANEY

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. JOHN W. WISE