State v. Greene

[Cite as State v. Greene, 2018-Ohio-1965.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 106028

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

THIOTIS GREENE

DEFENDANT-APPELLANT

JUDGMENT:
VACATED AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-602591-A

BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Keough, J.

RELEASED AND JOURNALIZED: May 17, 2018
ATTORNEY FOR APPELLANT

Mark R. Marshall
P.O. Box 451146
Westlake, Ohio 44145

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Owen M. Patton
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113

FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-appellant, Thiotis Greene (“appellant”), brings the instant appeal

challenging the trial court’s sentence on his drug possession conviction. Specifically, appellant

argues that he did not waive his right to a preliminary hearing to determine whether there was

probable cause that he violated the terms of his community control sanctions and that the trial

court abused its discretion in finding that he violated the terms of community control. After a

thorough review of the record and law, this court vacates and remands for further proceedings

consistent with this opinion.

I. Factual and Procedural History

{¶2} Following a traffic stop on January 8, 2016, appellant was arrested for driving

without a driver’s license. During an inventory search of the vehicle, officers recovered

marijuana and a substance they suspected to be crack cocaine.
 {¶3} Appellant made an initial appearance via video conference on January 12, 2016.

The trial court declared appellant to be indigent and assigned a public defender to represent

appellant.

{¶4} In Cuyahoga C.P. No. CR-16-602591-A, the Cuyahoga County Grand Jury returned

an indictment on January 26, 2016, charging appellant with drug possession, a fifth-degree felony

in violation of R.C. 2925.11(A). Appellant was arraigned on January 29, 2016. He pled not

guilty to the indictment.

{¶5} On April 19, 2016, appellant pled guilty to the drug possession offense as charged in

the indictment. The trial court ordered a presentence investigation report and set the matter for

sentencing.

{¶6} The trial court held a sentencing hearing on May 17, 2016. The trial court

sentenced appellant to community control sanctions for a term of one and one-half years. The

trial court set forth the following conditions of appellant’s community control: (1) appellant to

abide by all rules and regulations of the probation department; (2) appellant to be supervised by

Group C; (3) appellant to report monthly, or more frequently if directed to do so by his probation

officer; (4) appellant to pay a monthly supervision fee of $20; (5) appellant is eligible to request

early termination when all conditions have been met; (6) appellant to submit to random drug

testing until appellant has three consecutive negative screens; (7) appellant to attend

programming as directed by probation officer; (8) the conditions and terms of probation are

subject to modification by the probation officer and approval of the trial court. The trial court

advised appellant that he would be sentenced to one year in prison if he failed to follow any of

the community control conditions or the rules of the probation department.

{¶7} On June 13, 2017, the trial court issued a capias for appellant for failing to comply
with the rules of his probation. On July 7, 2017, the trial court held a hearing on an alleged

community control violation. Appellant’s probation officer advised the trial court that she was

notified by Cleveland police officers on June 8, 2017, that appellant was arrested for domestic

violence. The probation officer asserted that appellant’s “violent arrest” constituted a violation

of community control sanctions. (Tr. 24.) Appellant, through counsel, acknowledged that he

had, in fact, been arrested. Appellant’s counsel stated that although appellant had been arrested,

there was no indication that he would be charged as a result of the incident. Counsel further

asserted that appellant had been “fully compliant” with the terms of community control.

{¶8} The trial court stated that the police report indicated that appellant may have

violated the terms of community control during the incident by consuming alcohol. The trial

court explained, “[w]ell, the allegation that [appellant] was highly intoxicated[.] * * * So I would

suggest it’s a violation of probation — the intoxication, the fact that he was drinking at all, is one

thing.” (Tr. 26.)

{¶9} Appellant’s counsel explained that appellant admitted to “ingesting a beer,” but

denied being intoxicated during the incident. Appellant addressed the court and admitted that he

consumed one beer. Appellant acknowledged, however, that he was aware that he was not

supposed to consume even one drink. (Tr. 28.) Appellant disputed the police report’s

description of the incident.

{¶10} The victim of the domestic violence incident addressed the trial court and

explained that the description of the incident in the police report was not accurate. The victim

asserted that to her knowledge, appellant was not intoxicated.

{¶11} The trial court found that appellant violated the terms of his community control

sanctions. As a result, the trial court terminated appellant’s community control and sentenced
appellant to nine months in prison. The trial court explained that it sentenced appellant to prison

based on his record, including his previous convictions for offenses of violence, the fact that he

was arrested for domestic violence, the fact that appellant was on probation in federal court,1 and

the fact that appellant was intoxicated or consumed at least one beer. The trial court opined that

it was highly doubtful that appellant consumed only one beer during the domestic violence

incident.

{¶12} On July 19, 2017, appellant filed the instant appeal challenging the trial court’s

judgment. He assigns two errors for review:

I. The record does not establish that either the trial court held or that appellant
waived his right to a preliminary hearing to determine whether there was probable
cause that appellant violated the terms of his community control sanction.

II. The trial court’s termination of community control sanction based upon

appellant having at least one beer was an abuse of discretion as the record does

not reflect that refraining from use of alcohol was a condition of his community

control sanction.

II. Law and Analysis

A. Preliminary Probable Cause Hearing

{¶13} In his first assignment of error, appellant argues that the trial court did not hold a

preliminary hearing — prior to a revocation hearing — to determine whether there was probable

cause that appellant violated the terms of his community control sanctions. He further contends

that he did not waive his right to the preliminary probable cause hearing.

1
At the time of appellant’s arrest on January 8, 2016, he had pled guilty and was awaiting sentencing on
fraud-related charges in a criminal case in the United States District Court for the Northern District of Ohio.
Appellant was sentenced to five years of probation on January 19, 2016.
 {¶14} Appellant did not object to the trial court’s failure to hold a preliminary hearing.

Accordingly, he has waived all but plain error. State v. Murphy, 91 Ohio St.3d 516, 747 N.E.2d

765 (2001), quoting State v. Childs, 14 Ohio St.2d 56, 62, 236 N.E.2d 545 (1968) (“Even

constitutional rights ‘may be lost as finally as any others by a failure to assert them at the proper

time.’”). Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of the court.” We are mindful that

notice of plain error “‘is to be taken with the utmost caution, under exceptional circumstances,

and only to prevent a manifest miscarriage of justice.’” State v. Barnes, 94 Ohio St.3d 21, 27,

759 N.E.2d 1240 (2002), quoting State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).

{¶15} In support of his argument that the trial court was required to hold a preliminary

probable cause hearing, appellant directs this court to Gagnon v. Scarpelli, 411 U.S. 778, 93

S.Ct. 1756, 36 L.Ed.2d 656 (1973). Appellant appears to argue that Gagnon requires trial courts

to conduct two separate hearings — a preliminary hearing to determine whether there is probable

cause that the probationer violated the conditions of probation, and, after determining that

probable cause exists, a subsequent hearing to determine whether probation should be continued

or revoked. Appellant’s argument is misplaced.

{¶16} A trial court’s revocation of community control can result in a serious loss of

liberty, so “a probationer must be accorded due process at the revocation hearing.” State v.

Bailey, 8th Dist. Cuyahoga No. 103114, 2016-Ohio-494, ¶ 9, citing Gagnon at 781; State v.

Miller, 42 Ohio St.2d 102, 326 N.E.2d 259 (1975), syllabus.

A defendant is entitled to a preliminary hearing to determine whether there is
probable cause to believe that the defendant has violated the terms of his or her
community control. State v. Roberts, [2017-Ohio-481, 84 N.E.3d, ¶ 18 (2d
Dist.)], citing Gagnon. Due process also requires a final hearing to determine
whether community control should be revoked. Id.
State v. Cox, 8th Dist. Cuyahoga No. 105932, 2018-Ohio-748, ¶ 15.

{¶17} In Cox, the trial court held a hearing on probable cause and revocation on the same

day. Id. at ¶ 15. During the probable cause portion of the hearing, both the defendant and the

probation officer testified regarding the defendant’s alleged violation for failing to report. This

court explained that the trial court was in the best position to judge the credibility of the

defendant and the probation officer regarding the alleged violation. Id. at ¶ 19. Under these

circumstances, this court found no due process violation.

{¶18} In State v. Patton, 2016-Ohio-4867, 68 N.E.3d 273 (8th Dist.), the

defendant-appellant argued that the trial court violated his due process rights at the hearing on his

alleged violation of community control by failing to provide him with written notice of the

allegations against him and failing to hold a preliminary hearing on the alleged violations. Id. at

¶ 6. This court found no merit to appellant’s assertion that the trial court failed to hold a

preliminary hearing on the alleged violations, explaining that “[i]t is clear from the transcript that

the violation hearing began as a preliminary hearing and then transitioned into a revocation

hearing[.]” Id. at ¶ 16.

{¶19} Other Ohio appellate courts have held that when a trial court revokes community

control sanctions without conducting separate preliminary and final revocation hearings, the trial

court’s judgment will not be reversed unless the record reflects that the defendant was

prejudiced. See State v. Thompson, 1st Dist. Hamilton Nos. C-140746 and C-140747,

2015-Ohio-2836, ¶ 6-7, citing State v. Delaney, 11 Ohio St.3d 231, 234, 465 N.E.2d 72 (1984);

see also State v. Knerr, 3d Dist. Auglaize Nos. 2-14-03 and 2-14-04, 2014-Ohio-3988, ¶ 14,

citing State v. Miller, 45 Ohio App.2d 301, 306, 345 N.E.2d 82 (3d Dist.1975); State v. Jackson,
7th Dist. Mahoning No. 14 MA 108, 2015-Ohio-3959, ¶ 9; State v. Waddell, 10th Dist. Franklin

No. 14AP-372, 2014-Ohio-4829, ¶ 8-12. Accord State v. Jones, 1st Dist. Hamilton No.

C-150336, 2016 Ohio App. LEXIS 2901 (May 25, 2016).

{¶20} In the instant matter, like Cox, the record reflects that the trial court held a hearing

on probable cause and revocation on the same day. Furthermore, like Patton, the transcript from

the violation hearing reflects that the hearing began as a preliminary, probable cause hearing and

then, after appellant’s probation officer informed the court that appellant’s arrest constituted a

violation of community control and appellant admitted to consuming alcohol, transitioned into a

revocation hearing.

{¶21} During the probable cause portion of the hearing, the trial court reviewed the police

report from the domestic violence incident, heard testimony from the probation officer, appellant,

and the victim, and gave appellant’s counsel an opportunity to address the alleged violation.

The trial court was in the best position to judge the credibility of the witnesses in making its

probable cause determination. The trial court did not find appellant’s testimony that he only

consumed one beer to be credible, emphasizing that the police report described appellant as being

highly intoxicated.

{¶22} Additionally, we cannot say that appellant was prejudiced by the trial court’s

failure to hold two separate hearings. During the probable cause portion of the hearing, the

record reflects that appellant was able to confront and/or address his probation officer’s

allegations, the allegations set forth in the police report, and the trial court’s viewpoint that he

violated his community control by consuming alcohol before the court found him in violation.

Appellant’s counsel and appellant admitted that appellant had been arrested for domestic

violence and that he consumed one beer. Appellant confirmed that he consumed one beer and
explained, “[a]nd I know I’m not even supposed to have [one]. I admit to that.” (Tr. 28.)

{¶23} Based on the foregoing analysis, we find that the trial court did not commit plain

error by conducting the probable cause hearing and the revocation hearing on the same day,

appellant was not prejudiced by the trial court’s failure to hold two separate hearings, and

appellant’s due process rights were not violated. Accordingly, appellant’s first assignment of

error is overruled.

B. Community Control Violation

{¶24} In his second assignment of error, appellant argues that there was insufficient

evidence establishing that he violated the terms of his community control sanctions.

A community control revocation hearing is not a criminal trial, so the state is not
required to establish a violation of the terms of community control beyond a
reasonable doubt. State v. Davis, 8th Dist. Cuyahoga No. 105299,
2017-Ohio-8873, ¶ 14, citing State v. Hylton, 75 Ohio App.3d 778, 600 N.E.2d
821 (4th Dist.1991). Instead, the quantum of evidence required to establish a
violation and revoke a community control sanction must be “substantial.” Id. In
a community control violation hearing, the trial court must consider the credibility
of the witnesses and make a determination based on substantial evidence. State
v. Lenard, 8th Dist. Cuyahoga No. 93373, 2010-Ohio-81, ¶ 14, citing State v.
Hayes, 8th Dist. Cuyahoga No. 87642, 2006-Ohio-5924. “Substantial evidence
has been defined as being more than a scintilla of evidence, but less than a
preponderance.” Davis at ¶ 14, citing State v. McCants, 1st Dist. Hamilton No.
C-120725, 2013-Ohio-2646.

Cox, 8th Dist. Cuyahoga No. 105932, 2018-Ohio-748, at ¶ 16.

{¶25} “The revocation of community control is an exercise of the sentencing court’s

criminal jurisdiction, and pursuant to R.C. 2929.15(B)(1), the court may extend the term of the

offender’s community control or impose a more restrictive sanction or a prison term if the

conditions of community control are violated.” State v. Morris, 2016-Ohio-7614, 73 N.E.3d

1010, ¶ 12 (8th Dist.). Accordingly, a trial court’s decision that a defendant violated community

control will not be disturbed on appeal absent an abuse of discretion. Hayes at ¶ 11.
 {¶26} In the instant matter, during the hearing on appellant’s alleged violations, the trial

court addressed two grounds based upon which appellant allegedly violated his community

control: (1) appellant’s arrest for domestic violence, and (2) appellant’s consumption of alcohol.

The trial court ultimately determined that appellant violated community control based on the

fact that appellant was arrested and the fact that appellant was intoxicated during the incident that

resulted in his arrest. (Tr. 34.) After reviewing the record, we find that the trial court’s

determination that appellant violated the terms of his community control sanctions is not

supported by substantial and competent evidence.

1. Arrest

{¶27} First, during the hearing on the alleged violation, appellant’s probation officer

testified that appellant was arrested for domestic violence on June 8, 2017. The probation

officer asserted that the “violent arrest” constituted a violation of appellant’s community control

sanctions. (Tr. 24.)

{¶28} Appellant, through counsel, admitted to the facts underlying the alleged violation

as set forth by the probation officer — that he had, in fact, been arrested. However, in this

appeal, appellant argues that his arrest was an insufficient basis to terminate community control

because he had not been charged with any criminal offenses. We agree.

{¶29} To the extent that the trial court found that appellant violated the terms of

community control based on the fact that he was arrested, it is well established that the fact that a

defendant was arrested, by itself, does not constitute a violation of community control.

Courts have repeatedly determined that merely being charged with a crime is not
sufficient to establish a probation violation. See, e.g., Toledo v. Nova, 6th Dist.
Lucas No. L-12-1229, 2013-Ohio-1094; State v. Wagner, 179 Ohio App.3d 165,
2008-Ohio-5765, 900 N.E.2d 1089, ¶ 42 (2d Dist.) (stating that the fact that a
criminal charge was filed, by itself, is not sufficient to prove that the defendant
 committed the criminal act); State v. Craig, 130 Ohio App.3d 639, 642, 720
N.E.2d 966 (1st Dist.1998) (stating that the mere fact of an arrest cannot
constitute a violation of community control sanctions); State v. Kidwell, 10th Dist.
Franklin No. 94APA06-883, 1995 Ohio App. LEXIS 564 (Feb. 16, 1995)
(revocation of probation predicated solely upon arrest, without additional
evidence, is reversible error); State v. Moine, 72 Ohio App.3d 584, 589, 595
N.E.2d 524 (9th Dist.1991) (stating that an arrest does not constitute a violation of
probation). Rather, the violation must be based on some inquiry into the facts
supporting the charge, or some examination into the evidence underlying the
offender’s arrest. Toledo at ¶ 7, citing Craig at 642.

State v. Washington, 8th Dist. Cuyahoga Nos. 101157 and 101170, 2015-Ohio-305, ¶ 36.

Although appellant was arrested on June 8, 2017, it is undisputed that he was not subsequently

charged with any criminal offenses.

{¶30} The record reflects that the trial court did inquire about the factual basis that led to

appellant’s arrest. First, defense counsel acknowledged that appellant had been arrested.

However, counsel explained that there was no indication that appellant would be charged for his

involvement in the incident.

{¶31} Second, the trial court reviewed the allegations set forth in the police report. The

police report alleged that appellant pushed the victim to the ground and that he was threatening

the victim in front of a child. A knife was involved in the altercation, and both appellant and the

victim sustained injuries to their hands from the knife. (Tr. 26.)

{¶32} Third, appellant explained that he resolved the dispute with the victim that led to

the altercation: “everything is over and done with, and me and [the victim are] cool.” (Tr.

27.) Appellant disputed the police report’s description of the incident.

{¶33} Fourth, the victim addressed the trial court and asserted that the allegations in the

police report were not true. The victim explained that appellant did not threaten her and that she

did not get into an argument with appellant. Rather, appellant had a disagreement with her son.
 {¶34} Appellant’s probation officer did not provide any factual basis for appellant’s

arrest. The probation officer merely asserted that appellant was arrested for domestic violence

and that the arrest constituted a violation of community control.

{¶35} One of the conditions of appellant’s community control sanctions was to abide by

the rules and regulations of the probation department. While it is conceivable that the probation

department’s rules require probationers to refrain from violating laws, committing criminal acts,

and engaging in violent conduct, appellant’s probation officer did not identify any specific

condition of community control or probation department rule that appellant violated. See

Wagner, 179 Ohio App.3d 165, 2008-Ohio-5765, 900 N.E.2d 1089, at ¶ 15, 36 (defendant was

alleged to have violated Rule # 1, which required him to refrain from committing a criminal act

and also to immediately contact his probation officer if he was arrested or questioned by law

enforcement.).

{¶36} The record reflects that the state was represented at the hearing on the alleged

violation by appellant’s probation officer. There is no indication that the state was otherwise

represented by a representative of the Cuyahoga County Prosecutor’s Office. As such, other

than the probation officer’s assertion that appellant had been arrested, there was no other

explanation of the factual basis for appellant’s arrest or examination of the evidence underlying

the arrest.

{¶37} As noted above, the trial court referenced the allegations in the police report during

the hearing on the alleged violation. There was no testimony, however, from the officer that

authored the report or any of the other officers that were involved in the incident that led to

appellant’s arrest.
 {¶38} We recognize that the trial court was in the best position to judge the credibility of

the probation officer, appellant, and the victim. Nevertheless, we find that the trial court abused

its discretion in finding that appellant violated the terms of his community control sanctions

based on the fact that he was arrested. The trial court’s determination that appellant violated the

terms of community control in this regard is not supported by substantial and competent evidence

in the record.

2. Alcohol Consumption

{¶39} Aside from the probation officer’s testimony that appellant’s arrest constituted a

community control violation, the trial court also noted that the police report alleged that appellant

was “highly intoxicated.” (Tr. 26.) The trial court opined that appellant’s intoxication

constituted a violation of community control. The trial court explained, “[w]ell, the allegation

that [appellant] was highly intoxicated[.] * * * So I would suggest it’s a violation of probation

— the intoxication, the fact that he was drinking at all, is one thing.” (Tr. 26.)

{¶40} Both appellant and his counsel admitted to the facts underlying the alleged

violation that the trial court posited — that appellant consumed alcohol on the night of the

incident during which he was arrested. Appellant acknowledged that he consumed one beer

even though he was aware that he was not supposed to do so.

{¶41} In this appeal, appellant argues that the trial court erred by finding that he violated

the terms of community control by consuming alcohol because he was not ordered to refrain from

consuming alcohol as a condition of community control. We agree.

{¶42} To the extent that the trial court found that appellant violated the terms of

community control based on the fact that he was “highly intoxicated” during the incident that led

to his arrest, the record reflects that the trial court did not explicitly order appellant to abstain
from consuming alcohol as a condition of community control. Although the trial court ordered

appellant to submit to random drug testing as a condition of community control, the court did not

order appellant to submit to alcohol screening. See, e.g., State v. Pierce, 8th Dist. Cuyahoga No.

104275, 2017-Ohio-1036, ¶ 41 (defendant was sentenced to five years of community control with

the following conditions: “abide by the rules and regulations of the probation department. * *

* 1. Regular drug testing and alcohol testing at each report date; 2. Arrest on positive drug or

alcohol test[.]”).

{¶43} As noted above, one of the conditions of appellant’s community control sanctions

was to abide by the rules and regulations of the probation department. While the probation

department’s rules may have required appellant to refrain from consuming alcohol, appellant’s

probation officer did not identify appellant’s consumption of alcohol as an alleged violation of

community control. Furthermore, the trial court did not seek confirmation from or the input of

the probation officer after suggesting that appellant violated community control by consuming

alcohol.

{¶44} Based on the foregoing analysis, we find that the trial court abused its discretion in

finding that appellant violated the terms of his community control sanctions based on the fact

that he was purportedly intoxicated during the incident that led to his arrest. The trial court’s

determination that appellant violated the terms of community control in this regard is not

supported by substantial and competent evidence in the record.

{¶45} For all of the foregoing reasons, appellant’s second assignment of error is

sustained.

III. Conclusion
 {¶46} After thoroughly reviewing the record, we find that trial court did not commit plain

error by consolidating the preliminary probable cause hearing and the revocation hearing into a

single hearing. Appellant was not prejudiced by the trial court’s failure to hold two separate

hearings.

{¶47} The trial court abused its discretion in finding that appellant violated the terms of

his community control sanctions because the court’s finding is not supported by substantial and

competent evidence in the record. The trial court’s judgment finding that appellant violated the

terms of community control is reversed and the nine-month prison sentence is vacated.

{¶48} This cause is vacated and remanded to the lower court for further proceedings

consistent with this opinion.

It is ordered that appellant recover of said appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE
OPINION;
KATHLEEN ANN KEOUGH, J., CONCURS IN PART AND CONCURS IN JUDGMENT
ONLY IN PART WITH SEPARATE OPINION
EILEEN T. GALLAGHER, P.J., CONCURRING IN JUDGMENT ONLY:

{¶49} I concur with the majority’s decision to reverse and remand this case to the trial

court. However, rather than finding insufficient evidence of a community control violation, I

would reverse on grounds that appellant’s constitutional right to be informed of the basis for

revocation prior to the community control violation hearing was violated.

{¶50} This court has held that because revocation of community control can result in a

serious loss of liberty, “a probationer must be accorded due process at the revocation hearing.”

Bailey, 8th Dist. Cuyahoga No. 103114, 2016-Ohio-494, at ¶ 9, citing Gagnon, 411 U.S. at 781,

93 S.Ct. 1756, 36 L.Ed.2d 656. 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.

State v. Davis, 8th Dist. Cuyahoga No. 93959, 2010-Ohio-5126, ¶ 26, citing Miller, 42 Ohio

St.2d at 104, 326 N.E.2d 259.

{¶51} This court has held that although written notice of claimed violations is preferred,

oral notice of the violations may be sufficient if the oral statements “explain the basis of the

revocation proceedings,” “provide adequate notice to the probationer,” and “provide a record for

appellate review of the revocation hearing.” Patton, 2016-Ohio-4867, 68 N.E.3d 273, at ¶ 9;

See also Thompson, 1st Dist. Hamilton Nos. C-140746 and C-140747, 2015-Ohio-2836 (Purpose

of the preliminary hearing is to, among other things, provide the defendant with notice of the

alleged violations.).

{¶52} The probation officer stated the alleged violations on the record at the start of the

hearing as follows:
 On 6-8 of ‘17 this officer was notified by the Cleveland Police Department that
the defendant was arrested for domestic violence. That is considered a violation
of community-controlled sanctions for a violent arrest.

(Tr. 24.) The officer said nothing of appellant’s consumption of alcohol, his criminal record, or

his being on probation in federal court. After hearing the alleged violation, the court questioned

defense counsel about the arrest for domestic violence. Appellant, through counsel, admitted he

had been arrested but asserted that no charges had been brought against him. Every person

accused of a crime is innocent until proven guilty. State v. Davis, 8th Dist. Cuyahoga No.

103906, 2016-Ohio-5630, ¶ 12, citing R.C. 2901.05(A). Therefore, appellant’s arrest for

domestic violence could not serve as a basis for terminating his community control.

{¶53} Although the probation officer made no other allegations of community control

violations, the court reviewed the police report from the arrest and spontaneously identified other

“concerns of potential violations,” and asked defense counsel to address “those concerns.” (Tr.

26.) Defense counsel, who had no notice of any other “potential violations” asked for

clarification: “Being which concerns specifically, Judge?” And the court continued, in relevant

part:

Well, the allegation that he was highly intoxicated * * *

* * *

So I would suggest it’s a violation of probation — the intoxication, the fact that he
was drinking at all, is one thing.

(Tr. 26.)

{¶54} The court then asked appellant if he had been drinking. Appellant’s counsel stated

that appellant “would deny being intoxicated. However, he would admit to ingesting a beer.”

Appellant and his girlfriend, the alleged domestic violence victim, also informed the court that
appellant was not intoxicated. Nevertheless, the court asked appellant if he consumed one beer,

and appellant replied: “One beer, sir. And I know I’m not even supposed to have it. I admit to

that.” (Tr. 28.)

{¶55} As previously stated, the domestic violence arrest could not serve as a basis for

revoking appellant’s probation, because he was never charged with domestic violence. Thus,

the court found him in violation of his community control because he consumed alcohol. The

majority observes that because the trial court never explicitly ordered appellant to abstain from

consuming alcohol, his consumption of alcohol could not constitute a community control

violation.

{¶56} However, the terms of appellant’s community control required him to “abide by all

rules and regulations of the probation department.” Those rules and regulations are not part of

the record, and we have no way of knowing whether alcohol consumption was proscribed by

them. Both the court and appellant, however, acknowledged that alcohol consumption was

prohibited. “‘In the absence of documents demonstrating the error complained of, we must

presume regularity in the proceedings.’” State v. Goines, 8th Dist. Cuyahoga No. 105436,

2017-Ohio-8172, ¶ 30, quoting Brandimarte v. Packard, 8th Dist. Cuyahoga No. 67872, 1995

Ohio App. LEXIS 2095 (May 18, 1995). Therefore, we must presume that alcohol consumption

was prohibited by the rules and regulations of the probation department.

{¶57} However, appellant had no notice that alcohol consumption would be used as a

basis to revoke his community control sanctions because this violation was provided to appellant

in writing and was not included in the charges orally presented by the probation officer at the

start of the hearing. This lack of notice was a due process violation. Therefore, I would sustain

the first assignment of error and reverse the trial court’s judgment on that basis.
KATHLEEN ANN KEOUGH, J., CONCURRING IN PART AND CONCURRING IN
JUDGMENT ONLY IN PART:

{¶58} I concur with the majority’s resolution of the first assignment of error. Regarding

the second assignment of error, I concur that the trial court abused its discretion in finding that

appellant’s arrest was a violation of his community control sanctions. I concur in judgment only

regarding the majority’s resolution of the trial court’s finding that appellant’s alcohol

consumption was a basis for a community control violation.

{¶59} The record reflects that appellant was not given notice prior to the revocation

hearing that his alcohol consumption would be used as a basis to revoke his community control.

Appellant did not object to the lack of notice, however. Ordinarily, failure to object to due

process violations during a probation revocation waives any error. State v. Mayfield, 8th Dist.

Cuyahoga Nos. 69051, 69052 and 69053, 1996 Ohio App. LEXIS 2158, 4 (May 23, 1996).

However, a party who fails to object to a due process violation at the hearing may still prevail on

appeal if the procedural error rises to the level of plain error. State v. Harmon, 2d Dist.

Champaign No. 2007 CA 35, 2008-Ohio-6039, ¶ 11. The plain error doctrine permits an

appellate court to reverse the judgment of the trial court if the error was of such nature that the

outcome of the hearing would have been otherwise but for the error. Id. I find plain error in

this case.

{¶60} I agree that appellant’s admission that he was “not even supposed to have it”

demonstrates that alcohol consumption was prohibited as a term of his community control

sanctions. But because appellant was not afforded notice prior to the revocation hearing that

alcohol consumption would be used as a basis to revoke his community control sanctions, I find

plain error in the trial court’s decision to revoke appellant’s community control on this basis.
Accordingly, I concur in judgment only with that part of the majority opinion addressing

appellant’s alcohol consumption.