[Cite as State v. Hill, 2018-Ohio-4647.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 7-18-24
v.
BENJAMIN D. HILL, OPINION
DEFENDANT-APPELLANT.
Appeal from Henry County Common Pleas Court
Trial Court No. 17CR0040
Judgment Affirmed
Date of Decision: November 19, 2018
APPEARANCES:
Alan J. Lehenbauer for Appellant
Gwen Howe-Gebers for Appellee
Case No. 7-18-24
ZIMMERMAN, J.
{¶1} Defendant-appellant, Benjamin D. Hill (“Hill”), appeals the May 2,
2018 judgment entry of the Henry County Court of Common Pleas revoking his
community control and imposing an aggregate 36-month prison sentence. We
affirm.
{¶2} On March 22, 2017, the Henry County Grand Jury indicted Hill on two
counts: Count One of assault in violation of R.C. 2903.13(A)(5), a fourth-degree
felony and Count Two of aggravated robbery activity in violation of R.C.
2911.01(B), a first-degree felony. (Doc. No. 1). On March 30, 2017, Hill appeared
for arraignment, entered pleas of not guilty by reason of insanity, and requested a
competency hearing, which the trial court granted. (Doc. No. 9).
{¶3} On June 1, 2017, after the trial court concluded that Hill was competent
to stand trial, Hill withdrew his pleas of not guilty by reason of insanity and entered
pleas of guilty to an amended indictment. (Doc. Nos. 14, 15). In exchange for his
change of pleas, the State agreed to amend Count Two to attempted robbery in
violation of R.C. 2923.03 and 2911.02(A)(3), a fourth-degree felony, and
recommend that the trial court sentence Hill to community-control sanctions. (Doc.
No. 14). The trial court accepted Hill’s guilty pleas, found him guilty on Count One
and Count Two, as amended, and ordered a pre-sentence investigation. (Doc. No.
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15). On July 11, 2017, the trial court sentenced Hill to three years of community
control. (Doc. No. 18).
{¶4} On July 12, 2017, the State filed a motion requesting that the trial court
revoke Hill’s community control after a complaint was filed in the Napoleon
Municipal Court alleging that Hill caused or attempted to cause physical harm to a
family member. (Doc. No. 20). See also State v. Hill, 3d Dist. Henry No. 7-17-07,
2018-Ohio-1345, ¶ 2. At his preliminary-revocation hearing on July 19, 2017, Hill
waived his right to a probable-cause hearing on the State’s motion. (Doc. No. 25).
(See also Doc. No. 30). Ultimately, after the final-revocation hearing was held on
November 1, 2017, the trial court concluded that Hill violated the terms of his
community-control sanctions after Hill “admitted to the violations contained in the
State’s Motion to Revoke Community Control.” (Doc. No. 35). That same day, the
trial court ordered Hill to be supervised under the same terms and conditions of his
original community-control sanctions with an additional sanction that he “have an
assessment through Recovery Services and comply with all recommendations of
that agency, including any aftercare.” (Id.).
{¶5} However, on January 3, 2018 the State filed a second motion requesting
that the trial court revoke Hill’s community control. (Doc. No. 38). After a
probable-cause hearing on April 2, 2018, the trial court proceeded to a final-
revocation hearing on May 1, 2018 in which the trial court concluded that Hill
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violated the terms of his community-control sanctions, revoked Hill’s community
control, and sentenced Hill to an aggregate 36-month prison term. (Doc. Nos. 46,
47). The trial court filed its judgment entry of sentence on May 2, 2018. (Doc. No.
47).
{¶6} Hill filed his notice of appeal on May 25, 2018. He raises three
assignments of error for our review.
Assignment of Error No. I
The Trial Court Failed to Comply with R.C. 2929.19(A) and
Criminal Rule 32(A)(1) When it Failed to Inform Defendant-
Appellant that the Opportunity to Speak was for the Purpose of
the Mitigation of his Punishment.
{¶7} In his first assignment of error, Hill argues that his sentence is contrary
to law because the trial court failed to comply with the requirements of R.C.
2929.19(A) and Crim.R. 32(A)(1). In particular, he contends that the trial court
failed to “personally address [him] and inform him that he could make a statement
in mitigation of punishment.” (Appellant’s Brief at 7).
Standard of Review
{¶8} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. See State v. Jung, 8th Dist. Cuyahoga No. 105928, 2018-Ohio-1514, ¶ 14
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(applying the standard of review set forth in R.C. 2953.08(G)(2) to review a
sentence imposed after the defendant’s community control was revoked). See also
State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, ¶ 11 (concluding that a
community-control-revocation hearing is a sentencing hearing for purposes of R.C.
2929.19(A) and Crim.R. 32(A)(1)). Clear and convincing evidence is that “‘which
will produce in the mind of the trier of facts a firm belief or conviction as to the
facts sought to be established.’” Marcum at ¶ 22, quoting Cross v. Ledford, 161
Ohio St. 469 (1954), paragraph three of the syllabus.
Analysis
{¶9} “When sentencing an offender, a trial court must ‘[a]fford counsel an
opportunity to speak on behalf of the defendant and address the defendant
personally and ask if he or she wishes to make a statement in his or her own behalf
or present any information in mitigation of punishment.’” State v. Johnson, 9th
Dist. Summit No. 28268, 2017-Ohio-913, ¶ 5, quoting Crim.R. 32(A)(1). “‘R.C.
2929.19(A) and Crim.R. 32(A)(1) unambiguously require that an offender be given
an opportunity for allocution whenever a trial court imposes a sentence at a
sentencing hearing.’” Id., quoting Jackson at ¶ 10. “‘The purpose of allocution is
to permit the defendant to speak on his own behalf or present any information in
mitigation of punishment.’” Id., quoting State v. Reynolds, 80 Ohio St.3d 670, 684
(1998).
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{¶10} A trial court complies with a defendant’s right of allocution when it
personally addresses the defendant and asks whether he has anything to say. See
State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 186-188; Johnson at ¶ 6,
quoting State v. Daniels, 9th Dist. Summit No. 26406, 2013-Ohio-358, ¶ 14. A trial
court “‘“should leave no room for doubt that the defendant has been issued a
personal invitation to speak prior to sentencing.”’” Johnson at ¶ 6, quoting State v.
Clegg, 9th Dist. Medina No. 13CA0055-M, 2014-Ohio-1331 ¶ 4, quoting State v.
Green, 90 Ohio St.3d 352, 359 (2000). “When inviting a defendant to personally
address the court, the exact language employed by the rule is not required; however,
the invitation to speak should not be ambiguous.” State v. Masson, 7th Dist.
Mahoning No. 16 MA 0066, 2017-Ohio-7705, ¶ 10, citing State v. Roach, 7th Dist.
Belmont No. 15 BE 0031, 2016-Ohio-4656, ¶ 11. Absent invited or harmless error,
resentencing “is required if an offender is not given an opportunity for allocution at
the sentencing hearing following community-control revocation.” Jackson at ¶ 15.
{¶11} It is undisputed that the trial court permitted Hill the opportunity to
speak at the sentencing hearing following his community-control revocation to
which Hill declined. (See Appellant’s Brief at 7). However, Hill contends that the
trial court’s invitation to speak did not adequately “inform him that he could make
a statement in mitigation of punishment.” (Id.).
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{¶12} Hill’s argument is meritless. At the sentencing hearing, the trial court
personally addressed Hill and Hill’s trial counsel and provided each the opportunity
to speak. Hill’s trial counsel presented a statement on his behalf. (See May 1, 2018
Tr. at 20-21). Compare State v. Horn, 7th Dist. Belmont No. 04 BE 31, 2005-Ohio-
2930, ¶ 30 (concluding that the trial court complied with Crim.R. 32(A)(1) because
“Horn and her counsel were addressed personally by the court and given the
opportunity to speak,” and Horn’s counsel presented a statement on her behalf
despite Horn’s decision not to speak). Hill informed the trial court that he did not
have anything to add to his trial counsel’s statement. Compare Masson at ¶ 15.
{¶13} Further, our review of the record reveals that, during the final-
revocation hearing, Hill testified and explained the circumstances surrounding the
State’s allegation that he violated the terms of his community control. See id. at ¶
11. In particular, the following exchange took place:
[Hill’s Trial Counsel]: And Ben what would you like to see as a result of
these probation violations or what do you think the
Court should impose sentence wise?
[Hill]: Sentence wise * * * at this time I’ve served several,
several weeks, from December 23rd until May 1st,
today. I don’t know what the guideline or rules are.
I don’t want to abandon all hope * * * of probation.
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I do have a GED and [am] very employable and hard
working.
[Hill’s Trial Counsel]: And Ben, do you have anything further to tell me or
the Court at this point?
[Hill]: Just that, if you would give me the opportunity, if
you do wish to impose jail time, I have already
served, if the Court would be willing to grant me
credit for the 40 days that I was on EMU in June,
that would total up to a year that I’ve served on these
sanctions, during the investigation processes that
have taken place. I would ask maybe, that, the last
appeal that I filed be taken into consideration as
well. Just be granted as a first offense and anything
that [my probation officer] would be willing to
extend to me, would be very much appreciated.
(May 1, 2018 Tr. at 17-18).
{¶14} Accordingly, we conclude that the trial court complied with the
requirements of R.C. 2929.19(A) and Crim.R. 32(A)(1). See State v. Crable, 7th
Dist. Belmont No. 04 BE 17, 2004-Ohio-6812, ¶ 19 (concluding that the trial court
adhered to the standard imposed by Crim.R. 32(A)(1) even though “the trial court
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did not use the exact words of Crim.R. 32” because the trial court permitted “counsel
and Crable the opportunity to make a statement”); State v. Middleton, 12th Dist.
Preble No. CA2004-01-003, 2005-Ohio-681, ¶ 16 (“Accordingly, it is clear that the
common pleas court complied with Crim.R. 32(A)(1), affording both appellant and
his attorney the opportunity to address the court at the sentencing hearing.”). See
also Masson at ¶ 13 (“Although the court did not specifically ask Appellant if he
wished to present information in mitigation of punishment, the invitation was
apparent from the conversation that occurred between the court and Appellant.”).
Thus, Hill’s sentence is not contrary to law.
{¶15} Therefore, Hill’s first assignment of error is overruled.
Assignment of Error No. II
The Trial Court Abused its Discretion by Terminating
Defendant-Appellant Unsuccessfully from Community Control in
that the Trial Court Committed Plain Error When it Failed to
Take Notice that Defendant-Appellant’s Waiver of Hearing and
His Admission in a Prior Revocation Hearing Were Not Made
Knowingly, and that Such Error is Reversible to Prevent Manifest
Injustice.
{¶16} In his second assignment of error, Hill argues that the trial court
abused its discretion by revoking his community control because “the trial court
terminated Hill unsuccessfully from Community Control based in part upon a prior
violation of finding that was tainted by a waiver of merit hearing and an admission
that were [sic] not knowingly made.” (Appellant’s Brief at 9). We disagree.
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Standard of Review
{¶17} “A defendant under community control is entitled to both a
preliminary and a final revocation hearing.” State v. Knerr, 3d Dist. Auglaize Nos.
2-14-03 and 2-14-04, 2014-Ohio-3988, ¶ 14, quoting State v. Kiser, 5th Dist.
Tuscarawas, No.2008 AP 030014, 2009-Ohio-1337, ¶ 12, citing Gagnon v.
Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756 (1973). The purpose of the preliminary
hearing is to determine if probable cause exists that the defendant violated the terms
of his probation or community control. Id., citing State v. Delaney, 11 Ohio St.3d
231, 233 (1984). “The purpose of the final revocation hearing is to give the
defendant ‘an opportunity to be heard and to show’ that he either did not violate his
conditions or that certain mitigating circumstances ‘suggest that the violation does
not warrant revocation.’” Id., quoting Morrissey v. Brewer, 408 U.S. 471, 488, 92
S.Ct. 2593 (1972).
{¶18} This Court has held that “[a]lthough a revocation proceeding must
comport with the requirements of due process, it is not a criminal proceeding.” State
v. Ryan, 3d Dist. Auglaize No. 14-06-55, 2007-Ohio-4743, ¶ 8, citing Gagnon at
782. “Therefore, the minimum due process requirements afforded a defendant in a
probation revocation proceeding differ from those in a criminal trial.” State v.
McKeithen, 3d Dist. Marion No. 9-08-29, 2009-Ohio-84, ¶ 22. The minimum due-
process requirements for revocation hearings are:
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(a) Written notice of the claimed violations; (b) disclosure of
evidence against him or her; (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.
Ryan at ¶ 8, quoting State v. Miller, 42 Ohio St.2d 102, 104 (1975), quoting
Morrissey at 489.
{¶19} Since a community-control-revocation hearing is not a criminal
proceeding, “the State is not required to prove a violation of the terms of community
control beyond a reasonable doubt.” McKeithen at ¶ 6, citing Ryan at ¶ 7. “The
State must, instead, show ‘substantial’ evidence that the offender violated the terms
of his community control sanctions.” Id.
{¶20} The decision of a trial court finding a community-control violation
will not be disturbed absent an abuse of discretion. Id. at ¶ 7, citing Ryan at ¶ 7.
An abuse of discretion suggests that a decision is unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
Analysis
{¶21} Hill does not argue that the State did not present substantial evidence
at the community-control-revocation hearing that he violated the terms of his
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community-control sanctions. Rather, Hill argues that the trial court abused its
discretion by revoking his community-control sanctions based on “the violation
finding in [Hill’s first community-control-revocation] hearing.” (Appellant’s Brief
at 11). He argues that the trial court could not rely on that “violation finding”
because he did not properly waive his right to the probable-cause hearing and
because his admission was not knowing, voluntary, and intelligent. Hill’s argument
is misplaced.
{¶22} First, based on our review of the record, the trial court did not consider
Hill’s prior-community-control violation in revoking his community-control
sanctions. Indeed, the State’s motion requesting that the trial court revoke Hill’s
community-control sanctions is based on an incident that occurred in Williams
County, Ohio in December 2017. (Doc. No. 38). The incident underlying Hill’s
prior-community-control violation occurred in Henry County, Ohio in July 2017.
(Doc. No. 20).
{¶23} Further, the trial court plainly stated at the community-control-
revocation hearing,
Well the Court, having listened to the testimony would find that the
State has met its burden with regard to Item #1, a violation of
conditions of supervision that the individual will obey federal, state
and local laws and ordinances based upon the convictions out of the
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Bryan Municipal Court that occurred on January 9, 2018 where there
was a guilty finding to a misdemeanor two, resisting arrest, and the
disorderly conduct with persistence, a misdemeanor four, that would
constitute the violations. As such, the Court, at this time would enter
a finding of true or of guilt on that particular count. We’ll move now
to disposition.
(May 1, 2018 Tr. at 19). In its entry revoking Hill’s community-control sanctions
and imposing the prison sentence, the trial court specifically stated,
Evidence and testimony having been presented by the State and
Defendant, the Court finds the State has met its burden to support the
allegations submitted in the Motion to Revoke Community Control as
listed in Item#1-B and Item #2-C.
(Doc. No. 47). In other words, the trial court’s decision to revoke Hill’s community-
control sanctions was not based on his prior-community-control violation. See State
v. Holloway, 12th Dist. Butler No. CA2016-08-152, 2017-Ohio-4039, ¶ 21 (noting
that community-control-violation-sentencing hearings are separate and distinct
events in which the trial court conducts a new sentencing hearing and sentences the
offender anew), citing State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, ¶ 17.
{¶24} Second, Hill appears to challenge whether he effectively waived his
probable-cause hearing and whether his admission to the alleged prior-community-
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control violation was knowing, intelligent, and voluntary. However, that issue is
not properly before this court. The trial court filed its judgment entry of sentence
for the prior-community-control violation on November 1, 2017 and Hill did not
directly appeal that order as he is required to do under App.R. 4(A), or request a
delayed appeal. See State v. Vanelli, 9th Dist. Wayne No. 02CA0066, 2003-Ohio-
2717, ¶ 9 (noting that an entry imposing sanctions for community-control violations
is a final, appealable order); State v. Rogers, 12th Dist. Clermont No. CA2007-05-
068, 2007-Ohio-7076, ¶ 5-6 (refusing to address Rogers’s challenge to matters
pertaining to a prior sentencing entry in a direct appeal from a sentencing entry
following the revocation of Rogers’s community control), citing State v. Seeley, 3d
Dist. Union No. 14-06-38, 2007-Ohio-1538, ¶ 17 (“Any questions concerning the
validity of [a prior] entry or matters pertaining [to that entry] should have been
raised by direct appeal.”), citing State v. Crutchfield, 3d Dist. Paulding Nos. 11-01-
09 and 11-01-10, 2002 WL 206008, *2 (Feb. 8, 2002). As such, we are without
jurisdiction to determine the merits of Hill’s arguments regarding whether he
effectively waived his probable-cause hearing or whether his admission to the prior-
community-control violation was knowing, intelligent, and voluntary. See Seeley at
¶ 18, citing App.R. 3, State v. Pringle, 3d Dist. Auglaize No. 2-03-12, 2003-Ohio-
4235, ¶ 11, and State v. Gordon, 5th Dist. Fairfield No. 2-CA-92, 2003-Ohio-1900,
¶ 9.
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{¶25} For these reasons, we reject Hill’s arguments that the trial court abused
its discretion by revoking his community control and overrule this assignment of
error.
Assignment of Error No. III
Appellant’s Trial Counsel Provided Ineffective Assistance of
Counsel.
{¶26} In his third assignment of error, Hill argues that his trial counsel was
ineffective for failing to “challenge the defective waiver of hearing and defective
admission during Hill’s second revocation hearing.” (Appellant’s Brief at 13). For
the reasons that follow, we disagree.
Standard of Review
{¶27} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or
unreasonable, the defendant must overcome the presumption that counsel provided
competent representation and must show that counsel’s actions were not trial
strategies prompted by reasonable professional judgment. Strickland at 687.
Counsel is entitled to a strong presumption that all decisions fall within the wide
range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675
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(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995).
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-42
(1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on
other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978).
{¶28} “Prejudice results when ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting
Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142
and citing Strickland at 694.
Analysis
{¶29} Based on our resolution of Hill’s second assignment of error, Hill
cannot demonstrate that the outcome of his community-control-revocation hearing
would have been different. Therefore, Hill’s trial counsel was not ineffective for
failing to challenge the validity of his probable-cause-hearing waiver or the validity
of his community-control-violation admission at his second-community-control-
violation hearing. Thus, his third assignment of error is overruled.
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{¶30} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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