[Cite as State v. Allen, 2019-Ohio-730.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 28051
                                                 :
 v.                                              :   Trial Court Case No. 2016-CR-3815
                                                 :
 SEAN ALLEN                                      :   (Criminal Appeal from
                                                 :   Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........

                                           OPINION

                              Rendered on the 1st day of March, 2019.

                                            ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

REBECCA BARTHELEMY-SMITH, Atty. Reg. No. 0003474, 7821 North Dixie Drive,
Dayton, Ohio 45414
      Attorney for Defendant-Appellant

                                           .............
                                                                                       -2-


DONOVAN, J.

       {¶ 1} This matter is before the Court on the June 29, 2018 Notice of Appeal of

Sean Allen. Allen appeals from the trial court’s May 31, 2018 judgment entry revoking

community control sanctions that were imposed when Allen was convicted of assault on

a police officer and sentencing him to 18 months in prison.        We hereby affirm the

judgment of the trial court.

       {¶ 2} Allen was originally charged on December 11, 2016, in the Miamisburg

Municipal Court, by way of complaint, with two counts of assault on a police officer and

one count of escape. Allen subsequently signed a waiver of preliminary hearing and was

bound over to the Montgomery County Common Pleas Court.              He was indicted on

December 30, 2016, on two counts of assault on a police officer, in violation of R.C.

2903.13(A), one count of escape, in violation of R.C. 2921.34, and one count of

aggravated possession of drugs (psilocin), in violation of R.C. 2925.11(A).

       {¶ 3} On February 23, 2017, pursuant to a plea agreement, Allen pled guilty to one

count of assault on a police officer, and the remaining charges were dismissed. Allen

was sentenced to community control sanctions for a period not to exceed five years.

       {¶ 4} On June 30, 2017, Allen was issued a notice of a community control

revocation hearing, which required him to appear in court on July 13, 2017. On July 3,

2017, Allen filed a motion for continuance, which stated that he was receiving inpatient

treatment at Access Hospital until July 30, 2017. The court granted the motion, and the

hearing was held on August 17, 2017.

       {¶ 5} On August 23, 2017, the court issued an entry continuing Allen’s community

control with additional sanctions, namely requirements that he enter residential treatment
                                                                                        -3-


for 28 to 30 days before August 31, 2017, that he appear for a status hearing two weeks

after completing treatment, and that he be placed on a “No Breaks” status.

       {¶ 6} On January 2, 2018, the court issued another notice of a community control

sanctions revocation hearing. After a hearing, on February 7, 2018, the court issued an

entry adding a sanction requiring Allen to enter and complete the MonDay Program.

       {¶ 7} On May 10, 2018, another notice of a community control sanction revocation

hearing was issued, alleging a violation based on the following rule and circumstances:

              Rule #10 “During my period of supervision, the Court may order me

       to serve a period of confinement (not to exceed six (6) months) in the

       MonDay Community Correctional Facility or other residential sanction in

       accordance with ORC 2929.16 (Community Residential Sanctions).” You

       violated this condition when you attempted to have a visitor smuggle, in her

       bra, illegal drugs into the MonDay Program during visitation. After refusing

       to have a hearing about this rule violation, you were unsuccessfully

       discharged from the MonDay Program on May 7, 2018.

       {¶ 8} A revocation hearing was held on May 31, 2018. At the start thereof, the

court indicated to the parties that the Rules of Evidence did not apply to the proceeding,

and that it would “entertain hearsay evidence as a part of this proceeding,” as allowed by

Evid.R. 101(C)(3).

       {¶ 9} At the hearing, Montgomery County Adult Probation Officer Timothy Bowser

testified that he supervised Allen beginning March 23, 2017, after his assault conviction.

Bowser identified as State’s Exhibit 1 a copy of Allen’s general conditions of supervision.

Bowser testified that he went over each term and condition with Allen, and that Allen
                                                                                         -4-


initialed next to each one to indicate his understanding.        Bowser identified Allen’s

signature on the form as well as his own. Bowser testified that Allen violated Rule Number

10, as set forth above. Bowser testified that Allen was unsuccessfully discharged from

the MonDay program on May 7, 2018 “due to behaviors that could potentially risk the

safety or security of the MonDay facility.” Specifically, Bowser testified that “[t]here was

letter correspondence requesting a female visitor to bring in narcotics into the MonDay

Program.”

       {¶ 10} The following exchange occurred:

       Q (by Prosecutor). Do you know anything about the individual who is receiving

       those letters?

       A (Bowser). The receiving of those letters, I do not know. * * *

       Q. * * * And had you obtained copies of these letters?

       A. Yes.

       ***

       Q.    Okay, Mr. Bowser.     I’m handing you what’s been previously marked as

       State’s Exhibit 2. * * *

       ***

       Q. Is that, to your knowledge, a fair and accurate depiction of the letters you

       received in this case as it relates to what Mr. Allen had sent from MonDay?

       A. Yes.

       Q. And going back, you said there was a letter indicating that Mr. Allen wished to

       have drugs brought into MonDay?

       A. Yes.
                                                                                    -5-


      Q. And is that one of the rules of the MonDay Program that illegal drugs are not

      to be brought in?

      A. I would think so.

      Q. * * * And do you have any knowledge from anyone at MonDay about what Mr.

      Allen intended to do with those narcotics?

      A. Just from the letters.

      [DEFENSE COUNSEL]: Objection, speculative.

      THE COURT: Based on the evidence available to Mr. Bowser, and limited to that,

      the objection will be overruled.

      [BOWSER]: Just in the letters that where he was corresponding [sic].

      BY [PROSECUTOR]:

      Q. * * * And have you had the opportunity to review the discharge summary from

      --

      A. Yes.

      Q. * * * MonDay? Okay.

      And were there any additional reasons related to Mr. Allen’s discharge from the

      MonDay Program?

      A. Nothing that would have caused his discharge.

      {¶ 11} Bowser stated that another probation officer spoke to Allen about the

discharge. When asked what Allen said about his discharge, Bowser responded, “To my

knowledge it was just a misunderstanding between him and the MonDay Program.”

      {¶ 12} The following exchange occurred on cross-examination:

      Q (by Defense Counsel). Sir, so you’ve never spoken to Sean Allen in regard to
                                                                                 -6-


those letters in - -

A. No, I did not.

Q. - - Exhibit 2?

Now, in regard to these letters, how did you get a copy of these letters?

A. The MonDay Program sent them to me.

Q. So you don’t know where they came from?

A. The MonDay Program.

Q. Other than the MonDay Program?

A. Other than the two letters on the back, and of the might be juvenile [sic], those

came from his locker, but the other ones came - -

Q. Okay.

A. – from the MonDay.

Q. And the last two are letters from Bianca * * *?

A. Yeah.

Q. No letters from Mr. Allen - -

A. No.

Q. - - is that correct?

A. Those are letters from Bianca to Mr. Allen.

***

Q. * * * Let me show you what’s been marked as Exhibit 2.

A. The last four pages were mailed to Mr. Allen - -

Q. Okay.

A.    - - from Bianca, I think.
                                                                               -7-


Q. And they were supposed to be found in his locker?

A. Yes.

Q. * * * These are letters to Mr. Allen?

A. Yes.

Q. And these other letters that you received from MonDay, they weren’t signed

or anything; is that correct?

A. * * * I don’t recall if there’s - -

Q. Do you want to look? I’ll hand you, again, what’s been marked as - -

***

Q. - - State’s Exhibit 2.

A. I do not see a signature that I’ve seen before. I don’t see - - name of this

(indiscernible).

Q. Do you seen any names on these letters at all?

A. No.

Q. And do you know - - they weren’t in Mr. Allen’s locker either, were they?

A. No, they weren’t.

Q. * * * So you don’t know who wrote these letters, do you?

A. I can’t remember what is says on the first page of who sent them in.

Q. * * * I’m showing you again State’s Exhibit 2.

A. The mother of the female was * * * [A.L.] who sent these in.

Q. * * * So you don’t have any evidence to show that Mr. Allen wrote these letters

himself, do you?

A. No.
                                                                                  -8-


Q. Is that a no?

A. That’s correct.

{¶ 13} At the conclusion of the hearing, the court stated:

       And so with that the Court will close the evidentiary record as to the

purposes of this hearing, which is designed to determine whether or not

there are substantial grounds to determine that Mr. Allen has violated the

terms and conditions of his supervision. And in that regard the record

should reflect that he was ordered by this Court to successfully attend and

complete the MonDay Program, and it is the case that he was

unsuccessfully discharged from that program.

       Mr. Allen has had opportunities for treatment at various agencies,

obviously having been provided the opportunity for the MonDay Program,

Access Ohio, Beckett Springs, and other substance abuse and mental

health facilities.

       The Court has provided Mr. Allen with multiple opportunities for

pursuing treatment, both in terms of substance use and mental health, and

the Court would find that there is evidence, by virtue of his unsuccessful

discharge from MonDay, that he has violated the terms and conditions of

his community supervision.

       The Court would note that it is the unsuccessful discharge from the

MonDay Program that’s the basis for the Court’s ruling in this regard. The

court would note, just as an aside, that there are letters found in Mr. Allen’s

locker from the individual known as Bianca, and those letters expressly
                                                                                         -9-


       state that she is still in high school and is only 17 years old.

               And the court would note that under special terms of conditions of

       his sex offender supervision, provision number 3, he’s not to have any

       contact or relationship with minors. And so that’s a separate concern, but

       not the concern that is driving the revocation from supervision; I just note

       that.

               ***

               But the basis for the Court’s conclusion that Mr. Allen has violated

       the terms and conditions of his supervision, is the fact that the MonDay

       Program determined that it was appropriate to unsuccessfully discharge

       him. And it was the Court’s mandate that he successfully complete that

       program, and he did not do so.

Thus, the court found that Allen had violated the terms of his community control, and it

imposed an 18-month prison sentence.

       {¶ 14} Allen asserts a single assignment of error on appeal, as follows:

               THE LOWER COURT ERRED IN [REVOKING] APPELLANT’S

       COMMUNITY CONTROL.

       {¶ 15} Allen asserts that there was insufficient evidence in the record to support

the court’s finding “by substantial and competent evidence.” According to Allen, Bowser

“did not testify to personal knowledge and could not personally identify any of the writings

which were supposedly contained in Exhibit 1 and 2 as of the Defendant/Appellant. All

he could testify to was that Sean Allen was discharged from the MonDay Program.” Allen

argues that Bowser stated “that he [did] not have any evidence that Sean Allen wrote [the]
                                                                                         -10-


letters which were the subject of the discharge.”

      {¶ 16} The State responds that the trial court did not err in revoking Allen’s

probation, because this Court “has previously held that the state met its burden of proof

where it presented indirect evidence of the underlying reason for MonDay program

termination.” The State cites State v. Henry, 2d Dist. Montgomery No. 12080, 1991 WL

10963 (Jan. 28, 1991). Specifically, the State asserts:

             Here, Ofc. Bowser testified that Allen had been ordered to

      successfully complete the MonDay program, but had been discharged for

      violating MonDay rules. This is not hearsay evidence, but direct evidence.

      Ofc. Bowser further testified that MonDay sent him letters that were the

      basis for Allen’s dismissal from the program. This, again, is not hearsay.

      Ofc. Bowser testified that MonDay had told him the letters had been

      retrieved from Allen. While this is indirect hearsay evidence addressing

      the foundations of Allen’s dismissal, it is still admissible and the trial court

      did not err in considering the content of the letters or the testimony that the

      letters had come from Allen. The State established by a preponderance of

      the evidence that Allen violated Rule 10 of his community control sanctions.

      ***

      {¶ 17} In reply, Allen asserts that “substantial evidence was not provided at the

community control hearing. The probation officer merely knew that Sean Allen was

discharged from the MonDay Program.”

      {¶ 18} As this Court has previously noted:

             “The right to continue on community control depends on compliance
                                                                                       -11-


      with community control conditions and is a matter resting within the sound

      discretion of the court.” State v. Schlecht, Champaign App. No. 2003-CA-3,

      2003-Ohio-5336, ¶ 7. Accordingly, we review the trial court's decision to

      revoke a defendant's community control for an abuse of discretion. State v.

      Brown, Montgomery App. No. 22467, 2008-Ohio-4920, ¶ 9. Such decision

      is an abuse of discretion if no sound reasoning process supports the

      decision. Id.; State v. Picklesimer, Greene App. No. 06-CA-118, 2007-Ohio-

      5758, ¶ 28.

             Because a community control violation hearing is not a criminal trial,

      the State need not prove a violation beyond a reasonable doubt. State v.

      Cofer, Montgomery App. No. 22798, 2009-Ohio-890, ¶ 12. “The State need

      only present substantial evidence of a violation of the terms of a defendant's

      community control.” Id.

      ***

             The rules of evidence do not apply to community control revocation

      hearings and, therefore, hearsay is admissible at such hearings. State v.

      Dunning, Greene App. No. 08 CA 07, 2009-Ohio-691, ¶ 10. Nevertheless,

      in some circumstances, the admission of hearsay evidence at a revocation

      hearing can deny the defendant his due process right to confront and cross-

      examine adverse witnesses. Id.

State v. Brandon, 2d Dist. Montgomery No. 23336, 2010-Ohio-1902, ¶16-17, 19.

      {¶ 19} As this Court noted in State v. Bialek, 2d Dist. Montgomery No. 12323, 1992

WL 28146, *1:
                                                                                          -12-


              * * * The state has an overwhelming interest in being able to revoke

       probation and imprison a convicted felon without the burden of a new

       criminal trial if, in fact, he has failed to abide by the conditions of his

       probation. What is needed is an informal hearing structure to assure that

       the finding of a violation will be based upon verified facts and that the

       exercise of discretion will be informed by an accurate knowledge of the

       probationer's behavior. This may be a narrow inquiry. The process should

       be flexible enough, upon a showing of good cause, to consider evidence,

       including letters, affidavits, and other material that would not be admissible

       in an adversary criminal trial.

       {¶ 20} We have reviewed State’s Exhibits 1 and 2. Bowser identified his signature

on Exhibit 1 and testified that he went over the conditions of community control with Allen;

the tenth rule is set forth above, as Bowser testified. The form reflects that Allen initialed

each condition and also signed the form.

       {¶ 21} There are several letters in State’s Exhibit 2. There is a typed letter dated

April 26, 2018, which reads:

              Mr. Bell,

              Per our conversation this morning, I am faxing you pages from the

       letters that my daughter received from Mr. Allen.

              I am also sending you a copy of the letter that I am mailing to Mr.

       Allen telling him to no longer contact my daughter and no more letters.

              These letters are very disgusting and inappropriate. My daughter is

       only 19 years old (not 21 as he thinks).
                                                                                          -13-


                I no longer want any contact with Mr. Allen for myself or my daughter.

                ***

                * * * In these letters he talks about selling drugs before he got there

         and how he intends to sell drugs when he gets out.

                He also wanted my daughter to smuggle acid in for him. * * *

         {¶ 22} There is a typed letter dated April 25, 2018, and it is addressed to “Sean

Allen” and signed by “A.L.” It provides as follows:

                I am [M.’s] mother.

                DO NOT send any more letters to her.

                She will have no contact with you and you are to have no contact

         with her.

                This is for now and in the future. NO CONTACT.

                I have informed the proper authorities about this matter.

         {¶ 23} There are also six sexually explicit, handwritten, unsigned letters that

appear to have been written by the same person; these letters do not identify the recipient.

These letters total 12 pages and are dated April 5, April 8, April 11, April 17, and April 18,

2018. The name “M.” appears repeatedly in the body of these letters. In the letter dated

April 11, 2018, the name “M.” appears, along with, “Also, please bring me some acid.” In

the letter dated April 17, 2018, the name “M.” appears, along with, “Please bring daddy

some acid I’ll worship you forever,” and “Tbh1 I would like if you bring some acid in your

bra for me. Reason being psychadelics [sic] have always helped me dig deeper into my

issues.” All of the above letters reflect at the top that they were sent via fax on April 27,


1
    “Tbh” is an abbreviation for “to be honest.”
                                                                                        -14-


2018, by “A.L.” from a number in the 937 area code.

      {¶ 24} Finally, there are two letters, one dated February 22, 2018 and the other

undated, that are addressed to “Sean” and signed “Love, Bianca.” There is a letter dated

March 23, 2018, without a recipient’s name and signed “Love, Bianca,” and another letter

of the same date addressed to “Sean” that is unsigned. These last four letters appear to

be handwritten by the same person, and they do not indicate that they were sent via fax.

      {¶ 25} Having reviewed the record, we see no abuse of discretion and conclude

that the State presented substantial evidence to support the revocation of Allen’s

community control. Bowser had personal knowledge that Allen, whom he advised of the

terms and conditions of his community control and supervised, was terminated from the

MonDay Program. Allen was required to successfully complete the program. Bowser

testified that he learned that Allen engaged in “behaviors that could potentially risk the

safety or security of the MonDay facility,” namely “letter correspondence requesting a

female visitor to bring in narcotics into the MonDay Program.” Bowser received the

incriminating letters that were attributed to Allen from the Monday Program, asking “M.”

to bring “acid” to him, in violation of the MonDay Program rules. The letters suggest that

Allen wanted the drugs for his personal use (also in violation of his community control

sanctions). Bowser stated that he reviewed Allen’s discharge form and there were no

additional reasons related to Allen’s discharge from the program. We note that Allen’s

May 10, 2018 notice of revocation indicated that he had refused to participate in a hearing

at the MonDay Program regarding the violation. While Bowser did not observe Allen

write the incriminating letters, “[a]s a practical matter, it would be impossible in many

cases to present the court with eyewitnesses to the actual incident that is the basis of a
                                                                                       -15-

claimed rules infraction.” Henry at *3. For the foregoing reasons, Allen’s sole assignment

of error is overruled.

       {¶ 26} The judgment of the trial court is affirmed.



                                     .............



FROELICH, J. and HALL, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Rebecca Barthelemy-Smith
Hon. Mary Lynn Wiseman
