[Cite as State v. Patton, 2016-Ohio-4867.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103737



                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                               ANTHONY PATTON, SR.
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-12-561447-A and CR-12-569561-A

        BEFORE: Stewart, J., E.A. Gallagher, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: July 7, 2016
ATTORNEY FOR APPELLANT

Kathleen Amerkhanian
Kryszak & Associates Co., L.P.A.
5330 Meadow Lane Court, Suite A
Sheffield Village, OH 44035


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Steven N. Szelagiewicz
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Anthony Patton Sr. was found guilty of violating the

terms of his community control after failing to report to his probation officer and testing

positive for alcohol. The court ordered Patton to serve a 12-month prison term on the

violation. On appeal, Patton complains that the court violated his due process rights at

the revocation hearing, that certain conditions of community control were unreasonable

and overly broad, and that his trial counsel was ineffective at his original sentencing

hearing and revocation hearing. For the reasons that follow, we affirm.

       {¶2} In December 2013, Patton pleaded guilty to attempted robbery in Cuyahoga

C.P. No. CR-12-569561-A and was sentenced to two years of community control.

Certain conditions of community control required Patton to report to his probation officer

every two weeks, enjoined him from using drugs and alcohol, and subjected him to

random drug testing. The order also stated that the terms and conditions of community

control are subject to modification by the probation officer with approval of the court.

       {¶3} Nearly a year later, Patton missed one of his scheduled appointments with his

probation officer but reported to his probation officer the next day, December 5, 2014.

While at his appointment, Patton submitted a urine specimen that came back positive for

alcohol. To make up for the missed reporting day, Patton’s probation officer advised

him he would be required to come in and meet with him twice during the following week.

  When Patton failed to report on both days, the probation officer notified the court that
Patton was in violation of the terms of his probation. After Patton again failed to report

the following two weeks, the court issued a warrant for Patton’s arrest. Patton was

promptly arrested and was issued a breathalyzer test that came back positive for alcohol,

registering his BAC at .031.

       {¶4} On January 13, 2015, Patton appeared in court with counsel on the alleged

community control violation. Patton’s probation officer outlined the allegations on the

record: 1) Patton failed to report as directed or contact his probation officer since

December 5, 2014; 2) Patton submitted urine specimen on December 5, 2014, which

came back positive for alcohol; and 3) Patton submitted to a breathalyzer examination on

January 8, 2015, resulting in a BAC of .031. The probation officer stated that this was

Patton’s first probation violation hearing in the case, and that Patton had “signed the

waiver.” Patton, through counsel, admitted to the violations. Counsel then addressed

the court in mitigation, and Patton spoke on his own behalf. Ultimately, the court found

Patton to be in violation of his community control for testing positive for alcohol and

failing to report.

       {¶5} Following the revocation hearing, Patton filed several pro se motions

challenging his original conviction and sentence. Those motions were all denied. In

November 2015, Patton filed a motion for delayed appeal with this court asking to appeal

from the original sentencing order, the order revoking his community control, and an

older order allowing for the reindictment of his case (the case was originally indicted as

Cuyahoga C.P. No. CR-12-561447-A, but was reindicted as CR-12-569561-A). This
court granted Patton’s motion for leave to appeal, stating “[m]otion by appellant, pro se,

for leave to appeal is granted only as to trial court case number CR-12-569561.”

       {¶6} In his first assigned error, Patton argues that the trial court violated his due

process rights at the revocation hearing and that the court abused its discretion by denying

his previously filed motions. Specifically, Patton argues that his due process rights were

violated when the court failed to present, in writing, the allegations against him, failed to

hold a preliminary hearing on the charges, and that his admissions at the violation hearing

were not knowing and informed.

       {¶7} We cannot review whether the trial court abused its discretion by denying

Patton’s previously filed motions for relief. Patton only requested leave to appeal his

original sentencing order and revocation hearing, therefore, those are the only orders from

which this court granted leave to appeal. Accordingly, our review is limited to a direct

appeal from those orders.           See State v. Painter, 12th Dist. Clermont No.

CA2012-04-031, 2013-Ohio-529, ¶ 14 (explaining that courts will not review orders that

have not been properly appealed).

       {¶8} “Because the revocation of probation entails a serious loss of liberty, a

probationer must be accorded due process at the revocation hearing.” State v. Bailey, 8th

Dist. Cuyahoga No. 103114, 2016-Ohio-494, ¶ 9, citing Gagnon v. Scarpelli, 411 U.S.

778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); State v. Miller, 42 Ohio St.2d 102, 326

N.E.2d 259 (1975), syllabus. At a minimum, due process requires the defendant be

provided:
       (1) written notice of the claimed violations; (2) disclosure of evidence

       against him; (3) opportunity to be heard and to present witnesses and

       documentary evidence; (4) the right to confront and cross-examine adverse

       witnesses; (5) a “neutral and detached” hearing body; and (6) a written

       statement by the factfinder of the evidence relied upon and reasons for

       revocation.

Bailey at ¶ 9, citing State v. Davis, 8th Dist. Cuyahoga No. 93959, 2010-Ohio-5126, ¶ 26.

       {¶9} Although written notice of claimed violations is preferred, this court has held

that oral notice of alleged violations may be sufficient when the oral statements “explain

the basis of the revocation proceeding,” “provide adequate notice to the probationer,” and

“provide a record for appellate review of the revocation hearing.” State v. Washington,

8th Dist. Cuyahoga Nos. 101157 and 101170, 2015-Ohio-305, ¶ 22, citing State v.

Lenard, 8th Dist. Cuyahoga No. 93373, 2010-Ohio-81, ¶ 10-11, citing Lakewood v.

Sullivan, 8th Dist. Cuyahoga No. 79382, 2002-Ohio-2134, ¶ 26.

       {¶10} We conclude that oral notice of the claimed violations met the minimum due

process guarantee in this case. At the violation hearing, Patton’s probation officer read

into the record the basis for his allegations. From this point on, Patton was aware of the

allegations against him, and there was a record for appellate review. Defense counsel

did not contend that the oral notification was insufficient to provide adequate notice, nor

did he ask that the hearing be continued to a later date.        Rather, defense counsel

authoritatively addressed the court and admitted to the allegations on behalf of his client
without further discussion. Therefore, the oral notification did not violate Patton’s due

process rights.

       {¶11} Next, Patton contends that nothing in the record establishes that he

knowingly waived his right to present evidence is his defense and to confront his accusers

through cross-examination. As a general matter, an unknowing waiver of a defendant’s

right in a revocation hearing to present evidence and confront his accusers is invalid.

State v.   Armstrong, 56 Ohio App.3d 105, 107, 564 N.E.2d 1070 (8th Dist.1988).

Nevertheless, Ohio courts have made it clear that “[a] community control revocation

hearing is not a criminal trial.”     State v. Parsons, 4th Dist. Athens No. 09CA4,

2009-Ohio-7068, ¶ 11. Accordingly, “[a] defendant faced with revocation of probation

or parole is not afforded the full panoply of rights given to a defendant in a criminal

prosecution” and “the requirements of Crim.R. 11(C)(2) do not apply to a

community-control-violation hearing.” Id.

       {¶12} It is important to point out that Patton is not arguing on appeal that he did

not understand the rights he was waiving when he admitted to the allegations. Instead,

he simply argues that nothing in the record proves that he understood the implication of

admitting to the allegations, which would include a waiver of his right to present evidence

and cross-examine witnesses. Patton misunderstands the burden of proof on this issue.

In revocation hearings, trial courts are not obligated to procure a knowing waiver through

a Crim.R. 11(C)(2)(c) colloquy like they are required to do before accepting a guilty plea.

 Therefore, the relevant consideration is not whether the record proves that he understood
the rights he was waiving; it is whether the record in some way indicates that he did not

understand the rights he was waiving. There is nothing in the record that indicates

Patton unknowingly waived his rights. Generally, without affirmative evidence in the

record indicating otherwise, we presume regularity in trial court proceedings. State v.

Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 19.                 Presuming

regularity in this instance would require us to presume that the trial court and the parties

would not have proceeded past the evidentiary phase of the proceedings without Patton

indicating his willingness to waive his rights, through a signed declaration or otherwise.

       {¶13} Moreover, even if we were to find that Patton did not waive his rights, we

cannot conclude that Patton suffered any prejudice in this instance. The record shows

that Patton was able to confront his probation officer during the hearing and prior to the

court finding him in violation. The court allowed Patton to engage in a conversation

with his probation officer about why he might have been unaware of a change in his

reporting schedule.    Patton does not bother to explain on appeal what evidence or

witnesses he might have proffered to combat the allegations against him. Therefore, we

cannot conclude that Patton’s due process rights were violated because of an unknowing

and unintelligent waiver of his right to cross-examine his accusers and present evidence

in his defense. Accord Armstrong at 107.

       {¶14} Patton further contends he did not knowingly waive his rights because the

court failed to explain that admitting to the allegations “would result in the revocation of

community control and the triggering of a prison sentence.”     A trial court has discretion
to revoke community control. See 2929.15(B)(1). By statute, a court does not have to

accept a probationer’s admission, nor does it have to send a probationer to prison for the

violation. See id. Accordingly, the court was under no obligation to tell Patton that he

“would” be found in violation of his community control and “would” be sent to prison, if

he admitted to the allegations. In fact, one would expect a trial judge to reserve making a

final determination on a community control violation until after the probationer and/or his

attorney has had an opportunity to present facts in mitigation. Therefore, it would have

been improvident for the trial court to tell Patton that if he admitted to the allegations he

would be found in violation and sentenced to prison, when the trial court had yet to make

that determination.

       {¶15} Patton is also incorrect in stating that the record is devoid of any explanation

of the possibility of receiving prison time on a community control violation. The original

sentencing entry adequately explains the consequences of violating the terms and

conditions of his community control, because it states that “[v]iolation of the terms and

conditions may result in more restrictive sanctions, or a prison term of 18 month(s) as

approved by law.”

       {¶16} Lastly, the court did not fail to hold a preliminary hearing on the allegations

as Patton contends. It is clear from the transcript that the violation hearing began as a

preliminary hearing and then transitioned into a revocation hearing once Patton’s

probation officer informed the court that Patton had “signed the waiver.” After the court

accepted the waiver, the hearing took on a decidedly different tone — indicating that it
had progressed past the preliminary phase — when the judge asked counsel whether

Patton admitted or denied the allegations. Although, on appeal, Patton argues that the

state fails to explain that this waiver was actually a waiver of his right to a preliminary

hearing, he offers no evidence to suggest that the waiver was not a waiver of that kind,

nor does he deny that he executed the waiver. Again, without any indication to the

contrary, we presume regularity in the trial court proceedings. Raber, 134 Ohio St.3d

350, 2012-Ohio-5636, 982 N.E.2d 684, at ¶ 19.

       {¶17} Accordingly, we overrule Patton’s first assignment of error.

       {¶18} In his second assigned error, Patton argues that the trial court’s prohibition

against alcohol consumption was overly broad and unreasonable. Generally, a trial court

has broad discretion when deciding and imposing the terms and conditions of community

control.   Lakewood v. Hartman, 86 Ohio St.3d 275, 277, 714 N.E.2d 902 (1999).

Accordingly, we review the imposition of these terms and conditions for an abuse of

discretion. State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 10.

A court abuses its discretion if its decision is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶19} Appellate courts evaluate the reasonableness of probation conditions using

the three-prong test articulated in State v. Jones, 49 Ohio St.3d 51, 53, 550 N.E.2d 469

(1990). Under the test, 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.
Id.

        {¶20} Patton maintains that he has never had any problems with alcohol

dependence and that there is no connection between alcohol consumption and the crime

committed (robbery) in this case. Therefore, he feels that the prohibition on alcohol

consumption was unreasonable. In support of his argument he cites to two cases, State v.

White, 10th Dist. Franklin No. 14AP-1027, 2015-Ohio-3844, and State v. Chavers, 9th

Dist. Summit No. 04CA0022, 2005-Ohio-714, ¶ 12, where courts have found that a

community control condition prohibiting alcohol consumption was unreasonable when

the record failed to show a connection between alcohol consumption and the criminal

acts.

        {¶21} We do not agree that the trial court abused its discretion by imposing a

prohibition on alcohol consumption in this case.      At the sentencing hearing, Patton

admitted that he was high on cocaine when he committed the robbery — which, in his

own estimation, clouded his judgment and led him to commit the offense. After hearing

this, the court imposed a prohibition on drugs and alcohol and informed Patton that he

would be randomly tested for these substances.        This was a reasonable condition.

Alcohol, like cocaine, is an intoxicant, and Patton admitted to making poor decisions

while intoxicated. Moreover, White and Chavers are easily distinguishable from this

case, because neither of the two defendants admitted to being intoxicated when they

committed their respective crimes and the record in those cases did not indicate that drug

or alcohol usage contributed to the criminal acts.
       {¶22} In his final assignment of error, Patton contends that his legal counsel was

ineffective at both his original sentencing, for failing to object to the prohibition on

alcohol consumption, and at his revocation hearing for not challenging the alcohol portion

of the violation; for failing to object to various due process violations; and for failing to

cross-examine the probation officer. We find no merit to these arguments.

       {¶23} The test for ineffective assistance of counsel requires a defendant to prove

“1) that counsel’s performance was deficient, and 2) that the deficient performance

prejudiced the defendant.”     Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). In reviewing a claim of ineffective assistance of counsel,

we examine whether counsel’s acts or omissions “were outside the wide range of

professionally competent assistance” while “recogniz[ing] that counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Id. at 690. To establish the second

element of prejudice, the defendant must demonstrate that there is a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

       {¶24} Given the reasonable relationship between the robbery offense and the

prohibition on alcohol consumption, we cannot conclude that counsel was ineffective for

failing to object to the condition at the original sentencing hearing.        Moreover, as

explained above, we do not find any due process violations in the handling of Patton’s

community control violation and revocation hearing.         Accordingly, counsel was not
ineffective for failing to object on due process grounds either. Indeed, it would have

been unreasonable for Patton’s attorney to challenge the alcohol prohibition at the

revocation hearing.    By that point Patton had been submitting to random drug and

alcohol testing for nearly a year and, by his own admission, knew that he should not be

consuming alcohol. We, therefore, find that it was reasonable professional judgment for

Patton’s counsel to forego challenging the court’s decision to impose the alcohol

prohibition in favor of a more pragmatic approach — having Patton explain to the court

that he had consumed only a small amount of alcohol for medicinal purposes.

       {¶25} Lastly, Patton does not attempt to show how he might have been prejudiced

by his attorney’s decision to not cross-examine the probation officer. Although Patton

claims that cross-examination would have revealed that his probation officer failed to

notify him about a change in his reporting schedule, there is no indication from the record

that this would have changed the ultimate outcome of the hearing. In fact, Patton had a

chance to confront his probation officer in open court and discuss why he was not aware

of the change in his reporting days for the end of December. The discussion revealed

that Patton did not know about the change in his reporting days because Patton failed to

report during the week of December 8, 2014, when he would have been informed of the

holiday reporting schedule. Accordingly, Patton’s probation officer did not fail to inform

him of the change in the schedule, rather Patton failed to stay informed.

       {¶26} Patton’s third assigned error is overruled.

       {¶27} Judgment affirmed.
       It is ordered that appellee recover of said appellant 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.



______________________________________________
MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
