[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
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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.

/jlr




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