[Cite as State v. Thomas, 2018-Ohio-1024.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellee,           :
                                                        CASE NO. 2017-A-0059
        - vs -                                 :

EDWARD EUGENE THOMAS,                          :

                 Defendant-Appellant.          :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016
CR 00001.

Judgment: Affirmed in part, reversed in part, and remanded.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Edward Eugene Thomas, appeals from the judgment of the

Ashtabula County Court of Common Pleas, concluding he violated his community

control sanctions and imposing a 36-month term of imprisonment. At issue is whether

the trial court committed error in rendering its written judgment and failing to afford

appellant an opportunity for allocution before entering sentence. For the reasons that

follow, we affirm in part, reverse in part, and remand the matter for further proceedings.
      {¶2}   On February 4, 2016, appellant was indicted on two counts of illegal

assembly or possession of chemicals for the manufacture of drugs, in violation of R.C.

2925.041(A), felonies of the third degree. Ultimately, appellant pleaded guilty to one

count and, on October 27, 2016, he was sentenced to two years intensive community

control with zero days jail-time credit. Appellant was also informed that, should he

violate his community-control sanction, the court could impose a prison term of up to 36

months.

      {¶3}   On June 15, 2017, an arrest warrant was issued for appellant due to an

allegation that he violated his community-control sanctions. The matter came on for

hearing on August 17, 2017, at which time, testimony was taken from John Grzincic,

appellant’s supervisor with the adult parole authority; as well as appellant’s former

girlfriend, Tonya Durkin.   Mr. Grzincic testified the adult parole authority became

involved in the alleged violation after it received a complaint stating appellant had

assaulted Ms. Durkin. Based upon the complaint, the adult parole authority filed for a

violation of one or more of the conditions of appellant’s community control sanctions;

namely, the condition that appellant obey all federal, state, and local laws and

ordinances and conduct himself as a reasonable, law-abiding citizen.

      {¶4}   Ms. Durkin testified she was with appellant and appellant’s father on the

night of the incident. She was highly intoxicated and dancing with appellant’s father at a

bar located in Geneva-on-the-Lake.        Later, as they were preparing to leave in

appellant’s car, appellant became angry and “popped” Ms. Durkin in the mouth. As she

attempted to exit the vehicle, appellant grabbed her, which, she testified, left scratch




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marks on her back and broke her necklace. Appellant exited the vehicle and left the

scene. Police were called and appellant was arrested.

       {¶5}   After hearing evidence, the trial court found appellant in violation of his

community-control sanctions and ordered him to serve the 36-month term. This appeal

follows. Appellant assigns the following as error:

       {¶6}   “The trial court erred when it violated the rights afforded appellant under

Crim.R. 32 and the U.S. Supreme Court case Gagnon v. Scarpelli.”

       {¶7}   Appellant submits two issues for this court’s review. He first contends the

trial court erred when it failed to give him an opportunity for allocution prior to entering

sentence, pursuant to Crim.R. 32(A)(1). He also contends the trial court erred in failing

to provide him a written statement of the evidence it relied upon in finding he violated

community control. We shall address the second issue first.

       {¶8}   “A defendant is entitled to due process when his community control is

revoked as the result of a violation of a condition imposed on that control.” State v.

Cunningham, 2d Dist. Clark Nos. 2014-CA-99, 2014-CA-100, 2015-Ohio-2554, ¶11

citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). The due process rights to which

an alleged violator is entitled in a community control revocation hearing are: (1) written

notice of the claimed violations of community control; (2) disclosure of evidence against

him; (3) an opportunity to be heard in person 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 fact finder

as to the evidence relied upon and the reasons for revoking community control.

Gagnon, supra, at 786, quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972).




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       {¶9}     Appellant contends the trial court failed to provide a written statement of

the evidence upon which it relied in concluding he violated his community control. We

do not agree.

       {¶10} In its August 17, 2017 judgment entry, the trial court observed:

       {¶11} Upon inquiry by the Court, the evidence was taken on the record
             and based on the evidence the Court finds and concludes that the
             defendant has in fact violated the terms of community control, in
             that the defendant on or about 6/3/17, in the vicinity of Jolley Drive,
             Geneva-on-the-Lake, Ohio the Defendant caused or attempted to
             cause physical harm to Tanya Durkin.

       {¶12} The Court further finds that his actions were in violation of condition
             Number One, which REQUIRES him TO CONDUCT himself AS A
             RESPONSIBLE LAW ABIDING CITIZEN.

       {¶13} Appellant does not take issue with the sufficiency of the evidence or the

substance of the court’s determination. Because the court provided appellant with a

written basis of the evidence upon which it relied as well as the condition appellant

violated, we conclude the court complied with Gagnon.

       {¶14} Next, appellant argues he was denied his right to allocution prior to the

court’s imposition of the 36-month term of imprisonment. In support, appellant cites

State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814. In Heinz, the Court was asked to

resolve whether a prosecutor is entitled to represent the state, i.e., notice and an

opportunity to be heard, in community-control violation hearings. The Court responded

in the affirmative, stating:

       {¶15} The prosecuting attorney has the authority to prosecute all
             complaints, suits, and controversies in which the state is a party,
             and because the state is a party to community control violation
             proceedings, because it has the burden of proving that a violation
             occurred, because it maintains an interest in ensuring that the
             proper sentence is imposed to punish and rehabilitate the offender
             while protecting the safety of the public, and because it is



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              responsible for preserving error for appeal, the state, through the
              prosecuting attorney, is entitled to notice and an opportunity to be
              heard in all such hearings. Id. at ¶2.

       {¶16} With respect to the issue of being heard, the Court observed:

       {¶17} R.C. 2929.19(A) and Crim.R. 32(A)(2) direct the trial court at the
             time of imposing sentence to afford the prosecuting attorney the
             right to appear and speak on behalf of the state, because it has an
             interest in ensuring that a proper sentence is imposed to punish
             and rehabilitate the offender while protecting the public, R.C.
             2929.11(A). These same statutes apply when the court decides the
             appropriate sentence for a community control violation. Heinz,
             supra, at ¶19.

       {¶18} Although Heinz implicitly recognizes a violator’s right to some form of

allocution, by noting that R.C. 2929.19(A), which requires the court to “ask the offender

whether the offender has anything to say as to why sentence should not be imposed

upon the offender,” applies to the proceedings. The Court, however, was not asked to

address the application of Crim.R. 32(A)(1), which requires the court to “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.”         Accordingly, Heinz

appears to be directly limited to a prosecutor’s rights during a violation hearing.

       {¶19} Subsequent to Heinz, however, the Court explicitly held “that a trial court

must afford an offender an opportunity for allocution at a community-control-revocation

hearing before imposing a sentence for violating the conditions of community control.”

State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, ¶1. In Jackson, the Court

underscored that a community-control-revocation hearing is also a sentencing hearing

and, as such, both R.C. 2929.19(A) and Crim.R. 32(A)(1) apply during violation

hearings. Jackson, supra, at ¶11.




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      {¶20} The state points out that this court, in State v. Gibson, 11th Dist. Portage

No. 2013-P-0047, 2014-Ohio-433, concluded “there is no right of allocution at a

probation revocation hearing.” Id. at ¶40; see also State v. Payne, 11th Dist. Ashtabula

No. 2015-A-0007, 2015-Ohio-5073, ¶34 (relying on Gibson, this court again held an

offender has no right to allocution at a revocation hearing). While this court’s previous

precedent held an offender was not entitled to allocution at a revocation hearing, those

cases are overruled to the extent they conflict with the Supreme Court’s holding in

Jackson, supra.

      {¶21} That said, the state does not dispute the court failed to offer appellant the

opportunity to make a statement.       Instead, the state emphasizes, appellant was

afforded his right to allocution during the original hearing. And, it maintains the court

was not required to afford appellant an opportunity at the violation hearing because it

purportedly informed appellant at his original sentencing hearing that, in the event of a

violation of community control, it would impose the 36-month sentence. The state’s

position misconstrues the nature of the violation-hearing procedure.

      {¶22} In Heinz, the Court emphasized that the revocation of community control

is an exercise of the sentencing court’s criminal jurisdiction. To wit, 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.” Heinz, supra, at ¶15. As such, “‘[f]ollowing a community control

violation, the trial court conducts a second sentencing hearing. At this second hearing,

the court sentences the offender anew and must comply with the relevant sentencing

statutes.” Id., quoting State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, ¶17; see




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also Jackson, supra, at ¶11. Accordingly, the substance and procedure of the original

sentencing hearing is of no moment; after a court finds a violation, a violator, pursuant

to Jackson and the relevant statutes and rules upon which it relied, is entitled to make a

statement anew prior to the court’s imposition of sentence.

       {¶23} With these points in mind, the question of remedy must be addressed. In

Jackson, supra, the court noted that a court’s failure to give a violator an opportunity for

allocution requires resentencing, absent invited or harmless error. The Court stated that

even though Jackson did not identify what he would have stated as mitigation, such a

showing is unnecessary. Id. at ¶16. The Court observed that requiring a violator to

proffer what he would have stated to establish the lack of harmless error would require

him to present new evidence outside the record. Id. The court appeared to conclude

that such a burden would be inequitable.         Regardless of this point, this court has

previously held that “‘[t]he failure to grant allocution is not harmless error when a

defendant is denied the opportunity to address evidence introduced and considered by

the trial court at sentencing.’” State v. Brown, 166 Ohio App.3d 252, 2006-Ohio-1796,

¶11, quoting State v. Castle, 4th Dist. Lawrence No. 03CA24, 2004-Ohio-1992, ¶9.

       {¶24} Here, the error was neither invited nor harmless. Furthermore, the trial

court denied appellant his opportunity for allocution. We therefore conclude the matter

must be reversed and remanded for resentencing on the violation.

       {¶25} Appellant’s assignment of error is sustained in part and overruled in part.

       {¶26} Because we hold the trial court did not err in finding appellant in violation

of his community control, that aspect of the proceedings is affirmed. To the extent,

however, the trial court did not give appellant the opportunity to address the court in




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mitigation prior to imposing sentence, the matter is reversed and remanded for

resentencing on the violation. The judgment of the Ashtabula County Court of Common

Pleas is therefore affirmed in part, reversed in part, and remanded.



DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.




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