[Cite as State v. Groce, 2012-Ohio-5171.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97736




                                      STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                            vs.

                                      EUGENE GROCE
                                                  DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                       Case Nos. CR-528644, CR-528843, and CR-533154

        BEFORE: Rocco, J., Stewart, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: November 8, 2012

                                            -i-
ATTORNEY FOR APPELLANT

Joseph Vincent Pagano
P.O. Box 16869
Rocky River, OH 44116

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Mark J. Mahoney
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant Eugene Groce appeals from the trial court’s decision to

order his original sentences in three underlying cases into execution because Groce

violated the terms of his community control sanctions (“CCS”).

       {¶2} Groce presents two assignments of error. He asserts that the trial court’s

decision constitutes an abuse of discretion, and that the court’s imposition of consecutive

sentences was contrary to law.1 Upon a review of the record, this court finds that the

trial court abused its discretion in ordering Groce’s sentences into execution; this renders

Groce’s second assignment of error moot. Consequently, the trial court’s decision to

order Groce’s sentences into execution is reversed and this case is remanded for further

proceedings consistent with this opinion.

       {¶3} Groce originally was indicted in these three cases on charges of burglary,

theft, and obstructing official business. The most serious charges carried notices of prior

conviction (“NPCs”) and repeat violent offender specifications (“RVOs”).

       {¶4} Following the period of discovery, the trial court conducted a change-of-plea

hearing. As outlined by the prosecutor, in exchange for Groce’s guilty pleas, the state


       1This  court notes that the trial court did not state in open court at Groce’s
CCS violation hearing whether Groce would serve the sentences “consecutively” or
“concurrently.” Pursuant to the version of R.C. 2929.41 in effect at the time of
sentencing, sentences were deemed to be imposed concurrently unless the journal
entry stated otherwise. Although the journal entries from which Groce appeals
indicate the sentences were to be served consecutively, the trial court erred in
failing to inform Groce of this portion of his sentence at the CCS violation hearing.
Crim.R. 43. In light of this court’s disposition of Groce’s appeal, however, the error
is moot.
would dismiss the NPCs and the theft counts and would amend one of the burglary counts

to a charge of breaking and entering; the charge of obstructing official business remained.

 The state further agreed it would not pursue another prosecution against Groce for a

fourth potential case.

       {¶5} Groce’s defense attorney concurred in the prosecutor’s recitation of the

agreement, adding that he had advised Groce that if the state proved his guilt on even one

of the cases, Groce “would be looking at at least * * * eighteen years.” Defense counsel

informed the trial court that these cases recently came to the state’s attention due to

advances in DNA analysis, but resulted from actions Groce had taken several years

previously, and that Groce now had a job and a responsible attitude.

       {¶6} The trial court proceeded to conduct a careful colloquy with Groce.         In

pertinent part, the court informed him that each guilty plea to burglary, a second-degree

felony, carried a potential prison term of “from two to eight years in yearly increments.”

 In addition, an RVO carried a potential prison term of “one to ten years in yearly

increments.” The court stated the term for the RVOs “would be served prior to, but

consecutive to any other sentence” Groce received. Groce indicated he understood.

       {¶7} After informing Groce of the potential penalties for the other two charges

involved in his plea agreement, and after explaining postrelease control requirements

Groce would face, the trial court asked Groce for his pleas to the amended indictments.

Groce answered, “Guilty.” The trial court accepted Groce’s guilty pleas, then referred

him for a presentence report.
             {¶8} At the June 22, 2010 sentencing hearing, the trial court decided that the

      sentence in each burglary case “would be the same,” i.e., a prison term of six years. The

      court also sentenced Groce on the breaking and entering charge to a prison term of 11

      months, and imposed a fine for the second-degree misdemeanor of obstructing official

      business.

             {¶9} The court further ordered each of the sentences suspended, and ordered Groce

      to be placed on community control sanctions for three years. The trial court placed the

      following conditions upon Groce’s community control sanctions: “six months to complete

      his GED,” drug counseling, and mandatory drug testing.

             {¶10} Groce’s original sentencing hearing concluded with the following dialogue:

                    THE COURT: Now, Mr. Groce, I send all probation [sic] violators
             to prison. If you decide to commit an act that causes you to be found in
             violation of your probation [sic] [,] and you’ve been found in violation
             before and you had some really nice judges who didn’t violate you, send
             you to prison, well, [in this court] the story’s changed. You violate, you’re
             going to prison, okay?

             THE DEFENDANT: Yes.

             THE COURT: I got 11 years over your head that I will run wild if you come back
      here as a probation violator. * * * No, I got more than that. * * * 12 years, 11 months.
      You come back as a probation violator, I’m going to run it wild. You’re going to do
      every day.

      {¶11} Eleven months later, on May 24, 2011, the trial court called Groce’s cases for a CCS

violation hearing. Groce admitted that he had tested positive for cocaine. After the court found Groce
to be in violation, the court ordered Groce’s original sentences into execution. The resulting journal

entry in each of the underlying cases contains the words: “Consecutive to any other sentence.”2

      {¶12} This court granted Groce’s motion to file a delayed appeal of his convictions and

sentences. Groce presents the following assignments of error.

             I. The trial court abused its discretion by operating under a blanket policy
      for probation violation hearings in lieu of exercising its discretion when imposing
      significant prison terms.

            II. The trial court’s imposition of consecutive sentences was contrary to law
      and an abuse of discretion.

             {¶13} In his first assignment of error, Groce acknowledges that a trial court’s

      decision to revoke community control is analyzed under an abuse of discretion standard.

      Groce argues that, because the trial court stated that it sent “all [CCS] violators to prison”

      and then acted in accordance with that policy, the trial court actually exercised no

      discretion in revoking his community control. Groce contends the trial court’s exercise

      of no discretion in this case equates to an abuse of discretion. This court finds his

      argument persuasive.

             {¶14} Although a trial court’s decision finding a violation of community control

      will not be disturbed on appeal absent an abuse of discretion, a trial court abuses its




      2Six  months later, the trial court issued another journal entry in each case that stated the
sentence imposed was “concurrent with all other sentences.” The trial court, however, lacked
jurisdiction to make this substantive change. State v. Nye, 10th Dist. No. 95APA11-1490, 1996
Ohio App. LEXIS 2314 (June 4, 1996); compare State v. Spears, 8th Dist. No. 94089,
2010-Ohio-2229.
discretion when it violates a probationer’s due process rights. State v. Hayes, 8th Dist.

No. 87642, 2006-Ohio-5924, ¶ 12-15.

      {¶15} In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973),

the United States Supreme Court set forth the minimum due process requirements for

probation revocation proceedings. Unless the defendant agrees to waive it, the court first

must conduct a preliminary hearing. Id. at 782. The purpose of the preliminary hearing

is to determine whether probable cause exists to believe that the probationer has violated

the conditions of his or her probation. Id. at 784-786. In this case, Groce waived this

preliminary hearing.

      {¶16} If it is determined that the conditions of probation have been violated, a

second, less summary proceeding is held to determine whether the probation should be

revoked or modified. Columbus v. Lacey, 46 Ohio App.3d 161, 162, 546 N.E.2d 445

(10th Dist.1988), citing Gagnon at 784-786.         The final revocation hearing must

encompass the following six minimum due process requirements, viz., 1) notice of the

claimed violations, 2) disclosure to the probationer of evidence against him, 3)

opportunity to be heard in person and to present evidence, 4) the right to confront

witnesses, 5) a neutral and detached hearing body, and, 6) an explanation by the hearing

body of the evidence relied on and the reasons for revoking probation. Gagnon at 786,

citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

      {¶17} The record in this case reflects that the trial court failed to afford Groce the

last two due process requirements to which he was entitled. The trial court neither
displayed a neutral and detached attitude toward Groce, nor adequately explained the

reasoning for its decision to revoke Groce’s community control.

       {¶18} The record reflects that, once the trial court determined that Groce violated a

condition of his community control, its decision was made based upon the court’s policy,

rather than whether the circumstances of Groce’s violation warranted modification rather

than revocation. Lacey at 162. The court made no evaluation “as to the overall social

readjustment of the offender in the community,” including “consideration of such

variables as the offender’s relationship toward his family, his attitude toward the

fulfillment of financial obligations, the extent of his cooperation with the probation * * *

officer assigned to his case, his personal associations, and — of course — whether there

have been specific and significant violations of the conditions of the probation.”

(Emphasis added.) Gagnon, fn. 8.

       {¶19} Under such circumstances, this court finds that the trial court abused its

discretion. Hayes, 8th Dist. No. 87642, 2006-Ohio-5924. Groce’s first assignment of

error, accordingly, is sustained.

       {¶20} This disposition renders Groce’s second assignment of error moot. App.R.

12(A)(1)(c).

       {¶21} The trial court’s order is reversed.      This case is remanded for further

proceedings.

       It is ordered that appellant recover from appellee 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. Case remanded to the trial court for

execution of sentence.




      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



____________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
