[Cite as State v. Nallen, 2013-Ohio-3284.]




                IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :       C.A. CASE NO.     2012 CA 24

v.                                                     :       T.C. NO.    11CR312

MATTHEW S. NALLEN                                      :        (Criminal appeal from
                                                                Common Pleas Court)
        Defendant-Appellant                            :

                                                       :

                                             ..........

                                             OPINION

                          Rendered on the       26th       day of   July   , 2013.

                                             ..........

ROBERT E. LONG III, Atty. Reg. No. 0066796, Assistant Prosecuting Attorney, 201 W.
Main Street, Safety Building, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 2365 Lakeview Drive, Suite C,
Beavercreek, Ohio 45431
      Attorney for Defendant-Appellant

                                             ..........

FROELICH, J.

                 {¶ 1} Matthew S. Nallen appeals from a judgment of the Miami County
                                                                                          2

Court of Common Pleas, which revoked his community control and sentenced him to an

aggregate term of twelve months of incarceration. For the following reasons, the judgment

of the trial court will be affirmed.

        {¶ 2}     In November 2011, Nallen was charged by bill of information for attempted

failure to comply with a police officer and theft, felonies of the fourth and fifth degree,

respectively. He pled no contest to each charge. The court found him guilty and ordered a

presentence investigation. Nallen was subsequently sentenced to two years of community

control. He was also informed that, if he violated the terms of his community control, he

would be sentenced to 17 months for the attempted failure to comply and to 11 months for

the theft, to be served concurrently, and that he may be subject to postrelease control for

three years.

        {¶ 3}     The community control listed numerous conditions of supervision,

including that Nallen obey all laws, submit to drug testing, comply with the orders of his

supervising officer, obtain written permission to travel, not purchase, possess, own, use or

control firearms, ammunition, or other deadly weapons, and comply with additional “special

conditions.” The special conditions included the following: 1) pay court costs of this case,

2) attend counseling as directed by his supervisor, 3) “gain and maintain full-time

employment,” 4) undergo a substance abuse assessment, 5) pay restitution in the amount of

$3,674.86, 6) “continue with MCRC [Miami County Recovery Council] (for mental health

counseling) ,” 7) obtain a substance abuse evaluation and complete any recommended or

necessary follow-up, and 8) not consume any controlled substance, drug of abuse, or

substance that requires a prescription without a prescription.    The judgment also gave
                                                                                                                                     3

Nallen “notice” that he would be subject to warrantless searches pursuant to R.C. 2967.131.1

         {¶ 4}         In October 2012, a notice of community control violation hearing was filed

in Nallen’s case. The notice alleged that he had violated the following conditions and

special conditions: 1) the condition that he obey all laws, by stopping payment on a $2,500

check for a vehicle he had purchased,                          2) the condition that he follow orders of his

supervising officer, by failing to report when ordered to do so, 3) the condition that he obtain

permission before traveling out of state, and 4) the special conditions that he pay court costs,

gain and maintain full-time employment, pay restitution, attend recommended programming

at MCRC, and not consume any controlled substance, drug of abuse, or substance that

requires a prescription (as evidenced by a urine screen that tested positive for

benzodiazepines).

         {¶ 5}         At the hearing on the alleged violations, Nallen admitted to violating the

special conditions related to non-payment of court costs and restitution and failure to gain

and maintain employment, in exchange for which the State withdrew all of the other

allegations. His attorney noted that the violations all related to Nallen’s inability to obtain

employment, due in part to health issues and to his felony convictions. The attorney

asserted that Nallen continued to look for employment and, if prohibited by his health issues

from working, would apply for Social Security disability. The attorney requested that the

             1
                R.C. 2967.131(C) and R.C. 2951.02(A) contain nearly identical language about supervising officers’ right to conduct a
   search of a supervisee’s person, residence, vehicle, and “another item of tangible or intangible personal property” “with or without
   a warrant,” if the supervising officers have “reasonable grounds.” We note, however, that R.C. 2967.131(C) applies to parolees
   and others who have been released from a state correctional institution, whereas R.C. 2951.02 applies to a felon with a
   “nonresidential sanction,” such as community control.
                                                                                                   4

court continue Nallen on community control.                      Nallen also spoke on his own behalf,

claiming that he had been having a lot of seizures which interfered with his ability to keep a

job, and offering to “even do an ankle bracelet.” By agreement, the State remained silent as

to the disposition of the violations.

       {¶ 6}        The court inquired about Nallen’s probation officer, who was not present at

the hearing. Defense counsel asserted that the probation officer, Kenna Longstreath, had

Nallen arrested when he missed a scheduled meeting with her, although Nallen had been

hospitalized with seizures at the time of the scheduled meeting. The court questioned

whether he was not, in fact, arrested because he had left the state again without permission.

Another probation officer who was present in court stated that, in light of the court’s

question about whether Nallen had left the State, she believed Longstreath would like an

opportunity to make a statement to the court; the probation officer also presented evidence

that Nallen had been out-of-state in that he was released from a clinic in Richmond2 during

his period of community control.

       {¶ 7}        The court asked Nallen whether his mother had taken him “over there,” and

he denied that she had. Defense counsel then stated: “I can tell you that he’s been going to

that methadone clinic for quite some time. * * * I don’t know what the issue would be; he’s

been receiving regular treatment at the methadone clinic.” The court responded that such

treatment at an out-of-state clinic would be permitted only if Nallen obtained permission

from his probation officer to leave the state. Defense counsel stated that the treatment at the


           2
            The parties apparently refer to Richmond, Indiana.
                                                                                            5

methadone clinic was longstanding and that the probation officer would have had no reason

to deny Nallen permission to receive the treatment. The court also had before it a letter

from Nallen’s mother claiming that the treatment was necessary for Nallen’s health and that

a visit to the clinic required them to be in Indiana for “only fifteen minutes.”

       {¶ 8}     Due to the uncertainty about whether Nallen’s probation officer had known

of or had given permission for Nallen to receive treatment at the clinic in Richmond,

Indiana, the court continued the hearing in order that the probation officer or officers who

had been involved in Nallen’s case could clarify the information before the court.

       {¶ 9}     The next day, Kenna Longstreath appeared before the court and detailed the

reasons she considered Nallen to be in violation of his community control requirements,

including an unapproved trip to Tennessee and failure to work with MCRC regarding mental

health counseling. Nallen claimed that another probation officer, Jenny Christner, who had

apparently been his officer at one time, had told him that he did not need to work with

MCRC if he was going to the Richmond clinic. Christner, who was also present on the

second day of the hearing, denied ever having told Nallen that he did not have to work with

MCRC, but she did confirm Nallen’s claim that he had had permission to go to the

Richmond clinic daily for methadone treatment. Nallen claimed to have also received drug

counseling at the clinic, but not mental health counseling.

       {¶ 10}    The court then, on its own initiative, turned the discussion to text messages

on Nallen’s cell phone. The court asked: “If I were to look at the messages on your cell

phone that deal with a discussion of a gun, an automatic weapon, what would they tell me?”

Nallen responded that he had texted with a friend about a television show involving guns.
                                                                                            6

The court then asked Longstreath to produce the phone, which she did, and the court

reviewed some of the messages. The court read an exchange between Nallen and a friend in

California about the cost of acquiring an automatic weapon and what kind of gun was good

to carry. The men also discussed the prison time Nallen would face if caught with any gun,

to which Nallen responded, “Go big or go home. You know me. Push the limits.” Nallen

asserted that the text conversation was a joke, but the judge stated that he was “not amused.”



       {¶ 11}    Based on the admitted violations and other behaviors discussed at the

hearing, the trial court concluded that Nallen was not “amenable to community control

anymore at this point.” The reasons specifically cited by the court were Nallen’s failure to

get mental health counseling as he was ordered to do, going to Tennessee without prior

permission, and failing to maintain employment. “[I]t’s like your probation officer needs to

almost follow you around every day to have some assurance that you’re not violating the

law, or you’re making some serious attempt to comply with the terms and conditions of your

community control.” The court revoked Nallen’s community control and sentenced him to

twelve months for attempted failure to comply and eight months for theft, to be served

concurrently, and mandatory postrelease control for three years.

       {¶ 12}    Nallen appeals from the revocation of his community control, raising two

assignments of error. The first assignment states:

       THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS WHEN

       THE COURT PERMITTED AND CONSIDERED THE USE OF

       APPELLANT’S CELL PHONE RECORDS FOR THE PURPOSE OF
                                                                                            7

       REVOKING         APPELLANT’S          COMMUNITY           CONTROL        AND

       SENTENCING APPELLANT TO A TERM OF IMPRISONMENT.

       {¶ 13}    Nallen asserts that the trial court violated his due process rights when it

relied on “illegitimate” and “illicit” cell phone records. He claims that no evidence was

offered as to how the cell phone was “obtained” or that an exception to the search warrant

requirement applied, and that “the unforeseen and surprising use of these illicitly obtained

cell phone texts did not allow [him or his attorney] the opportunity to properly prepare

mitigation evidence concerning the truth of these texts.”

       {¶ 14}    R.C. 2951.02 authorizes searches “with or without a warrant” of individuals

under the supervision of probation officers if “the probation officers have reasonable

grounds to believe that the offender is not abiding by the law, or otherwise is not complying

with the terms and conditions of * * * the felony offender’s nonresidential sanction.” Thus,

a warrantless search of a felon on community control and/or his personal property is

permitted if the officer who conducts the search possesses “reasonable grounds” to believe

that the offender has failed to comply with the terms of his or her community control. See

State v. Helmbright, 10th Dist. Franklin No. 11AP-1080 and 11AP-1081, 2013-Ohio-1143,

¶ 20. The examination of the content of a cell phone is a search that falls within the

auspices of the Fourth Amendment.         See State v. Underwood, 9th Dist. Medina No.

10CA0048-M, 2011-Ohio-5703, ¶ 10; State v. Williams, 8th Dist. Cuyahoga No. 92822,

2010-Ohio-901, ¶ 18.

       {¶ 15}    Nallen contends that the State failed to establish a reasonable basis for the

probation officer’s search of his cell phone records. However, the State did not rely on
                                                                                            8

these records to establish the community control violations, which Nallen admitted. In fact,

the State did not initiate the introduction of the cell phone evidence, but rather the court

asked Nallen about the content of his phone directly. Nallen did not challenge the cell

phone evidence at any time on the basis that a foundation for its use had not been laid.   We

cannot speculate on this record how the judge was aware of the content of the cell phone or

on what basis the probation officer had decided to investigate it.

         {¶ 16} Considering that Nallen admitted to several community control violations,

that the State did not offer evidence related to his cell phone records, that no evidence was

developed about the basis on which the probation officer searched the cell phone, and that

Nallen did not challenge the examination of his phone in the lower court, we reject Nallen’s

argument that an unconstitutional search occurred and that he was prejudiced by it.

         {¶ 17} Moreover, the record does not suggest that Nallen or his attorney was

surprised by the use of the cell phone messages at the hearing. The probation officer

produced the phone, and Nallen stated that he had not “seen” the cell phone for two or three

weeks.     Nallen explained who had been involved in the text conversation and offered

explanations for some of the details. For example, when Nallen seemed to ask the friend

from California to come to Tennessee, Nallen explained the reason for this request, namely,

that Nallen had contemplated moving to Tennessee at the time of the conversation. (There

was other evidence that Nallen had gone to Tennessee, without prior permission from his

probation officer, for a job interview.) After the court read the exchange and asked if

defense counsel would like to see it, counsel declined.     Other than Nallen’s assertion that

the conversation was a joke, neither Nallen nor his attorney challenged the meaning of the
                                                                                           9

conversation or Nallen’s participation in it.

         {¶ 18} 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. Gagnon v.

Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The due process rights

which must be observed in a probation or community control revocation hearing are: (1)

written notice of the claimed violations of probation or community control; (2) disclosure to

the probationer 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. Id., quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d

484 (1972). Nonetheless, a defendant who fails to timely object to a court’s alleged due

process violation during a community control revocation violation hearing waives all but

plain error. (Citations omitted.) State v. Foster, 6th Dist. Nos. L-06-1126, L-06-1229,

2007-Ohio-1867, ¶ 12. Consequently, we must review Nallen’s claim that his due process

rights were violated for plain error.           State v. Hammonds, 10th Dist. Franklin No.

06AP-1122, 2007-Ohio-4456, ¶ 7.

{¶ 19}    Notice of plain error under Crim.R. 52(B) is “‘to be taken with the utmost caution,

under exceptional circumstances and only to prevent a manifest miscarriage of justice.’” See

State v. Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), quoting State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Plain error does not

exist unless, but for the error, the outcome of the criminal proceedings would clearly have
                                                                                            10

been different. Hammonds at ¶ 8, citing State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d

894 (1990).

       {¶ 20}    A court’s decision to revoke community control may be reversed on appeal

only if the court abused its discretion. State v. Adams, 2d Dist. Champaign 09 CA 37,

2011-Ohio-2562, ¶ 8; State v. Williams, 8th Dist. Cuyahoga No. 92769, 2012-Ohio-659, ¶

17.

       {¶ 21}    At the revocation hearing, Nallen admitted to violating three of the

conditions of his community control. On that basis alone, the court had a sufficient grounds

to revoke community control. The court discussed other aspects of Nallen’s compliance

with the terms of community control with Nallen and his attorney in weighing whether he

should be allowed to continue on community control, as he requested, notwithstanding the

admitted violations, or should be sentenced to a prison term. In our view, the degree to

which Nallen had complied with all of the terms of his community control and the

seriousness with which he had approached his obligations therein were reasonable

considerations in determining whether to give him another chance at community control.

Nallen has cited no authority which would prohibit the consideration of other violations,

even if they are not the formal basis for the revocation and are not admitted by the defendant,

and we are aware of none.

       {¶ 22}    There are undoubtedly circumstances in which a defendant is surprised by

and/or unprepared for a court’s consideration of alleged violations of the terms of community

control other than those to which he has admitted. He may be prejudiced in such circumstances,

especially where, as here, some of those violations were not stated in the notice of revocation
                                                                                          11

hearing. However, there is no evidence that Nallen was surprised or unprepared for the court’s

consideration of his cell phone messages, which his probation officer seems to have previously

examined, and he did not object to the court’s consideration or discussion of his cell phone

messages, nor did he request a continuance of the revocation hearing. We find no plain error.

        {¶ 23}    Moreover, the cell phone conversation in which Nallen seemed to be trying to

obtain a weapon was by no means the only basis for the court’s conclusion that he was not

amenable to community control sanctions. In addition to Nallen’s admitted failures to pay court

costs and restitution and to gain and maintain employment, he admitted that he had gone to

Tennessee without prior permission and had not followed through on any mental health

counseling.      Probation Officer Longstreath stated that, according to Nallen’s “worker” at

MCRC, he had not participated in its program beyond the initial assessment, despite his claims

that he had been “active” with MCRC. Although Nallen claimed that he had been told by

Probation Officer Christner that he did not have to continue with MCRC, she denied this claim.

        {¶ 24}    Again, it is unclear how the court knew of some of the additional, unadmitted

violations. But Nallen was given an opportunity to respond to the allegations and did not object

to the court’s questioning him about these matters or ask for additional time to reply.

        {¶ 25}    Based on all of the circumstances presented to the court, we cannot conclude

that it abused its discretion in terminating Nallen’s community control or that Nallen’s due

process rights were violated by the manner in which the court conducted these proceedings.

There were legitimate reasons to terminate Nallen’s community control, including his admission

to violating several of its conditions.

        {¶ 26}    The first assignment of error is overruled.
                                                                                           12

        {¶ 27}    Nallen’s second assignment of error states:

        THE      TRIAL     COURT    ABUSED       ITS   DISCRETION        IN   REVOKING

        APPELLANT’S COMMUNITY CONTROL SANCTIONS AND SENTENCING

        THE APPELLANT TO A TERM OF IMPRISONMENT.

        {¶ 28}    Nallen contends that the trial court abused its discretion in revoking his

community control for failure to pay court costs and restitution where there was no evidence that

he had the ability to pay, where there was no evidence that he acted “intentionally and willfully”

in not seeking or obtaining employment, and where health problems interfered with his ability to

work.

        {¶ 29}    At the hearing, defense counsel stated that Nallen was a skilled computer

technician and that he had interviewed for one job, but that he had “a significant amount of health

problems that have interfered with his ability to work” and that his felony conviction also made it

difficult for him to obtain work. On appeal, Nallen claims that he was “not fully given the

opportunity to present mitigation evidence,” such as medical and counseling records. But the

transcript does not reveal any attempt on Nallen’s part to offer such evidence, to show that such

evidence exists, or to request a continuance. Moreover, because he had admitted to violating

this condition of community control, the State did not have any burden to prove that he had acted

willfully or intentionally in failing to gain or maintain employment. If Nallen wanted the court

to better understand the reasons for the admitted violation and to consider mitigating evidence in

deciding whether to continue community control, it was incumbent on him to offer such

evidence, if it existed.

        {¶ 30}    The trial court did not abuse its discretion in revoking Nallen’s community
                                                                    13

control. The second assignment of error is overruled.

       {¶ 31}   The judgment of the trial court will be affirmed.

                                          ..........

WELBAUM, J., concurs.

DONOVAN, J., concurs in judgment only.

Copies mailed to:

Robert E. Long III
Thomas M. Kollin
Hon. Christopher Gee
