[Cite as State v. Brooks, 2018-Ohio-2903.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHO                                       JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Craig R. Baldwin, J.
                                                   Hon. Earle E. Wise, Jr., J.
-vs-
                                                   Case No. 17CA93
CHRISTOPHER BROOKS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Common
                                               Pleas Court, Case NO. 2016-CR-707

JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         July 13, 2018


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


MIKE DEWINE                                    JOHN C. O'DONNELL
Ohio Attorney General                          10 West Newlon Place
By: MICAH R. AULT                              Mansfield, Ohio 44902
615 W. Superior Ave., 11th Floor
Cleveland, Ohio 44113
«Court» County, Case No. «Case_No»                                                            2

Hoffman, P.J.




       {¶1}      Appellant Christopher Brooks appeals the judgment entered by the

Richland County Common Pleas Court finding him in violation of the terms of his

community control and sentencing him to fifteen months incarceration. Appellee is the

state of Ohio.

                            STATEMENT OF THE CASE AND FACTS

       {¶2}      On April 25, 2017, Appellant was convicted of aggravated assault upon a

plea of guilty, and placed on four years community control. On August 28, 2017, his

probation officer filed notice of violation of the terms of his probation. The violation notice

included four counts: failing to notify his supervising officer of his residence; failing to pay

court costs, fines and supervision fees; missing fourteen office visits with his supervising

officer; and failing to report contact with police officers in July of 2017 when he was

assaulted.

       {¶3}      The case proceeded to trial in the Richland County Common Pleas Court.

Appellant admitted all violations except for failing to notify his probation officer of his

residence. Appellant testified he had been assaulted and underwent surgery on his leg

due to his injuries. He acknowledged not reporting the incident to his probation officer,

but claimed he believed the investigating officer reported the incident to his probation

officer.   He testified he called his probation officer on May 5, 2017, to let him know, “I

really particularly wasn’t feeling doing probation[.]” Tr. 31. He testified his employer

would not allow him to come back to work until he was off probation, and “then that’s

when I had decided to stop reporting.” Tr. 34.
«Court» County, Case No. «Case_No»                                                         3


       {¶4}   The trial court found Appellant had not committed the first charge of violation

of community control, failure to notify his probation officer of his residence. He found

Appellant had committed the remaining three violations.

       {¶5}   Counsel requested a prison sentence based on Appellant’s desire to not be

placed on probation. The trial court noted Appellant’s long criminal history, including four

assault and battery convictions, drug abuse, two driving while intoxicated convictions,

carrying a concealed weapon, receiving stolen property, theft, menacing, resisting arrest,

criminal trespass, dangerous ordnance, obstructing officers, four disorderly conduct

convictions, criminal damaging, two convictions of domestic violence, telecommunication

harassment, and attempted aggravated assault. He had twice been sent to prison, in 2000

and again in 2005. The trial court sentenced Appellant to fifteen months incarceration.

Immediately upon the court’s oral pronouncement of sentence, Appellant stated, “I would

like to appeal the sentence right now.” Tr. 42.

       {¶6}   It is from the October 3, 2017 judgment finding Appellant in violation of

community control and sentencing him to fifteen months incarceration Appellant

prosecutes this appeal, assigning as error:



              “I.   THE    TRIAL     COURT’S      DECISION       TO    TERMINATE

       DEFENDANT/APPELLANT’S COMMUNITY CONTROL WAS NOT BASED

       ON ‘SUBSTANTIAL PROOF.’

              “II. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE

       OF COUNSEL IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS

       TO THE UNITED STATES CONSTITUTION.”
«Court» County, Case No. «Case_No»                                                        4




                                                 I.

       {¶7}   Appellant argues the finding he violated the terms of his community control

is against the manifest weight of the evidence. He argues his injuries from the June 24,

2017, assault rendered him unable to make office appointments. He further argues he

was unable to work, thus he was unable to pay court costs and fines. He also argues he

believed the investigating officer would notify his probation officer about the assault, and

therefore he was relieved of the responsibility for doing so.

       {¶8}   In State v. Taylor, 5th Dist. Richland No. 17CA29, 2017-Ohio-8996, ¶25, we

set forth the standard of review for revocation of community control:



              A community control or probation revocation is not a criminal trial;

       therefore, appellee is not required to establish a violation of the terms of

       community control “beyond a reasonable doubt.” Ryan, supra, 2007–Ohio–

       4743, ¶ 7, citing State v. Hylton, 75 Ohio App.3d 778, 600 N.E.2d 821 (4th

       Dist. 1991). Instead, the state must show “substantial” proof appellant

       violated the terms of his community control sanctions. Id. Substantial

       evidence is akin to a preponderance-of-the-evidence burden of proof. State

       v. Ohly, 166 Ohio App.3d 808, 2006–Ohio–2353, 853 N.E.2d 675, at ¶ 18,

       citing State v. Hayes, 6th Dist. No. WD–00–075, unreported, 2001 WL

       909291 (Aug. 10, 2001). “Substantial evidence is considered to consist of

       more than a mere scintilla of evidence, but somewhat less than a

       preponderance.” Id., citations omitted.
«Court» County, Case No. «Case_No»                                                       5




      {¶9}   Appellant admitted missing fourteen visits with his probation officer,

admitted he had not paid court costs and fines, and admitted he failed to notify his

probation officer he had contact with police officers on the night of the assault. While he

now argues his injuries prevented him from complying with the terms of his community

control, Appellant testified on May 5, 2017, prior to the assault, he called his probation

officer to let him know he “wasn’t feeling doing probation.” Tr. 31. He further testified

upon contacting his old employer and finding out he would not be hired back while he

remained on probation, he “decided to stop reporting.” Tr. 34. He further admitted at the

time he was sentenced for the underlying offense, he wanted to go to prison rather than

being placed on probation. Tr. 24. Appellant’s testimony demonstrated he did not intend

to comply with the terms of his community control even before his injuries from the assault

potentially impaired his ability to do so. Appellant’s testimony alone provided substantial

proof he violated the terms of his community control.

      {¶10} The first assignment of error is overruled.

                                                II.

      {¶11} In his second assignment of error, Appellant argues counsel was ineffective

for agreeing with Appellant in seeking a prison term rather than community control.

      {¶12} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the result

of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,
«Court» County, Case No. «Case_No»                                                         6

104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). In other words, appellant must show that counsel’s conduct so undermined

the proper functioning of the adversarial process that the trial cannot be relied upon as

having produced a just result. Id.

       {¶13} Appellant testified he wanted to go to prison rather than be placed on

community control at the time of his original sentencing for aggravated assault. At

sentencing in the instant case, Appellant again stated he had repeatedly asked to be sent

to prison on the underlying offense. Appellant felt he was looking at a sentence between

six and nine months because it had been so long since he had been convicted of a crime.

Tr. 36. Counsel noted his history had been “benign” since 2004, and “by and large”

Appellant had managed to stay out of trouble. Tr. 40. Counsel stated, “During the

underlying case, he wanted prison is what I understand. So we are asking the court to

impose that now.” Tr. 40.

       {¶14} Appellant relies on his immediate request for an appeal to argue while he

wanted a prison sentence on the underlying case, he did not agree with counsel’s request

for prison in the instant case. However, it is not clear if he was unhappy with a prison

sentence in lieu of probation, or with the length of the sentence imposed, as he believed

he would receive a sentence of six to nine months and received fifteen months. Further,

he did not express disagreement with counsel’s request for a prison sentence at the time

the request was made to the court.

       {¶15} Appellant has not demonstrated had counsel argued for a community

control sanction, the request would have been granted. The court noted Appellant’s

lengthy criminal history, particularly of “assaultive-type violent crime.” Tr. 41. The record
«Court» County, Case No. «Case_No»                                                       7


is replete with references to Appellant’s desire to be sentenced to prison rather than

community control on the underlying case, and he demonstrated an intention to not

comply with the terms of community control nearly from the beginning of his sentence in

April of 2017. In fact, when asked if he had the opportunity to work with Appellant, his

probation officer Dan Myers testified, “I had an opportunity for him to be on my case load.

I wouldn’t characterize it as being working with him.” Tr. 6-7. We find counsel was not

ineffective in failing to seek a further community control sanction, and instead attempting

to mitigate the length of the prison sentence imposed in this case.

      {¶16} The second assignment of error is overruled.

      {¶17} The judgment of the Richland County Common Pleas Court is affirmed.




By: Hoffman, P.J.

Baldwin, J. and

Wise, Earle, J. concur
«Court» County, Case No. «Case_No»   8
