[Cite as State v. Wheeler, 2015-Ohio-3231.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                  Nos. 102182 and 102183



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLANT

                                                 vs.

                            CHRISTOPHER WHEELER
                                                       DEFENDANT-APPELLEE




                                              JUDGMENT:
                                               AFFIRMED


                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-10-554786-A and CR-11-553368-A


                 BEFORE: Celebrezze, A.J., E.T. Gallagher, J., and Laster Mays, J.

                 RELEASED AND JOURNALIZED: August 13, 2015
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Frank Romeo Zeleznikar
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., A.J.:

          {¶1} Plaintiff-appellant, the state of Ohio (“the state”), appeals from the judgment

of the trial court, which found defendant-appellee Christopher Wheeler (“Wheeler”) in

violation of his community control sanctions and denied the prosecutor an opportunity to

represent the state and be heard at the hearing. For the reasons set forth below, we

affirm.

          {¶2} We granted the state’s motion to supplement the record with the trial court’s

standing order. The trial judge’s standing order sets forth the following after citing to

various statutes and case law:

                As the prosecution is not entitled to notice of probation violation
        hearings, it will not receive notice either from the Court or from the
        Probation Department. However, the Prosecutor can check the Desk Book
        which is open to the Prosecutor or the docket for scheduled probation
        violation hearings as has been customary in Cuyahoga County Common
        Pleas Court. The hearings are public and the Prosecutor is entitled to attend
        each hearing.
        At all future probation violation hearings in this case or any other case, should the
prosecutor desire to bring to the attention of the Court or the Probation Department acts
that may be a probation violation, it may do so. Since the State is represented by the
Probation Department, the prosecutor is not inherently entitled to speak at a Probation
hearing. In the event the Prosecutor’s Office desires to speak at a hearing, it may only do
so with leave of Court. A Request for Leave to be Heard shall be filed no later than 2
days before the scheduled probation revocation hearing and shall include any evidence
and witnesses supporting the claimed violations. Case specific statements as to the
violation shall be set forth in detail in a brief attached to the request. The Request for
Leave to be Heard shall be served on the Probation Department, Counsel for the
Defendant and the Defendant should the Defendant wish to proceed pro se, at least 2 days
prior to the hearing. Prior evidence and testimony received at the sentencing will not be
considered as it will be considered cumulative or repetitious.1

Very recently, this court addressed an identical challenge to this standing order in State v. Heinz, 8th Dist.
1
Thus, the standing order acknowledges: (1) that the state is represented by the probation department

during probation and parole violation hearings; (2) that the prosecutor is not inherently entitled to speak

at such hearings without leave of court; and (3) that the prosecutor’s office is not entitled to notice of

community control sanction hearings. This case arose out of the same trial judge’s enforcement of the

standing order at Wheeler’s community control violation hearing.

       {¶3} On March 24, 2011, Wheeler pleaded guilty to a charge of attempted verification of current

address, a felony of the fifth degree, in CR-10-554786-A, and was sentenced to 12 months of

community control with the following conditions: (1) complete 60 hours of community work service;

(2) submit to random drug testing; and (3) obtain and maintain verifiable employment.

               {¶4} On May 7, 2012, Wheeler pleaded guilty to a charge of attempted notice of

       change of address, a felony of the fourth degree, in CR-11-553368-A. On May 30, 2012,

       Wheeler was sentenced to 36 months of community control with the following

       conditions: (1) complete 200 hours of community work service; (2) submit to random

       drug testing; (3) obtain and maintain verifiable employment; and (4) complete the

       Thinking for a Change program. The court also held a community control violation

       hearing in CR-10-554786-A on the same date, and found that Wheeler had violated the

       conditions of his community control. The trial court continued Wheeler on community

       control with the additional condition that he perform 200 hours of community service.




Cuyahoga No. 102178, 2015-Ohio-2763. The following opinion falls squarely in line with the Heinz majority opinion.
The record does not reflect that a prosecutor was present for either the community control

violation hearing or the sentencing.

       {¶5} On February 22, 2013, the trial court found Wheeler in violation of the

conditions of his community control. Wheeler was continued on community control with

the additional condition that he complete 100 more hours of community service by June

30, 2013, and the remainder of his hours by December 31, 2014. Again, the record does

not indicate that a representative from the prosecutor’s office was present for the

community control violation hearing.

       {¶6} On September 4, 2013, Wheeler was once again found to be in violation of

his community control sanctions.        The trial court continued Wheeler on community

control, and ordered that he complete an additional 50 hours of community service and a

drug treatment program. The record does not denote the presence of a prosecutor’s

office representative at the hearing.

       {¶7} Yet again, the trial court found Wheeler to be in violation of his community

control sanctions on September 11, 2014. Wheeler was continued on community control

and was also required to complete: (1) 50 additional hours of community service; and (2)

a drug treatment and aftercare program. The hearing was continued until October 14,

2014, so that the trial court could be updated on Wheeler’s progress. Once again, the

record does not reflect that a representative from the county prosecutor’s office was

present at the hearing.
               {¶8} At the outset of the hearing on October 14, 2014, the trial judge, in accord

      with its standing order, recognized that the state was represented by the probation officer.

       Although the prosecutor did not attempt to comply with the trial court’s standing order

      by seeking leave of court prior to the hearing, the prosecutor stood in open court and

      asserted his right to be present and heard on behalf of the state at all probation violation

      hearings.    The trial court disagreed with the prosecutor’s assertion, and the hearing

      resumed. Wheeler was continued on community control until May 29, 2017, and was

      ordered to complete his community service and drug treatment program.

               {¶9} It is from these events that the state appeals and asserts one assignment of

      error for our review

               I. The trial court’s determination that the prosecuting attorney does not
               represent the state at community control violation hearings, and is therefore
               not a part to community control revocation hearings, is a violation of R.C.
               §309.08(A), due process, and the separation of powers doctrine.




                                        I. Statutory Authority

      {¶10} First, the state argues that R.C. 309.08 requires the prosecutor’s office to participate in

community control violation hearings because it is the state’s representative. Wheeler contends that

community control violation hearings are not matters to which the prosecutor’s office is an interested

party because R.C. 2929.15 authorizes the probation department to represent the state during these

proceedings.
      {¶11} “The primary rule of statutory construction is to give effect to the legislature’s intent.”

Cline v. Ohio Bur. Of Motor Vehicles, 61 Ohio St.3d 93, 97, 573 N.E.2d 77 (1991), citing Carter v.

Youngstown, 146 Ohio St. 203, 65 N.E.2d 63 (1946), paragraph one of the syllabus. Legislative intent

is found in the words and phrases of the statute “read in context according to the rules of grammar and

common usage.” State ex rel. Lee v. Karnes, 103 Ohio St.3d 559, 2004-Ohio-5718, 817 N.E.2d 76, ¶

21. Statutory language

      must be construed as a whole and given such interpretation as will give effect to every
      word and clause in it. No part should be treated as superfluous unless that is manifestly
      required, and the court should avoid that construction which renders a provision
      meaningless or inoperative.

D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 256, 773 N.E.2d 536 (2002),
citing State ex rel. Myers v. Bd. of Edn., 95 Ohio St. 367, 116 N.E. 516 (1917).

             {¶12}    We begin by examining the relevant statutes at issue in this case, R.C.

      309.08 and 2929.15. R.C. 309.08(A) states:

             The prosecuting attorney shall prosecute, on behalf of the state, all
             complaints, suits, and controversies in which the state is a party, except for
             those required to be prosecuted by a special prosecutor pursuant to section
             177.03 of the Revised Code or by the attorney general pursuant to section
             109.83 of the Revised Code, and other suits, matters and controversies that
             the prosecuting attorney is required to prosecute within or outside the
             county, in the probate court, court of common pleas, and court of appeals.

             {¶13} R.C. 2929.15(A)(2)(a) provides in pertinent part:

             If a court sentences an offender to any community control sanction * * * the
             court shall place the offender under the general control and supervision of a
             department of probation in the county that serves the court for purposes of
             reporting to the court a violation of any condition of the sanctions, any
             condition of release under a community control sanction imposed by the
             court, a violation of law, or the departure of the offender from this state
             without the permission of the court or the offender’s probation violation.
      {¶14} Finally, R.C. 2929.15(A)(2)(b) states that:

      [i]f the court imposing sentence upon an offender sentences the offender to
      any community control sanction * * * and if the offender violates any
      condition of the sanctions, any condition of release under a community
      control sanction imposed by the court, violates any law, or departs the state
      without the permission of the court or the offender’s probation officer, the
      public or private person or entity that operates or administers the sanction or
      the program or activity that comprises the sanction shall report the violation
      or departure directly to the sentencing court * * *.

      {¶15} A plain reading of these statutes reflects that the General Assembly did not

explicitly create a role for prosecutors in community control violation hearings. R.C.

2929.15(A)(2)(a) elucidates that the probation department has been given responsibility

over the general control and supervision of offenders placed on community control.

Moreover, R.C. 2929.15(A)(2)(b) clearly vests the probation department with authority to

initiate violation hearings by reporting community control violations to the trial court.

The statutes neither mention the prosecutor’s office nor explicitly contemplate a role for

prosecutors in community control violation hearings. The community control statutes are

completely devoid of any reference to the prosecutor’s office.

      {¶16} The state contends that community control violation hearings fall within the

purview of “complaints, suits, or controversies” under R.C. 309.08(A), and that the

prosecutor’s office should play a role. Initially, we note that the R.C.309.08(A) states

that the prosecutor’s office “shall prosecute” all complaints, suits, or controversies. By

virtue of this language, the statute confers a mandatory, rather than a discretionary,

obligation upon the prosecutor’s office. If we were to find that community control

violation hearings fall under R.C. 309.08 as a “controversy,” as the prosecutor’s office
would have us hold, prosecutorial intervention and participation would be required and

warranted at every violation hearing.

         {¶17} Furthermore, we believe that the state’s interests at these hearings are

sufficiently represented by the probation department because community control violation

hearings are not normally characterized as criminal proceedings. The United States

Supreme Court, the Ohio Supreme Court, this court, and our sister districts have

recognized that community control and parole revocation hearings are not criminal

proceedings. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656

(1973); State v. Ferguson, 72 Ohio App.3d 714, 716, 595 N.E.2d 1011 (3d. Dist.1991);

State ex rel. Coulverson v. Ohio Adult Parole Auth., 62 Ohio St.3d 12, 577 N.E.2d 352

(1991); State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St.3d 82, 661 N.E.2d 728

(1996); State v. Parsons, 2d Dist. Greene No. 96 CA 20, 1996 Ohio App. LEXIS 4957

(Nov. 15, 1996); In re Bennett, 8th Dist. Cuyahoga No. 71121, 1997 Ohio App. LEXIS

2546 (June 12, 1997); State v. Hayes, 8th Dist. Cuyahoga No. 87642, 2006-Ohio-5924, ¶

11; State v. Lenard, 8th Dist. Cuyahoga No. 93373, 2010-Ohio-81, ¶ 14. Moreover, the

United States Supreme Court has acknowledged that “[i]n a revocation hearing, the State

is represented, not by a prosecutor, but by a parole [probation] officer * * *.” Gagnon,

411 U.S. 778 at 789. The trial court relied on this precedent when issuing its standing

order.

         {¶18} Traditionally, probation and parole revocation proceedings have been

characterized as informal hearings due to the absence of formal procedures and rules of
evidence, and the reduced quantum of evidence necessary to establish a violation. See

Gagnon, 411 U.S. 778 at 789; Lenard, 2010-Ohio-81 at ¶ 11. These proceedings are

regularly presided over by a neutral and detached hearing body, such as the trial court,

which is charged with the responsibility of determining whether or not the offender’s

reported conduct violated the conditions of community control. Morrissey v. Brewer,

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

      {¶19} Therefore, because the statutes do not provide for a prosecutor’s

participation, and because community control violation proceedings are not criminal

proceedings, we hold that the trial court’s standing order does not violate Ohio law. The

state is adequately represented by the probation department in community control

violation and revocation hearings.

      {¶20} However, this is not to say that the prosecutor’s office will never be able to

participate in community control violation hearings. We acknowledge that there will be

instances where an offender already on community control will commit an indictable

offense that will also constitute a community control violation.             Under those

circumstances, we believe that the probation department, pursuant to R.C.

2929.15(A)(2)(b), would be responsible for reporting the community control violation to

the court, and that the prosecutor’s office would be entitled to prosecute the offender for

the new crime under R.C. 309.08(A).           The trial court’s standing order clearly

contemplates this situation because it does not prohibit a prosecutor’s ability to file an

indictment for the commission of the new offense.
       {¶21} Moreover, we also recognize that in some cases the prosecutor’s office may

have new, valuable, or essential information to contribute to a community control

violation proceeding.     Again, the trial court’s standing order provides for such an

occasion, and permits the prosecutor to be heard by filing a request for leave of court no

later than two days before the scheduled hearing.          Additionally, the standing order

requires a detailed explanation of the violation to be attached to the brief.

       {¶22} The state urges us that a case from another Ohio district, State v. Young, 154

Ohio App.3d 609, 2003-Ohio-4501, 798 N.E.2d 629 (3d Dist.), supports its contention

that the prosecutor’s office is required to participate in community control violation

proceedings. In Young, the defendant was convicted of driving while under the influence

and was placed on community control. Id. at ¶ 2. Later, the defendant was released

from many of his community control conditions, but was ordered not to violate the law or

leave the state without permission. Id. While these conditions were still in effect, the

defendant was indicted for misdemeanor driving while under suspension and felony

driving while under the influence. Id. at ¶ 3. Subsequently, the prosecutor filed a

pleading with the trial court, indicated that there had been a probation violation, and

requested a hearing on the issue. Id. at ¶ 4. The trial court issued an order and asserted

that the prosecutor’s office had no authority to initiate community control violation

proceedings.    Id.   The Third District held that R.C. 2929.15 does not prohibit the

prosecutor from initiating revocation proceedings. Id. at ¶ 8.
       {¶23} We believe that the facts of Young are inapposite to this case. The Young

prosecutor sought to participate in a community control violation hearing subsequent to

the defendant’s commission of a felony and new indictment. The prosecutor’s duties

under R.C. 309.08(A) were implicated by virtue of the new, indictable offense.

Moreover, unlike in this case, Young involved the initiation of community control

hearings, not the right of the prosecutor to represent the state at a community control

violation hearing. Here, the October 14, 2014 hearing was not held because Wheeler had

committed a new, indictable offense; it was held to update the court on Wheeler’s

progress. Further, to the extent we are aware, this prosecutor was not asserting a right to

participate on behalf of the state in order to bring a purported violation or vital

information to the court’s attention. Thus, the state’s reliance on Young is incorrect.

       {¶24} Finally, insofar as the prosecutor argues that the trial court abused its

discretion by promulgating and adhering to the standing order in this case, we disagree.

An abuse of discretion connotes more than an error of judgment; it implies that the trial

court’s attitude was arbitrary, unreasonable, or unconscionable.             Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). The standing order does

not prohibit prosecutors from attending or speaking; it merely serves as a guideline for

when and how prosecutors may participate. Moreover, the standing order thoroughly

details the statutes and precedent upon which it is based. Thus, we cannot say that the

trial court abused its discretion in this case by adhering to its standing order because the

order comports with Ohio law.
                                        II. Due Process

          {¶25} The state also contends that the trial court’s standing order is a violation of

due process. Specifically, the state posits that the standing order denies the prosecutor’s

office an opportunity to be heard. We disagree. In Avon Lake City School Dist. v.

Limbach, 35 Ohio St.3d 118, 121, 518 N.E.2d 1190 (1988), the Ohio Supreme Court

stated:

          [A] political subdivision may not invoke the protection provided by the
          Constitution against its own state and is prevented from attacking the
          constitutionality of state legislation on the grounds that its own rights had
          been impaired. While there may be occasions where a political subdivision
          may challenge the constitutionality of state legislation, it is not entitled to
          rely upon the protections of the Fourteenth Amendment. A political
          subdivision * * * receives no protection from the Equal Protection or Due
          Process Clauses vis-a-vis its creating state.

          {¶26} Relying on the Ohio Supreme Court’s rationale in Avon Lake, this court, and

other courts in this state, have reasoned that “the state is the entity which must provide

due process; it has no right of due process from itself. Therefore, it cannot claim a

constitutional right to notice.” (Emphasis sic.) State v. Mayo, 8th Dist. Cuyahoga No.

80216, 2002 Ohio App. LEXIS 2075, *5-6, fn. 1 (Apr. 24, 2002) , citing State v.

Hartikainen, 137 Ohio App.3d 421, 425, 738 N.E.2d 881 (6th Dist. 2000), citing 19

Ohio       Jurisprudence    3d, Counties, Townships and Municipal Corporations, Section

27 (1980).

          {¶27} R.C. 2743.01(B) defines “political subdivisions” as “municipal corporations,

townships, counties, school districts, and all other bodies corporate and politic responsible

for governmental activities only in geographic areas smaller than that of the state to which
the sovereign immunity of the state attaches.” The Cuyahoga County prosecutor’s office,

as a county office, is by definition a political subdivision. Thus, the prosecutor’s office

is not entitled to invoke the protections of due process because, as a division of the state,

it has no standing to assert a due process violation against itself.

                                III. Separation of Powers

       {¶28} Finally, the state contends that the trial court’s standing order violates the

separation of powers doctrine.        Specifically, the state argues that the doctrine of

separation of powers has been violated because the General Assembly has entrusted the

probation department with both judicial and executive authority. We disagree.

       {¶29} The Ohio Supreme Court has consistently reiterated that the doctrine of

separation of powers is “implicitly embedded in the entire framework of those sections of

the Ohio Constitution that define the substance and scope of powers granted to the three

branches of government.” State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 134, 729

N.E.2d 359 (2000), quoting S. Euclid v. Jemison, 28 Ohio St.3d 157, 158-159, 503

N.E.2d 136 (1986). The long-established rule in Ohio regarding the separation of powers

doctrine is that “powers properly belonging to one of the departments ought not to be

directly and completely administered by either of the other departments, and further that

none of them ought to possess directly or indirectly an overruling influence over others.”

Id., quoting State ex rel. Bryant v. Akron Metro. Park Dist., 120 Ohio St. 464, 473, 166

N.E. 407 (1929).
       {¶30} We believe that the General Assembly was within the ambit of its legislative

authority when it vested the probation department with the responsibility of supervising

offenders placed on community control and for reporting community control violations to

the trial court. We fail to understand, and the state fails to adequately explain, how the

probation department intrudes upon executive authority by reporting violations to the trial

court and by supervising offenders placed on judicial supervision.

                                     IV. Conclusion

       {¶31} In sum, we find that the trial court’s standing order, which acknowledges the

probation department as the state’s representative during community control violation

hearings, comports with Ohio law and also adequately provides for the prosecutor’s

office’s participation in limited circumstances. Moreover, the trial court did not abuse its

discretion by adhering to the standing order given the facts and circumstances of this

case. Furthermore, the prosecutor’s office is not entitled to notice and an opportunity to

be heard under due process because the state has no right of due process from itself.

Finally, we do not believe the General Assembly has violated the separation of powers

doctrine by delegating the responsibility of supervising offenders and reporting violations

to the probation department. Thus, the state’s sole assignment of error is overruled.

       {¶32} Judgment affirmed.

       It is ordered that appellee recover from appellant 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

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

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR
