[Cite as State v. Davis, 2016-Ohio-879.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




STATE OF OHIO,                                   :
                                                        CASE NOS. CA2015-09-081
        Plaintiff-Appellee,                      :                CA2015-09-082

                                                 :              OPINION
    - vs -                                                       3/7/2016
                                                 :

RANDY T. DAVIS,                                  :

        Defendant-Appellant.                     :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 10 CR 26980



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Timothy J. McKenna, 125 East Court Street, Suite 950, Cincinnati, Ohio 45202, for
defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Randy Davis, appeals from a decision in the Warren

County Court of Common Pleas revoking his community control and imposing a prison term.

For the reasons detailed below, we affirm.

        {¶ 2} Davis was convicted of trafficking in heroin in 2010 and sentenced to three

years of community control. A community control violation was later filed against Davis in

2012 after he was arrested for domestic violence and violation of a temporary protection
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order. Davis was separately indicted for the felony domestic violence offense and later pled

guilty to the domestic violence charge and to the community control violation with respect to

the heroin trafficking case. Ultimately, the trial court continued community control in the

trafficking case and placed Davis on three years community control in the domestic violence

case. As a condition of his community control, Davis was ordered to successfully complete

an in-patient mental health program.

       {¶ 3} In October 2014, another community control violation was reported and filed

against Davis alleging that he had violated the terms of his community control after he was

arrested for criminal damaging.       Davis admitted the violation and was continued on

community control.

       {¶ 4} Subsequently, in August 2015, Davis received another community control

violation involving allegations that he was convicted of drug abuse, testing positive for the

synthetic drug "spice," and having unauthorized contact with law enforcement by serving as a

confidential informant without court approval.

       {¶ 5} The trial court held a final hearing on the community control violations. Initially,

Davis' counsel indicated that Davis intended to admit to the violations. However, Davis later

indicated that he wished to plead "not guilty by reason of insanity" because he didn't

understand what was happening, he was using drugs at the time, and had "50,000 things

going through my head right now." Davis' counsel moved for a competency evaluation, which

the trial court denied.

       {¶ 6} Following a hearing, the trial court determined that Davis had violated the terms

of his community control and imposed a sentence of 16 months on the trafficking in heroin

case and ten months on the domestic violence case and ordered that those sentences be

served concurrently. Davis now appeals this decision, raising two assignment of error for

review.
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         {¶ 7} Assignment of Error No. 1:

         {¶ 8} THE TRIAL COURT ABUSED IT'S [sic] DISCRETION IN DENYING THE

DEFENDANT'S MOTION FOR COMPETENCY AND FOR HAVING A HEARING WHEN THE

DEFENDANT WAS INCOMPETENT.

         {¶ 9} In his first assignment of error, Davis argues the trial court erred by denying his

motion for a competency hearing during his probation revocation hearing. We disagree.

         {¶ 10} "Although a revocation proceeding must comport with the requirements of due

process, it is not a criminal proceeding." State v. Payne, 12th Dist. Warren No. CA2001-09-

081, 2002-Ohio-1916; State v. Mullins, 12th Dist. Butler Nos. CA2011-10-195 and CA2011-

10-196, 2012-Ohio-5005, ¶ 9. Not all protections afforded in a criminal trial apply to

revocation proceedings. Payne at ¶ 15. For example, the Ohio Rules of Evidence do not

apply, Evid.R. 101(C)(3), there is no right to a jury trial, and the privilege against self-

incrimination is not available to a probationer. Id. In addition, the decision whether to grant a

hearing on competency at a revocation hearing is within the sound discretion of the trial

court, and must be determined on a case-by-case basis.               State v. Brank, 5th Dist.

Tuscarawas No. 2006AP090053, 2007-Ohio-919, ¶ 44, citing State v. Qualls, 50 Ohio

App.3d 56 (10th Dist.1988); State v. Bell, 66 Ohio App. 3d 52, 57 (5th Dist.1990) (finding the

trial court did not abuse its discretion in denying a competency hearing and noting that a

"probation revocation proceeding is not a stage of a criminal prosecution").

         {¶ 11} In the present case, Davis did not request a competency hearing until after the

revocation hearing had begun. Prior to the request, Davis' counsel indicated to the court that

Davis was prepared to enter an admission to the violations. However, Davis changed his

mind and stated that he was "going to plead insanity on this, because it's not right."

Furthermore Davis indicated "I don't understand how you're all doing this. I don't understand

it at all."
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       {¶ 12} When the trial court explained that the proceeding was a final probation

violation hearing, Davis stated that he understood. In explaining the procedures further, the

trial court stated:

                THE COURT: What that means is, is that here in a minute, Mr.
                Harris is going to present some evidence to me as to whether or
                not you violated the terms of your community control in both of
                these cases. After he calls that witness to the stand, that witness
                is going to testify. [Defense Counsel] has the ability to ask that
                witness questions if he wants to and then after I hear that
                witness, if you want to present some evidence on your own
                behalf that you did not violate the terms of your community
                control, you can do that.

                ***

                DEFENDANT DAVIS: I understand that.

Subsequently, the trial court denied Davis' request for a competency hearing. Later,

Davis stated:

                DEFENDANT DAVIS: I don't know, I took a lot of drugs today
                and I just don't understand. I mean, I understand what you're
                saying, because - - but there's like 50,000 things going through
                my head right now. I don't - - I don't know what to say.

       {¶ 13} Upon review of the record, the trial court did not abuse its discretion in denying

Davis' request for a competency hearing. Here, the record is clear that after Davis stated that

he did not "understand how you're all doing this," the trial court explained the proceeding and

the procedures going forward. Thereafter, on two separate occasions, Davis stated that he

understood. Simply, the trial court could properly determine whether the situation warranted

further investigation into Davis' competency. Absent Davis' self-serving statements, there is

no evidence warranting further investigation into Davis' competency. The record does not

support Davis' contention that he was incompetent and the decision by the trial court was not

an abuse of discretion. Accordingly, Davis' first assignment of error is without merit and

overruled.


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       {¶ 14} Assignment of Error No. 2:

       {¶ 15} THE RECORD DOES NOT SUPPORT THE SENTENCE IMPOSED BY THE

COURT, AND THE COURT ABUSED ITS DISCRETION IN SENTENCING THE

APPELLANT TO PRISON.

       {¶ 16} In his second assignment of error, Davis alleges the trial erred by imposing a

16-month prison sentence because the trial court "did not balance the mitigating factors with

the aggravating circumstances" and "did not take into account the fact that [Davis] had a

mental illness." We find Davis' argument to be without merit.

       {¶ 17} "[C]ommunity control revocation proceedings are not the same as a criminal

trial, and a revocation of community control punishes the failure to comply with the terms and

conditions of community control, not the specific conduct that led to the revocation." State v.

Artz, 2d Dist. Champaign No. 2014-CA-34, 2015-Ohio-3789, ¶ 11. Upon revoking community

control, the trial court may (1) lengthen the term of the community control sanction; (2)

impose a more restrictive community control sanction; or (3) impose a prison term on the

offender, provided that the prison term is within the range of prison terms available for the

offense for which community control had been imposed and the term does not exceed the

prison term specified in the notice provided to the offender at the original sentencing hearing.

R.C. 2929.15(B). A "trial court has significant discretion in sentencing a defendant for a

community control violation, so long as it is consistent with the purposes and principles of

sentencing and with notification provided by the trial court when imposing the community

control sanctions." Artz at ¶ 11; State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 20

(stating that a trial court has "a great deal of latitude in sentencing" an offender for a

community control violation).

       {¶ 18} In the present case, Davis was placed on community control following his

trafficking in heroin and domestic violence convictions. The judgment entries imposing
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community control in both cases expressly stated that the trial court had considered the

principles and purposes of sentencing under R.C. 2929.11 and balanced the seriousness

and recidivism factors under R.C. 2929.12. Additionally, in revoking Davis' community

control, the trial court provided ample reasons for imposing a prison term, including a detailed

explanation of the issues involved in Davis' case.

              THE COURT: Mr. Davis, the problem that I have in this case,
              couple of problems I have in this case. First of all, we've had
              numerous violations in this. Not only the violations that we've
              talked about today. We've had some technical violations. Officer
              Hogg and I have staffed this case periodically over the time that
              you've been on probation with me and it's always been my
              position Mr. Davis, to try to manage you to the best of my ability
              in the community and I acknowledge what [defense counsel] is
              saying, which is we do not need our prisons filled up with folks
              who have mental health issues. We've tried in-patient treatment.
              We've tried everything we can do in this case that I can think of
              Mr. Davis to try to manage you in the community.

              DEFENDANT DAVIS: I do know that.

              THE COURT: And, Mr. Davis, the fact that you've picked up new
              felony charges, while you were on probation with me - - you
              worked with the TASK Force, which is completely inconsistent
              with what I do on probation, put you in touch with people, having
              you go into the community, having you lie to people, being
              around people and I think we talked about this at your
              preliminary violation hearing, Mr. Davis. You know that's not
              good for you. You need to get away from those influences, you
              need to get away from those substances and you need to get
              away from those people. But, you did that in your misdemeanor
              case, which I don't think it's appropriate for me to give you credit
              or mitigation as [defense counsel] said twice. You've got felony
              charges knocked down to misdemeanors in Lebanon Municipal
              Court for what you did and that's not in front of me. Maybe that
              was appropriate in that case. Maybe it wasn't, I don't know, but it
              is not constructive moving forward Mr. Davis to try to continue
              you on community control.

              I think to continue you back in the community, to return you to
              the community, on probation, is not consistent with the purposes
              and principals of sentencing. It would seriously demean not only
              what you did in this case, but your behavior on probation. I am
              going to sentence you * * * in those two cases.


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       {¶ 19} Contrary to Davis' argument on appeal, the trial court did balance the

appropriate factors in deciding to impose a term of incarceration. See, e.g., State v. Carlton,

2d Dist. Montgomery No. 26086, 2014-Ohio-3835, ¶ 20 (affirming the revocation of

community control and imposing a prison term).           As the trial court noted, Davis had

repeatedly violated the terms of his community control and had been given ample opportunity

to correct his behavior. While the trial court noted Davis' mental illness, and its feelings on

incarcerating the mentally ill, the trial court nevertheless found that the imposition of a prison

term was appropriate and to continue the imposition of community control would not be

"consistent with the purposes and principals of sentencing."           As such, Davis' second

assignment of error is without merit and accordingly overruled.

       {¶ 20} Judgment affirmed.


       M. POWELL, P.J., and HENDRICKSON, J., concur.




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