[Cite as State v. Waddell, 2014-Ohio-4829.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                   No. 14AP-372
v.                                               :           (C.P.C. No. 13CR-4123)

Ebony M. Waddell,                                :        (REGULAR CALENDAR)

                 Defendant-Appellant.            :



                                         D E C I S I O N

                                    Rendered on October 30, 2014


                 Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
                 appellee.

                 Meeks & Thomas Co., LPA, and David H. Thomas, for
                 appellant.

                  APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.
        {¶ 1} Ebony M. Waddell, defendant-appellant, appeals the judgment of the
Franklin County Court of Common Pleas in which the court revoked her probation.
        {¶ 2} Appellant was indicted on one count of felonious assault after stabbing her
boyfriend with a knife. The court ordered a mental examination and found appellant
suffered from mental illness but was competent. On November 4, 2013, appellant pled
guilty to one count of attempted felonious assault, and the court sentenced her to
community control with requirements that appellant undergo drug screens, participate in
a drug-treatment program, and continue taking her medications. Although appellant
entered a drug-treatment program, she failed two subsequent drug tests within 12 days of
No. 14AP-372                                                                            2

being placed on community control, prompting her probation officer to file a request for
revocation of community control.
       {¶ 3} On April 4, 2014, the court held a probation revocation hearing. Appellant's
counsel stipulated to the probation violations. Appellant's counsel also requested another
competency evaluation, which the trial court denied. On April 7, 2014, the trial court
revoked appellant's probation and sentenced her to a two-year prison term. Appellant
appeals the judgment, asserting the following assignment of error:
               DEFENDANT-APPELLANT'S COUNSEL WAS INEFFEC-
               TIVE IN ADVOCATING FOR THE DEFENDANT BY
               FAILING TO REQUEST A SECOND, FINAL PROBATION
               REVOCATION HEARING, AND FAILING TO PRESENT
               MITIGATION EVIDENCE IN SUPPORT OF HER
               CONTINUANCE ON PROBATION; AND THUS, THESE
               SERIOUS    ERRORS   PREJUDICED    DEFENDANT-
               APPELLANT BY DEPRIVING HER OF HER RIGHT TO
               EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR
               HEARING UNDER THE SIXTH AND FOURTEENTH
               AMENDMENTS TO THE UNITED STATES CONSTITUTION
               AND COMPARABLE PROVISIONS OF THE OHIO
               CONSTITUTION.

       {¶ 4} Appellant argues in her assignment of error that her counsel provided
ineffective assistance.     The Sixth Amendment to the United States Constitution
guarantees a criminal defendant the effective assistance of counsel.         McMann v.
Richardson, 397 U.S. 759, 771 (1970). Courts employ a two-step process to determine
whether the right to effective assistance of counsel has been violated. Strickland v.
Washington, 466 U.S. 668, 687 (1984). First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance prejudiced
the defense. This requires showing that counsel's errors were so serious as to deprive the
defendant of a fair trial. Id.
       {¶ 5} An attorney properly licensed in the state of Ohio is presumed competent.
State v. Lott, 51 Ohio St.3d 160, 174 (1990). The defendant has the burden of proof and
must overcome the strong presumption that counsel's performance was adequate or that
counsel's action might be sound trial strategy. State v. Smith, 17 Ohio St.3d 98, 100
No. 14AP-372                                                                              3

(1985).     In demonstrating prejudice, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of the trial would
have been different. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the
syllabus.
       {¶ 6} In the present case, appellant presents four instances of alleged ineffective
assistance of counsel: (1) counsel failed to detail his problems with the previous
competency evaluation, (2) counsel failed to outline appellant's current mental state and
her ability to comprehend the proceedings, (3) counsel failed to request a second, final
probation revocation hearing, and (4) counsel failed to present any mitigation evidence.
With regard to the first argument that trial counsel was ineffective because he failed to
detail his concerns about the previous competency evaluation, our review of the record
reveals that trial counsel requested another competency evaluation but the trial court
denied such. Trial counsel told the trial court only that he had "issues" and took some
"exceptions" to the initial competency evaluation, so we lack any record to determine the
merits of his concerns. Nevertheless, the trial court cited its reasons for denying the
request for another evaluation, and it appears unlikely that counsel's argument would
have persuaded the trial court to grant the request. The trial court stated that it believed
counsel's request for another competency evaluation at the April 4, 2014 hearing was
"inappropriate," apparently on the basis that appellant was already found competent at a
recent November 4, 2013 hearing. The trial court summarized its actions in the case. The
court explained that appellant requested a competency evaluation, the court granted it to
her, she was evaluated, found competent, entered a plea of guilty, and the court placed her
on probation. The underlying tenor of the court's decisive denial was that it had already
agreed once to assess appellant's competency, and it was not going to revisit the issue so
soon after the first evaluation. We fail to find that the outcome would have been different
had trial counsel expounded on his reasons for wanting a second competency finding in
six months.
       {¶ 7} In her second argument, appellant argues that her trial counsel was
ineffective when he failed to outline appellant's current mental state and her ability to
comprehend the proceedings. However, as mentioned, the trial court denied appellant's
request for a second competency evaluation decisively due to the recentness of the prior
No. 14AP-372                                                                              4

competency evaluation, and the court was unlikely to be persuaded by any argument that
appellant's competency had changed in such a short time period. Furthermore, insofar as
appellant may be arguing that defense counsel failed to discuss her mental health issues at
any time before the trial court, such is untrue. The record reveals that appellant's counsel
did inform the court that appellant was taking medication, had a couple of diagnoses
mainly based on schizophrenia, and was doing better on the medication she had been
taking in jail during the mitigation phase of the trial. For these reasons, we find this
argument without merit.
       {¶ 8} In her third argument, appellant contends her trial counsel should have
requested a second, final revocation hearing. Revocation of probation implicates two due
process requirements.     The first requirement is a preliminary hearing to determine
whether there is probable cause to believe that the defendant has violated the terms of his
probation. Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471
(1972). In this case, there was a hearing, and appellant conceded that probable cause
existed for the probation violation.
       {¶ 9} 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 (10th Dist.1988),
citing Gagnon at 784-86. The purpose of the final revocation hearing is to give the
defendant "an opportunity to be heard and to show" that he either did not violate his
conditions or that certain mitigating circumstances "suggest that the violation does not
warrant revocation." Morrissey at 488.
       {¶ 10} There was no due process violation in this case. The trial court here appears
to have intended to hold both a preliminary probable cause hearing and a final revocation
hearing in a consolidated hearing. The trial court stated at the commencement of the
hearing that it was a "first hearing" and then asked appellant's counsel whether appellant
wished to stipulate to probable cause and schedule the matter for a full hearing on a later
date. After consulting with appellant, trial counsel indicated that appellant wished to
stipulate to probable cause. Appellant also stipulated that she violated the terms of
community control, which would normally be a determination made by the court during
the final revocation hearing. The trial court then asked whether appellant desired to offer
No. 14AP-372                                                                               5

anything in mitigation, which would also be part of the final revocation hearing, and
appellant's counsel proceeded to do so. Thus, the trial court held the two hearings serially
in one consolidated hearing, which is not unusual for courts to do, particularly when the
defendant stipulates to violations of community control. See, e.g., State v. Marvin, 134
Ohio App.3d 63 (3d Dist.1999) (after appellant admitted his violation to the trial court
just after commencement of the hearing, the court proceeded to address issues relevant to
the final revocation hearing); State v. Brown, 7th Dist. No. 10 MA 34, 2010-Ohio-6603
(after appellant stipulated to probable cause for the violations and openly admitted that
he committed the violations, the trial court proceeded directly to the final revocation
hearing); State v. Hammonds, 10th Dist. No. 06AP-1122, 2007-Ohio-4456 (after the
defendant stipulated to probable cause and admitted to community control violations, the
trial court proceeded to the mitigation phase of the proceedings); State v. Wilhite, 3d Dist.
No. 14-06-16, 2007-Ohio-116 (after appellant admitted to a violation of community
control and defense counsel requested a second revocation hearing, the trial court
indicated that it never holds two separate revocation hearings).
       {¶ 11} This court has found that "[t]here is authority in Ohio * * * that this
requirement for a two-step procedure does not mandate two separate hearings held on
different dates." Columbus v. Kostrevski, 10th Dist. No. 92AP-1257 (Feb. 23, 1993), citing
State v. Miller, 45 Ohio App.2d 301 (3d Dist.1975). In Kostrevski, we acknowledged the
holding in Miller that the need to establish probable cause in the first step, and then to
determine in the second step whether the violation should result in revocation of
probation, does not necessarily require an interval of time between the two steps. Id.
Finding no prejudice to the defendant in Kostrevski, the court rejected her contentions
that combining the procedure into a single hearing violated her due process rights. Id.
       {¶ 12} Regardless, a trial court's revocation of probation without holding two
separate hearings will be reversed only if the defendant was prejudiced by such. See
Miller at 306 (the judgment of a trial court revoking probation will not be reversed where
two separate hearings have not been held unless it appears from the record that the
defendant was prejudiced). Here, we fail to find appellant suffered any prejudice by the
trial court's actions, and appellant fails to allege any. Appellant's positive drug screens
were clearly violations of the terms of her community control, and she admitted to the
No. 14AP-372                                                                                6

violations. We cannot discern what advantage appellant would have gained by delaying
the revocation hearing. Appellant's counsel did not indicate he was unprepared to move
forward with the final revocation hearing, and he presented an argument in mitigation
that included references to appellant's mental health issues.        See Marvin at 69 (no
prejudice when trial court held a single hearing on the community control violation
because the defendant admitted his violation to the court just after commencement of the
hearing, and the defendant was given the opportunity to offer evidence in mitigation of
punishment); State v. Brown, 2d Dist. No. 25342, 2013-Ohio-2756 (trial court did not err
when it failed to hold two hearings when the defendant admitted a probation violation,
and there was no prejudice); Hammonds at ¶ 15 (given the stipulations to the community
control violations, the lack of any indication that defense counsel was unprepared and
that the defendant's counsel spoke in mitigation, the defendant could demonstrate no
prejudice, and it was not inappropriate for the court to consolidate the proceedings into a
single hearing); Wilhite at ¶ 9 (no prejudicial error for trial court to hold one consolidated
hearing when defense counsel stipulated to the probation violation, defense counsel
indicated he was prepared to go forward with the final revocation hearing, and defense
counsel made specific statements in mitigation). Thus, because we find no prejudice as a
result of the trial court holding one consolidated hearing, we cannot find appellant's
counsel was ineffective.
       {¶ 13} Furthermore, insofar as appellant might argue that her counsel was
ineffective in stipulating to the violations, it appears from the hearing transcript that
defense counsel consulted appellant before informing the trial court that appellant wished
to stipulate to the violations. Nevertheless, defense counsel's stipulation to the violations
of the community control terms could have been sound trial strategy. As explained, the
violations were for drug usage, and the results were based on urine screens. Therefore,
the screening results were clear and without apparent basis to contest, and any argument
that appellant did not violate the terms of her community control may have been
interpreted by the trial court as an obstinate refusal to accept responsibility for her
actions. Thus, trial counsel's actions fall under the wide range of sound trial strategy. See
Brown, 2010-Ohio-6603, at ¶ 18 (in probation revocation proceedings, it was not
ineffective assistance for counsel to opt to stipulate to the probation violation and
No. 14AP-372                                                                            7

concentrate on presenting mitigating circumstances to try and minimize the penalty).
Thus, this argument is without merit.
       {¶ 14} With regard to the fourth argument that trial counsel failed to present any
mitigation evidence, the record reveals that trial counsel did present a mitigation
argument. Trial counsel explained to the court that appellant had only participated in
drug counseling for a very brief period, with her first drug screen coming back positive.
Counsel argued that the court should continue appellant on community control because
she had not been given an opportunity to participate in drug counseling for a reasonable
time. Counsel also asserted that appellant should continue on community control to
allow her to continue to take her medication to treat her mental health issues, including
schizophrenia, because she had been doing much better since she had recently started
taking her medication. Furthermore, it is notable that appellant violated her probation by
using marijuana, and her presentence investigation indicated that appellant had used
marijuana for many years. Thus, it does not appear that appellant's use of marijuana at
the time of the probation violation was due to a change in her competency since the prior
evaluation but, rather, was a long standing habit. Therefore, because trial counsel did
present evidence in mitigation, we find appellant's contention without merit. For the
foregoing reasons, we find appellant was not provided ineffective assistance of counsel.
Appellant's assignment of error is overruled.
       {¶ 15} Accordingly, appellant's assignment of error is overruled, and the judgment
of the Franklin County Court of Common Pleas is affirmed.
                                                                     Judgment affirmed.

                     CONNOR and LUPER SCHUSTER, JJ., concur.
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