[Cite as State v. Brown, 2015-Ohio-468.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 8-14-04

        v.

DEWAYNE L. BROWN,                                       OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR 13-06-0165

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: February 9, 2015




APPEARANCES:

        Marc S. Triplett and Jacob A. Estes for Appellant

        Eric C. Stewart for Appellee
Case No. 8-14-04


        {¶1} Defendant-appellant Dewayne L. Brown (“Brown”) appeals the

March 7, 2014 judgment of the Logan County Common Pleas Court revoking

Brown’s community control and sentencing Brown to serve twelve months in

prison for Trafficking in Heroin in violation of R.C. 2925.03(A)(1), a felony of the

fifth degree.

        {¶2} The facts relevant to this appeal are as follows. On July 9, 2013,

Brown was indicted for one count of Trafficking in Heroin in violation of R.C.

2925.03(A)(1), a felony of the fifth degree. (Doc. 5).

        {¶3} On July 22, 2013, Brown was arraigned and pled not guilty to the

charge. (Doc. 13).

        {¶4} On October 7, 2013, a change of plea hearing was held. At the

hearing, the parties announced that the State and Brown had entered into a written

negotiated plea agreement wherein Brown agreed to plead guilty to the charge as

indicted in exchange for the State dismissing another separate criminal case.

(Doc. 20).      Brown was then advised of his rights by the trial court and he

knowingly, intelligently, and voluntarily entered a guilty plea to Trafficking in

Heroin in violation of R.C. 2925.03(A)(1), a felony of the fifth degree. Brown

was subsequently found guilty by the trial court and sentencing was set for a later

date.




                                        -2-
Case No. 8-14-04


      {¶5} On November 18, 2013, a sentencing hearing was held.             At the

hearing, the State recommended that Brown be sent to prison based on a prior

history of felony drug offenses. Brown’s attorney recommended that Brown be

placed on community control. (Nov. 18, 2013, Tr. at 3). After hearing the

arguments of the parties Brown was sentenced to five years of community control.

As a condition of Brown’s community control, Brown was ordered to enroll in the

West Central Community Correctional Facility for a residential program for up to

6 months. Brown was required to successfully complete the program. In addition,

Brown was advised that if he violated his community control sanctions the court

could impose more restrictive sanctions or the court would impose a prison term

of twelve months.    (Doc. 27).   An entry reflecting this sentence was filed

November 27, 2013.

      {¶6} On February 4, 2014, the State filed a motion for Brown to show

cause why his community control should not be revoked on the basis that Brown

was “unsuccessfully terminated from West Central.” (Doc. 41).

      {¶7} On February 5, 2014, the trial court conducted a hearing on the motion

but as Brown appeared without counsel, the trial court continued the matter so

Brown could consult with the attorney who had previously represented him.

      {¶8} On February 10, 2014, the court held the hearing on the State’s motion

to revoke Brown’s community control. At the hearing, Officer Jeff Roman stated


                                      -3-
Case No. 8-14-04


to the court that the motion to revoke Brown’s community control had been filed

because Brown “was ordered prior in his sentencing under this docket to West

Central, and as a result when he went to West Central he was kicked out

unsuccessfully, so that brought him back and I PV’d him. So that’s why we’re

here today, Your Honor.” (Tr. at 3). Defense counsel then spoke on Brown’s

behalf informing the court that Brown “wasn’t kicked out; he quit. And I don’t

know exactly how they look at things over in West Central, but to [Brown] there’s

a distinction.” (Tr. at 4).

       {¶9} Officer Roman then gave the court an overview of the case, stating

that Brown entered the West Central facility on December 12, 2013, and remained

there until February 4, 2014, when he was unsuccessfully discharged. (Tr. at 5).

Next, Officer Roman narrated a list of Brown’s violations at West Central. After

Officer Roman finished his narration, the court asked Brown if he had anything he

wished to say and Brown said that he did not. (Tr. at 11).

       {¶10} At the conclusion of the hearing, the court revoked Brown’s

community control and imposed its reserved twelve month prison sentence. On

March 7, 2014, a judgment entry reflecting this sentence was filed. (Doc. 46).

       {¶11} It is from this judgment that Brown appeals, asserting the following

assignments of error for our review.




                                        -4-
Case No. 8-14-04


                   ASSIGNMENT OF ERROR 1
       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
       REVOKED APPELLANT’S COMMUNITY CONTROL.

                   ASSIGNMENT OF ERROR 2
       THE TRIAL COURT ERRED WHEN IT IMPOSED POST
       RELEASE CONTROL.

                             First Assignment of Error

       {¶12} In Brown’s first assignment of error, Brown makes various

arguments alleging that the trial court abused its discretion in revoking his

community control. Specifically, Brown argues that he did not admit to violating

community control, that the trial court did not advise him of his due process rights,

that the trial court violated Brown’s right to confront witnesses against him, that

the evidence did not support the trial court’s finding that Brown violated his

community control, and that Brown was denied effective assistance of counsel.

       {¶13} At the outset we would note that, “ ‘A community control revocation

hearing is not a criminal trial[.]’ ” State v. Parsons, 4th Dist. Athens No. 09CA4,

2009-Ohio-7068, ¶ 11 quoting State v. Belcher, 4th Dist. Lawrence No. 06CA32,

2007-Ohio-4256, at ¶ 12. For that reason, a “defendant faced with revocation of

probation or parole is not afforded the full panoply of rights given to a defendant

in a criminal prosecution.” State v. Alexander, 1st Dist. Hamilton App. No. C-

070021, 2007-Ohio-5457, at ¶ 7; State v. Orr, 11th Dist. Geauga App. No.2008-G-

2861, 2009-Ohio-5515, at ¶ 21; State v. Malone, 6th Dist. Lucas No. L-03-1299,


                                         -5-
Case No. 8-14-04


2004-Ohio-5246, at ¶¶ 13-14. More specifically, “the requirements of Crim.R.

11(C)(2) do not apply to a community-control-violation hearing.” Alexander at ¶

7; Orr at ¶ 21.

       {¶14} Criminal Rule 32.3 governs the revocation of probation. It reads,

       (A) Hearing

       The court shall not impose a prison term for violation of the
       conditions of a community control sanction or revoke probation
       except after a hearing at which the defendant shall be present
       and apprised of the grounds on which action is proposed. The
       defendant may be admitted to bail pending hearing.

       (B) Counsel

       The defendant shall have the right to be represented by retained
       counsel and shall be so advised. Where a defendant convicted of
       a serious offense is unable to obtain counsel, counsel shall be
       assigned to represent the defendant, unless the defendant after
       being fully advised of his or her right to assigned counsel,
       knowingly, intelligently, and voluntarily waives the right to
       counsel. Where a defendant convicted of a petty offense is
       unable to obtain counsel, the court may assign counsel to
       represent the defendant.

       {¶15} In his assignment of error, Brown makes numerous arguments that

his revocation hearing was inadequate. First, Brown argues that the court was

required to advise him of the consequences of admitting to a violation of

community control. Second, Brown argues that he was not informed of his right

to confront and cross-examine witnesses. However, in both instances, Crim.R.

32.3(A) contains no such requirements. See Parsons, supra; Alexander, supra.


                                       -6-
Case No. 8-14-04


Those requirements, which are contained in Crim.R. 11(C)(2), do not pertain to a

hearing on a revocation of community control. Id.; Id.     Criminal Rule 32.3(A)

merely requires a trial court to (1) hold a hearing, (2) where the defendant is

present, (3) and apprised of the grounds on which action is proposed. None of the

Crim.R. 11(C)(2) requirements are contained within the rule.

      {¶16} In this case the trial court did fully comply with the requirements of

Crim.R. 32.3(A) and (B). The court held a hearing where Brown was present,

with counsel, and he was apprised of the grounds on which action was proposed.

Brown’s arguments to impose further requirements into the criminal rules at a

community control revocation hearing are not well-taken.

      {¶17} Brown next argues that he did not admit that he was unsuccessfully

terminated from West Central and that the evidence did not support the trial

court’s finding that he was unsuccessfully terminated. However, Brown’s attorney

stated that Brown had “quit” West Central, admitting to the court that Brown had

not successfully completed the program.      Brown’s contention that there is a

difference between him quitting the program and being unsuccessfully terminated

from the program is a distinction without a difference because in either event

Brown did not successfully complete the West Central program as he was required

to do under the terms of his community control. Moreover, the probation officer

who spoke at the hearing indicated multiple violations that Brown committed


                                       -7-
Case No. 8-14-04


while at West Central and indicated that Brown had been unsuccessfully

terminated from the program. Thus Brown’s arguments on these issues are not

well-taken.

       {¶18} Lastly, Brown argues that his counsel was ineffective for failing to

bring any of the previously discussed issues to the trial court’s attention. We have

found no error, so we cannot find counsel ineffective for failing to bring these

issues to the court’s attention. Furthermore, we would note that Brown had no

defense to the fact that he had violated his community control by failing to

complete West Central so even if there was somehow error, there certainly cannot

be any prejudice in this instance. Thus this argument is also not well-taken.

       {¶19} Accordingly Brown’s arguments are not well-taken and his first

assignment of error is overruled.

                           Second Assignment of Error

       {¶20} In Brown’s second assignment of error he argues that the trial court

erred when it “imposed” post-release control. Specifically, Brown argues that the

trial court did not inform him at the sentencing hearing or at the community

control hearing when his community control was revoked that he could be subject

to post-release control.

       {¶21} The State actually concedes that the trial court did not adequately

notify Brown that he could be subject to post-release control upon being released


                                        -8-
Case No. 8-14-04


from prison at the sentencing hearing or at the community control revocation

hearing. However, the State argues that the point is actually moot because Brown

has now been released from prison and he has not been placed on post-release

control. While that point may be valid, such information is not contained in the

record before us.

       {¶22} Our own review of the record illustrates that there was no mention of

post-release control at Brown’s original sentencing hearing or in the original

sentencing entry of November 17, 2013, when Brown was sentenced to

community control. When Brown violated community control, the trial court

similarly did not notify Brown of the potential length he could be placed on post-

release control. Rather, the court simply stated “I would suggest that the state is

not likely to place you on post-release control.” (Tr. at 13). The March 7, 2014

sentencing entry revoking Brown’s community control and sending him to prison

indicated that the court did notify Brown that he could be subject to three years of

post-release control; however, that was incorrect as Brown was not notified at the

hearing. (Doc. 46).   Thus the record does not establish that Brown was properly

notified of the potential of post-release control upon being released from prison

and does not establish that the point is moot because Brown was never placed on




                                        -9-
Case No. 8-14-04


post-release control upon being released from prison.1 Accordingly, Brown’s

argument on this issue is sustained.

        {¶23} For the foregoing reasons Brown’s first assignment of error is

overruled, and the second assignment of error is sustained. The judgment of the

Logan County Common Pleas Court is thus affirmed in part and reversed in part

and remanded to the trial court only to the extent necessary to deal with the issue

of post-release control.

                                                                  Judgment Affirmed in Part,
                                                                       Reversed in Part and
                                                                          Cause Remanded

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




1
 We specifically make no finding as to whether the State’s argument regarding the post-release control
notification being moot has any validity.

                                                -10-
